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)
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:
It shall be a discriminatory practice within the meaning of section one of this
article for an employer to fail to reinstate an employee who has sustained a
compensable injury to the employee's former position of employment upon
demand for such reinstatement provided that the position is available and the
employee is not disabled from performing the duties of such position.
(emphasis added).
Grievant may also rely on the protections against retaliation for filing a workers'
compensation claim contained in
W. Va. Code § 23-5A-1:
No employer shall discriminate in any manner against any of his present or
former employees because of such present or former employee's receipt of
or attempt to receive benefits under this chapter.
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.
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