STEPHEN G. RULE,

                        Grievant,

v.                                                       Docket No. 00-HHR-080

WEST VIRGINIA DEPARTMENT OF
HEALTH & HUMAN RESOURCES,

                        Respondent.

D E C I S I O N

      On January 21, 2000, Stephen G. Rule (Grievant) initiated a grievance pursuant to W. Va. Code §§ 29-6A-1, et seq., alleging that Respondent West Virginia Department of Health and Human Resources (DHHR) had engaged in an “(illegal) lay off while on medical leave/Workers' Comp. Act Re: Mike McCabe telephone conversation 1-21-2000 [and] violation of A.D.A., Civil Rights Act 1964 and EEOC violations/failure to return to work area rehab.” Grievant is seeking to be returned to medical leave status, to have his PEIA (Public Employees Insurance Agency) health insurance and life insurance reinstated, until a final decision is rendered in his Workers' Compensation appeal and his state retirement litigation. Grievant initially filed this grievance at Level IV, but it was remanded to DHHR by Order dated January 25, 2000. Rule v. W. Va. Dep't of Health & Human Resources, Docket No. 00-HHR-027.       Upon remand, a Level III pre-hearing conference was conducted on February 8, 2000. Thereafter, an Order was issued by the Grievance Evaluator, Barbara J. Wheeler, on February 16, 2000. By that Order, Ms. Wheeler dismissed the current grievance based upon a determination that Grievant was not a state employee at the time he filed his grievance, and that even if he did have standing to file a grievance, this grievance was untimely because Grievant was laid off by DHHR in 1998. The Level III decision properly advised Grievant of his right to appeal to Level IV in accordance with W. Va. Code § 29- 6A-4(d), and correctly stated the current mailing address for the West Virginia Education and State Employees Grievance Board. On February 18, 2000, Grievant submitted a document styled as an “Appeal Level III Order” to DHHR's Office of Personnel Services, Allen Campbell, DHHR's attorney in the Level III proceeding, the West Virginia Division of Personnel, Michael McCabe, DHHR's Director of Personnel Services, and Richard M. Alker, Executive Director of the West Virginia Ethics Commission. Grievant did not send a copy of this appeal to the Grievance Board.
      Mr. Campbell forwarded a copy of Grievant's appeal to the Grievance Board on February 28, 2000. On March 7, 2000, the undersigned wrote to Grievant to clarify his intentions in submitting the “Appeal Level III Order.” Grievant responded through correspondence dated March 10, 2000, advising that it was his intent to appeal to the Grievance Board at Level IV. However, Grievant renewed a request made in his previous appeal that this matter be submitted to neutral arbitration through the American Arbitration Association. Based upon a determination that Grievant's appeal notice to DHHR constituted “substantial compliance” with the requirements of the state employee grievanceprocedure, this matter was set for hearing and a pre-hearing conference scheduled. See Duruttya v. Bd. of Educ., 181 W. Va. 203, 382 S.E.2d 40 (1989).   (See footnote 1) 
      On April 11, 2000, Respondent DHHR filed a Motion to Dismiss this grievance contending that Grievant has not been employed by DHHR since April 10, 1998, when his employment at DHHR's Colin Anderson Center was terminated in a lay off, and that any claim relating to that lay off was untimely. On April 12, 2000, Grievant filed a written response to DHHR's Motion to Dismiss. On April 19, 2000, a telephonic conference was held    (See footnote 2)  to address the issues raised in the Motion to Dismiss and Grievant's response.   (See footnote 3)  The parties made oral presentations in support of their respective positions, declining the opportunity to submit additional written arguments.   (See footnote 4) 
DISCUSSION
      Although the West Virginia Rules of Civil Procedure do not apply to proceedings conducted before this Grievance Board, the same principals of law contained in Rule 12(b) of the Rules may be applied to a Motion to Dismiss which may be dispositive of a grievance filed under W. Va. Code §§ 18-29-1, et seq. See Salmons v. W. Va. Dep't of Transp., Docket No. 93-DOH-443 (Sept. 30, 1994). See also Wilhelm v. Dep't of Tax & Revenue, Docket No. 94-L-038 (Sept. 30, 1994), aff'd sub nom Wilhelm v. W. Va. Lottery, 198 W. Va. 92, 479 S.E.2d 602 (1996). Therefore, for purposes of ruling on this motion, it will be assumed that all factual allegations contained in Grievants' grievance and any responsive pleadings are true. See John W. Lodge Distributing Co. v. Texaco, 161 W. Va. 603, 245 S.E.2d 157 (1978). See also Sticklin v. Kittle, 168 W. Va. 147, 287 S.E.2d 148 (1981). Further, any factual disputes must be resolved in Grievant's favor.
      In Grievant's written response to DHHR's Motion to Dismiss, he made reference to an earlier grievance before this Grievance Board. In that case, Rule v. West Virginia Department of Health and Human Resources, Docket No. 99-HHR-130 (Oct. 25, 1999)(hereinafter “Rule I”), this Grievance Board dealt with a series of earlier grievances Grievant had filed against DHHR. Pertinent to this grievance, Rule I includes a Finding of Fact No. 10 that “Grievant's last day of work was March 5, 1994, and his last day on the payroll was March 10, 1994.” In addition, Conclusion of Law No. 7 from Rule I states that “Grievant is no longer an employee of the state, and has not been since the time of his lay off in 1994.”       Grievant may be barred from relitigating whether he continues to be an employee of DHHR under the legal doctrine of res judicata. Res judicata is a well-established legal doctrine stating that a final judgment rendered on the merits by a court of competent jurisdiction is conclusive as to the rights of the parties to that proceeding and, as to those same parties, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. Black's Law Dictionary 678 (Abridged 5th ed. 1983). Woodall v. W. Va. Dep't of Transp., Docket No. 93-DOH-393 (Feb. 2, 1994). In Ramsey v. West Virginia Department of Health and Human Services, Docket No. 90-H-478 (July 31, 1991), this Board applied the holding of the West Virginia Supreme Court of Appeals in Wolfe v. Forbes, 159 W. Va. 34, 217 S.E.2d 899 (1975), which recognized four conditions to meet in order to apply the doctrine of res judicata:
      (1) identity in the thing sued for;
      (2) identity of the cause of action;
      (3) identity of persons, and of parties to the action; and
      (4) identity of the quality in the persons for or against whom the claim is made.

Id. See Buckley v. W. Va. Schools for the Deaf & Blind, Docket No. 99-DOE-226 (Aug. 31, 1999).
      A review of Rule I indicates that Grievant was seeking additional increment pay as a state employee, and one of the issues in that grievance was exactly how many years Grievant was employed by DHHR or any other state agency. More specifically, Grievant contended in Rule I that he was still an employee of DHHR as of the Level IV hearing on July 14, 1999, and should be credited on his annual increment pay for service up to andincluding that date. This issue was resolved adverse to Grievant as it was determined that he was no longer an employee of the state after the 1994-95 fiscal year. However, because Grievant was not directly contesting his lay off from DHHR's Colin Anderson Center in Rule I, that grievance and this matter do not involve “identity in the thing sued for.” Therefore, this grievance is not barred by the doctrine of res judicata. See Buckley, supra.
      Nonetheless, under the related legal doctrine of collateral estoppel Grievant may be restricted from contesting his employment status in this proceeding. Collateral estoppel is a narrower legal doctrine than res judicata which prevents a party to a contested matter from relitigating an issue that was determined against him in an earlier proceeding, even though there is a significant difference between the present action and the previous grievance. See Black's Law Dictionary 256 (7th ed. 1999); Jordache Enterprises v. National Fire Ins. Co., 204 W. Va. 465, 513 S.E.2d 692 (1998). See also State ex rel. Leach v. Schlaegel, 191 W. Va. 538, 447 S.E.2d 1 (1994). In Rule I the question of whether Grievant continued to hold an employment relationship with DHHR was fully litigated. Therefore, Grievant is barred by the doctrine of collateral estoppel from relitigating his employment status as of July 1999. See Jordache, supra.
      Notwithstanding this limitation on Grievant's ability to contest facts that were established in Rule I, this grievance differs from Rule I in two respects: (1) Grievant is claiming he was illegally laid off by DHHR; and (2) Grievant alleges he held employment status with DHHR as recently as 10 days before he filed this grievance. DHHR contends Grievant has not held any employment status with DHHR since 1998. Moreover, the actionGrievant is challenging, his lay off from employment at Colin Anderson Center, occurred nearly two years before he filed this grievance, and this grievance is not timely in any event.
      Grievant's current employment status will be addressed first. W. Va. Code § 29-6A- 2(e) defines "employee" as "any person hired for permanent employment, either full or part- time, by any department, agency, commission or board of the state." Further, W. Va. Code § 29-6A-2(g) defines "employer" as the "state department, board, commission or agency utilizing the services of the employee covered under this article." During the telephone conference on this matter, Grievant acknowledged that he has not physically worked for DHHR since 1994. Further, he conceded that he received notice that he was being laid off from his job at DHHR's Colin Anderson Center in 1998.
      Nonetheless, Grievant asserts that he was “employed “ by DHHR as recently as 10 days before he filed this grievance because he received a paycheck from Respondent from which federal and state income tax, social security, and retirement contributions were withheld. This check was issued by Respondent in compliance with the Order of this Grievance Board in Rule I directing DHHR to pay Grievant his annual increment, plus interest, that he was owed on a prorated basis for 1989-1990, 1993-94, and 1994-95.   (See footnote 5) 
      Grievant asserts that because DHHR withheld “employment” taxes from his pay, he must be an “employee.” However, the payroll record which Grievant attached to hisgrievance indicates on its face that it was for a “lump sum payment,” not “regular pay,” such as an employee would receive. Moreover, whether various taxes are withheld in accordance with state and federal tax laws and regulations is not determinative of whether an employer-employee relationship exists. Grievant asserted that unspecified “federal wage and hour laws” would define him as an “employee” in these circumstances. However, the undersigned has been unable to identify any federal law which would require the legal inference Grievant claims.
      In this situation, where the record indicates that the “lump sum payment” was issued in compliance with this Grievance Board's decision in Rule I, and Grievant concedes that he has not actually worked for DHHR since 1994, Grievant's status as a former DHHR employee, as determined in Rule I, did not change through DHHR's issuance of this lump sum payment, or taking payroll deductions from such payment, in January 2000.   (See footnote 6) 
      Grievant further asserts that he remains an employee of Respondent DHHR, because DHHR has a legal obligation to keep him in medical leave status. Grievant cites several reasons for this contention, foremost of which is that his right to reinstatement as an employee is guaranteed under the broad language in the Workers' Compensation Act, W. Va. Code §§ 23-1-1, et seq.   (See footnote 7)  Grievant appears to be relying upon W. Va. Code § 23- 5A-3, which provides injured employees with a limited right to reinstatement, notwithstanding any lack of discriminatory intent or animus on the part of the employer. McMillen v. Bd. of Trustees, Docket No. 92-BOT-341 (Nov. 12, 1993).
      W. Va. Code § 23-5A-3(b), states, in pertinent part:


      Grievant may also rely on the protections against retaliation for filing a workers' compensation claim contained in W. Va. Code § 23-5A-1:

      Grievant does not contest DHHR's assertion that he was notified in 1998 that his position at Colin Anderson Center was being eliminated through a reduction in force. Grievant contends that, so long as his workers' compensation claim is pending, his employment relationship cannot lawfully be terminated by DHHR. There is simply no legal authority to support this claim. Indeed, a properly conducted lay off has been recognized as a valid basis for discharging an employee who has been granted a permanent partial disability award. Sizemore v. Peabody Coal Co., 188 W. Va. 725, 426 S.E.2d 517 (1992). See Powell v. Wyoming Cablevision, Inc., 184 W. Va. 700, 403 S.E.2d 717 (1991).
      Grievant's employment relationship with DHHR was severed when he was laid off in 1998. There are no provisions in the state Workers' Compensation Act, or any of the other statutes cited by Grievant, such as the federal Americans With Disabilities Act, or thefederal Civil Rights Act, which preclude an employer from laying off an employee for lack of need. See Sizemore, supra. See also Robinson v. Polaroid Corp., 567 F. Supp. 192 (D. Mass. 1983), aff'd, 732 F.2d 1010 (1st Cir. 1984).
      Accordingly, Grievant was no longer employed by DHHR on January 21, 2000, when this grievance was filed. Under the grievance procedure for state employees in W. Va. Code §§ 29-6A-1, et seq., a person who no longer holds employment status is generally not eligible to invoke the grievance procedure after the employment relationship is terminated. Jackson v. W. Va. Div. of Corrections, Docket No. 97-CORR-345 (Jan. 30, 1998). See Spiroff v. W. Va. Schools for the Deaf & Blind, Docket No. 99-DOE-314D (Sept. 30, 1999). See also Trahern v. Bd. of Trustees, Docket No. 94-BOT-026 (June 22, 1994); Mahon v. Bd. of Directors, Docket No. 91-BOD-394 (Oct. 2, 1991).
      Of course, if the grievance was filed while the person was still employed (and the matter has not been rendered moot by the termination of employment), or the termination is the subject of the grievance, an individual may nonetheless have standing to grieve. Jackson, supra. In this particular grievance, Grievant is challenging his employment termination that resulted from being laid off. That issue may be addressed by a former employee, and the employee can rely on the protection provided under the state Workers' Compensation Act, and the various federal laws Grievant has cited in contesting his lay off, provided the grievance challenging the lay off action is timely submitted. DHHR contends this grievance was not timely filed.
      Where the employer seeks to have a grievance dismissed on the basis that it was not timely filed, the employer has the burden of demonstrating such untimely filing by apreponderance of the evidence. Once the employer has demonstrated that a grievance has not been timely filed, the employee has the burden of demonstrating a proper basis to excuse his or her failure to file in a timely manner. Sayre v. Mason County Health Dep't, Docket No. 95-MCHD-435 (Dec. 29, 1995), aff'd, Circuit Court of Mason County, No. 96-C- 02 (June 17, 1996). See Ball v. Kanawha County Bd. of Educ., Docket No. 94-20-384 (Mar. 13, 1995); Woods v. Fairmont State College, Docket No. 93-BOD-157 (Jan. 31, 1994); Jack v. W. Va. Div. of Human Serv., Docket No. 90-DHS-524 (May 14, 1991).
      A grievance must be filed within ten days following the occurrence of the event upon which the grievance is based. W. Va. Code § 29-6A-4(a). The time period for filing a grievance ordinarily begins to run when the employee is unequivocally notified of the decision being challenged. Whalen v. Mason County Bd. of Educ., Docket No. 97-26-234 (Feb. 27, 1998); Kessler v. W. Va. Dep't of Transp., Docket No. 96-DOH-445 (July 28, 1997). See Rose v. Raleigh County Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566 (1997); Naylor v. W. Va. Human Rights Comm'n, 180 W. Va. 634, 378 S.E.2d 843 (1989). The event which Grievant is challenging is his lay off from employment by DHHR. There is no dispute that this event occurred in 1998. Likewise, Grievant has not challenged Respondent's statement that he was notified of the lay off in 1998.   (See footnote 8)  Because more than 10 days elapsed between the time the challenged event occurred in 1998 and this grievance was filed in 2000, the burden shifts to the employee to establish a proper basis to excuse his failure to file in a timely manner.      Grievant has not offered any persuasive reason to justify his delay in filing this grievance. Grievant's belief that his employment status could not be terminated while he continued to appeal his workers' compensation claim through all available channels does not explain his failure to challenge DHHR's action on that basis in 1998. Grievant notes that he was receiving physical therapy pursuant to Workers' Compensation at the time he received his lay off notice. While Grievant may have been unable to return to work because of a job-related injury, or other injuries or illnesses he experienced while off work and being treated for a job-related injury, he has not alleged that he was incapacitated to the point that he could not file a grievance, or understand the notice advising of his lay off. Indeed, any such claim would be directly contradicted by the fact that Grievant filed and pursued another grievance to Level IV in Rule I, in which he challenged his annual increment pay, and the extent of his tenure as a state employee covering the same period of time. In the absence of any legal basis to excuse Grievant's lengthy delay in filing this grievance over an event that took place in 1998, the undersigned must grant Respondent's Motion to Dismiss.
      Consistent with the foregoing discussion, the following Findings of Fact and Conclusions of Law are made in this matter.
FINDINGS OF FACT
      1.      Grievant was employed by Respondent Department of Health and Human Resources at Colin Anderson Center from approximately 1981 until he was laid off in a reduction in force, effective April 10, 1998.
      2.      Grievant received written notice of this lay off action in March 1998.      3.      At the time Grievant was notified of his lay off, he was on a medical leave of absence due to a work-related injury for which he has received Worker's Compensation.
      4.      Grievant has not worked for DHHR since 1994.
      5.      Grievant previously filed a grievance against DHHR which challenged the calculation of his annual increment pay, as well as the length of his employment by DHHR and other state agencies. That grievance was decided in Rule v. West Virginia Department of Health & Human Resources, Docket No. 99-HHR-130 (Oct. 25, 1999) (Rule I).
      6.      As a result of this Grievance Board's decision in Rule I, on or before January 25, 2000, DHHR issued Grievant a “lump sum payment” for the annual increment pay which Grievant was due as a remedy. DHHR withheld federal and state income tax, social security tax, and retirement contributions from this payment.
      7.      Grievant filed this grievance challenging his lay off by DHHR on January 21, 2000, more than 10 days after the effective date of that action.
      
CONCLUSIONS OF LAW

      1.      Collateral estoppel is a legal doctrine which prevents a party to a contested matter from relitigating an issue that was determined against him in an earlier proceeding, even though there is a significant difference between the present action and the previous grievance. See Black's Law Dictionary 256 (7th ed. 1999); Jordache Enterprises v. National Fire Ins. Co., 204 W. Va. 465, 513 S.E.2d 692 (1998).
      2.      Grievant's receipt of a “lump sum payment” issued in compliance with a decision of the West Virginia Education and State Employees Grievance Board awarding Grievant a limited remedy regarding his annual increment pay, and from which paymentpayroll taxes and other deductions were withheld, does not make Grievant an “employee” at the time he received such payment within the meaning of W. Va. Code § 29-6A-2(e).       3.      W. Va. Code § 29-6A-4 provides that a grievance must be filed within ten days of the event upon which the grievance is based, or within ten days of the date on which the event became known to the grievant, or within ten days of the most recent occurrence of a continuing practice giving rise to a grievance.
      4.      A timeliness defense is an affirmative defense which the moving party must establish by a preponderance of the evidence. Kessler v. W. Va. Dep't of Transp., Docket No. 96-DOH-445 (July 28, 1997); Higginbotham v. W. Va. Dep't of Public Safety, Docket No. 97-DPS-018 (Mar. 31, 1997); Sayre v. Mason County Health Dep't, Docket No. 95- MCHD-435 (Dec. 29, 1995), aff'd, Circuit Court of Mason County, No. 96-C-02 (June 17, 1996).
      5.      The time in which to invoke the grievance procedure begins to run when the grievant knows of the facts giving rise to the grievance. Floren v. Kanawha County Bd. of Educ., Docket No. 93-20-327 (May 31, 1994). See Spahr v. Preston County Bd. of Educ., 182 W. Va. 726, 391 S.E.2d 739 (1990).
      6.      No provision in the West Virginia Workers' Compensation Act, W. Va. Code §§ 23-1-1, et seq., prohibits an employer from laying off an employee claiming or receiving workers compensation benefits for genuine lack of need. See Sizemore v. Peabody Coal Co., 188 W. Va. 725, 426 S.E.2d 517 (1992).
      7.      Grievant was on notice that he was being laid off from his employment with Respondent DHHR at Colin Anderson Center in March 1998. Grievant did not file agrievance challenging his lay off until January 2000, more than 10 days after the effective date of the action. Grievant has not offered any explanation which would excuse his failure to file in a timely manner.      

      Accordingly, Respondent's Motion to Dismiss is hereby GRANTED, and this grievance is DISMISSED.

      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.

                                                                                                  LEWIS G. BREWER
                                                ADMINISTRATIVE LAW JUDGE

Dated: May 24, 2000


Footnote: 1
      During the pre-hearing conference, the undersigned denied Grievant's request to have this grievance assigned to an independent arbitrator selected through the American Arbitration Association or some other neutral forum because W. Va. Code §§ 29-6A-2(m), 29-6A-4(d), and 29-6A-5(b), assigns these adjudicatory functions to “hearing examiners” employed by the Grievance Board.
Footnote: 2
      Grievant appeared pro se. DHHR was represented by Assistant Attorney General B. Allen Campbell.
Footnote: 3
      During the pre-hearing conference, it was noted that Grievant had requested that this dispute be submitted to mediation. Respondent declined to mediate the matter. Although Grievant asked that mediation be compelled, and W. Va. Code § 29-6A-12 gives the Grievance Board authority to require mediation, the undersigned declined to exercise such discretionary authority because there did not appear to be any realistic expectation that mediation would lead to a resolution of this dispute.
Footnote: 4
      During the pre-hearing conference, Grievant asked that this matter be held in abeyance until he could determine the status of an EEO complaint he filed with the West Virginia Division of Personnel. Respondent opposed that request. The undersigned could not find any bearing which this complaint would have on the issues raised by Respondent's Motion to Dismiss. Accordingly, Grievant's request to hold this matter in abeyance was denied.       

Footnote: 5
      Grievant referred to this payment at the pre-hearing conference as a “settlement” of his previous grievance. Clearly, this payment was a remedy granted by this Grievance Board at Level IV, not a settlement.
Footnote: 6
      At no time during the pre-hearing conference did Grievant indicate he was contesting, through this grievance, the propriety of the taxes withheld from this payment.
Footnote: 7
      See Cokeley, West Virginia's New Workers' Compensation Provision: The Road to Court is Paved With Good Intentions, 94 W. Va. L. Rev. 725, 727, 736 (1991-92).
Footnote: 8
      Finding of Fact No. 13 in Rule I also notes that Grievant received a RIF (reduction in force) letter.