TIMOTHY D. SNYDER,

      Grievant,

v.                                                      Docket No. 00-24-263D

MARION COUNTY BOARD OF EDUCATION,

      Respondent.

ORDER DENYING DEFAULT

      Timothy D. Snyder (“Grievant”) alleges that Respondent Marion County Board of Education (“MCBOE”) failed to respond in a timely fashion at level one of the grievance procedure. He requests that he be granted judgment by default in accordance with the provisions of W. Va. Code § 18-29-3. A hearing was held in this Grievance Board's office in Morgantown, West Virginia, on September 15, 2000, solely for the purpose of determining whether a default occurred, and reserving the question of whether the remedy requested is contrary to law or clearly wrong. Grievant was represented by counsel, John E. Roush, and MCBOE was represented by counsel, Stephen R. Brooks. This matter became mature for consideration upon receipt of the parties' written submissions on October 3, 2000.
      The following findings of fact pertinent to the resolution of this matter are made from a preponderance of the credible evidence of record.

Findings of Fact

      1.      Grievant is employed by MCBOE as a Custodian/Watchman.
      2.      On April 3, 2000, Grievant completed a written “Request for Informal Conference” and an attached grievance form alleging improper posting of a custodianposition. Grievant gave the form to Sam Wilson, an officer in the county service personnel association, for submission to Grievant's supervisor, Mike Stalnaker, Administrative Assistant for Maintenance.
      3.      Mr. Wilson delivered Grievant's request for an informal conference to Mr. Stalnaker's office. Because Mr. Stalnaker was not in his office at that time, Mr. Wilson handed the form--which was in an envelope with Mr. Stalnaker's name on it--to his secretary. Mr. Wilson watched Mr. Stalnaker's secretary place the envelope on Mr. Stalnaker's desk. Mr. Wilson believed these events occurred on April 3, 2000.
      4.      Mr. Stalnaker did not receive the envelope on April 3, 2000. After being out of the office for a short time, he returned to his office after working hours on April 4, 2000, and found the envelope taped to the window of his office door. When he returned to work the following morning, he date stamped the request for informal conference as received on April 5, 2000, at 8:39 a.m.
      5.      Mr. Stalnaker scheduled the informal conference for April 18, 2000, the tenth working day after April 4, 2000. The conference was held on that date.
      6.      Grievant filed his written level one grievance on May 8, 2000.
      7.      Mr. Stalnaker issued a written level one response on May 22, 2000, which was postmarked on May 23, 2000.
      8.      May 9, 2000, was a holiday, so May 23, 2000, was the tenth working day after the written grievance was filed.
Discussion

      As a preliminary issue in this case, Respondent alleges that Grievant had no standing to file this grievance, so it must be dismissed. Grievant contends that a custodianposition should have been posted as watchman position. Because it was posted as custodian, Grievant did not apply. Respondent contends that, because he did not apply for the position, Grievant has no standing to contest the posting. However, this Grievance Board has recognized that, if a grievant contends that the posting itself was improper, thereby affecting his or her status with regard to the potential position, the grievant has standing to challenging a posting for which he or she did not apply. Taylor-Hurley v. Mingo County Bd. of Educ., Docket No. 96-29-265 (Apr. 28, 1997). Accordingly, Respondent's motion to dismiss must be denied.
      The default provision for education employees is found in W. Va. Code § 18-29-3(a), which provides:
      Effective July 1, 1998, W. Va. Code § 18-29-5 was amended to provide that the Grievance Board "shall administer the grievance procedure at levels two, three and four, . . . as provided for in section four of this article . . . ." Based upon this provision, the Grievance Board now has jurisdiction to hear an education employee's default claim, when the default occurs at levels two or three. Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999). In addition, this Grievance Board has recently recognized that it has jurisdiction to determine whether a default has occurred at level one--and the informal conference stage--of the education grievance procedure. Tignor v. Dep't of Educ., Docket No. 99-DOE-468D (Dec. 30, 1999); Wounaris v. Bd. of Directors, 99-BOD-133D (May 18, 1999).
      Grievant's claim of default is based upon an assertion that his supervisor failed to timely respond to his grievance at level one. W. Va. Code § 18-29-4(a) provides as follows regarding the grievance procedure at level one:
      (a) Level one.






      MCBOE contends that it responded to Grievant's request for an informal conference and issued a level one decision within the statutory timeframes, and Grievant's version of the facts is simply incorrect. Accordingly, Respondent argues that no default occurred. While Respondent did not specifically articulate that the remedy would be clearly wrong because no default occurred, the result is the same, and it is appropriate that this matter be reviewed at level four.
      The burden of proof is upon the grievant asserting a default has occurred to prove the same by a preponderance of the evidence. Moore v. Dep't of Health and Human Resources, Docket No. 98-HHR-382D (Dec. 8, 1998). If a default has occurred, Grievant is presumed to have prevailed, and is entitled to the relief requested, unless MCBOE is able to demonstrate that the remedy requested is either contrary to law or clearly wrong. If a default has not occurred, then the grievant may proceed to the next level of the grievance procedure. Jackson, supra; See W. Va. Code § 18-29-3(a). "The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the party bearing the burden has not met its burden. Id.      As to whether MCBOE responded to Grievant's request for an informal conference within the statutory time period, the undersigned finds that Grievant has failed to prove by a preponderance of the evidence that a default occurred. Both Mr. Wilson, who delivered the request, and Mr. Stalnaker, Grievant's supervisor, testified credibly as to the events which occurred. However, it is quite obvious that one of them is simply mistaken. Most likely, it is Mr. Wilson. Mr. Wilson testified that, when he delivered the request to Mr. Stalnaker, Mr. Stalnaker was not in the office at the moment, so he watched the secretary place it on Mr. Stalnaker's desk. He was certain that this occurred on April 3, 2000. However, although he was definitely working on April 3 and on April 4, Mr. Stalnaker did not find the envelope until the evening of April 4, after he returned to the office from running an errand. The record provides no explanation as to where the envelope was during the entire day of April 4, nor how it got from Mr. Stalnaker's desk to his door.
      A plausible explanation for the discrepancy in the testimony of these two witnesses is that Mr. Wilson was probably mistaken as to what the date was when he delivered the envelope. He probably gave it to Mr. Stalnaker's secretary on April 4, and, when Mr. Stalnaker had still not returned to the office, his secretary most likely placed it on his door when she left for the day. Mr. Stalnaker was quite certain of the date when he found the envelope taped to his door, because it was his son's birthday.
      Accordingly, because Mr. Stalnaker held the informal conference on the tenth working day after the request was received on April 4, 2000, no default occurred. A preponderance of the evidence presented does not support the conclusion that Grievant's version of the facts is more likely true than Respondent's.
      As to the timeliness of the level one decision, the undersigned again finds that adefault did not occur. Although Grievant did not receive the level one decision until after May 23, it was issued on May 22 and bore a May 23 postmark, the tenth working day after the grievance was filed. This Grievance Board has determined that the controlling event is when the decision is effectively transmitted to the grievant, not the date it was received. Wensell v. W. Va. Regional Jail & Correctional Auth., Docket No. 98-RJA-490D (Jan. 25, 1999); Gillum v. Dep't of Transp., Docket No. 98-DOH-387D (Dec. 2, 1998); Harmon v. Div. of Corrections, Docket No. 98-CORR-284D (Oct. 6, 1998). In addition, May 9, 2000, is not counted in computing the ten-day time limit, because it was the election day holiday. Holidays are not counted as working days when computing statutory deadlines. King v. Div. of Corrections, 98-CORR-502D (Apr. 28, 2000); See Perdue v. Hess , 199 W. Va. 299, 484 S.E.2d 182 (1997); Parkulo v. W. Va. Bd. of Probation and Parole , 199 W. Va. 161, 483 S.E.2d 507 (1996); Salem v. Franklin , 179 W. Va. 21, 365 S.E.2d 66 (1987).
      Because the lower levels of this grievance have been completed, and no default occurred, it is appropriate for this matter to proceed to a level four hearing on the merits.
      Consistent with the foregoing, the following conclusions of law are appropriate.
Conclusions of Law

      1.      Even if he did not apply for the position, a grievant may have standing to challenging an improper posting. Taylor-Hurley v. Mingo County Bd. of Educ., Docket No. 96-29-265 (Apr. 28, 1997).
      2.      "If a grievance evaluator required to respond to a grievance at any level fails to make a required response in the time limits required in this article, unless prevented from doing so directly as a result of sickness or illness, the grievant shall prevail by default." W. Va. Code § 18-29-3(a).      3.      Before filing a grievance "the grievant or the designated representative shall schedule a conference with the immediate supervisor to discuss the nature of the grievance and the action, redress or other remedy sought." W. Va. Code § 18-29-4(a).
      4.      The grievant's immediate supervisor must issue a level one decision within ten days of the filing of the written grievance. W. Va. Code § 18-29-4(a).
      5.      The burden of proof is upon the grievant asserting a default has occurred to prove the same by a preponderance of the evidence. Moore v. Dept. of Health and Human Resources, Docket No. 98-HHR-382D (Dec. 8, 1998).
      6.      Grievant failed to prove by a preponderance of the evidence that a default occurred at level one.

      Accordingly, Grievant's request for a finding of default is DENIED. This matter will remain on the docket for further adjudication at level four, as previously indicated in this Order. The parties are directed to confer with one another and provide theundersigned with at least three mutually agreeable dates for a level four hearing, within five days of receipt of this Order. The Grievance Board does not consider this Order to be a final order or decision which is appealable to circuit court under the provisions of W. Va. Code §§ 29-6A-7 or 29A-5-4.

Date:      October 23, 2000                        ________________________________
                                                DENISE M. SPATAFORE      
                                                Administrative Law Judge