TIMOTHY D. SNYDER,
Grievant,
v. Docket No. 00-24-263D
MARION COUNTY BOARD OF EDUCATION,
Respondent.
ORDER DENYING DEFAULT
Timothy D. Snyder (Grievant) alleges that Respondent Marion County Board of
Education (MCBOE) failed to respond in a timely fashion at level one of the grievance
procedure. He requests that he be granted judgment by default in accordance with the
provisions of W. Va. Code § 18-29-3. A hearing was held in this Grievance Board's office
in Morgantown, West Virginia, on September 15, 2000, solely for the purpose of
determining whether a default occurred, and reserving the question of whether the remedy
requested is contrary to law or clearly wrong. Grievant was represented by counsel, John
E. Roush, and MCBOE was represented by counsel, Stephen R. Brooks. This matter
became mature for consideration upon receipt of the parties' written submissions on
October 3, 2000.
The following findings of fact pertinent to the resolution of this matter are made from
a preponderance of the credible evidence of record.
Findings of Fact
1. Grievant is employed by MCBOE as a Custodian/Watchman.
2. On April 3, 2000, Grievant completed a written Request for Informal
Conference and an attached grievance form alleging improper posting of a custodianposition. Grievant gave the form to Sam Wilson, an officer in the county service personnel
association, for submission to Grievant's supervisor, Mike Stalnaker, Administrative
Assistant for Maintenance.
3. Mr. Wilson delivered Grievant's request for an informal conference to Mr.
Stalnaker's office. Because Mr. Stalnaker was not in his office at that time, Mr. Wilson
handed the form--which was in an envelope with Mr. Stalnaker's name on it--to his
secretary. Mr. Wilson watched Mr. Stalnaker's secretary place the envelope on Mr.
Stalnaker's desk. Mr. Wilson believed these events occurred on April 3, 2000.
4. Mr. Stalnaker did not receive the envelope on April 3, 2000. After being out
of the office for a short time, he returned to his office after working hours on April 4, 2000,
and found the envelope taped to the window of his office door. When he returned to work
the following morning, he date stamped the request for informal conference as received
on April 5, 2000, at 8:39 a.m.
5. Mr. Stalnaker scheduled the informal conference for April 18, 2000, the tenth
working day after April 4, 2000. The conference was held on that date.
6. Grievant filed his written level one grievance on May 8, 2000.
7. Mr. Stalnaker issued a written level one response on May 22, 2000, which
was postmarked on May 23, 2000.
8. May 9, 2000, was a holiday, so May 23, 2000, was the tenth working day
after the written grievance was filed.
Discussion
As a preliminary issue in this case, Respondent alleges that Grievant had no
standing to file this grievance, so it must be dismissed. Grievant contends that a custodianposition should have been posted as watchman position. Because it was posted as
custodian, Grievant did not apply. Respondent contends that, because he did not apply
for the position, Grievant has no standing to contest the posting. However, this Grievance
Board has recognized that, if a grievant contends that the posting itself was improper,
thereby affecting his or her status with regard to the potential position, the grievant has
standing to challenging a posting for which he or she did not apply.
Taylor-Hurley v. Mingo
County Bd. of Educ., Docket No. 96-29-265 (Apr. 28, 1997). Accordingly, Respondent's
motion to dismiss must be denied.
The default provision for education employees is found in
W. Va. Code §
18-29-3(a), which provides:
A grievance must be filed within the times specified in section four of this
article and shall be processed as rapidly as possible. The number of days
indicated at each level specified in section four of this article shall be
considered as the maximum number of days allowed and, if a decision is not
rendered at any level within the prescribed time limits, the grievant may
appeal to the next level: Provided, That the specified time limits may be
extended by mutual written agreement and shall be extended whenever a
grievant is not working because of such circumstances as provided for in
section ten, article four, chapter eighteen-a of this code. Any assertion by
the employer that the filing of the grievance at level one was untimely must
be asserted by the employer on behalf of the employer at or before the level
two hearing. 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 or
illness, the grievant shall prevail by default. Within five days of such 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 that presumption. If the examiner finds that
the remedy is contrary to law, or clearly wrong, the examiner may modify the
remedy to be granted so as to comply with the law and to make the grievant
whole.
Effective July 1, 1998,
W. Va. Code § 18-29-5 was amended to provide that the
Grievance Board "shall administer the grievance procedure at levels two, three and four,
. . . as provided for in section four of this article . . . ." Based upon this provision, the
Grievance Board now has jurisdiction to hear an education employee's default claim, when
the default occurs at levels two or three.
Jackson v. Hancock County Bd. of Educ., Docket
No. 99-15-081D (May 5, 1999). In addition, this Grievance Board has recently recognized
that it has jurisdiction to determine whether a default has occurred at level one--and the
informal conference stage--of the education grievance procedure
.
Tignor v. Dep't of Educ.,
Docket No. 99-DOE-468D (Dec. 30, 1999);
Wounaris v. Bd. of Directors, 99-BOD-133D
(May 18, 1999).
Grievant's claim of default is based upon an assertion that his supervisor failed to
timely respond to his grievance at level one.
W. Va. Code § 18-29-4(a) provides as follows
regarding the grievance procedure at level one:
(a) Level one.
(1) Before a grievance is filed and within fifteen days following the
occurrence of the event upon which the grievance is based, or within fifteen
days of the date on which the event became known to the grievant or within
fifteen days of the most recent occurrence of a continuing practice giving rise
to a grievance, the grievant or the designated representative shall schedule
a conference with the immediate supervisor to discuss the nature of the
grievance and the action, redress or other remedy sought.
The conference with the immediate supervisor concerning the
grievance shall be conducted within ten days of the request therefor, and any
discussion shall be by the grievant in the grievant's own behalf or by both the
grievant and the designated representative.
(2) The immediate supervisor shall respond to the grievance within ten
days of the conference.
(3) Within ten days of receipt of the response from the immediatesupervisor following the informal conference, a written grievance may be filed
with said supervisor, or in the case where the grievance involves an event
under the jurisdiction of a state institution of higher education, the grievance
shall be filed with said supervisor and the office of personnel, by the grievant
or the designated representative on a form furnished by the employer or
agent.
(4) The immediate supervisor shall state the decision to such filed
grievance within ten days after the grievance is filed.
MCBOE contends that it responded to Grievant's request for an informal conference
and issued a level one decision within the statutory timeframes, and Grievant's version of
the facts is simply incorrect. Accordingly, Respondent argues that no default occurred.
While Respondent did not specifically articulate that the remedy would be clearly wrong
because no default occurred, the result is the same, and it is appropriate that this matter
be reviewed at level four.
The burden of proof is upon the grievant asserting a default has occurred to prove
the same by a preponderance of the evidence.
Moore v. Dep't of Health and Human
Resources, Docket No. 98-HHR-382D (Dec. 8, 1998). If a default has occurred, Grievant
is presumed to have prevailed, and is entitled to the relief requested, unless MCBOE is
able to demonstrate that the remedy requested is either contrary to law or clearly wrong.
If a default has not occurred, then the grievant may proceed to the next level of the
grievance procedure.
Jackson,
supra;
See W. Va. Code § 18-29-3(a). "The
preponderance standard generally requires proof that a reasonable person would accept
as sufficient that a contested fact is more likely true than not."
Leichliter v. W. Va. Dep't of
Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the
evidence equally supports both sides, the party bearing the burden has not met its burden.
Id. As to whether MCBOE responded to Grievant's request for an informal conference
within the statutory time period, the undersigned finds that Grievant has failed to prove by
a preponderance of the evidence that a default occurred. Both Mr. Wilson, who delivered
the request, and Mr. Stalnaker, Grievant's supervisor, testified credibly as to the events
which occurred. However, it is quite obvious that one of them is simply mistaken. Most
likely, it is Mr. Wilson. Mr. Wilson testified that, when he delivered the request to Mr.
Stalnaker, Mr. Stalnaker was not in the office at the moment, so he watched the secretary
place it on Mr. Stalnaker's desk. He was certain that this occurred on April 3, 2000.
However, although he was definitely working on April 3 and on April 4, Mr. Stalnaker did
not find the envelope until the evening of April 4, after he returned to the office from
running an errand. The record provides no explanation as to where the envelope was
during the entire day of April 4, nor how it got from Mr. Stalnaker's desk to his door.
A plausible explanation for the discrepancy in the testimony of these two witnesses
is that Mr. Wilson was probably mistaken as to what the date was when he delivered the
envelope. He probably gave it to Mr. Stalnaker's secretary on April 4, and, when Mr.
Stalnaker had still not returned to the office, his secretary most likely placed it on his door
when she left for the day. Mr. Stalnaker was quite certain of the date when he found the
envelope taped to his door, because it was his son's birthday.
Accordingly, because Mr. Stalnaker held the informal conference on the tenth
working day after the request was received on April 4, 2000, no default occurred. A
preponderance of the evidence presented does not support the conclusion that Grievant's
version of the facts is more likely true than Respondent's.
As to the timeliness of the level one decision, the undersigned again finds that adefault did not occur. Although Grievant did not receive the level one decision until after
May 23, it was issued on May 22 and bore a May 23 postmark, the tenth working day after
the grievance was filed. This Grievance Board has determined that the controlling event
is when the decision is effectively transmitted to the grievant, not the date it was received.
Wensell v. W. Va. Regional Jail & Correctional Auth., Docket No. 98-RJA-490D (Jan. 25,
1999);
Gillum v. Dep't of Transp., Docket No. 98-DOH-387D (Dec. 2, 1998);
Harmon v. Div.
of Corrections, Docket No. 98-CORR-284D (Oct. 6, 1998). In addition, May 9, 2000, is not
counted in computing the ten-day time limit, because it was the election day holiday.
Holidays are not counted as working days when computing statutory deadlines.
King v.
Div. of Corrections, 98-CORR-502D (Apr. 28, 2000);
See
Perdue v. Hess
, 199 W. Va. 299,
484 S.E.2d 182 (1997);
Parkulo v. W. Va. Bd. of Probation and Parole
, 199 W. Va. 161,
483 S.E.2d 507 (1996);
Salem v. Franklin
, 179 W. Va. 21, 365 S.E.2d 66 (1987).
Because the lower levels of this grievance have been completed, and no default
occurred, it is appropriate for this matter to proceed to a level four hearing on the merits.
Consistent with the foregoing, the following conclusions of law are appropriate.
Conclusions of Law
1. Even if he did not apply for the position, a grievant may have standing to
challenging an improper posting.
Taylor-Hurley v. Mingo County Bd. of Educ., Docket No.
96-29-265 (Apr. 28, 1997).
2. "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 or illness, the grievant shall prevail by
default."
W. Va. Code § 18-29-3(a). 3. Before filing a grievance "the grievant or the designated representative shall
schedule a conference with the immediate supervisor to discuss the nature of the
grievance and the action, redress or other remedy sought."
W. Va. Code § 18-29-4(a).
4. The grievant's immediate supervisor must issue a level one decision within
ten days of the filing of the written grievance.
W. Va. Code § 18-29-4(a).
5. The burden of proof is upon the grievant asserting a default has occurred to
prove the same by a preponderance of the evidence.
Moore v. Dept. of Health and Human
Resources, Docket No. 98-HHR-382D (Dec. 8, 1998).
6. Grievant failed to prove by a preponderance of the evidence that a default
occurred at level one.
Accordingly, Grievant's request for a finding of default is DENIED. This matter will
remain on the docket for further adjudication at level four, as previously indicated in this
Order. The parties are directed to confer with one another and provide theundersigned with at least three mutually agreeable dates for a level four hearing,
within five days of receipt of this Order. The Grievance Board does not consider this
Order to be a final order or decision which is appealable to circuit court under the
provisions of W. Va. Code §§ 29-6A-7 or 29A-5-4.
Date: October 23, 2000 ________________________________
DENISE M. SPATAFORE
Administrative Law Judge