STEVEN NEAL,

                                    Grievant,

v.                                                Docket No. 99-CORR-275

WEST VIRGINIA DIVISION OF CORRECTIONS/
MOUNT OLIVE CORRECTIONAL COMPLEX,

                                    Respondent.

DECISION

      Steven Neal (Grievant) is employed by the West Virginia Division of Corrections (Corrections), as a Corporal/Correctional Officer III (Corporal/CO III) at the Mount Olive Correctional Complex (MOCC). He filed this action on January 7, 1999, alleging he had been wrongly denied promotion to Corporal/CO III. This grievance was denied at Level I, on January 7, 1999, by Corporal Delana Sanford; and at Level II, on May 26, 1999, by Warden's Designee M. V. Coleman.
      A Level III hearing was held on June 18, 1999. CORR was represented at this hearing by Kathy Lucas, and Grievant was represented by Steve Berryman. This grievance was denied at Level III, by Commissioner Paul Kirby, on June 22, 1999.
      A Level IV hearing was conducted, before the undersigned administrative law judge, at this Grievance Board's Beckley office, on March 9, 2000. Grievant was again represented by Steve Berryman, and CORR was represented by Leslie Kiser Tyree, Esq. The parties were given until April 10, 2000, to submit proposed findings of fact and conclusions of law, neither party did so, and this grievance became mature for decisionon that date. 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 CORR as a Corporal/CO III in its Controlled Dangerous Substance Canine (K9) program at MOCC.
      2.      Grievant completed his K9 program training on March 13, 1998, but was not promoted to Corporal/CO III.
      3. On July 20, 1998, Grievant was denied promotion to Corporal/CO III by a CORR Promotion Review Board.
      4.      At all times pertinent to this grievance, CORR policy mandated that K9 officers hold the rank of Corporal/CO III or above.
      5. Other officers selected for K9 duty by CORR were promoted to Corporal/CO III.
      6. Grievant was promoted to Corporal/CO III on December 1, 1998.
      7. Grievant filed this grievance on January 7, 1999.
DISCUSSION

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd., 156 C.S.R. 1 § 4.19 (1996); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6. A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidencewhich as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      Grievant seeks back pay in the amount of the difference between his current pay as a Corporal/CO III and his previous pay as a CO II. However, his grievance was filed approximately five weeks after the most recent event that arguably could have triggered this grievance, his promotion to Corporal/CO III on December 1, 1998, and CORR has raised a timeliness defense, by denying this grievance, at Levels II and III, as untimely. W. Va. Code § 29-6A-4(a) provides as follows:

      “Days” is defined as “working days exclusive of Saturday, Sunday or official holidays.” W. Va. Code § 29-6A-2(c). A timeliness defense is an affirmative defense which the employer must establish by a preponderance of the evidence. Pryor et al. v.
W. Va. Dep't of Transp., Div. of Highways
, Docket No. 97-DOH-341 (Oct. 29, 1997); West v. Wetzel County Bd. of Educ., Docket No. 96-52-172 (Feb. 17, 1997); Lowry v. W. Va. Dep't of Educ., Docket No. 96-DOE-130 (Dec. 26, 1996); Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996).
      As noted above, this grievance was filed approximately five weeks after the mostrecent event that arguably could have triggered this grievance, Grievant's promotion to Corporal/CO III on December 1, 1998. The undersigned finds it reasonable to conclude that the grievable event, CORR's failure to abide by its policy and promote him to Corporal/CO III, became fully and unequivocally known to Grievant no later than December 1, 1998. See Rose v. Raleigh County Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566 (1997). It is also noted that Grievant knew that he was not promoted to Corporal/CO III as early as March 13, 1998, when he completed his K9 program training, but was not promoted.
      Because Grievant did not file this grievance until approximately five weeks after his promotion to Corporal/CO III, and because Grievant submitted no evidence to rebut the proof that his grievance was not timely filed, CORR has established, by a preponderance of the evidence, that it was untimely.
      Because this grievance was not filed in a timely manner, it must be denied.
CONCLUSIONS OF LAW

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd., 156 C.S.R. 1 § 4.19 (1996); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
      2.      A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable thannot.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993).
      3.      Grievant had ten working days in which to file his grievance. W. Va. Code § 29-6A-4(a).
      4.      A timeliness defense is an affirmative defense which the employer must establish by a preponderance of the evidence. Pryor et al. v. W. Va. Dep't of Trans., Div. of Highways, Docket No. 97-DOH-341 (Oct. 29, 1997); West v. Wetzel County Bd. of Educ., Docket No. 96-52-172 (Feb. 17, 1997); Lowry v. W. Va. Dep't of Educ., Docket No. 96-DOE-130 (Dec. 26, 1996); Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996).
      5.      CORR has proven, by a preponderance of the evidence, that this grievance was not timely filed.
      Accordingly, the grievance is DENIED.
      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. Any 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.

                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated May 2, 2000