Steven Neal (Grievant) is employed by the West Virginia Division of Corrections
(Corrections), as a Corporal/Correctional Officer III (Corporal/CO III) at the Mount Olive
Correctional Complex (MOCC). He filed this action on January 7, 1999, alleging he had
been wrongly denied promotion to Corporal/CO III. This grievance was denied at Level
I, on January 7, 1999, by Corporal Delana Sanford; and at Level II, on May 26, 1999, by
Warden's Designee M. V. Coleman.
A Level III hearing was held on June 18, 1999. CORR was represented at this
hearing by Kathy Lucas, and Grievant was represented by Steve Berryman. This
grievance was denied at Level III, by Commissioner Paul Kirby, on June 22, 1999.
A Level IV hearing was conducted, before the undersigned administrative law judge,
at this Grievance Board's Beckley office, on March 9, 2000. Grievant was again
represented by Steve Berryman, and CORR was represented by Leslie Kiser Tyree, Esq.
The parties were given until April 10, 2000, to submit proposed findings of fact and
conclusions of law, neither party did so, and this grievance became mature for decisionon that date. The following Findings of Fact pertinent to resolution of this matter have
been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT
1. Grievant is employed by CORR as a Corporal/CO III in its Controlled
Dangerous Substance Canine (K9) program at MOCC.
2. Grievant completed his K9 program training on March 13, 1998, but was not
promoted to Corporal/CO III.
3. On July 20, 1998, Grievant was denied promotion to Corporal/CO III by a
CORR Promotion Review Board.
4. At all times pertinent to this grievance, CORR policy mandated that K9
officers hold the rank of Corporal/CO III or above.
5. Other officers selected for K9 duty by CORR were promoted to Corporal/CO
III.
6. Grievant was promoted to Corporal/CO III on December 1, 1998.
7. Grievant filed this grievance on January 7, 1999.
DISCUSSION
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving 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);
Payne v. W. Va.
Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code § 29-6A-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, evidencewhich 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 & Human
Resources, 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 seeks back pay in the amount of the difference between his current pay
as a Corporal/CO III and his previous pay as a CO II. However, his grievance was filed
approximately five weeks after the most recent event that arguably could have triggered
this grievance, his promotion to Corporal/CO III on December 1, 1998, and CORR has
raised a timeliness defense, by denying this grievance, at Levels II and III, as untimely.
W. Va. Code § 29-6A-4(a) provides as follows:
Within ten days following the occurrence of the event upon
which the grievance is based, or within ten days of the date on
which the event became known to the grievant, or within ten
days of the most recent occurrence of a continuing practice
giving rise to a grievance, the grievant or the designated
representative, or both, may file a written grievance with the
immediate supervisor of the grievant.
Days is defined as working days exclusive of Saturday, Sunday or official
holidays.
W. Va. Code § 29-6A-2(c). A timeliness defense is an affirmative defense
which the employer must establish by a preponderance of the evidence.
Pryor et al. v.
W. Va. Dep't of Transp., Div. of Highways, Docket No. 97-DOH-341 (Oct. 29, 1997);
West
v. Wetzel County Bd. of Educ., Docket No. 96-52-172 (Feb. 17, 1997);
Lowry v. W. Va.
Dep't of Educ., Docket No. 96-DOE-130 (Dec. 26, 1996);
Hale v. Mingo County Bd. of
Educ., Docket No. 95-29-315 (Jan. 25, 1996).
As noted above, this grievance was filed approximately five weeks after the mostrecent event that arguably could have triggered this grievance, Grievant's promotion to
Corporal/CO III on December 1, 1998. The undersigned finds it reasonable to conclude
that the grievable event, CORR's failure to abide by its policy and promote him to
Corporal/CO III, became fully and unequivocally known to Grievant no later than December
1, 1998.
See Rose v. Raleigh County Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566
(1997). It is also noted that Grievant knew that he was not promoted to Corporal/CO III as
early as March 13, 1998, when he completed his K9 program training, but was not
promoted.
Because Grievant did not file this grievance until approximately five weeks after his
promotion to Corporal/CO III, and because Grievant submitted no evidence to rebut the
proof that his grievance was not timely filed, CORR has established, by a preponderance
of the evidence, that it was untimely.
Because this grievance was not filed in a timely manner, it must be denied.
CONCLUSIONS OF LAW
1. As this grievance does not involve a disciplinary matter, Grievant has the
burden of proving 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);
Payne
v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code §
29-6A-6.
2. 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 thannot.
Black's Law Dictionary (6th ed. 1991);
Leichliter v. W. Va. Dep't of Health & Human
Resources, Docket No. 92-HHR-486 (May 17, 1993).
3. Grievant had ten working days in which to file his grievance.
W. Va. Code
§ 29-6A-4(a).
4. A timeliness defense is an affirmative defense which the employer must
establish by a preponderance of the evidence.
Pryor et al. v. W. Va. Dep't of Trans., Div.
of Highways, Docket No. 97-DOH-341 (Oct. 29, 1997);
West v. Wetzel County Bd. of
Educ., Docket No. 96-52-172 (Feb. 17, 1997);
Lowry v. W. Va. Dep't of Educ., Docket No.
96-DOE-130 (Dec. 26, 1996);
Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315
(Jan. 25, 1996).
5. CORR has proven, by a preponderance of the evidence, that this grievance
was not timely filed.
Accordingly, the grievance is
DENIED.
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.
ANDREW MAIER
ADMINISTRATIVE LAW JUDGE
Dated May 2, 2000