THEODORA PLUMLEY,
                  Grievant,

v.                                                      Docket No. 00-DNR-091D

WEST VIRGINIA DIVISION OF NATURAL RESOURCES,
                  Respondent.

ORDER DENYING DEFAULT

      Grievant, Theodora Plumley, filed a motion for default with her employer, West Virginia Division of Natural Resources (Respondent), in the above-styled grievance on March 6, 2000, in accordance with W. Va. Code §29-6A-3(a)(2). A hearing on this matter was held via telephone, by agreement of the parties, on May 25, 2000, at which time Grievant appeared pro se, and Respondent was represented by Daynus Jividen, Senior Assistant Attorney General. At the conclusion of the hearing, the parties agreed to submit proposed findings of fact and conclusions of law. The matter became mature for decision upon receipt of the proposals filed on or before June 8, 2000.
      The following Findings of Fact pertinent to the resolution of this issue have been determined based upon a preponderance of the credible testimonial and documentary evidence admitted at level four.

Findings of Fact
      1.      Grievant is employed by Respondent as an Environmental Resources Specialist I, and serves as a District Environmental Coordinator for District Three in French Creek.      2.      Grievant filed a grievance on October 19, 1999, contesting a five-day suspension.
      3.      The record does not reveal whether the matter was considered at levels one or two.
      4.      A level three hearing was conducted on November 4, 1999.
      5.      At the conclusion of the proceeding, hearing evaluator Jack McClung, inquired as follows:
Mr. McClung: Okay, Secondly, Ms. Plumley, the statute requires a decision within five days of hearing in these matters which is impossible for us to comply with because the court reporter can't even get the transcript. So routinely we have to ask for a waiver of that time limit. Do you have any problem with that?

Ms. Plumley: No. I think the times are pretty close together myself.

Transcript, Level III, pp 180-181.
      6.      A transcript was provided to Respondent in December 1999, and Respondent filed proposed findings of fact and conclusions of law on January 10, 2000.
      7.      A level three decision was issued by Mr. McClung on March 3, 2000, and was subsequently accepted and ratified by Respondent's Director, John B. Rader, on March 6, 2000.
      8.      Grievant filed a notice of default with Director Rader by letter dated March 6, 2000.

Discussion
      The issue of default in grievances filed by state employees came within the jurisdiction of the Grievance Board in 1998. On March 13, 1998, the West VirginiaLegislature passed House Bill 4314, which, among other things, added a default provision to the state employees grievance procedure, effective July 1, 1998. That Bill amended W. Va. Code §29-6A-3(a), 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 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. 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 Respondent is able to demonstrate that the remedy requested is either contrary to law or clearly wrong. W. Va. Code §29-6A-3(a)(2); 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. Respondent contends no 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 she prevailed by default under the statute, she bears the burden of establishing such default by a 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).
      Grievant concedes that she agreed to waive the statutory timelines, but complains a default occurred because the statutory language provides that the decision shall be issued within five days, shall being mandatory in nature. She further asserts that the statute makes no provisions for waiving time limits. She opines that Mr. McClung's representation that it was impossible to issue a decision within five days was “not an absolute”, and that even if he waited to receive the transcript, she reasonably expected the decision to be issued within five days of his receipt of that document. Grievant notes that the decision was not issued until more than two months following the receipt of thetranscript, and nearly seven weeks after Respondent filed its proposed findings of fact and conclusions of law. Grievant characterizes the span of time as an unreasonable delay which caused her to suffer continuing harm.
      Respondent argues that while the State Employees Grievance Act is silent as to waiver, it does not render Grievant's action void because any person capable of binding herself may waive matters affecting her property or alienable rights, including contractual, statutory or constitutional privileges. Smith v. Bell, 129 W. Va. 749, 41 S.E.2d 695 (1947). Respondent also asserts that the waiver was not open-ended, and considering the “thoughtfulness, thoroughness, reasonableness, professionalism, and legal correctness of the grievance evaluator's decision, 57 days is a reasonable and non-prejudicial turnaround time in a matter of this sort.” Respondent concludes that Grievant has made no showing that she was prejudiced in any manner by its reliance upon her waiver, and that her full measure of grievance rights remain available to her.
      W. Va. Code §29-6A-4(c) provides the following directions regarding when Respondent must act at Level III:
Within five days of receiving the decision of the administrator of the grievant's work location, facility, area office, or other appropriate subdivision of the department, board, commission or agency, the grievant may file a written appeal of the decision with the chief administrator of the grievant's employing department, board, commission or agency. A copy of the appeal and the level two decision shall be served upon the director of the division of personnel by the grievant. The chief administrator of his or her designee shall hold a hearing in accordance with section six of this article within seven days of receiving the appeal. The director of the division of personnel or his or her designee may appear at the hearing and submit oral or written evidence upon the matters in the hearing. The chief administrator or his or her designee shall issue a writtendecision affirming, modifying or reversing the level two decision within five days of the hearing.

      In general, “[a] right or privilege given by statute may be waived or surrendered, in whole or in part, by the party to whom or for whose benefit it is given.” Smith supra. Although some statutes forbid waiver of the protections they afford, W. Va. Code §29-6A- 3(a)(2) is not such a statute. The specified time limits in the grievance statute may be extended for a "reasonable time" by mutual, written agreement of the parties. See W. Va. Code §29-6a-3(g). Waiver of the strict statutory timelines is a common occurrence within the context of the grievance procedure. Huston v. W. Va. Dep't of Tax and Revenue and Div. of Personnel, Docket No. 99-T&R 469D (Feb.29, 2000); Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-296D (Nov. 30, 1999). This practice benefits both parties by allowing employers sufficient time to give grievances careful attention and care, rather than "rushing" to judgment. Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999). The West Virginia Supreme Court of Appeals upheld this interpretation in Martin v. Randolph County Board of Education, 195 W. Va. 297, 465 S.E.2d 399 (1995), in which a default claim was denied after Grievant had agreed to delay a level two hearing.
      In retrospect it is clear what happened between the parties. Although they believed they had agreed to a waiver of the timelines, each party had a different interpretation of the contents of that waiver. Neither sought clarification from the other. See Bowyer v. Bd. of Trustees/ W. Va. Univ., Docket No. 99-BOT-197D (July 13, 1999). Although the agreement to extend the timelines was not written, it is on the record, and Grievant clearly agreed to the extension during a formal, recorded hearing. This agreement is sufficient toconstitute a valid waiver of the time to issue a decision under the statute, and it is sufficient for substantial compliance. Parker, supra; Bowyer, supra; Jackson, supra.
      Further, it is noted that the time periods in the grievance procedure are not jurisdictional in nature and are subject to equitable principles of tolling, waiver, and estoppel. Jackson, supra; Gaskins v. W. Va. Dep't of Health, Docket No. 90-H-032 (Apr. 12, 1990). This Grievance Board has frequently applied such principles, specifically estoppel, to toll the time for filing a grievance. See, e.g., Lilly v. Raleigh County Bd. of Educ., Docket No. 94-41-195 (Nov. 28, 1994). Such principles have similarly been applied in evaluating default cases. Harmon v. Div. of Corrections, Docket No. 98-CORR-284D (Oct. 6, 1998). In order to prevail in a claim of estoppel, a party must show that there was a representation made, or information given, by the opposing party which was relied upon, causing an alteration of conduct or change of position to the first party's detriment. Ara v. Erie Insurance Co., 182 W. Va. 266, 387 S.E.2d 320 (1989).
      Unquestionably, Grievance Evaluator McClung relied upon Grievant's agreement
that the timelines for issuing the Level III Decision were waived. In reliance upon Grievant's agreement in this regard, Respondent delayed issuing the decision beyond the statutory time limitation of five days after the submission of the Proposed Findings of Fact and Conclusions of Law. Therefore, the doctrine of estoppel would bar Grievant from now claiming that a default occurred.
      Grievant's agreement to allow an extension of the statutory time line at Level III prohibits any claim that a default occurred at that level.
      Consistent with the foregoing discussion, the following conclusions of law are appropriate.

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 her 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. V a. Code § 29-6A-3(a)(2).
      3.      The specified time limits in the grievance statute may be extended for a "reasonable time" by mutual agreement of the parties. See W. Va. Code §29-6A-3(g).
      4.      "The agreement reached on the record by the parties at the Level III hearing, constitutes substantial compliance with [W. Va. Code §29-6A-3(g)]." Duruttya v. Bd. of Educ., 181 W. Va. 203, 382 S.E.2d 40 (1989); Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-296D (Nov. 30, 1999). Bowyer v. Bd. of Trustees/ W. Va. Univ., Docket No. 99-BOT-197D (July 13, 1999); Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999).      5.      A party simply cannot acquiesce to, or be the source of, an error or misunderstanding during proceedings before a tribunal, and then complain of that error at a later date. Lambert v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-326D (Oct. 14, 1999). See, e.g., State v. Crabtree, 198 W. Va. 620, 627, 482 S.E.2d 605, 612 (1996) ("Having induced an error, a party in a normal case may not at a later stage of the trial use the error to set aside its immediate and adverse consequences."); Smith v. Bechtold, 190 W. Va. 315, 319, 438 S.E.2d 347, 351 (1993) ("[I]t is not appropriate for an appellate body to grant relief to a party who invites error in a lower tribunal.")(Citations omitted).
      6.      Because Grievant agreed at the end of the Level III hearing to extend the timelines for issuance of the Decision, she waived entitlement to the default provisions of W. Va. Code §29-6A-3(a). Parker, supra; Lambert, supra.
      Accordingly, Grievant's Motion for Default is DENIED. This matter will remain on the docket for further adjudication at Level IV. Grievant and Respondent's counsel are requested to confer and, on or before June 30, 2000, provide three mutually agreed upon dates to conduct the Level IV hearing on the merits of this grievance.

Date: June 22, 2000                         ________________________________
                                          Sue Keller
                                          Senior Administrative Law Judge