ROSELYN NOGGY,

      Grievant,

v.                                                      Docket No. 99-CORR-487

DIVISION OF CORRECTIONS/
NORTHERN REGIONAL JAIL
AND CORRECTIONAL FACILITY,

      Respondent.

DECISION

      Roselyn Noggy (“Grievant”) is employed by the West Virginia Division of Corrections (“DOC”) at the Northern Regional Jail and Correctional Facility (“NRJ”) as a Correctional Officer II. She initiated this grievance on September 24, 1999, requesting that she be paid for one day she was docked pay during the pay period from August 1, 1999, to August 15, 1999, and also that she be paid for the three days during which she was suspended from September 12-14, 1999. Grievant claimed a default occurred at level one of the grievance process.
      By letter dated November 12, 1999, Grievant appealed her default claim to level four. A level four default hearing was held on May 8, 2000, before the undersigned administrative law judge. Grievant represented herself, and DOC was represented by counsel, Leslie K. Tyree. An Order Granting Default was issued on May 26, 2000. As noted in that Order, DOC, within five days of receipt of that Order, could have requested a level four hearing to present evidence that the remedy sought by Grievant was contrary to law or clearly wrong. W. Va. Code § 29-6A-3(a)(2). DOC has failed to request such a hearing.       Accordingly, Grievant has prevailed by default in this grievance. See Brackman v. W. Va. Div. of Corrections, Docket No. 99-CORR-374D2 (Apr. 27, 2000); Hickman v. W. Va. Div. of Corrections, Docket No. 98-CORR-314D2 (May 19, 1999). Because it has been presumed, in accordance with the provisions of W. Va. Code § 29-6A-3(2), that Grievant prevailed on the merits of her claim, the requested relief will be granted.
      Consistent with the foregoing, the following findings of fact and conclusions of law are appropriate in this matter.

Findings of Fact

      1.      DOC defaulted at level one of this grievance, filed on September 24, 1999.
      2.      An “Order Granting Default” was issued on May 26, 2000, finding that a default had occurred, and advising Respondent that, within five days of receipt of the Order, it could request a hearing to show that the remedy requested by Grievant was contrary to law or clearly wrong.
      3.      DOC has not requested a hearing to show that the remedy requested is contrary to law or clearly wrong.
      4.      Grievant has requested as relief in this grievance that she be compensated for one day she was docked pay between August 1, 1999, and August 15, 1999, and that she be paid for a three-day suspension from September 12-14, 1999.

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 inthis 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.      Respondent has not shown that the remedy requested is contrary to law or clearly wrong, so it must be granted.

      Accordingly, this grievance is GRANTED. DOC is ORDERED to pay Grievant for the one day she was docked pay between August 1, 1999, and August 15, 1999, and to also pay her for the three days of her suspension from September 12 through 14, 1999.

      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, and 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.

Date:      June 19, 2000            
                                    ___________________________________
                                          DENISE M. SPATAFORE
                                          Administrative Law Judge