BARRY MILBERT,

      Grievant,

v.                                                      Docket No. 99-CORR-516

DIVISION OF CORRECTIONS/
NORTHERN REGIONAL JAIL
AND CORRECTIONAL FACILITY,

      Respondent.

DECISION

      Barry Milbert (“Grievant”) initiated this grievance on November 9, 1999, alleging that he should not be required to participate in “physical agility testing” pursuant to the Division of Corrections' (“DOC”) Policy Directive 460.04. He also alleges that the policy is discriminatory. Grievant seeks as relief to have all present DOC employees “grandfathered,” so that the testing will only be required of future employees, or in the alternative, that the policy be rescinded. The parties agreed to waive level one, and level two proceedings are not reflected in the record. A level three hearing was held on November 23, 1999. Following that hearing, the level three grievance evaluator recommended that the grievance be granted. However, DOC Commissioner Paul Kirby rejected that recommendation and denied the grievance. Grievant appealed to level four on December 10, 1999. After one continuance granted for good cause shown, a hearing was held in the Grievance Board's office in Wheeling, West Virginia, on March 27, 2000. Grievant represented himself, and DOC was represented by its counsel, Leslie K. Tyree. This matter became mature for consideration on April 27, 2000, the deadline for receipt of the parties' fact/law proposals.      The following findings of fact are made from a preponderance of the evidence of record.

Findings of Fact

      1.      Grievant is employed by DOC at the Northern Regional Jail and Correctional Facility (NRJ) as a correctional officer, holding the rank of captain. He has been employed by DOC as a correctional officer since 1971.
      2.      On September 26, 1994, DOC adopted Policy Directive 460.04, which requires all correctional officers to complete a physical agility test prior to the end of their six-month probationary period. The policy also states that “as a continuing condition of employment,” correctional officers must complete an annual physical agility test.
      3.      On November 5, 1999, NRJ officials notified all correctional officers, including Grievant, that physical agility testing would be conducted, beginning on November 18, 1999.
      4.      Prior to the November 5 notice, NRJ employees had never been required to complete a physical agility test.
      5.      The testing scheduled for November of 1999 was never carried out, and Grievant has not, to date, been required to complete a physical agility test.
      6.      Subsequent to the filing of this grievance, Policy Directive 460.04 was rescinded, and a revised policy has been enacted.   (See footnote 1) 
Discussion
      Grievant contends that it is unfair to now begin applying Policy Directive 460.04 to long-term employees of DOC. He also argues that the policy itself is discriminatory, because it does not accommodate correctional officers who have medical disabilities, and it contains different requirements for male and female officers. DOC moved to dismiss this grievance on the grounds that it is moot, because the policy has been rescinded.
      The relief Grievant requests is not within the purview of this Grievance Board. The policy he is protesting no longer exists, and, even prior to its rescission, it had not actually been applied to Grievant personally. A grievant must show an injury-in-fact, economic or otherwise, to have what constitutes a matter cognizable under the grievance statute. Dooley v. W. Va. Dept. of Transp., Docket No. 94-DOH-255 (Nov. 30, 1994). See also Pridemore v. W. Va. Dept. of Health and Human Resources, Docket No. 95-HHR-561 (Sept. 30, 1996) ("Moot questions or abstract propositions, the decisions of which would avail nothing in the determination of controverted rights of persons or property, are not properly cognizable by the court."); Carney v. W. Va. Dept. of Rehabilitation Serv., Docket No. VR-88-055 (Mar. 28, 1989) (De minimus relief has been held to be unavailable from the West Virginia Education and State Employees Grievance Board). In a decision regarding the same DOC policy, we held that employees who had not been adversely affected by the policy--i.e., they had successfully completed the testing--were not eligible for any relief. See Gibb v. W. Va. Div. of Corrections, Docket No. 98-CORR-152 (Sept. 30, 1998).
      Because Policy Directive 460.04 has been rescinded, and Grievant has not been required to submit to physical agility testing, he has failed to state a claim upon which reliefcan be granted. Consistent with the foregoing findings and discussion, the following conclusions of law are made.
Conclusions of Law

      1.       In a grievance which does not involve a disciplinary matter, the grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
      2      A grievant must show an injury-in-fact, economic or otherwise, to have what constitutes a matter cognizable under the grievance statute. Dooley v. W. Va. Dept. of Transp., Docket No. 94-DOH-255 (Nov. 30, 1994).
      3.      Grievant has failed to demonstrate that he has been adversely affected by DOC Policy Directive 460.04, so he is not entitled to relief from the Grievance Board.

      Accordingly, this grievance is DENIED.
      
      Any party or the West Virginia Division of Personnel may appeal this decision to the Circuit Court of Kanawha County or to the circuit court of the county in which the grievance occurred, and such appeal must be filed within thirty (30) days of receipt of this Decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State Employees Grievance Board nor any of its administrative law judges is a party to such appeal and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

Date:      May 5, 2000                        ___________________________________
                                          DENISE M. SPATAFORE
                                          Administrative Law Judge


Footnote: 1
      The provisions of the new policy are unknown and are not relevant to this grievance.