Grievant,
v.
WEST VIRGINIA DIVISION OF
REHABILITATION SERVICES
Respondent.
Mark Musser (Grievant) is employed by the West Virginia Department of
Rehabilitation Services (Rehab), as an Employment Specialist. He filed this action on
January 4, 2000, regarding his failure to receive a merit raise. This grievance was denied
at level one by Ezra H. Lilly, District Manager, on January 5, 2000. A level two conference
was held on January 18, 2000, and the grievance was denied at level two by Charles S.
Lovely, Jr., Manager, on January 20, 2000. Grievant appealed this decision to level three
by memorandum to James S. Quarles, Director of Human Resources, dated January 26,
2000.
Grievant received no response from Mr. Quarles or from Kitty Dooley, the level
three hearing examiner, and on February 22, 2000, Grievant notified Mr. Quarles, in
writing, that he was claiming a default occurred at level three of the grievance process,inasmuch as Rehab had failed to set a hearing or otherwise respond to his appeal within
seven days. Grievant also notified Ms. Dooley of his claim for default on that same day.
On March 3, 2000, Grievant appealed his claim of default to level four. A level four
default hearing was held on April 27, 2000, before the undersigned Administrative Law
Judge at the Grievance Board's Beckley, West Virginia, office. An Order Granting Default
was issued by the undersigned on May 15, 2000, which Order is pending on appeal by
Rehab in the Kanawha County Circuit Court.
Following the Order Granting Default, Rehab requested a hearing in order to show
that the remedy received by Grievant was contrary to law or clearly wrong, in accordance
with the default provisions of W. Va. Code § 29-6A-3(a)2). Specifically, that Code Section
provides:
Within five days of 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 the instant grievance, Grievant alleged he was discriminated against when Rehab
failed to grant him a merit raise on October 31, 1999, pursuant to its Merit Increase Plan.
LIV G. Ex. 2. As relief, Grievant sought a 7.5% merit increase, the highest percentage
increase authorized by the Merit Increase Plan.
A level four hearing was held on July 18, 2000, in this Grievance Board's
Charleston, West Virginia, office. Grievant was represented by Steve Rutledge, WestVirginia State and Education Employees Union, and Rehab was represented by Warren
N. Morford, Esq.
Following the close of the level four hearing, Rehab filed a Withdrawal of Request
to Show Remedy is Contrary to Law and/or Clearly Wrong, on July 25, 2000. A phone
conference was held at Grievant's request on August 3, 2000, for the purpose of clarifying
Rehab's motion. Grievant strongly objected to Rehab's withdrawal of its claim, noting the
Order of Default was still pending in Circuit Court. Grievant also objected to the
undersigned's ruling that certain documents which had been subpoened for the level four
hearing did not need to be supplied by Rehab at this point in time. However, should the
Circuit Court reverse the Order of Remand, those documents would again become relevant
and subject to production by Rehab.
Accordingly, as Rehab has withdrawn its request for a determination that the relief
sought by Grievant is contrary to law or clearly wrong, there is nothing left to do by the
Grievance Board but find that Grievant has prevailed by default, and is entitled to the relief
sought.
WHEREFORE, Rehab is hereby ORDERED to award Grievant the 7.5% merit
increase, effective October 31, 1999.
Any party 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.
___________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: August 10, 2000