SCOTT R. KUNIK,
                  Grievant,

v.                                                      Docket No. 00-BOD-048

BOARD OF DIRECTORS/WEST VIRGINIA
NORTHERN COMMUNITY COLLEGE,
                  Respondent.

D E C I S I O N

      Grievant, Scott R. Kunik, a temporary employee of West Virginia Northern Community College (WVNCC or Respondent) classified as a Press Operator/Printer, filed a level one grievance on December 20, 1999, after he was not selected to fill a position of Press Operator I. Grievant requested “[r]edetermination of minimal qualification[s] for the position of Press Operator I and a redetermination of my eligibility for the position, and that consideration be given for my 18 years of related experience.” The hearing evaluator at level one lacked authority to resolve the grievance. Former WVNCC President, Dr. Linda S. Dunn, denied the matter following a level two hearing, and Grievant elected to bypass consideration at level three as is permitted by W. Va. Code §18-29-4(c). Appeal was made to level four on January 31, 2000. An evidentiary hearing was conducted on May 16, 2000, at which time Grievant was represented by Robert A. Wycherly, Director of Career Planning and Placement at WVNCC, and Respondent was represented by Kristi A. Rogucki, Esq., Assistant Attorney General. The matter became mature with the submission of proposed findings of fact and conclusions of law filed by the parties on or before June 19, 2000.
      The following facts are derived from the record in its entirety.
Findings of Fact
      1.      In 1998 Respondent, together with West Liberty State College, hired Solutions 21 to conduct a study of their reprographics systems. This study included an examination of their current practices and equipment configurations, current reprographic costs, and suggested areas of improvement, including the feasibility of connecting the institutions via digital technology. Respondent was provided a report of the findings on August 31, 1998.
      2.      In April 1999 one of Respondent's two print shop employees resigned. Dr. Linda Dunn, approved a recommendation that the vacancy be filled on a temporary basis to allow Respondent additional time to assess the efficiency and functions of the print shop.   (See footnote 1) 
      3.      Grievant was employed by Respondent as a Press Operator/Printer on a temporary basis, from May 27, 1999, through July 23, 1999. As a temporary employee he did not perform all the duties of a Press Operator I; however, his employment was extended to September 3, 1999, so that Respondent could continue to assess its print shop needs.
      4.      On August 10, 1999, Dr. Becky Johnen, Vice President for Administrative Services, recommended that Respondent continue to operate a print shop at the college, but with only one, full-time employee. President Dunn approved the recommendation.
      5.      In September, Grievant's temporary appointment was again extended, to December 15, 1999, or until the position was filled, whichever came first.      6.      On or about October 19, 1999, Respondent posted the Press Operator I position internally. The position was advertised in local newspapers on or about October 24, 1999. Educational qualifications for the position were, “[b]usiness, technical or vocational education of up to 18 months beyond high school.”
      7.      Grievant submitted an application for the position on November 29, 1999. On the same date a representative of the Human Resources Department contacted Grievant by telephone and informed him that he failed to list any educational background on his resume. Later that day Grievant submitted a second resume which did not list any post high school education.
      8.      On or about November 1, 1999, Human Resources Administrator Michele Wetherald reviewed the resumes of the six applicants, including Grievant, to obtain a pool of minimally qualified applicants. Ms. Wetherald determined that while Grievant had significant experience, he was not minimally qualified for the position because he did not list any post-high school education on his resume.
      9.      Ms. Wetherald notified Grievant on November 17, 1999, that he had not been selected for an interview based upon her determination that he was not minimally qualified.
      10.      Ms. Wetherald met with Grievant, at his request, on November 19, 1999, at which time Grievant requested that the position be held open, and that he continue to be employed on a temporary basis, until he obtained the necessary qualifications, or to make an exception to the qualifications. Grievant's requests were denied.
      11.      Grievant submitted a third resume on or about December 2, 1999. In the cover letter, dated November 30, 1999, Grievant noted that he had completed an eightweek camera and contacting course dealing with various aspects of print making and camera work. Respondent did not consider this, or any other resume submitted following the November 1, 1999, deadline.
      12.      A search committee was selected pursuant to Respondent's search process practices.
      13.      On or about December 1, 1999, Ms. Wetherald recommended that the pending search process for the Press Operator I position be closed because a fair and impartial search could not be completed. President Dunn accepted the recommendation, and the applicants were notified by letter dated December 3, 1999, that the search had been closed without filling the position.
      14.      On or about April 4, 2000, Respondent eliminated the Press Operator I position due to a budget reallocation.
Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of 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); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ. Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code §18-29-6. 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, evidence which 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 andHuman Res., 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 raises a multitude of issues at level four, including: (1) Ms. Wetherald misinterpreted the qualifications on the generic job description to require at least 18 months of education, without consideration or substitution of experience; (2) that he had been denied documents requested during the grievance process; (3) that he had worked more than 1040 hours and was no longer a temporary employee, but the incumbent who was entitled to the position; (4) that the position was eliminated after he questioned, and as the result of his questioning the selection process; and (5) that Respondent defaulted at level two. Respondent denies all allegations of wrongdoing, or that it defaulted in issuing the level two decision.
Default Issue
      W. Va. Code §18-29-3(a) states in pertinent part:
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. 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 or illness, the grievant shall prevail by default. Within five days of such 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 clearlywrong, the examiner may modify the remedy to be granted to comply with the law and to make the grievant whole.

      If a default occurs, Grievant is presumed to have prevailed, and is entitled to the relief requested, unless Respondent is able to demonstrate that the remedy requested is either contrary to law or clearly wrong. W. Va. Code §18-29-3(a). If there was no default, Grievant may proceed to the next level of the grievance procedure. Respondent contends no default occurred in this matter, as contemplated under the terms of the statute.
      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. 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. of Trustees, Docket No. 92-BOT-340 (Feb. 26, 1993).
      W. Va. Code §18-29-4(b) provides the following directions regarding when Respondent must act at Level II:
      Within five days of receiving the decision of the immediate supervisor, the grievant may appeal the decision to the chief administrator, and such administrator or his or her designee shall conduct a hearing in accordance with section six [§18-29-6] of this article within five days of receiving the appeal and shall issue a written decision within five days of such hearing . . . .

      The specified time limits in the grievance statute may be extended for a "reasonable time" by mutual, written agreement of the parties. See W. Va. Code §29-6a-3(g). Waiver of the strict statutory time lines is a common occurrence within the context of the grievanceprocedure. Huston v. W. Va. Dep't of Tax and Revenue and Div. of Personnel, Docket No. 99-T&R 469D (Feb.29, 2000); Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-296D (Nov. 30, 1999). This practice benefits both parties by allowing employers sufficient time to give grievances careful attention and care, rather than "rushing" to judgment. Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999). The West Virginia Supreme Court of Appeals upheld this interpretation in Martin v. Randolph County Board of Education, 195 W. Va. 297, 465 S.E.2d 399 (1995), in which a default claim was denied after Grievant had agreed to delay a level two hearing.
      Grievant asserts that he agreed to waive the statutory time lines, but only until January 20, 2000. Respondent argues that the agreement was the decision would be issued five days after the receipt of the level two transcript. A letter from the transcriptionist employed by Streski Reporting and Video Service establishes that the transcript was “out on Monday”, January 17, 2000. Since January 17, 2000, was a holiday, Respondent received the transcript on January 18, 2000, would have had until January 25, 2000, to issue the decision, if the agreement had been five days after receipt of the transcript.
      The level two transcript states as follows:
      HEARING OFFICER: Okay. That concludes the taking of evidence and the hearing of arguments in this case. It is now 2:45 _ 47, on January 3rd, 2000. Now, a written decision is to be mailed to each of you within 5 workdays. I want to thank you for your time and your effort, and I also want to ask if it might be possible to get an extension on that deadline because I'd like to see the court reporter's transcript, if I may.
. . . Do you have any objection to going beyond five days?
      MR. WYCHERLEY: Yes, we have no objection.

      MS. WETHERALD:       Yes.

      HEARING OFFICER: Once again, I thank you for your time and effort. This hearing is adjourned according to my watch, it is now 2:50, on January the 4th. Thank you very much.

Level II Transcript, pp. 63-64.
      The transcript does not indicate that any date certain was agreed upon by the parties. Grievant suggests that the tapes of the hearing would reveal the date to be January 20, 2000; however, Respondent advised that the tapes remain in the custody of the court reporters, and there is no evidence that Grievant made any attempt to obtain them. The undersigned is not inclined to believe the tapes would support Grievant's claim. The transcript was produced and certified to be accurate by a public court reporting entity, and appears to be complete. There are no lapses, or indications that the speakers were inaudible, during the relevant portion of the proceedings. Absent any evidence in support of his claim, the undersigned must rely upon the level two transcript which establishes an open-ended agreement to an extention of the time line. See Bowyer v. Bd. of Trustees/ W. Va. Univ., Docket No. 99-BOT-197D (July 13, 1999). Grievant's agreement to allow an extension of the statutory time line at Level II prohibits any finding that a default occurred at that level.
Position Elimination
      Grievant asserts that Respondent misinterpreted the qualifications for the position of Press Operator I, and closed the position when he questioned the decision that he wasnot minimally qualified, when he was entitled to the appointment as an internal candidate. Respondent argues that the position was eliminated for budgetary reasons.
      It does not appear that Respondent misinterpreted the position qualifications. Respondent's posting for the position vacancy for Press Operator I stated the qualifications to be, “[b]usiness, technical, or vocational education of up to 18 months beyond high school, and one year of experience operating an offset press and related equipment required.” By comparison the State College and University Systems of West Virginia job description for Press Operator I states:
The knowledge skills, and abilities listed above are typically acquired through the following levels of education and experience. However, any equivalent combination of education and/or experience is acceptable which provides an applicant the listed knowledge, skills, and abilities and the capability to perform the essential functions of the job.

Education:      Business, technical or vocational education of up to 18 months beyond high school.

Experience:      One year experience operating an offset press and related equipment.

      Grievant indicates that Respondent was requiring at least 18 months of post-high school education or training, and did not consider his many years of experience. However, Ms. Wetherald testified that she interpreted the job description to mean that the applicant must have some post secondary training or education. She further stated that Respondent was looking for an individual who could set up a billing system, conduct consultations with faculty members, schedule the work for the College, and assume other duties. In heropinion, some post-high school education would be necessary for the successful applicant to assume these duties, and that Grievant did not indicate any.
      Level II College Exhibits 4 and 6 show that Grievant did not include the eight week camera and contacting course on his October application, and did not advise Human Resources of this education until early December, after the posting had closed.   (See footnote 2)  While Respondent may have elected to allow the amended resume, it chose to consider the applications as they were submitted during the application period, and that decision cannot be found improper. Indeed, to allow Grievant yet a third opportunity to amend his application could reasonably have been viewed as favoritism by the other applicants. Grievant had been advised in October that he had failed to include his educational background on his resume. He submitted a revised resume listing only high school. It is unfortunate if he forgot about the additional training; however, it was relevant, and important that it be included. Had Ms. Wetherald been made aware of the course during the application period, she may have determined that he was minimally qualified for the position.
      Grievant is accurate that the position was closed without being filled after he began questioning Respondent's interpretation of the qualifications; however, the timing of events does not necessarily prove wrongdoing by Respondent. Ms. Wetherald testified that she recommended the position be closed after she had received several contacts, directly and indirectly, inquiring why the position was being posted when a qualified employee [Grievant] was already in place.      By letter dated December 3, 1999, Ms. Wetheraldadvised the search committee members that a fair and impartial search process could not be completed for the Press Operator I position, based upon reports and communications from one of the applicants. While this action is somewhat confusing given her previous determination that Grievant was not minimally qualified and his application would not be sent to the search committee for consideration, apparently Ms. Wetherald was concerned that one or more committee members had pre-determined the successful applicant.
      In any event, an employer is not required to fill a vacancy, and may eliminate the position. In this case, the Press Operator I position was never filled, and in April 2000, Respondent officially eliminated the position. The reason given on the Personnel Action Form for the elimination of the position was, “[d]ollars reallocated for salary adjustments mandated by SB547.” While this is clearly not the outcome desired by Grievant, the elimination of the position has not been shown to have been improper.
      In addition to the foregoing findings of fact and discussion, it is appropriate to make 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. 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." W. Va. Code §29-6A-3(a).      2.      When a grievant asserts that her employer is in default in accordance with W. Va. Code §18-29--3(a), the grievant must establish such default by a preponderance of the evidence. Once the grievant establishes that a default occurred, the employer may show that it was prevented from responding in a timely manner as a direct result of sickness or illness. See W. Va. Code §18-29-3(a).
      3.      The specified time limits in the grievance statute may be extended for a "reasonable time" by mutual agreement of the parties. Wilson v. Bd. of Trustees/ W. Va. Univ. Docket No. 99-BOT-115 (Dec. 21, 1999).
      4.      The agreement reached on the record by the parties at the Level II hearing, constitutes substantial compliance with W. Va. Code §18-29-3. Bowyer v. Bd. of Trustees/ W. Va. Univ., Docket No. 99-BOT-197D (July 13, 1999); Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999).
      5.      A party simply cannot acquiesce to, or be the source of, an error or misunderstanding during proceedings before a tribunal, and then complain of that error at a later date. Lambert v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-326D (Oct. 14, 1999). See, e.g., State v. Crabtree, 198 W. Va. 620, 627, 482 S.E.2d 605, 612 (1996).
      6.      Because Grievant agreed at the end of the Level II hearing to extend the timelines for issuance of the decision, he waived entitlement to the default provisions of W. Va. Code §18-29-3(a). Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-296D (Nov. 30, 1999); Lambert, supra.       7.      Grievant failed to prove that the decision to eliminate the position for which he applied was contrary to any statute, rule, regulation, or policy, or was otherwise improper.
      Accordingly, the grievance is DENIED.

Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Ohio County. Any such appeal must be filed within thirty (30) days of receipt of this decision. W.Va. Code §18-29-7. 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.

Date: July 17, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE


Footnote: 1
      Apparently, the second employee also left at some point in time.
Footnote: 2
      The record does not reflect when this course was completed.