TERRY KYLE,      

      Grievant,

v.                                                      Docket No. 99-CORR-389D

WEST VIRGINIA DIVISION OF CORRECTIONS,

      Respondent.

ORDER DENYING DEFAULT

      On September 8, 1999, Terry Kyle (“Grievant”) appealed to level four of the grievance procedure, alleging he was entitled to prevail by default in a grievance filed against his employer, Respondent West Virginia Division of Corrections (“DOC”). Grievant contends a default occurred at level two. On April 26, 2000, a hearing was held in the Grievance Board's office in Elkins, West Virginia. Grievant was represented by counsel, James R. Fox, and DOC was also 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 following findings of fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.

Findings of Fact

      1.      Grievant is employed by DOC as a Correctional Magistrate at Huttonsville Correctional Center.
      2.      On July 28, 1999, Grievant initiated a grievance alleging improper rescission of a promotion.      3.      A written level one response was issued on August 2, 1999.
      4.      On August 3, 1999, Grievant filed a level two appeal with Wyetta Fredericks, Deputy Commissioner of Community Operations, by certified mail.
      5.      Susanna Hall, an employee of Ms. Fredericks' office, signed the certified mail receipt on August 5, 1999.
      6.      Ms. Fredericks reviewed the packet of information sent to her by Grievant as his level two appeal. Because she did not see the grievance form on top, she did not realize it was a grievance appeal.
      7.      Ms. Fredericks did not respond to Grievant's appeal.
      8.      Grievant filed a default claim with the Commissioner of DOC on August 18, 1999.
      9.      In response to Grievant's request for a default judgment, Ms. Fredericks requested that he meet with her on August 24, 1999, to discuss his grievance. She explained why she had not responded, and apologized for the error.
      10.      At the beginning of the August 24 meeting, Grievant inquired of Ms. Fredericks what would happen to his default claim. She advised him that she did not have the authority to address the default issue. Grievant, Ms. Fredericks, and the warden ofHuttonsville Correctional Center proceeded to discuss each issue raised in his grievance.
      11.      On August 26, 1999, Ms. Fredericks issued a level two decision, denying the grievance, in part, and granting some of the Grievant's requested relief.
      12.      After receiving Ms. Fredericks' decision, Grievant requested a default judgment at level four on September 8, 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 he prevailed by default under the statute, he 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(b) provides as follows regarding when Respondent must act at Level II:

      An employee is allowed to pursue a default claim only if he raises it as soon as he becomes aware of the default. Hanlon v. Logan County Bd. of Educ., 201 W. Va. 305, 496 S.E.2d 447 (1997); Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 465 S.E.2d 399 (1995). The grievant is also required to submit the default claim before a response to the grievance has been received. Harmon v. Fayette County Board of Education, 205 W. Va. 125, 516 S.E.2d 748 (1999). In the instant case, Grievant did not waive his right to pursue the default issue. He filed his claim for default with the Commissioner as soon as it occurred. When Ms. Fredericks later called him to schedule the level two meeting, Grievant again raised the default issue. Grievant did not waive his right to pursue the issue by participating in the level two conference, because he had placed his employer on clear notice that he was alleging the default occurred. See Bell v. Northern Regional Jail and Correctional Facility, Docket No. 99-CORR-054D (Apr. 14, 1999).
      While admitting that she did not respond within the prescribed time limits, Ms. Fredericks attempted to explain her error. Although Respondent has not articulated specifically why it should be excused from responding to Grievant's appeal in a timely fashion, it is presumed that Respondent believes the “excusable neglect” exception should apply. In Parsons v. McCoy, 157 W. Va. 183, 101 S.E.2d 632 (1973), the Court in discussing whether a finding of default should be upheld, stated "the majority of cases appear to hold that where an insurance company has misfiled papers, this amounts to excusable neglect . . . ." (Citations omitted). The Court found the misfiling was the resultof a "misunderstanding" and "inadvertence" and no default was found. In Wood County Comm'n v. Hanson, 187 W. Va. 61, 415 S.E.2d 607 (1992), the Court repeated the Parsons language and again found the misplacement of a complaint and the resulting failure to file an answer in a timely fashion was due to excusable neglect and would not result in a default. "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 within the time frame specified 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) (citations omitted).
      In the instant case, Respondent has provided sufficient evidence to support a finding of excusable neglect. Ms. Fredericks admitted that Grievant did, indeed, send his level two appeal to her in a timely fashion. She further stated that Grievant's supervisor had alerted her that his level two appeal would probably be arriving shortly, and she had told her secretary to “be on the lookout” for it. Accordingly, when a packet of documents with Grievant's name on them and his level one response on top arrived, Ms. Fredericks had her secretary place them in a file, assuming they had been sent to her by his supervisor. Ms. Fredericks credibly testified that the grievance form, while included in the packet of documents, was not on top. If it had been, she would have realized it was Grievant's appeal. Under the circumstances presented here, DOC has demonstrated a good faith attempt to comply with the statutory timelines.
      Accordingly, it is determined that DOC has proven that it was prevented from responding at level two in a timely fashion due to excusable neglect, as allowed by the provisions of W. Va. Code § 29-6A-3(a).      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 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 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 schedule a timely Level II conference on this grievance.
      4.      A grievant must raise the default issue as soon as he becomes aware of the default and submit the claim before a response to the grievance has been received. Harmon v. Fayette County Board of Education, 516 S.E.2d 798 (1999).
      5.      Grievant did not waive his right to pursue a default claim in this case.      6.      Grievant proved by a preponderance of the evidence that DOC failed to respond at level two within the statutorily prescribed time limits.
      7.      DOC has proven that it was prevented from responding at level two in a timely fashion due to excusable neglect.


      Accordingly, Grievant's request for a determination of default under W. Va. Code § 29-6A-3(a)(2) is DENIED. This matter is hereby REMANDED to level three for processing at that level, and it is DISMISSED and STRICKEN from the docket of this Grievance Board.
      
Date:      May 31, 2000                        ________________________________
                                                 DENISE M. SPATAFORE
                                                Administrative Law Judge