ROSELYNN NOGGY,
Grievant,
v. Docket No. 99-CORR-487D
DIVISION OF CORRECTIONS/
NORTHERN REGIONAL JAIL
AND CORRECTIONAL FACILITY,
Respondent.
ORDER GRANTING DEFAULT
On November 12, 1999, Roselynn Noggy (Grievant) appealed to level four of the
grievance procedure, alleging she was entitled to prevail by default in a grievance filed
against her employer, Respondent West Virginia Division of Corrections (DOC). Grievant
contends a default occurred at level one. On May 8, 2000, a hearing was held in the
Grievance Board's office in Wheeling, West Virginia. Grievant represented herself, and
DOC was represented by counsel, Leslie K. Tyree. The parties elected not to submit
written proposals, so this matter became mature for consideration at the conclusion of the
hearing.
The parties stipulated to the following facts at the level four hearing.
Findings of Fact
1. Grievant is employed at the Northern Regional Jail and Correctional Facility
as a Correctional Officer II.
2. On September 24, 1999, she initiated a grievance alleging misinterpretation
of State Code 29-6-10 Administrative Rules 3.8, 12.3 and 15.5. She handed this
grievance to her immediate supervisor, Captain Barry Milbert. 3. On September 27, 1999, Captain Milbert returned the grievance form to
Grievant with a post-it note attached, which stated The grievance statement cannot be
interpreted as it is vague.
4. On September 27, 1999, Grievant submitted a revised grievance form to
Captain Milbert.
5. Captain Milbert never responded to the revised grievance, and Grievant filed
a request for default judgment on October 25, 1999.
Discussion
W. Va. Code § 29-6A-3(a) provides, in pertinent part, that a grievant shall prevail by
default "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, injury, excusable neglect, unavoidable cause or
fraud." Because Grievant is claiming she prevailed by default under the statute, she bears
the burden of establishing such default by a preponderance of the evidence.
Friend v. W.
Va. Dep't of Health & Human Resources, Docket No. 98-HHR-346D (Nov. 25, 1998). A
preponderance of the evidence is generally recognized as evidence of greater weight, or
which is more convincing than the evidence which is offered in opposition to it.
Hunt v. W.
Va. Bureau of Employment Programs, Docket No. 97-BEP-412 (Dec. 31, 1997);
Petry v.
Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).
W.Va. Code § 29-6A-4(a) provides as follows regarding when Respondent must act
at level one:
Within ten days following the occurrence of the event upon which the
grievance is based, . . . . the grievant . . . may file a written grievance with the
immediate supervisor of the grievant. At the request of the grievant or theimmediate supervisor, an informal conference shall be held to discuss the
grievance within three days of the receipt of the written grievance. The
immediate supervisor shall issue a written decsion within six days of the
receipt of the written grievance.
The facts in this matter are undisputed. DOC has offered no explanation or excuse
for Captain Milbert's failure to respond to the revised grievance submitted on September
27, 1999. Once Grievant filed a default claim, Captain Milbert issued a memorandum to
Warden Evelyn Seifert stating that he simply did not recall the grievance being resubmitted,
but it could possibly have happened. Joint Ex. 3. Respondent has provided no evidence
that a default did not occur, nor any justification for the failure to respond to the grievance
at level one.
Accordingly, it is determined that DOC is in default in regard to this grievance, and
it may proceed to show, in accordance with W. Va. Code § 29-6A-3(a)(2) that the remedy
sought by Grievant is contrary to law or clearly wrong. DOC may request a level four
hearing, within five days of the receipt of this Order, to present evidence and/or argument
on this issue.
Consistent with the foregoing discussion, the following conclusions of law are
appropriate in this matter.
Conclusions of Law
1. "The grievant prevails by default 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, injury,
excusable neglect, unavoidable cause or fraud. Within five days of the receipt of a written
notice of the default, the employer may request a hearing before a level four hearingexaminer for the purpose of showing that the remedy received by the prevailing grievant
is contrary to law or clearly wrong."
W. Va. Code § 29-6A-3(a).
2. When a grievant asserts that his employer is in default in accordance with
W.
Va. Code § 29-6A-3(a)(2), the grievant must establish such default by a preponderance
of the evidence. Once the grievant establishes that a default occurred, the employer may
show that it was prevented from responding in a timely manner as a direct result of
sickness, injury, excusable neglect, unavoidable cause, or fraud.
See W. Va. Code §
29-6A-3(a)(2).
3. Grievant established, by a preponderance of the evidence, that Respondent
failed to respond to this grievance at level one within the statutorily prescribed time limits.
4. Respondent failed to establish that it was prevented from issuing a timely
level one response due to sickness, injury, excusable neglect, unavoidable cause, or fraud.
Accordingly, Grievant's request for a determination of default under
W. Va. Code
§ 29-6A-3(a)(2) is
GRANTED, and this matter will remain on the Grievance Board docket
for further adjudication, as previously indicated in this Order.
Date: May 26, 2000 ________________________________
DENISE M. SPATAFORE
Administrative Law Judge