v. Docket No. 95-BOT-081D
Grievant, Dale Olson, filed this grievance against his employer, West Virginia
University ("WVU") in 1994. Since that time, the grievance has had a long and tortured
procedural history. At the present time, the first order of business is Grievant's Motion for
this Grievance Board to review his default claims, and Respondent's Motion to Dismiss for
numerous reasons, including failure to pursue and failure to file a grievance at Level II.
Initially, a hearing was scheduled on Grievant's Motion for Default on September 15,
1999.
(See footnote 1)
Before that hearing, on August 26, 1999, a pre-hearing conference was conducted
with Respondent's attorney, Bruce Walker, and Grievant's attorney, George Surmitis.
(See footnote 2)
Grievant stated the issue of default needed to be addressed. The history of the case and
the ruling of Circuit Court Judge Fred Fox on the default issue were discussed.
Respondent alleged the issue of default has been resolved at the circuit court level, and
Grievant's case should be dismissed as he never apealled to Level II and failed to pursuethis action. Grievant has also raised the question of whether the Grievance Board currently
has jurisdiction over the matter.
The parties requested a continuation of the scheduled hearing and requested to
brief the above-stated issues. This request was granted, and these issues became mature
for decision on December 2, 1999, after receipt of the parties' briefs on the issues.
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact about the history thus far in the case.
Findings of Fact
1. On August 2, 1994, Grievant, a professor in the College of Law, began the
grievance procedure by requesting a conference with the Dean of the Law School, Teree
Foster. He did not notify Dean Foster in advance that the purpose of the meeting was an
informal conference, but she met with him at that time anyway.
2. After she had time to reflect on Grievant's complaints relating to merit
increases, she attempted to schedule a meeting with Grievant. Grievant was unable to
meet with Dean Foster either on August 10 or 11, 1994, so she sent him a written reply
dated August 10, 1994, denying the grievance on this informal level.
3. On or about Tuesday, August 23, 1994, Grievant filed an undated, written,
statutory "grievance" entitled "Statement of Demands". This lengthy statement was not on
a grievance form, and it was rather unclear as to the grievable events and dates they
occurred. Grievant requested as relief that he be given varying amounts of monetary
compensation for the issues he raised. 3. On Monday, August 30, 1994, Dean Foster issued her Level I Decision
denying the grievance.
4. Grievant received the certified notice of this Decision on August 31, 1994,
and signed for the Decision on September 1, 1994.
5. This Decision informed Grievant of the time frames and procedure for
appealing the decision to Level II.
6. Grievant did not appeal to Level II, and did not discuss the Level I decision
with Dean Foster.
7. The next action by Grievant was a letter dated February 10, 1995, written by
Grievant's then attorney, John Ball, which informed Respondent that although Grievant had
prevailed by default "no satisfaction of his entitlement to releif (sic) ha[d] been accorded."
"Unconditional demand" was made for the relief demanded, and informed Respondent that
a Writ of Mandamus would be filed if it failed "to comply with its legal obligation to satisfy
this award." Respondent was also informed it was not to correspond with Grievant about
this matter.
8. Respondent received this letter on February 14, 1995.
9. Because Respondent found the statute governing default,
W. Va. Code §
18-29-3, to be unclear as to the proper course of action in this type of situation,
Respondent scheduled a Level II hearing for February 16, 1995, so the hearing could be
completed in time to meet the five day time limit on Respondent's filing to Level IV, so the
default issue could be reviewed pursuant to
W. Va. Code § 18-29-3(a). 10. Per the above-stated directions in Finding of Fact of 7, this notice was sent
only to Mr. Ball. On February 15, 1995, his secretary responded that Mr. Ball was not in
the office and would not return until March 3, 1995.
11. On February 15, 1995, Respondent wrote Mr. Ball and directed information
to his secretary that it could not continue the hearing without written permission to extend
the time frames to do so, and it was unable to speak to Mr. Olson directly because of the
directions of his attorney.
12. No written permission to continue the hearing was received, and the Level
II hearing was held on February 16, 1995. Respondent noted on the record the inability
to contact Grievant. Neither Grievant nor a representative attended this hearing.
Testimony about the alleged default was entered into the record at that Level II hearing.
13. A Level II decision was issued February 20, 1995, denying the grievance and
finding no default had occurred. Grievant received this Decision on February 22, 1995.
14. Grievant did not appeal this Decision to Level III or Level IV.
15. On February 20, 1995, Respondent sent a copy of this decision to Senior
Administrative Law Judge Sue Keller, informing her that although Respondent did not
believe a default had occurred, Respondent was filing, pursuant to
W. Va. Code § 18-29-
3(a), a formal petition for a declaratory ruling on the matter, to safeguard its position.
16. On February 28, 1995, Administrative Law Judge Keller sent a Notice of
Hearing for March 8, 1995. A copy of the lower level record was sent to Administrative
Law Judge Keller shortly thereafter. 17. On March 6, 1995, Attorney Ball wrote Administrative Law Judge Keller
stating Grievant had prevailed on his claims by default, the Grievance Board had no
jurisdiction, and further action "will be most likely take the form of a Writ of Mandamus
action." He stated he would not attend the scheduled hearing.
(See footnote 3)
18. On March 9, 1995, Respondent's attorney sent Administrative Law Judge
Keller Respondent's Position Statement, Motion to Dismiss, and Alterative Motion to Stay
the Proceedings.
19. On March 30, 1995, Administrative Law Judge Keller entered an Order
granting Respondent's Motion for a Stay, as it appeared likely the case would be remanded
to the Grievance Board at a later time.
20. On August 26, 1995, Administrative Law Judge Keller sent a letter to the
parties requesting the status of the case. She received no response to this inquiry.
21. On January 9, 1997, after a full evidentiary hearing and written memoranda
of law, Circuit Court Judge Fred Fox issued a Letter Opinion finding a Writ of Mandamus
would not lie, and stating Grievant had failed to prove he should prevail by default.
Specifically, Judge Fox stated, "the dean did not default with regard to the Level One
proceedings."
22. Judge Fox also directed the parties to the grievance procedure for further
resolution of the issues, and suggested the parties proceed to Level IV as he believed a
hearing at Level II would be "quite frankly, fruitless." 23. This letter opinion was followed by an Order Denying Petitioner's Writ of
Mandamus" issued February 13, 1997. This Order incorporated the Letter Opinion issued
on January 9, 1997.
24. On April 2, 1997, Administrative Law Judge Keller wrote to Grievant's then
attorney, Sharon Hayes, noting she had received Judge Fox's Decision and asked the
parties how they now wished to proceed. She received no response to this letter.
25. On May 1, 1997, Administrative Law Judge Keller again wrote Grievant's
attorney about the status of the case, and informed the parties if there was no further word
the case would be dismissed.
26. On May 6, 1997, Ms. Hayes informed Administrative Law Judge Keller Judge
Fox's Decision would be appealed, Grievant wished to preserve his objection to jurisdiction
at Level IV, and requested the grievance be held in abeyance until a Decision was
received from the West Virginia Supreme Court of Appeals.
(See footnote 4)
27. On May 9, 1997, in response to Administrative Law Judge Keller's letter of
May 1, 1997, Respondent filed a Motion to Dismiss or to Withdraw the Grievance from
Further Consideration. Respondent noted it had only filed to Level IV protect its default
rights pursuant to
W. Va. Code § 18-29-3, and now that the default issue had been
resolved, it no longer wished to proceed at Level IV.
28. On May 31, 1997, Administrative Law Judge Keller issued an Order indicating
she would continue to hold the grievance in abeyance as requested by Grievant. 29. On September 16, 1997, Administrative Law Judge Keller again wrote Ms.
Hayes requesting the status of the appeal to the West Virginia Supreme Court of Appeals.
30. On September 22, 1997, Respondent's attorney, Andrew Dimlich, responded
to this letter and noted Grievant's Motion before the West Virginia Supreme Court of
Appeals was scheduled for hearing on December 3, 1997.
31. On October 2, 1997, Ms. Hayes responded to Administrative Law Judge
Keller's letter and noted the appeal was underway and directed Administrative Law Judge
Keller to her May 6, 1997 letter in which she stated the Grievant's desire "to preserve his
jurisdictional objection to the Level IV hearing."
32. On December 3, 1997, the West Virginia Supreme Court of Appeals denied
Grievant's request to review Judge Fox's denial of the Writ of Mandamus.
33. On December 17, 1997, Grievant filed with the West Virginia Supreme Court
of Appeals a Motion for Leave to File out of Time.
34. On January 8, 1998, this Motion was refused.
35. On January 29, 1998, Mr. Dimlich sent a copy of this Order to Administrative
Law Judge Keller.
36. On April 20, 1998, Administrative Law Judge Keller wrote to Grievant's
attorney noting the West Virginia Supreme Court of Appeals had denied the Motion, and
requested information on how Grievant wished to proceed.
37. On May 21, 1998, Ms. Hayes responded and informed Administrative Law
Judge Keller that "Grievant was preparing a motion pursuant to W. V. R. Civ. P. 60(b)(8)
(sic) to request the Circuit Court to hold that a Writ of Mandamus lies to enforce the defaultwhich occurred in the initial stage of his grievance proceeding."
(See footnote 5)
Grievant continued to
argue that he had won by default, and stated the Circuit Court had "held that a Writ of
Mandamus did not lie on the basis of its determination that the primary jurisdiction
remained in the lower stages of the grievance process."
(See footnote 6)
Ms. Hayes informed
Administrative Law Judge Keller that Rule 60(b)(8) (sic) obligated Grievant to confer with
the Attorney General's office, and stated Grievant was initiating this communication with
a copy of this letter to Administrative Law Judge Keller. Grievant wished to maintain all
"jurisdictional defenses."
38. On June 22, 1998, Respondent's Attorney, Sam Spatafore, wrote Ms. Hayes
and copied Administrative Law Judge Keller on this letter. Mr. Spatafore noted he had
attempted to call Ms. Hayes without success, and therefore was writing his response to the
May 21, 1998 letter. He noted there was no such Rule of Civil Procedure and indicated
he did not believe Grievant's arguments utilizing recently decided cases had merit.
39. Again, having no further word from Grievant, Administrative Law Judge Keller
wrote to the parties on December 18, 1998, noting the grievance was still in abeyance, and
had been since February 20, 1995. She indicated the grievance would be dismissed from
the dockets of the Grievance Board in thirty days for failure to pursue pursuant to Section
4.14 of the West Virginia Education and State Employees Grievance Board Procedural
Rules if there was no written objection to this action. 40. On December 28, 1998, Grievant wrote Administrative Law Judge Keller
indicating he still intended to file a Rule 60(b)(8) (sic) Motion. It was clear from this letter
that Grievant had not yet taken the required action. He again noted he wished to continue
to reserve all jurisdictional defenses. This letter was followed by a letter from Ms. Hayes
noting Grievant had already responded.
41. On February 17, 1999, Administrative Law Judge Keller wrote the parties
indicating Grievant's response was the same as she had received before, noted Grievant
had failed to take action, and that unless she was provided with evidence of some activity
within ninety days a Level IV hearing would be scheduled pursuant to Respondent's
request of February 20, 1995.
42. On March 2, 1999, Ms. Hayes wrote Administrative Law Judge Keller to
inform her she was withdrawing from the case.
43. On March 27, 1999, Grievant wrote Administrative Law Judge Keller
attaching a copy of a February 23, 1999 letter to Delegate Charlene Marshall indicating
she had met with Attorney General Darryl McGraw, as well as other staff members, and
had inquired about the grievance. Grievant redacted the rest of the letter, so it is
impossible to know what the results of that meeting were. Grievant did not inform
Administrative Law Judge Keller what he wished to do now, but he continued to reserve
all jurisdictional defenses.
44. On June 29, 1999, Administrative Law Judge Keller again wrote the parties
noting she had not been informed of the results of Grievant's attempts "to engage in the
alternative course of relief." The parties were directed to provide Administrative Law JudgeKeller with three mutually agreed upon dates for a Level IV hearing. If no response was
received the hearing would be schedule at her convenience. She received no response.
45. On July 26, 1999, a Notice of Hearing for September 15, 1999, was sent to
the parties.
Discussion
The two issues addressed by the parties in their briefs will be addressed separately.
A. Default
This Grievance Board has previously adjudicated related issues arising under the
default provision in the grievance statute covering education employees, W. Va. Code
§ 18-29-3(a). See, e.g., 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). Typically, when a grievant is claiming
he prevailed by default under the statute, he bears the burden of establishing such default
by a preponderance of the evidence. Friend v. W. Va. Dep't of Health & Human
Resources, Docket No. 98-HHR-346D (Nov. 25, 1998). A preponderance of the evidence
is generally recognized as evidence of greater weight, or which is more convincing than
the evidence which is offered in opposition to it. Hunt v. W. Va. Bureau of Employment
Programs, Docket No. 97-BEP-412 (Decision. 31, 1997); Petry v. Kanawha County Bd.
of Educ., Docket No. 96-20-380 (Mar. 18, 1997). In this instance Grievant is requesting
the undersigned Administrative Law Judge to review and reverse the default decision made
by Judge Fox. Grievant argues in his memorandum that "[t]he ruling of the circuit court of
Monongalia County does not resolve the issue of the employer's default as said Decision
is not res judicata or was erroneous and contrary to law." Respondent maintains Grievant
is barred from litigating the issue of default before the Grievance Board by the doctrines
of res judicata, collateral estoppel, and/or Law of the Case.
"This Grievance Board is bound by [a] Circuit Court's legal conclusions in this matter
as 'the law of the case.'"
(See footnote 7)
Parsons v. W. Va. Dep't of Transp./Div. of Highways, Docket No.
97-DOH-289R (May 6, 1999); Bass v. Kanawha County Bd. of Educ., Docket No. 92-20-
214 (Nov. 4, 1994); Runyon v. Mingo County Bd. of Educ., Docket No. 93-29-481 (Apr.
4, 1994). See Tressler Coal Mining Co. v. Klefeld, 108 W. Va. 301, 24 S.E.2d 98 (1943).
As stated by the West Virginia Supreme Court of Appeals in the Syllabus Point of
Lyons v. Grassilli Chemical Co., 106 W. Va. 518, 146 S.E. 57 (1928), "[t]he Decision of the
Court should ordinarily, be adhered to in other actions between the same or different
parties growing out of the same cause of action, or a continuance thereof, and involving
substantially the same set of facts considered in the decided case, especially where adifferent ruling would work great injustice to some of the litigants."
(See footnote 8)
Further, the West
Virginia Supreme Court of Appeals stated in State ex. rel Adkins v. Sims, 130 W. Va. 645,
46 S.E.2d 81 (1947), "in a pending suit or action, a decision of the appellate court on a
question of law once made, becomes the law of the case in future proceedings in a trial
court in the same case, or even in a subsequent suit or action on the same cause of action
. . . . (citations omitted)." In Armstrong v. Armstrong, 201 W. Va. 244, 496 S.E.2d 194,
(Oct. 24, 1997), the West Virginia Supreme Court of Appeals discussed the Law of the
Case doctrine and stated, "[t]he essence of this doctrine is that a court of general
jurisdiction, not sitting as an appellate court, may not overrule the decision of another court
of general jurisdiction. See Chesapeake & W.R. Co. v. Washington C. & St. Louis R'y, 99
Va. 715, 40 S.E. 20, 21 (Va. 1901) ('The proceedings of a court of general and competent
jurisdiction cannot be properly impeached and re-examined collaterally by a distinct
tribunal, one not sitting in exercise of appellate power.')."
Judge Fox's Order held "the dean did not default with regard to the Level One
proceedings." He further held "it follows that grievant's prayer for mandamus relief, basedon a default, is without merit and must be denied."
(See footnote 9)
These statements are very clear; the
issue of default has been resolved by a court of higher jurisdiction. This Grievance Board
has previously determined it "is bound by [a] Circuit Court's legal conclusions . . . as 'the
law of the case.'" Parsons, supra. See Bass, supra; Runyon, supra. As such this
Grievance Board does not have the authority or the jurisdiction to overturn a ruling by a
circuit court. See Pack v. Kanawha County Bd. of Educ., Docket No. 93-20-483 (June 30,
1994). Accordingly, Grievant's request for the Grievance Board to review and change
Judge's Fox's prior ruling of default is DENIED.
(See footnote 10)
B. Questions of Failure to Pursue and Timeliness
Respondent argues the grievance should be dismissed for failure to pursue this
grievance and because it was untimely filed. Respondent notes Grievant did not appeal
the grievance to Level II or Level III, and has repeatedly questioned the jurisdiction of the
Grievance Board. Respondent also points out the numerous, lengthy delays under
Grievant's control in pursuing this grievance, including the five month delay in informing
Respondent of his allegation he had prevailed by default. . Grievant argues "the grievance should not be dismissed on the grounds that the
Grievant has failed to pursue this matter in a timely manner because the Respondent has
invited or acquiesced to the delay, and Grievant has been diligent in pursuing this
grievance, which has been approved by this Grievance Board." Grievant did not speak to
the issue of his failure to file an appeal at Level II or Level III.
W. Va. Code § 18-29-4(a & b) provides the following directions regarding when a
respondent and a grievant must act at Levels I, II, and III:
(a) 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.
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.
Such decision may affirm, modify or reverse the decision appealed from.
. . .
Within five days of receiving the decision of the chief administrator, the
grievant may appeal the decision to the governing board of the institution or
may proceed directly to level four.
W. Va. Code § 18-29-4 states that "[w]ithin five days of receiving the [Level I]
decision of the immediate supervisor, the grievant may appeal the decision to the chief
administrator." Grievant did not file to Level II nor did he ever discuss the issue with his
supervisor. In fact, Respondent heard nothing from the Grievant until approximately five
months later when Grievant filed his default claim. Grievant has given no reason why he
did not file, and it is clear by Grievant's processing of his default claim that he is aware of
timeliness issues.
W. Va. Code § 18-29-4 also proscribes the timelines for filing to Level III or IV, and
states: "[w]ithin five days of receiving the decision of the chief administrator, the grievant
may appeal the decision to the governing board of the institution [Level III] or may proceed
directly to level four." After Grievant received the Level II Decision denying both the
grievance and the default, Grievant did not file to Level III or IV.
This specific issue can be examined in three ways. It can be said Grievant
abandoned his claim in September 1994, when he did not file to Level II, or February 1995
when he did not file to Level Ill or IV, it can be viewed as Grievant failing to file hisgrievance to the next level in a timely manner, if the filing of the default is viewed as an
appeal to Level II, or it can be viewed as Grievant not filling at Level II because he believed
he had prevailed by default. This exact set of circumstances has not come before the
Grievance Board before, but similar issues have.
Normally, pursuant to statute, if a grievant does not file to the next level his claim
is deemed abandoned, and that is the end of the grievance. Here, the grievance is only
at Level IV because Respondent filed here on the default issue in an effort to follow all
necessary procedures correctly. If it were not for Respondent's action, this grievance
would not be before this Grievance Board.
This Grievance Board has held that when a grievant does not file a grievance to the
next level it is deemed abandoned. Floren v. Kanawha County Bd. of Educ., Docket No.
93-20-327 (May 31, 1994). See Holmes v. Bd. of Directors/W. Va. State College, Docket
No. 99-BOD-216 (Dec. 28, 1999); Pack, supra. This is essentially what happened here;
Grievant did not file to either Level Il or Level III after he received the decisions.
Accordingly, Grievant cannot be allowed to pursue his claim in this forum as he has not
acted in such a manner as to perfect his grievance.
If the grievance is examined in light of a timeliness issue, the following standard of
review is followed. When 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 a preponderance of the evidence. Hawranick v. W. Va. Dep't of Health and
Human Resources, Docket No. 98-HHR-010 (July 7, 1998); Harvey v. Bureau of
Employment Programs, Docket No. 96-BEP-484 (Mar. 6, 1998). A preponderance of theevidence is generally recognized as evidence of greater weight, or which is more
convincing than the evidence which is offered in opposition to it. Morrison v. W. Va.
Bureau of Commerce, Docket No. 97-DOL-490 (Jan. 15, 1998); Miller v. W. Va. Dep't of
Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997); Petry, supra.
Should the employer demonstrate that a grievance has not been timely filed, the
employee may demonstrate a proper basis to excuse his failure to file in a timely manner.
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). 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).
Respondent notes the Level I Decision was issued on August 30, 1994, and
Respondent heard nothing further from Grievant until five months later when Grievant
asserted he had won by default. As stated previously, W. Va. Code §18-29-4(d)(1) states
in pertinent part, "[i]f the grievant is not satisfied with the action taken by the chief
administrator . . . within five days of the written decision the grievant may request, in
writing, on a form furnished by the employer, that the grievance be submitted to a hearing
examiner . . . ." This Grievant did not do.
There is also a third way of examining this issue; Grievant did not file to Level II
because he believed he had won by default, and thus, saw no need to proceed further with
the grievance process. Unfortunately for Grievant, this path is also fraught with difficulties. "Long standing case law and procedural requirements in this state mandate that a party
must alert a tribunal as to perceived defects at the time such defects occur in order to
preserve the alleged error for appeal." Hanlon v. Logan County Bd. of Educ., 201 W. Va.
365, 496 S.E.2d 447 (1997). Grievant did not file the demand for satisfaction on the
default issue until more than five months after he received the Level I Decision. He did not
file the Writ of Mandamus until at least six months after he received the Level I Decision.
The West Virginia Supreme Court of Appeals has held "that in order to benefit from the
'relief by default' provisions contained in W. Va. Code § 18-29-3(a) (1992) (Repl Vol. 1994),
a grieved employee or his/her representative must raise the 'relief by default' issue during
the grievance proceedings as soon as the employee or his/her representative becomes
aware of such default." Hanlon, supra. Grievant waited more than five months before he
informed Respondent that he believed he had prevailed by default.
Respondent has met its burden of proof. It is clear this grievance is untimely filed
even if the undersigned Administrative Law Judge were to assume Grievant, when he sent
his notice of default, intended to continue to pursue his grievance. That filing would be
approximately five months too late to meet the statutory deadline. Additionally, Grievant
did not raise the issue of default as soon as he was aware as is required by Hanlon, supra.
Thus, in examining the facts of the case, it is necessary to find that this grievance
must be dismissed from the dockets of this Grievance Board either because this grievance
was not filed to Level II, the grievance was not timely filed to Level II, or the claim for
default was untimely filed. Accordingly, this grievance must be DISMISSED.
The above-discussion will be supplemented by the following Conclusions of Law. Conclusions of Law
1. "The decision of the Court should ordinally, be adhered to in other actions
between the same or different parties growing out of the same cause of action, or a
continuance thereof, and involving substantially the same set of facts considered in the
decided case, especially there a different ruling would work great injustice to some of the
litigants." Syl. Pt., Lyons v. Grassilli Chemical Co., 106 W. Va. 518, 146 S.E. 57 (1928).
2. "[I]n a pending suit or action, a decision of the appellate court on a question
of law once made, becomes the law of the case in future proceedings in a trial court in the
same case, or even in a subsequent suit or action on the same cause of action . . .
.(citations omitted)." State ex. rel Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947).
3. "The essence of [the Law of the Case] doctrine is that a court of general
jurisdiction, not sitting as an appellate court, may not overrule the decision of another court
of general jurisdiction. See Chesapeake & W.R. Co. v. Washington C. & St. Louis R'y, 99
Va. 715, 40 S.E. 20, 21 (Va. 1901) ('The proceedings of a court of general and competent
jurisdiction cannot be properly impeached and re-examined collaterally by a distinct
tribunal, one not sitting in exercise of appellate power.')." Armstrong v. Armstrong, 201 W.
Va. 244, 496 S.E.2d 194, (Oct. 24, 1997).
4. "This Grievance Board is bound by [a] Circuit Court's legal conclusions in this
matter as 'the law of the case.'" Parsons v. W. Va. Dep't of Transp./Div. of Highways,
Docket No. 97-DOH-289R (May 6, 1999); Bass v. Kanawha County Bd. of Educ., Docket
No. 92-20-214 (Nov. 4, 1994); Runyon v. Mingo County Bd. of Educ., Docket No. 93-29-481 (Apr. 4, 1994). See Tressler Coal Mining Co. v. Klefeld, 108 W. Va. 301, 24 S.E.2d
98 (1943).
5. Because the circuit court has previously determined that a default did not
occur, this Grievance Board will not and indeed should not reconsider the issue.
6. When a grievant does file a grievance to the next level it is deemed
abandoned. Floren v. Kanawha County Bd. of Educ., Docket No. 93-20-327 (May 31,
1994). See Holmes v. Bd. of Director/W. Va. State College, Docket No. 99-BOD-216
(Dec. 28, 1999); Pack v. Kanawha County Bd. of Educ., Docket No. 93-20-483 (June 30,
1994).
7. Grievant abandoned this grievance when he did not file to the next level.
8. When 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 a preponderance of the evidence. Hawranick v. W. Va. Dept. of Health and Human
Resources, Docket No. 98-HHR-010 (July 7, 1998); Harvey v. Bureau of Employment
Programs, Docket No. 96-BEP-484 (Mar. 6, 1998). A preponderance of the evidence is
generally recognized as evidence of greater weight, or which is more convincing than the
evidence which is offered in opposition to it. Morrison v. W. Va. Bureau of Commerce,
Docket No. 97-DOL-490 (Jan. 15, 1998); Miller v. W. Va. Dep't of Health & Human
Resources, Docket No. 96-HHR-501 (Sept. 30, 1997); Petry v. Kanawha County Bd. of
Educ., Docket No. 96-20-380 (Mar. 18, 1997).
9. Should the employer demonstrate a grievance has not been timely filed, the
employee may demonstrate a proper basis to excuse his failure to file in a timely manner. 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). 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).
10. W. Va. Code § 18-29-4 states "[w]ithin five days of receiving the [Level I]
decision of the immediate supervisor, the grievant may appeal the decision to the chief
administrator. . . . "
11. W. Va. Code § 18-29-4 defines the timelines for filing to Level III or IV, and
states: "[w]ithin five days of receiving the [Level II] decision of the chief administrator, the
grievant may appeal the decision to the governing board of the institution or may proceed
directly to level four."
12. "Long standing case law and procedural requirements in this state mandate
that a party must alert a tribunal as to perceived defects at the time such defects occur in
order to preserve the alleged error for appeal." Hanlon v. Logan County Bd. of Educ., 201
W. Va. 365, 496 S.E.2d 447 (1997).
13. "[I]n order to benefit from the 'relief by default' provisions contained in W. Va.
Code § 18-29-3(a) (1992) (Repl Vol. 1994), a grieved employee or his/her representative
must raise the 'relief by default' issue during the grievance proceedings as soon as the
employee or his/her representative becomes aware of such default." Hanlon, supra.
14. Grievant waited more than five months after he received the Decision toinform Respondent that he believed he had prevailed by default. This does not meet the
requirement of Hanlon to raise the issue as soon as he "becomes aware of such default."
15. Grievant did not file his grievance to either Level II or Level IlI on a timely
manner.
Accordingly, Grievant's Motion to Reconsider the issue of default is DENIED, and
Respondent Motion to Dismiss is GRANTED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of the Monongalia 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.
___________________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: March 17, 2000
Footnote: 1