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:
(2) Any assertion by the employer that the filing of the grievance
at level one was untimely shall be asserted by the employer on behalf of the
employer at or before the level two hearing. 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 awritten 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. 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
the presumption. If the examiner finds that the remedy is contrary to law, or
clearly wrong, the examiner may modify the remedy to be granted to comply
with the law and to make the grievant whole.
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