MARK MUSSER,
Grievant,
v.
DOCKET NO. 00-RS-083D
WEST VIRGINIA DEPARTMENT OF
REHABILITATION SERVICES,
Respondent.
ORDER GRANTING DEFAULT
Mark Musser (Grievant) is employed by the West Virginia Department of
Rehabilitation Services (Rehab), as an Employment Specialist. He filed this action on
January 4, 2000, regarding his failure to receive a merit raise. This grievance was denied
at level one by Ezra H. Lilly, District Manager, on January 5, 2000. A level two conference
was held on January 18, 2000, and the grievance was denied at level two by Charles S.
Lovely, Jr., Manager, on January 20, 2000. Grievant appealed this decision to level three
by memorandum to James S. Quarles, Director of Human Resources, dated January 26,
2000.
Grievant received no response from Mr. Quarles or from Kitty Dooley, the level three
hearing examiner, and on February 22, 2000, Grievant notified Mr. Quarles, in writing, that
he was claiming a default occurred at level three of the grievance process, inasmuch asRehab had failed to set a hearing or otherwise respond to his appeal within seven days.
Grievant also notified Ms. Dooley of his claim for default on that same day.
On March 3, 2000, Grievant appealed his claim of default to level four. A level four
default hearing was held on April 27, 2000, before the undersigned Administrative Law
Judge at the Grievance Board's Beckley, West Virginia, office. Grievant was represented
by Steve Rutledge, West Virginia State Employees Union, and Rehab was represented by
M. Claire Winterholler, Esq., Assistant Attorney General. This default action became
mature for decision at the conclusion of the default hearing.
SUMMARY OF EVIDENCE
Grievant's Exhibits
Ex. 1 -
January 27, 2000 letter from James P. Quarles to Kitty Dooley.
Ex. 2 -
January 26, 2000 memorandum from Mark Musser to James S.(sic) Quarles.
Ex. 3 -
February 22, 2000 request for default ruling, with attachments.
Rehab Exhibits
None.
Testimony
Grievant testified in his own behalf, and presented the testimony of Kitty Dooley and
James Quarles.
FINDINGS OF FACT
The following Findings of Fact pertinent to resolution of this matter have been
determined based upon a preponderance of the credible evidence of record.
1. Grievant is employed by Rehab as an Employment Specialist, and filed a
grievance on January 4, 2000. 2. Grievant appealed his grievance to level three by memorandum to James
Quarles dated January 26, 2000. G. Ex. 2.
3. On January 27, 2000, Mr. Quarles notified Kitty Dooley, a contract level three
hearing examiner for Rehab, of Grievant's appeal, and asked her to schedule a level three
hearing within seven working days and notify the grievant and/or his representative. G.
Ex. 1.
4. On January 28, 2000, Ms. Dooley met with Mr. Quarles to discuss this
grievance. Another grievance involving employee JHP had already been set for hearing
in Lewisburg, and Ms. Dooley told Mr. Quarles she would like to set Grievant's level three
hearing for that same day, as it would also take place in Lewisburg.
(See footnote 1)
Mr. Quarles agreed
with Ms. Dooley that the grievances could be set for the same day.
5. Shortly thereafter, JHP's grievance was continued. Approximately two weeks
after January 28, 2000, Ms. Dooley contacted Mr. Quarles' secretary to set up another
hearing date for JHP and Grievant in Lewisburg.
6. On February 18, 2000, Ms. Dooley had a telephone conversation with Warren
Morford, Esq., counsel for Rehab. Mr. Morford informed her that Rehab had settled the
grievance with JHP. Ms. Dooley informed Mr. Morford she would set Grievant's level three
hearing as there was no longer a need to coordinate it with JHP's grievance. 7. Ms. Dooley sent a Notice of Level Three Hearing for March 8, 2000, to
Grievant on February 19, 2000, a Saturday. February 20 was a Sunday, and Monday,
February 21 was President's Day, and there was no mail service that day.
8. On Tuesday, February 22, 2000, Grievant sent in his Notice of Default to Mr.
Quarles and Ms. Dooley. G. Ex. 3.
9.
Grievant received his Notice of Hearing that evening.
10. At no time between January 26, 2000, the date Grievant appealed to level
three, and February 22, 2000, did Grievant have any type of communication from either
Mr. Quarles' office or Ms. Dooley.
11. Grievant never agreed, either orally or in writing, to extend the time lines for
setting his level three hearing.
DISCUSSION
Effective July 1, 1998, the West Virginia Legislature 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, orclearly wrong, the examiner may modify the remedy to be granted to comply
with the law and to make the grievant whole.
In addition, it 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."
Grievant alleges he should be awarded the subject merit raise, and has prevailed
by default at level three, because Rehab failed to comply with level three time lines. Rehab
argues that it's failure to timely respond to Grievant's appeal to level three was the result
of excusable neglect.
W. Va. Code § 29-6A-4(c) provides as follows regarding when Rehab 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 written
decision affirming, modifying or reversing the level two decision within five
days of the hearing. (Emphasis added).
If a default has occurred, the grievant is presumed to have prevailed on the merits
of the grievance, and Rehab may request a ruling at Level IV to determine whether the
relief requested is contrary to law or clearly wrong. If a default has not occurred, thegrievance may be remanded to level three for a hearing on the merits of the grievance.
Because Grievant claims he prevailed by default under the terms of the statute, he bears
the burden of establishing such default by a preponderance of the evidence.
Patteson v.
Dep't of Health and Human Resources, Docket No. 98-HHR-326 (Oct. 6. 1998).
The facts in this matter are undisputed. Grievant appealed his grievance to level
three on January 26, 2000, and his level three hearing was not set within seven working
days of that date, nor did Grievant agree to waive the time lines, either orally or in writing.
The notice of level three hearing was not sent until February 19, 2000, setting the date of
the hearing as March 8, 2000.
It becomes Rehab's burden to demonstrate, by a preponderance of the evidence,
that it was prevented from providing a timely response at level three in compliance with
W.
Va. Code § 29-6A-4(b) as a result of sickness, injury, excusable neglect, unavoidable
cause or fraud as provided by
W. Va. Code § 29-6A-3(a)(2). Rehab claims it's failure was
a result of excusable neglect.
The West Virginia Supreme Court of Appeals has adopted a definition of excusable
neglect based upon its interpretation under the Federal Rules of Civil Procedure.
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 with the time frame
specific in the rules. Absent a showing along these lines, relief will be denied.
Perdue v.
Hess, 199 W. Va. 299, 484 S.E.2d 182 (1997),
quoting Bailey v. Workman's Comp.
Comm'r., 170 W. Va. 771, 296 S.E.2d 901 (1982),
quoting 4A Charles A. Wright & Arthur
R. Miller, Federal Practice and Procedure § 1165 (1969). The Court has noted, while fraud, mistake and unavoidable cause are fairly easy
to spot, excusable neglect is a more open-ended concept. In general, cases arising under
the civil rules are comparatively strict about the grounds for a successful assertion of
excusable neglect.
Id. 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 specific
time limits.
See Monterre, Inc. v. Occoquan Land Dev. Corp., 189 W. Va. 183, 429 S.E.2d
70 (1993). However, simple inadvertence or a mistake regarding the contents of the
procedural rule will not suffice to excuse noncompliance with time limits.
See White v.
Berryman, 187 W. Va. 323, 418 S.E.2d 917 (1992);
Bailey,
supra, n. 8.
This Grievance Board has found excusable neglect, constituting grounds for denying
a claim of default, where misfiled documents caused an agency employee to fail to timely
schedule a level three hearing,
McCauley, Jr. v. Div. of Corrections, Docket No. 99-CORR-
101D (May 11, 1999); and where an agency employee, who lacked authority to resolve the
grievance, failed to schedule a level two hearing because he had just met with grievants
on the same issue fewer than two months earlier, and had no new information to present.
White v. W. Va. Dep't of Tax and Revenue, Docket No. 99-T&R-003D (Aug. 20, 1999).
Excusable neglect, constituting grounds for denying a claim of default, was not found
where an employer had a designated substitute employee in place to respond to a
grievant's appeal, and that employee simply failed to do so.
Toth v. Div. of Corrections,
Docket No. 98-CORR-344D (Dec. 10, 1998).
See also Brackman v. Div. of Corrections,
Docket No. 99-CORR-374D (Apr. 10, 2000). In the instant case, Ms. Dooley and Mr. Quarles both testified that they assumed the
other had obtained the necessary waiver of the statutory time lines for setting the level
three hearing from Grievant. Ms. Dooley testified Mr. Quarles' office usually obtained
waivers from Grievant. Mr. Quarles testified he believed Ms. Dooley had obtained the
waiver from Grievant. As a result, no waiver had been obtained from Grievant, and, in fact,
no communication whatsoever was had with Grievant until he filed his Notice of Default on
January 22, 2000. Ms. Dooley contacted him the following day, and was surprised to learn
that a waiver had not been obtained from him for scheduling the level three hearing.
Grievant did not allege bad faith on Rehab's part. On the other hand, Rehab has
not established a reasonable basis for noncompliance with the time frame specified by the
Code. As noted in
White v. Berryman,
supra, simple inadvertence or a mistake concerning
the content of the procedural rules will not suffice to excuse noncompliance of the time
limits. That is what happened here. Ms. Dooley and Mr. Quarles were completely aware
of Grievant's level three appeal at all times. They simply failed to respond in a timely
manner.
Accordingly, Grievant's request for a finding of default at level three under
W. Va.
Code § 29-6A-3(a)(2) is
GRANTED, and Rehab may proceed to show that the remedy
sought by Grievant is contrary to law or clearly wrong. Rehab may request a Level IV
hearing, within five days of the receipt of this written order granting default, to present
evidence and/or argument on this issue. In the event Rehab does not request a heariing
within five days of receipt of this order, an order will be entered granting the relief
requested.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: May 15, 2000
Footnote: 1