CHARLES M. HOSEY,

                  Grievant,

      v.

DOCKET NO. 00-RJA-065

REGIONAL JAIL AND CORRECTIONAL
FACILITY AUTHORITY,

                  Respondent.

DECISION

      Grievant, Charles M. Hosey, filed a grievance against his former employer, the West Virginia Regional Jail and Correctional Facility Authority (“RJA”), directly to this Grievance Board on February 17, 2000, protesting his “forced resignation” from the facility on February 5, 1999. A phone conference was held between Grievant, Chad M. Cardinal, Esq., counsel for RJA, and the undersigned on March 7, 2000, to discuss the apparent untimeliness of the filing. Grievant offered no reason why it took him over a year to file the grievance over his dismissal, and made no allegations that anyone at RJA prevented him from filing a grievance at the time of his dismissal. Based on that phone conference, the undersigned makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

      1.      Grievant signed a resignation letter from his position at RJA on February 5, 1999.      2.      Grievant filed a grievance protesting his dismissal or “forced resignation” from RJA on February 17, 2000.
CONCLUSIONS OF LAW

      1.      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 a preponderance of the evidence. Ooten v. Mingo County Bd. of Educ., Docket No. 96- 29-122 (July 31, 1996); Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996). 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. Petry v. Kanawha County Bd. of Educ., Docket NO. 96-20-380 (Mar. 18, 1997).
      2.      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 failure to file in a timely manner. Kessler v. W. Va. Dept. of Transp., Docket No. 96-DOH-445 (July 29, 1997); Higginbotham v. W. Va. Dept. of Public Safety, Docket No. 97-DPS-018 (Mar. 31, 1997); Sayre v. Mason County Health Dept., 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).
      3.      A grievance must ordinarily be filed within ten days following the occurrence of the event upon which the grievance is based. W. Va. Code §§29-6A-4(a) and (e). Therunning of the relevant time period is ordinarily deemed to begin when the employee is unequivocally notified of the decision being challenged. Harvey, supra; Kessler, supra. 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).
      4.      Grievant was unequivocably notified of the decision being challenged on February 5, 1999, the day he signed his resignation letter from the RJA.
      5.       6.      Grievant offered no proper basis for excusing the untimely filing of this grievance.

      Accordingly, 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.

                                           __________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: March 16, 2000