JARMILA VAGOUN,
                  Grievant,

v.                                                      Docket No. 00-HE-283D

HIGHER EDUCATION INTERIM GOVERNING BOARD/
WEST VIRGINIA UNIVERSITY,
                  Respondent.

ORDER DENYING DEFAULT AND DISMISSING GRIEVANCE

      Grievant, Jarmila Vagoun, employed by the Interim Governing Board as a Food Service Worker at West Virginia University (Respondent), filed a grievance at level four on September 6, 2000, alleging that Respondent had defaulted at level one of the grievance process. An evidentiary hearing was conducted in the Grievance Board's Morgantown office on November 29, 2000, at which time both parties were represented by counsel, Joseph Simoni for Grievant, and Samuel R. Spatafore, Assistant Attorney General for Respondent. Both parties declined the opportunity to file post hearing submissions, and the matter became mature for decision at the close of the hearing.
      The essential facts of this matter are undisputed, and may be set forth as the following formal findings of fact.

Findings of Fact

      1.      Grievant, employed by Respondent as a Food Service Worker, was absent from work from October 18 through 29, 1999. During this time she traveled to the Klimkovice clinic in Czechoslovakia for treatments to her back.
      2.      Grievant provided a Medical Leave Verification-Medical Assessment Form,dated June 21, 1999, which indicated that she suffered from chronic low back pain, and the treatment plan was to spend three weeks at the clinic. Grievant's claim for sick leave during the period of her absence was denied by Respondent, based upon a lack of satisfactory proof of illness or injury, and the time was deducted from her accrued annual leave.
      3.      After discussing the matter with Kathryn Curtin, Interim Manager of Dining Services, Grievant filed a level one grievance on April 13, 2000, with her immediate supervisor seeking reallocation of the time to sick leave.
      4.      Ms. Curtin responded to the grievance by memorandum dated April 13, 2000. Ms. Curtin advised Grievant that she had “received you [sic] Letter of Grievance,” but lacked authority to grant the relief requested. She further directed, “[i]f you decide to file your grievance, it should be filed with the Department of Human Resources and addressed to Myrtho Blanchard.”
      5.      Grievant filed her grievance, directed to Ms. Blanchard, at the Department of Human Resources on April 14, 2000.
      6.      Grievant notified Vice President of Human Resources Scott C. Kelley by memorandum dated May 18, 2000, that Respondent was in default, and requested the relief be granted without delay.
      7.      Grievant was notified on May 23, 2000, that a level two hearing would be conducted for her grievance on May 24, 2000.
      8.      Grievant had surgery on May 24, and did not attend the hearing. Her spouse appeared at the hearing, presented a letter in which Grievant again asserted a default, and left.      9.      Respondent issued a level two decision on May 31, 2000, denying that a default occurred, and stating that Grievant had failed to pursue the grievance within the time lines.
      10.      Grievant filed a level four appeal, claiming default, on August 28, 2000.
Discussion
      The default provision for education employees found in W. Va. Code §18-29-3(a), provides:
A grievance must be filed within the times specified in section four of this article and shall be processed as rapidly as possible. The number of days indicated at each level specified in section four of this article shall be considered as the maximum number of days allowed and, if a decision is not rendered at any level within the prescribed time limits, the grievant may appeal to the next level: Provided, That the specified time limits may be extended by mutual written agreement and shall be extended whenever a grievant is not working because of such circumstances as provided for in section ten, article four, chapter eighteen-a of this code. Any assertion by the employer that the filing of the grievance at level one was untimely must be asserted by the employer on behalf of the employer at or before the level two hearing. 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. Within five days of such 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. In making a determination regarding the remedy, the hearing examiner shall presume the employee prevailed on the merits of the grievance and shall determine whether the remedy is contrary to law or clearly wrong in light of that presumption. If the examiner finds that the remedy is contrary to law, or clearly wrong, the examiner may modify the remedy to be granted so as to comply with the law and to make the grievant whole.
      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 her supervisor failed to timely respond at level one. W. Va. Code §18-29-4(a) provides as follows regarding the grievance procedure at level one:
(1) Before a grievance is filed and within fifteen days following the occurrence of the event upon which the grievance is based, or within fifteen days of the date on which the event became known to the grievant or within fifteen days of the most recent occurrence of a continuing practice giving rise to 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.

The conference with the immediate supervisor concerning the grievance shall be conducted within ten days of the request therefor, and any discussion shall be by the grievant in the grievant's own behalf or by both the grievant and the designated representative.

(2) The immediate supervisor shall respond to the grievance within ten days of the conference.
(3) Within ten days of receipt of the response from the immediate supervisor following the informal conference, a written grievance may be filed with said supervisor, or in the case where the grievance involves an event under the jurisdiction of a state institution of higher education, the grievance shall be filed with said supervisor and the office of personnel, by the grievant or the designated representative on a form furnished by the employer or agent.

(4) The immediate supervisor shall state the decision to such filed grievance within ten days after the grievance is filed.

      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 Respondent 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. 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.
      Grievant argues that because Ms. Curtin lacked authority to rule on her grievance, the filing with Ms. Blanchard at the Human Resources Department was to be level one of the grievance process, and no decision was issued within the ten day statutory time line. Respondent asserts that a level one decision was timely issued by Ms. Curtin, and that Grievant failed to timely state a default claim, both initially, and at level four.       Grievant does not explain how she arrived at the erroneous conclusion that she must seek a level one ruling other than that issued by Ms. Curtin. Frequently, the immediate supervisor is unable to grant the relief requested at level one. There is no statutory requirement which requires the grievant to seek a level one decision elsewhere; the claim is simply advanced to the next level. Because Ms. Curtin responded to the grievance the same day it was filed, the statutory requirement for processing at level one had been fulfilled. Grievant has failed to prove by a preponderance of the evidence that a default occurred at level one.
      Additionally, Grievant has failed to timely pursue the default claim. It is undisputed that Grievant was notified by decision of May 31, 2000, that Respondent had denied her claim for default. An appeal of that decision was not filed at level four until August 28, 2000, nearly three months later. W. Va. Code §18-29-4(d) provides that an appeal is to be filed within five days of the written decision. Grievant offered no reason for the delay, and there is no evidence that Respondent was in any way responsible. Therefore, Grievant's claim for default was untimely filed.

Conclusions of Law
      1.      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 Respondent 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. See W. Va. Code §18-29-3(a).       2.      Grievant failed to prove by a preponderance of the evidence that Respondent failed to respond to her grievance at level one.
      3.      Grievant failed to timely appeal her claim to level four.
      Accordingly, Grievant's request for a finding of default is DENIED, and the matter DISMISSED from the docket of the Education and State Employees Grievance Board.

DATE: December 21, 2000       ________________________________
                                          SUE KELLER
                                          SENIOR ADMINISTRATIVE LAW JUDGE