CLAUDIA JONES,

                  Grievant,

v.                                                Docket No. 99-DOE-495D

DEPARTMENT OF EDUCATION,

                  Respondent.

ORDER DENYING DEFAULT

      On November 3, 1999, Respondent, Department of Education ("DOE"), filed at Level IV, a "Request for Hearing to Determine Whether There Has Been Default," stating that a letter had been received from Grievant's representative on November 1, 1999, alleging DOE had failed to timely respond at level one, and Grievant, Claudia Jones, was entitled to prevail by default.   (See footnote 1)  Grievant was represented by Perry Bryant, and DOE was represented by Kitty Dooley, Esquire. A Level IV hearing was held on Respondent's request on December 15, 1999. The parties elected not to file written argument, and this matter became mature for decision at the conclusion of the hearing.
      W. Va. Code § 18-29-1 provides that DOE's employees may utilize theeducation employees grievance procedure. The default provision for education employees is found in W. Va. Code § 18-29-3(a), which provides:

      Effective July 1, 1998, W. Va. Code § 18-29-5 was amended to provide that the Grievance Board "shall administer the grievance procedure at levels two, three and four, . . . as provided for in section four of this article . . .." Based upon this provision, the Grievance Board now has jurisdiction to hear an education employee's default claim, when the default occurs at levels two or three. Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999). However, the default here is alleged to have occurred at level one. Nonetheless, "should the employer appeal theemployee's default declaration on the narrow grounds that the remedy received is contrary to law or clearly wrong, this Grievance Board has jurisdiction to decide such an appeal. 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)." Ehle v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998). This includes a contention by the employer that "any remedy would be clearly wrong because, in fact, no default occurred at the lower levels of the grievance procedure." Id.
      Grievant's claim of default is based upon an assertion that her supervisor failed to timely respond to her grievance after her conference with him at Level I, preceding the filing of a grievance. Grievant claims her supervisor said at her conference that he would give a response within two weeks, by October 15, 1999, and he did not do so. W. Va. Code § 18-29-4(a) provides as follows regarding the grievance procedure at Level I:




Further, W. Va. Code § 18-29-3(i) provides:
      Respondent argued no default occurred, as the parties had agreed after the conference with Grievant's supervisor that Grievant would provide additional information to her supervisor, and while some of that information was provided by Grievant on the tenth working day after the conference, not all of the information was provided. Accordingly, Respondent argued Grievant had waived her right to enforce the statutory timelines for a response.   (See footnote 2)  While Respondent did not specificallyarticulate that the remedy would be clearly wrong because no default occurred, the result is the same, and it is appropriate that this matter be reviewed at Level IV.
      Respondent did not question whether a default could occur at the pre-filing conference stage. This Grievance Board has found that a default may occur at this stage of the procedure. Wounaris v. Bd. of Directors, Docket No. 99-BOD-033D (May 18, 1999).
      The burden of proof is upon the respondent claiming no default has occurred, or asserting an affirmative defense, to prove the same by a preponderance of the evidence, due to the presumption set forth in W. Va. Code § 18-29-3(a) that the grievant has prevailed on the merits. Ehle, supra. "The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the party bearing the burden has not met its burden. Id.
      The following findings of fact are derived from the record developed at the Level IV hearing.
Findings of Fact

      1.      During 1999 employees of the Department of Education were reclassified. Grievant was not satisfied with the title her position had been assigned in thereclassification. On or about September 20, 1999, Grievant completed a grievance form complaining of her classification, and put it in the chair of her supervisor, Phillip Uy, Coordinator of the Fiscal Office.
      2.      Mr. Uy had been employed by DOE since June 28, 1999. He was not familiar with the grievance procedure. He read the grievance form, and believed Grievant would contact him to set up a conference.
      3.      Grievant talked with Mr. Uy on September 27, 1999, about her grievance, and told him her representative wanted to schedule a meeting. She gave Mr. Uy some dates for a meeting, and the conference was scheduled and held on October 1, 1999. All parties considered this to be the conference preceding the filing of a grievance. Grievant, her representative, and Mr. Uy were in attendance.
      4.      Mr. Uy explained to Mr. Bryant that he was a fairly new employee, this was his first grievance, and he was not familiar with the grievance procedures. Mr. Bryant told Mr. Uy not to worry about it, as they were not at the written grievance stage, but were just having an informal conference to discuss the issues. The parties agreed at the conference that information needed to be gathered for Mr. Uy to review so he could make a decision, and that Grievant would provide Mr. Uy with a list of employees in state government in the job classification she desired and certain state job descriptions. Mr. Uy mentioned a date of two weeks from October 1. Mr. Uy believed this was the target date for Grievant to get the information to him. Grievant believed this was the date Mr. Uy said he would have a response to her.      5.      Grievant handed Mr. Uy the job descriptions on October 15 or 19, 1999.   (See footnote 3)  She did not provide the list of employees, and told Mr. Uy she was unable to obtain that information because her position was unique. Mr. Uy told her he would look at the information while he was at a seminar, which ran from October 19 through 22, 1999. Grievant did not tell Mr. Uy this was not acceptable to her.
      6.      Grievant talked to Mr. Uy about her classification issue on October 25, 1999. She again told him she was unable to obtain the list of employees. Mr. Uy told her he was working on her problem. She told him to check his schedule and they would meet again with her representative, and that she would be out of the office a lot because her mother was ill. She wanted to meet again to get his answer and to discuss what the next step would be.
      7.      Mr. Uy intended to make his own efforts to obtain the list of employees, as he wanted to review this information before making his decision, because Grievant had told him there were positions which demonstrated she was underclassified. He was trying to help Grievant get the classification she wanted, and that was his intention from the beginning.
      8.      On November 1, 1999, Grievant filed a default claim with DOE.
Discussion
      Although W. Va. Code § 18-29-3(a) provides that the timelines may be extended by mutual written agreement, it is not necessary to reduce the agreement to writing if the parties have verbally agreed, or the Grievant's actions constitute a waiver of the statutory time requirements. Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 465 S.E.2d 399 (1995); Bowyer v. Bd. of Trustees, Docket No. 99- BOT-197D (July 13, 1999). See also, Hanlon v. County Bd. of Educ., 201 W. Va. 305, 496 S.E.2d 447 (1997). The timelines were extended in this matter by the actions and agreements of the parties.
      It appears to the undersigned that it is more likely than not that October 15 was the agreed target date for getting the information to Mr. Uy, for three reasons. First, Mr. Uy did not know when Grievant would get the information to him, so how would he be able to pick a date for a response? Second, October 15 is the date Grievant says she gave the information to Mr. Uy, indicating a target date for the information to be provided. Third, by statute, October 15 was already set as the date a response was due,   (See footnote 4)  so why would Mr. Uy need to give her that response date?
      Regardless of what was said at the conference about October 15, it is clear the parties agreed that additional information would be provided to Mr. Uy before he made his decision. Part of that information was not provided to him until 10 working days, or more, after the conference, and the rest of the information was never provided. Getting the information to Mr. Uy was the prerequisite to his response, and Grievant could not expect a response until after he had the opportunity to review the information. Bowyer, supra. Mr. Uy told Grievant he would review it the following week, and she did not object.
      Grievant then, on October 25, 1999, told Mr. Uy she wanted him to schedule a meeting with Mr. Bryant, indicating to the average person that the process was ongoing. Mr. Uy intended to do what he could to assist Grievant in achieving her goal, but he needed some time to review the information she had provided, and try to obtain the additional information they had talked about. Grievant never told him this was unacceptable.
Hanlon, supra, at 201 W. Va. 316. No default occurred under the facts of this case.   (See footnote 5) 
      The undersigned is frankly disturbed by this default claim. The primary purpose of the grievance procedure is to allow the parties a forum to attempt to work problems out, and that is what Mr. Uy was trying to do. Mr. Uy did not simply dismissGrievant's complaint out of hand because he was too busy, or felt her complaint was frivolous. He was going to bat for her, which is to be commended. His efforts obviously were not appreciated, which is unfortunate, as it is possible Mr. Uy will not make this same mistake again.
      In addition, it is appropriate to make the following conclusions of law.
Conclusions of Law

      1.      "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." W. Va. Code § 18-29-3(a).
      2.      Before filing a grievance "the grievant or the designated representative shall schedule a conference with the immediate supervisor to discuss the nature of the grievance and the action, redress or other remedy sought. . . . The immediate supervisor shall respond to the grievance within ten days of the conference." W. Va. Code § 18-29-4(a).
      3.      The burden of proof is on a respondent appealing a claim of default to Level IV to prove by a preponderance of the evidence that no default occurred, or that it has a statutory excuse for noncompliance with the statutory timelines, due to the presumption set forth in W. Va. Code § 18-29-3(a) that the grievant has prevailed on the merits. Ehle v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998).
      4.      The statutory timelines may be extended by mutual agreement, or by the actions of the parties. Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 465S.E.2d 399 (1995); Bowyer v. Bd. of Trustees, Docket No. 99-BOT-197D (July 13, 1999).
      5.      Respondent proved no default occurred, as the timelines for Grievant's supervisor's response were extended by agreement of the parties, and Grievant, by her actions, waived her right to assert a default occurred under these circumstances.

      Accordingly, the default claim is DENIED. This matter should be, and the same hereby is, ORDERED REMANDED TO LEVEL I of the grievance procedure for education employees for proper adjudication. Grievant's supervisor is directed to give his response to the conference within ten days of receipt of this Order. This matter is ORDERED DISMISSED and STRICKEN from the docket of this Grievance Board.

                                                                                                       BRENDA L. GOULD
                                                  Administrative Law Judge


Dated:      January 3, 2000


Footnote: 1
Respondent's request also included a default claim filed by David Tignor and Linda Blair. As the basis for those default claims was different from the claim of Ms. Jones, her default claim was separated by agreement of the parties.
Footnote: 2
Respondent asserted, in the alternative, the affirmative defense of excusable neglect. While the state employees grievance procedure found in W. Va. Code §§ 29- 6A-1, et seq., lists excusable neglect as a statutory defense to a default claim, the only statutory excuse provided by the education employees grievance procedure is "sickness or illness." W. Va. Code § 18-29-3(a). Curiously, however, DOE Exhibit 1,which is those pages of the West Virginia Department of Education Employee Handbook involving the grievance procedure, states the excuses to default as "sickness, injury, excusable neglect, unavoidable cause, or fraud."
Footnote: 3
Grievant believed it was the 15th, while Mr. Uy believed it was the 19th. Neither recorded the date at the time the information was provided, however, Grievant believed it was the 15th, stating, "they were given to him on that date because I knew he was going to be going out of town for a meeting, and I knew I had to take time off that following week, that same week coming up for my mother."
Footnote: 4
Although October 11, 1999, was a state holiday, the parties did not indicate that it was a DOE holiday. If it were, the 10 day time period would not have run until October 18, 1999.
Footnote: 5
Although the parties did not argue this, the statute only requires a response from the supervisor at this stage, and the response need not be in writing. Grievant's supervisor gave her a response at the informal conference - that he needed to look at certain information in order to see if he could help her.