CHARLES M. HOSEY,
Grievant,
v.
DOCKET NO. 00-RJA-065
REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY,
Respondent.
DECISION
Grievant, Charles M. Hosey, filed a grievance against his former employer, the West
Virginia Regional Jail and Correctional Facility Authority (RJA), directly to this Grievance
Board on February 17, 2000, protesting his forced resignation from the facility on
February 5, 1999. A phone conference was held between Grievant, Chad M. Cardinal,
Esq., counsel for RJA, and the undersigned on March 7, 2000, to discuss the apparent
untimeliness of the filing. Grievant offered no reason why it took him over a year to file the
grievance over his dismissal, and made no allegations that anyone at RJA prevented him
from filing a grievance at the time of his dismissal. Based on that phone conference, the
undersigned makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Grievant signed a resignation letter from his position at RJA on February 5,
1999. 2. Grievant filed a grievance protesting his dismissal or forced resignation from
RJA on February 17, 2000.
CONCLUSIONS OF LAW
1. Where the employer seeks to have a grievance dismissed on the basis that
it was not timely filed, the employer has the burden of demonstrating such untimely filing
by a preponderance of the evidence.
Ooten v. Mingo County Bd. of Educ., Docket No. 96-
29-122 (July 31, 1996);
Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan.
25, 1996). 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.
Petry v. Kanawha County Bd. of Educ., Docket NO. 96-20-380 (Mar. 18,
1997).
2. Once the employer has demonstrated that a grievance has not been timely
filed, the employee has the burden of demonstrating a proper basis to excuse his failure
to file in a timely manner.
Kessler v. W. Va. Dept. of Transp., Docket No. 96-DOH-445
(July 29, 1997);
Higginbotham v. W. Va. Dept. of Public Safety, Docket No. 97-DPS-018
(Mar. 31, 1997);
Sayre v. Mason County Health Dept., Docket No. 95-MCHD-435 (Dec. 29,
1995),
aff'd, Circuit Court of Mason County, No. 96-C-02 (June 17, 1996).
See Ball v.
Kanawha County Bd. of Educ., Docket No. 94-20-384 (Mar. 13, 1995);
Woods v. Fairmont
State College, Docket No. 93-BOD-157 (Jan. 31, 1994);
Jack v. W. Va. Div. of Human
Serv., Docket No. 90-DHS-524 (May 14, 1991).
3. A grievance must ordinarily be filed within ten days following the occurrence
of the event upon which the grievance is based. W. Va. Code §§29-6A-4(a) and (e). Therunning of the relevant time period is ordinarily deemed to begin when the employee is
unequivocally notified of the decision being challenged.
Harvey,
supra;
Kessler,
supra.
See Rose v. Raleigh County Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566 (1997);
Naylor
v. W. Va. Human Rights Comm'n, 180 W. Va. 634, 378 S.E.2d 843 (1989).
4. Grievant was unequivocably notified of the decision being challenged on
February 5, 1999, the day he signed his resignation letter from the RJA.
5.
The grievance was not timely filed.
6. Grievant offered no proper basis for excusing the untimely filing of this
grievance.
Accordingly, this grievance is DISMISSED.
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. Any 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.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: March 16, 2000