v.
DOCKET NO. 98-CORR-502D
On November 17, 1998, Grievant, Ronald King, filed a grievance over his
suspension with his employer, the Division of Corrections ("Corrections"). Subsequently,
he filed a Notice of Default Judgment, in the above-styled grievance on December 9, 1998,
in accordance with
W. Va. Code § 29-6A-3(a)(2). Respondent responded to this Notice
on December 14, 1998, stating the Level I Decision had been issued in a timely manner;
thus no default had occurred.
This grievance eventually came to Level IV after Grievant's suspension was
extended, and he was subsequently terminated.
(See footnote 1)
After multiple continuances for good
cause shown, a Level IV hearing on all issues was held in the Grievance Board's
Charleston, West Virginia office on November 8, 1999, and March 23, 2000. The default
issue was not addressed by the parties until the second day of hearing, and this default
claim became mature for decision on that date, as the parties elected not to submit
proposed findings of fact and conclusions of law on that issue.
(See footnote 2)
After the second day ofhearing, the parties decided no further evidence needed to be presented, and the case
would be become mature for decision in May, after receipt of the parties' proposed findings
of fact and conclusions of law.
After a detailed review of the record in its entirety the undersigned Administrative
Law Judge makes the following Findings of Fact pertinent to this matter.
Findings of Fact
1. Grievant dated his grievance November 17, 1998, and mailed it by certified
mail on November 19, 1998, to Deputy Warden M. V. Coleman.
2. The grievance was received in the Deputy Warden Coleman's office on
November 20, 1998.
3. On November 30, 1998, Deputy Warden Coleman issued a Level I Decision
on the suspension, and denied the grievance. Deputy Warden Coleman noted in this
Decision that he had received the grievance on November 24, 1998.
4. On December 9, 1998, Grievant sent a Notice of Default to Deputy Warden
Coleman and stated that the Level I response had exceeded the five day time limit for
issuing the Decision.
5. On December 14, 1998, Deputy Warden Coleman wrote to Grievant stating
he had received Grievant's Notice of Default and asserted the time frames had been
followed.
Discussion
The issue of default in a grievance filed by a state employee came within the
jurisdiction of the Grievance Board in 1998. On March 13, 1998, the West VirginiaLegislature passed House Bill 4314, which, among other things, added a default provision
to the state employees grievance procedure, effective July 1, 1998.
(See footnote 3)
That Bill 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, or
clearly wrong, the examiner may modify the remedy to be granted to comply
with the law and to make the grievant whole.
In addition, House Bill 4314 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."
This Grievance Board has previously adjudicated related issues arising under the
default provision in the grievance statute covering education employees, W. Va. Code
§ 18-29-3(a). See, e.g., Ehle v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998);
Gruen v. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994); Wadbrook v. W. Va.
Bd. of Directors, Docket No. 93-BOD-214 (Aug. 31, 1993); Flowers v. W. Va. Bd. ofTrustees, Docket No. 92-BOT-340 (Feb. 26, 1993). 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(a) provides as follows regarding when Respondent must
respond at Level I, "[t]he immediate supervisor shall issue a written decision within six
days of the receipt of the written grievance." When deciding whether a default occurred,
it is necessary to see how many days passed from the time of receipt of the grievance and
the issuance of the Level I Decision. This grievance was received in Deputy Warden
Coleman's office on November 20, 1998. It does not matter that he personally did not
receive the grievance until November 24, 1998.
In counting days the undersigned Administrative Law Judge is guided by various
statutes and rules. W. Va. Code §29-6A-2(c) defines "days" as "working days exclusive
of Saturday, Sunday or official holidays." Additionally, Rule 6 of the West Virginia Rules
of Civil Procedure states:
(a) Computation. In computing any period of time prescribed or allowed by
these rules, by the local rules of any court, by order of court, or by any
applicable statute, the day of the act, event, or default from which the
designated period of time begins to run shall not be included. The last day
of the period so computed shall be included, unless it is a Saturday, aSunday, or a legal holiday, in which event the period runs until the end of the
next day which is not a Saturday, a Sunday or a legal holiday. . . . As used
in this rule and in Rule 77(c), "legal holiday" includes New Year's Day,
Martin Luther King's Birthday, Lincoln's Birthday, Washington's Birthday,
Memorial Day, West Virginia Day, Independence Day, Labor Day, Columbus
Day, Veteran's Day, Thanksgiving Day, Christmas Day, any day on which a
general, special or primary election is held in the state or in the county in
which the circuit court sits, and any other day appointed as a holiday by the
Governor or by the President of the United States as a day of special
observance or thanksgiving, or a day for the general cessation of business.
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).
In applying these guidelines to the issue at hand, the date Deputy Warden
Coleman's office received the grievance, Friday, November 20, 1998, would not be
counted. The following Monday, Tuesday, and Wednesday, November 23, 24, and 25
would be counted. Thursday, November 26, would not be counted as it was Thanksgiving,
an official state holiday. There is a question as to whether Friday, November 27, 1998,
should be counted.
(See footnote 4)
Monday, November 30, 1998, the date the Decision was issued,
would be counted. Counting the dates of 23, 24, 25, and 30 would total up to four days;
and adding November 27, 1998 would still bring the number to only five days. This
number is within the time frame specified in W. Va. Code § 29-6A-4(a). Accordingly,
Respondent cannot be found to be in default. The above-discussion will be supplemented by the following Conclusions of Law.
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." W. Va. Code §29-6A-3(a).
2. Pursuant to W. Va. Code § 29-6A-4(a), Respondent must respond at Level
I in the following manner, "[t]he immediate supervisor shall issue a written decision within
six days of the receipt of the written grievance."
3. W. Va. Code §29-6A-2(c) defines "days" as "working days exclusive of
Saturday, Sunday or official holidays."
4. Rule 6 of the West Virginia Rules of Civil Procedure states, "[i]n computing
any period of time prescribed or allowed by these rules, by the local rules of any court, by
order of court, or by any applicable statute, the day of the act, event, or default from which
the designated period of time begins to run shall not be included. The last day of the
period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday,
in which event the period runs until the end of the next day which is not a Saturday, a
Sunday or a legal holiday. . . . 'legal holiday' includes . . . Thanksgiving Day . . . ."
5. Respondent issued the denial of the grievance within five days.
6. Respondent's response to the Level I grievance was within the time frames
specified by W. Va. Code § 29-6A-4(a), thus no default occurred.
Accordingly, Grievant's Motion for Default is DENIED. This matter will remain of the
dockets of this Grievance Board for a Level IV Decision of the merits of the cases dealing
with Grievant's suspension and termination.
_________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: April 28, 2000.
Footnote: 1 This provision is applicable only to grievances filed on or after July 1, 1998.
Jenkins-Martin v. Bureau of Employment Programs, Docket No. 98-BEP-285 (Sept. 24,
1998).
Footnote: 4