JARMILA VAGOUN,
Grievant,
v. Docket No. 00-HE-283D
HIGHER EDUCATION INTERIM GOVERNING BOARD/
WEST VIRGINIA UNIVERSITY,
Respondent.
ORDER DENYING DEFAULT AND DISMISSING GRIEVANCE
Grievant, Jarmila Vagoun, employed by the Interim Governing Board as a Food
Service Worker at West Virginia University (Respondent), filed a grievance at level four on
September 6, 2000, alleging that Respondent had defaulted at level one of the grievance
process. An evidentiary hearing was conducted in the Grievance Board's Morgantown
office on November 29, 2000, at which time both parties were represented by counsel,
Joseph Simoni for Grievant, and Samuel R. Spatafore, Assistant Attorney General for
Respondent. Both parties declined the opportunity to file post hearing submissions, and
the matter became mature for decision at the close of the hearing.
The essential facts of this matter are undisputed, and may be set forth as the
following formal findings of fact.
1. Grievant, employed by Respondent as a Food Service Worker, was absent
from work from October 18 through 29, 1999. During this time she traveled to the
Klimkovice clinic in Czechoslovakia for treatments to her back.
2. Grievant provided a Medical Leave Verification-Medical Assessment Form,dated June 21, 1999, which indicated that she suffered from chronic low back pain, and
the treatment plan was to spend three weeks at the clinic. Grievant's claim for sick leave
during the period of her absence was denied by Respondent, based upon a lack of
satisfactory proof of illness or injury, and the time was deducted from her accrued annual
leave.
3. After discussing the matter with Kathryn Curtin, Interim Manager of Dining
Services, Grievant filed a level one grievance on April 13, 2000, with her immediate
supervisor seeking reallocation of the time to sick leave.
4. Ms. Curtin responded to the grievance by memorandum dated April 13, 2000.
Ms. Curtin advised Grievant that she had received you [sic] Letter of Grievance, but
lacked authority to grant the relief requested. She further directed, [i]f you decide to file
your grievance, it should be filed with the Department of Human Resources and addressed
to Myrtho Blanchard.
5. Grievant filed her grievance, directed to Ms. Blanchard, at the Department
of Human Resources on April 14, 2000.
6. Grievant notified Vice President of Human Resources Scott C. Kelley by
memorandum dated May 18, 2000, that Respondent was in default, and requested the
relief be granted without delay.
7. Grievant was notified on May 23, 2000, that a level two hearing would be
conducted for her grievance on May 24, 2000.
8. Grievant had surgery on May 24, and did not attend the hearing. Her spouse
appeared at the hearing, presented a letter in which Grievant again asserted a default, and
left. 9. Respondent issued a level two decision on May 31, 2000, denying that a
default occurred, and stating that Grievant had failed to pursue the grievance within the
time lines.
10. Grievant filed a level four appeal, claiming default, on August 28, 2000.
Discussion
The default provision for education employees found in
W. Va. Code §18-29-3(a),
provides:
A grievance must be filed within the times specified in section
four of this article and shall be processed as rapidly as
possible. The number of days indicated at each level specified
in section four of this article shall be considered as the
maximum number of days allowed and, if a decision is not
rendered at any level within the prescribed time limits, the
grievant may appeal to the next level: Provided, That the
specified time limits may be extended by mutual written
agreement and shall be extended whenever a grievant is not
working because of such circumstances as provided for in
section ten, article four, chapter eighteen-a of this code. Any
assertion by the employer that the filing of the grievance at
level one was untimely must 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 that presumption. If the
examiner finds that the remedy is contrary to law, or clearly
wrong, the examiner may modify the remedy to be granted so
as to comply with the law and to make the grievant whole.
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). In addition, this Grievance Board has recently recognized
that it has jurisdiction to determine whether a default has occurred at level one--and the
informal conference stage--of the education grievance procedure.
Tignor v. Dep't of Educ.,
Docket No. 99-DOE-468D (Dec. 30, 1999);
Wounaris v. Bd. of Directors, 99-BOD-133D
(May 18, 1999).
Grievant's claim of default is based upon an assertion that her supervisor failed to
timely respond at level one.
W. Va. Code §18-29-4(a) provides as follows regarding the
grievance procedure at level one:
(1) Before a grievance is filed and within fifteen days following
the occurrence of the event upon which the grievance is
based, or within fifteen days of the date on which the event
became known to the grievant or within fifteen days of the
most recent occurrence of a continuing practice giving rise to
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 conference with the immediate supervisor concerning the
grievance shall be conducted within ten days of the request
therefor, and any discussion shall be by the grievant in the
grievant's own behalf or by both the grievant and the
designated representative.
(2) The immediate supervisor shall respond to the grievance
within ten days of the conference.
(3) Within ten days of receipt of the response from the
immediate supervisor following the informal conference, a
written grievance may be filed with said supervisor, or in the
case where the grievance involves an event under the
jurisdiction of a state institution of higher education, the
grievance shall be filed with said supervisor and the office of
personnel, by the grievant or the designated representative on
a form furnished by the employer or agent.
(4) The immediate supervisor shall state the decision to such
filed grievance within ten days after the grievance is filed.
The burden of proof is upon the grievant asserting a default has occurred to prove
the same by a preponderance of the evidence. Moore v. Dep't of Health and Human
Resources, Docket No. 98-HHR-382D (Dec. 8, 1998). If a default has occurred, 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.
If a default has not occurred, then the grievant may proceed to the next level of the
grievance procedure. See W. Va. Code §18-29-3(a). "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.
Grievant argues that because Ms. Curtin lacked authority to rule on her grievance,
the filing with Ms. Blanchard at the Human Resources Department was to be level one of
the grievance process, and no decision was issued within the ten day statutory time line.
Respondent asserts that a level one decision was timely issued by Ms. Curtin, and that
Grievant failed to timely state a default claim, both initially, and at level four. Grievant does not explain how she arrived at the erroneous conclusion that she
must seek a level one ruling other than that issued by Ms. Curtin. Frequently, the
immediate supervisor is unable to grant the relief requested at level one. There is no
statutory requirement which requires the grievant to seek a level one decision elsewhere;
the claim is simply advanced to the next level. Because Ms. Curtin responded to the
grievance the same day it was filed, the statutory requirement for processing at level one
had been fulfilled. Grievant has failed to prove by a preponderance of the evidence that
a default occurred at level one.
Additionally, Grievant has failed to timely pursue the default claim. It is undisputed
that Grievant was notified by decision of May 31, 2000, that Respondent had denied her
claim for default. An appeal of that decision was not filed at level four until August 28,
2000, nearly three months later. W. Va. Code §18-29-4(d) provides that an appeal is to
be filed within five days of the written decision. Grievant offered no reason for the delay,
and there is no evidence that Respondent was in any way responsible. Therefore,
Grievant's claim for default was untimely filed.
Conclusions of Law
1. The burden of proof is upon the grievant asserting a default has occurred to
prove the same by a preponderance of the evidence.
Moore v. Dep't of Health and Human
Resources, Docket No. 98-HHR-382D (Dec. 8, 1998). If a default has occurred, 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.
If a default has not occurred, then the grievant may proceed to the next level of the
grievance procedure.
See W. Va. Code §18-29-3(a). 2. Grievant failed to prove by a preponderance of the evidence that Respondent
failed to respond to her grievance at level one.
3. Grievant failed to timely appeal her claim to level four.
Accordingly, Grievant's request for a finding of default is
DENIED, and the matter
DISMISSED from the docket of the Education and State Employees Grievance Board.
DATE: December 21, 2000 ________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE