ROSELYNN NOGGY,

      Grievant,

v.                                                      Docket No. 99-CORR-487D

DIVISION OF CORRECTIONS/
NORTHERN REGIONAL JAIL
AND CORRECTIONAL FACILITY,

      Respondent.

ORDER GRANTING DEFAULT

      On November 12, 1999, Roselynn Noggy (“Grievant”) appealed to level four of the grievance procedure, alleging she was entitled to prevail by default in a grievance filed against her employer, Respondent West Virginia Division of Corrections (“DOC”). Grievant contends a default occurred at level one. On May 8, 2000, a hearing was held in the Grievance Board's office in Wheeling, West Virginia. Grievant represented herself, and DOC was represented by counsel, Leslie K. Tyree. The parties elected not to submit written proposals, so this matter became mature for consideration at the conclusion of the hearing.
      The parties stipulated to the following facts at the level four hearing.

Findings of Fact

      1.      Grievant is employed at the Northern Regional Jail and Correctional Facility as a Correctional Officer II.
      2.      On September 24, 1999, she initiated a grievance alleging “misinterpretation of State Code 29-6-10 Administrative Rules 3.8, 12.3 and 15.5.” She handed this grievance to her immediate supervisor, Captain Barry Milbert.      3.      On September 27, 1999, Captain Milbert returned the grievance form to Grievant with a “post-it” note attached, which stated “The grievance statement cannot be interpreted as it is vague.”
      4.      On September 27, 1999, Grievant submitted a revised grievance form to Captain Milbert.
      5.      Captain Milbert never responded to the revised grievance, and Grievant filed a request for default judgment on October 25, 1999.
Discussion

      W. Va. Code § 29-6A-3(a) provides, in pertinent part, that a grievant shall prevail 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." 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).
      W.Va. Code § 29-6A-4(a) provides as follows regarding when Respondent must act at level one:

      The facts in this matter are undisputed. DOC has offered no explanation or excuse for Captain Milbert's failure to respond to the revised grievance submitted on September 27, 1999. Once Grievant filed a default claim, Captain Milbert issued a memorandum to Warden Evelyn Seifert stating that he simply did not recall the grievance being resubmitted, but it “could possibly have happened.” Joint Ex. 3. Respondent has provided no evidence that a default did not occur, nor any justification for the failure to respond to the grievance at level one.
      Accordingly, it is determined that DOC is in default in regard to this grievance, and it may proceed to show, in accordance with W. Va. Code § 29-6A-3(a)(2) that the remedy sought by Grievant is contrary to law or clearly wrong. DOC may request a level four hearing, within five days of the receipt of this Order, to present evidence and/or argument on this issue.
      Consistent with 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 hearingexaminer 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).
      3.      Grievant established, by a preponderance of the evidence, that Respondent failed to respond to this grievance at level one within the statutorily prescribed time limits.
      4.      Respondent failed to establish that it was prevented from issuing a timely level one response due to sickness, injury, excusable neglect, unavoidable cause, or fraud.
      Accordingly, Grievant's request for a determination of default under W. Va. Code § 29-6A-3(a)(2) is GRANTED, and this matter will remain on the Grievance Board docket for further adjudication, as previously indicated in this Order.

Date:      May 26, 2000                        ________________________________
                                                 DENISE M. SPATAFORE
                                                Administrative Law Judge