JOHN ROBINSON,

                        Grievant,

v.                                                 Docket No. 00-CORR-013D

WEST VIRGINIA DIVISION OF CORRECTIONS,
ANTHONY CORRECTIONAL CENTER,

                        Respondent.

ORDER DENYING DEFAULT

      On January 6, 2000, John Robinson (Grievant) appealed to Level IV of the grievance procedure for state employees, W. Va. Code §§ 29-6A-1, et seq., alleging he was entitled to prevail by default in a grievance filed against his employer, Respondent West Virginia Division of Corrections, Anthony Correctional Center (WVDOC). On March 3, 2000, a Level IV default hearing was conducted before the undersigned Administrative Law Judge in this Grievance Board's office in Beckley, West Virginia.   (See footnote 1)  That hearing was limited to the question of whether or not a default had occurred. At the conclusion of the hearing, the parties waived closing arguments, and this matter became mature for decision at that time.      The following Findings of Fact pertinent to resolution of this issue have been determined based upon a preponderance of the credible testimonial and documentary evidence presented during the Level IV hearing.

FINDINGS OF FACT

      1.      Grievant is employed by Respondent West Virginia Division of Corrections (WVDOC) at the Anthony Correctional Center.
      2.      Grievant filed a grievance on December 1, 1999. The grievance was advanced through Level III without resolution.
      3.      A Level III hearing was conducted on Thursday, December 23, 1999, by Mark A. Williamson, the designee of WVDOC Commissioner Paul Kirby.
      4.      On Monday, December 27, 1999, Mr. Williamson mailed his recommended Level III decision via U. S. Mail to Hilda Williams, WVDOC's Director of Human Resources, in the WVDOC main office in Charleston, West Virginia. This correspondence was never received in the Charleston office.
      5.      On Wednesday, January 5, 2000, Grievant wrote to the West Virginia Education and State Employees Grievance Board, sending a copy to WVDOC Commissioner Kirby, claiming WVDOC was in default at Level III.
      6.      On Monday, January 10, 2000, Mr. Williamson called Commissioner Kirby's Secretary, Susan Harding, to inquire about Grievant's Level III decision, as he had not yet received his customary copy of the Level III decision.
      7.      Ms. Harding contacted Nancy Leonoro-Swecker, WVDOC's Director of Administration, who was unable to find a copy of Mr. Williamson's recommended decisionon this grievance after looking through all incoming mail. Ms. Leonoro-Swecker instructed Mr. Williamson to send an electronic facsimile copy of his recommended decision to Commissioner Kirby's office.
      8.      After a copy of Mr. Williamson's recommended decision was received in the main office via electronic facsimile transmission, WVDOC Commissioner Kirby signed a Level III decision denying the grievance.
      9.      Ms. Leonoro-Swecker sent a copy of Commissioner Kirby's Level III decision to Grievant via electronic facsimile transmission on January 10, 2000, sending the original via certified mail that same day. G Ex D.
DISCUSSION
      The issue of default in grievances filed by state employees came within the jurisdiction of the Grievance Board when the West Virginia Legislature passed House Bill 4314 on March 13, 1998. That legislation, among other things, added a default provision to the state employees grievance procedure, effective July 1, 1998.   (See footnote 2)  More specifically, W. Va. Code § 29-6A-3(a) was amended, adding the following paragraph relevant to this matter:
      In addition, House Bill 4314 added the following language to W. Va. Code § 29-6A- 5(a): "[t]he [grievance] board has jurisdiction regarding procedural matters at levels two and three of the grievance procedure."
      If a default occurs, Grievant is presumed to have prevailed, and is entitled to the relief requested, unless WVDOC is able to demonstrate that the remedy requested is either contrary to law or clearly wrong. W. Va. Code § 29-6A-3(a)(2); Carter v. W. Va. Div. of Corrections, Docket No. 99-CORR-147D (June 4, 1999); Williamson v. W. Va. Dep't of Tax & Revenue, Docket No. 98-T&R-275D2 (Jan. 6, 1999). If there was no default, Grievant may proceed to the next level of the grievance procedure. WVDOC denies that a default occurred in this matter, as contemplated under the terms of the statute.
      This Grievance Board has previously adjudicated related issues arising under the default provision in the grievance statute covering education employees, W. Va. Code § 18-29-3(a). See, e.g., Ehle v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998); Gruen v. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994); Wadbrook v. W. Va. Bd. of Directors, Docket No. 93-BOD-214 (Aug. 31, 1993); Flowers v. W. Va. Bd. of Trustees, Docket No. 92-BOT-340 (Feb. 26, 1993). Because Grievant is claiming he prevailed by default under the statute, he bears the burden of establishing such default bya 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).
      In this matter, after this grievance was advanced to a hearing at Level III, WVDOC was required to respond in accordance with W. Va. Code § 29-6A-4(c): “The chief administrator or his or her designee shall issue a written decision affirming, modifying or reversing the level two decision within five days of the hearing.” In counting the time allowed for an action to be accomplished under the state employee grievance procedure, W. Va. Code § 29-6A-2(c) provides that “days” means working days exclusive of Saturday, Sunday or official holidays. Williamson v. W. Va. Dep't of Tax & Revenue, Docket No. 98- T&R-275D (Sept. 30, 1998). Thus, WVDOC was obligated to issue a Level III decision on this grievance not later than Monday, January 3, 2000, unless “prevented from doing so as a direct result of sickness, injury, excusable neglect, unavoidable cause or fraud.” W. Va. Code § 29-6A-3(a)(2).
      The statute requires the employer to “issue” a Level III decision within the applicable time limit. Mr. Williamson sent his recommended Level III decision to the office of the WVDOC Commissioner on December 27, 1999. Grievant was not provided a copy of the recommended decision at that time. Clearly, the Level III decision was not issued until it was signed and transmitted to Grievant on January 10, 2000. 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).
      Because the Level III decision was not issued until several days after the statutory limit for issuing a timely response had passed, the statute shifts the burden to WVDOC to demonstrate by a preponderance of the evidence that it was prevented from issuing a timely decision “as a direct result of sickness, injury, excusable neglect, unavoidable cause or fraud.” W. Va. Code § 29-6A-3(a)(2). Friend, supra.
      WVDOC contended it should not be held in default under the circumstances presented in this case, without specifying which of the foregoing criteria were relied upon to excuse Commissioner Kirby's failure to issue a timely Level III decision. Although there was testimony that Ms. Williams, WVDOC's Director of Human Resources, was off due to illness when these events transpired, her absence was not critical because there were other employees who had stepped in to perform her duties.   (See footnote 3)  Moreover, even if Ms. Williams had been present, there was no evidence presented to suggest that this would have made any difference, as WVDOC's failure to act was based on the fact that Mr. Williamson's recommended decision was not received in time to issue a timely response.
      The only statutory criteria which could arguably excuse WVDOC's failure to issue a timely Level III decision are excusable neglect and unavoidable cause. To a certain extent, these defenses are overlapping. This Grievance Board has previously observedthat excusable neglect may be found where events arise which are outside the defaulting party's control, and contribute to the failure to act within the specified time limits. Friend, supra. See Monterre, Inc. v. Occoquan Land Dev. Corp., 189 W. Va. 183, 429 S.E.2d 70 (1993). However, simple inadvertence or a mistake will not suffice to excuse noncompliance with time limits. Friend, supra. See White v. Berryman, 187 W. Va. 323, 418 S.E.2d 917 (1992); Bailey v. Workman's Comp. Comm'r, 170 W. Va. 771, 296 S.E.2d 901 (1982), n.8.
      In the matter at hand, Mr. Williamson mailed his recommended Level III decision to Commissioner Kirby's office on December 27, 1999, the first working day following Grievant's Level III hearing on December 23, 1999.   (See footnote 4)  This should have provided ample time for Commissioner Kirby and his staff to review the decision, and prepare the appropriate correspondence approving or disapproving Mr. Williamson's recommended response by the January 3, 2000 deadline. However, a preponderance of the evidence indicates that Mr. Williamson's recommended decision was not received until after the time limit for issuing a Level III response had passed, and Grievant had declared WVDOC in default.
      Grievant argues that he should prevail by default in accordance with three previous decisions by this Grievance Board holding WVDOC in default: Toth v. West Virginia Division of Corrections, Docket No. 98-CORR-344D (Dec. 10, 1998) (Toth I); Toth v. West Virginia Division of Corrections, Docket No. 98-CORR-436D (Feb. 22, 1998) (Toth II); and Hickman v. West Virginia Division of Corrections, Docket No. 98-CORR-314D (Apr. 14,1999). In Toth I, the grievance was submitted to the appropriate official at Level II, the Warden at Grievant's correctional facility, but there was a three-day delay because the Warden was on leave, and no one opened the mail in his absence. Even then, it was another two days before a Level II conference was scheduled on the following work day, one day beyond the time limit for holding a conference. In Toth II, the employer made no attempt to schedule a Level III hearing until 10 days after receiving the grievant's appeal. In Hickman, the employer provided no explanation for the Level I grievance evaluator's failure to respond to the grievance until 10 days after it was received. The situation presented here is different from the foregoing cases where the employer was found in default, because in each of those situations the employer's failure to act was determined to have arisen from a situation that was entirely within the employer's control.
      In Toth I, this Grievance Board relied upon the approach to excusable neglect adopted by the West Virginia Supreme Court of Appeals in Purdue v. Hess, 199 W. Va. 299, 484 S.E.2d 182 (1997): “Excusable neglect seems to require a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time frame specified in the rules. Absent a showing along these lines, relief will be denied.” Grievant is not contending that WVDOC acted in bad faith, and there is no evidence to indicate otherwise. A preponderance of the credible evidence indicates that Mr. Williamson's recommended decision was not received in the Commissioner's office in time to issue a timely response through no fault of Respondent WVDOC. It was not unreasonable for WVDOC to rely upon the mail for transmission of Mr. Williamson's recommended decision, and the apparent loss of this item in the mail is amatter outside WVDOC's control. See Sauchuck v. Parkways Economic Dev. & Tourism Auth., Docket No. 99-PEDTA-297D (Dec. 14, 1999).
      Because no default occurred in this matter, WVDOC will not be required to demonstrate that the remedy sought is contrary to law or clearly wrong. Grievant has indicated his intention to appeal the Level III decision to Level IV. Accordingly, this matter will remain on the docket of this Grievance Board, and a Level IV hearing will be scheduled to address the merits of this grievance.
      In addition to 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 hearing examiner 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); Friend v. W. Va. Dep't of Health & Human Resources, Docket No. 98-HHR- 346D (Nov. 25, 1998), aff'd, Civil Action No. 99-AA-8 (Cir. Ct. of Kanawha County Oct. 12, 1999).
      3.      In counting the time allowed for an action to be accomplished under the state employee grievance procedure, W. Va. Code § 29-6A-2(c) provides that “days” means working days exclusive of Saturday, Sunday or official holidays. Williamson v. W. Va. Dep't of Tax & Revenue, Docket No. 98-T&R-275D (Sept. 30, 1998).
      4.      In determining whether an agency has issued a decision in compliance with the applicable time limit in the state employee grievance procedure, the controlling event is when the decision is effectively transmitted to the grievant, not when the decision is actually received by the grievant. Harmon v. Div. of Corrections, Docket No. 98-CORR- 284D (Oct. 6, 1998). See W. Va. Code § 29-6A-3(i).
      5.      Grievant established that Respondent WVDOC did not issue a Level III decision on his grievance within the time limit specified in W. Va. Code § 29-6A-4(c). See W. Va. Code § 29-6A-3(a)(2); Carter v. W. Va. Div. of Corrections, Docket No. 99-CORR- 147D (June 4, 1999).
      6.      The default provision contemplates a situation where the grievance process has been aborted due to the inaction of the employer or its grievance evaluator. Stanley v. W. Va. Dep't of Tax & Revenue, Docket No. 99-T&R-155D (June 10, 1999). See Hattman v. Darnton, 201 W. Va. 371, 497 S.E.2d 348 (1997).
      7.      Excusable neglect may be found where events arise which are outside the defaulting party's control, and contribute to the failure to act within the specified time limits. Bell v. Northern Regional Jail & Correctional Facility, Docket No. 99-CORR-054D (Apr. 14, 1999). See Monterre, Inc. v. Occoquan Land Dev. Corp., 189 W. Va. 183, 429 S.E.2d 70 (1993).
      8.      A preponderance of the evidence indicates that WVDOC's failure to issue a timely Level III response was the result of excusable neglect, or unavoidable cause. See Thaxton v. Div. of Veterans Affairs, Docket No. 98-VA-416D (Dec. 30, 1998).      

      Accordingly, Grievants' request for a determination of default under W. Va. Code § 29-6A-3(a)(2), is DENIED. This matter will remain on the docket for further adjudication at Level IV as previously indicated in this Order. The representatives of the parties are requested to confer and provide agreed dates to conduct the Level IV hearing on the merits of this grievance.
                                                

                                                                                                       LEWIS G. BREWER
                                                 ADMINISTRATIVE LAW JUDGE

Dated: March 24, 2000


Footnote: 1
Grievant was represented by Jack Ferrell with the Communications Workers of America. Respondent WVDOC was represented by its General Counsel, Leslie Tyree.
Footnote: 2
This provision is applicable only to grievances filed on or after July 1, 1998. Jenkins- Martin v. Bureau of Employment Programs, Docket No. 98-BEP-285 (Sept. 24, 1998). As this grievance was initiated on December 1, 1999, it falls under the new statute.
Footnote: 3
There was no evidence that Commissioner Kirby or his designee, Mr. Williamson, were off due to sickness or injury at any time during the period at issue.
Footnote: 4
December 24 was a holiday. December 25 and 26 was a weekend.