Grievant,
v. Docket No. 99-CORR-487
DIVISION OF CORRECTIONS/
NORTHERN REGIONAL JAIL
AND CORRECTIONAL FACILITY,
Respondent.
Roselyn Noggy (Grievant) is employed by the West Virginia Division of Corrections
(DOC) at the Northern Regional Jail and Correctional Facility (NRJ) as a Correctional
Officer II. She initiated this grievance on September 24, 1999, requesting that she be paid
for one day she was docked pay during the pay period from August 1, 1999, to August 15,
1999, and also that she be paid for the three days during which she was suspended from
September 12-14, 1999. Grievant claimed a default occurred at level one of the grievance
process.
By letter dated November 12, 1999, Grievant appealed her default claim to level
four. A level four default hearing was held on May 8, 2000, before the undersigned
administrative law judge. Grievant represented herself, and DOC was represented by
counsel, Leslie K. Tyree. An Order Granting Default was issued on May 26, 2000. As
noted in that Order, DOC, within five days of receipt of that Order, could have requested
a level four hearing to present evidence that the remedy sought by Grievant was contrary
to law or clearly wrong. W. Va. Code § 29-6A-3(a)(2). DOC has failed to request such a
hearing. Accordingly, Grievant has prevailed by default in this grievance. See Brackman v.
W. Va. Div. of Corrections, Docket No. 99-CORR-374D2 (Apr. 27, 2000); Hickman v. W.
Va. Div. of Corrections, Docket No. 98-CORR-314D2 (May 19, 1999). Because it has been
presumed, in accordance with the provisions of W. Va. Code § 29-6A-3(2), that Grievant
prevailed on the merits of her claim, the requested relief will be granted.
Consistent with the foregoing, the following findings of fact and conclusions of law
are appropriate in this matter.
Accordingly, this grievance is GRANTED. DOC is ORDERED to pay Grievant for
the one day she was docked pay between August 1, 1999, and August 15, 1999, and to
also pay her for the three days of her suspension from September 12 through 14, 1999.
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: June 19, 2000
___________________________________
DENISE M. SPATAFORE
Administrative Law Judge