MARK MUSSER,

                  Grievant,

      v.

DOCKET NO. 00-RS-083D

WEST VIRGINIA DEPARTMENT OF
REHABILITATION SERVICES,

                  Respondent.

ORDER GRANTING DEFAULT

      Mark Musser (Grievant) is employed by the West Virginia Department of Rehabilitation Services (“Rehab”), as an Employment Specialist. He filed this action on January 4, 2000, regarding his failure to receive a merit raise. This grievance was denied at level one by Ezra H. Lilly, District Manager, on January 5, 2000. A level two conference was held on January 18, 2000, and the grievance was denied at level two by Charles S. Lovely, Jr., Manager, on January 20, 2000. Grievant appealed this decision to level three by memorandum to James S. Quarles, Director of Human Resources, dated January 26, 2000.
      Grievant received no response from Mr. Quarles or from Kitty Dooley, the level three hearing examiner, and on February 22, 2000, Grievant notified Mr. Quarles, in writing, that he was claiming a default occurred at level three of the grievance process, inasmuch asRehab had failed to set a hearing or otherwise respond to his appeal within seven days. Grievant also notified Ms. Dooley of his claim for default on that same day.
      On March 3, 2000, Grievant appealed his claim of default to level four. A level four default hearing was held on April 27, 2000, before the undersigned Administrative Law Judge at the Grievance Board's Beckley, West Virginia, office. Grievant was represented by Steve Rutledge, West Virginia State Employees Union, and Rehab was represented by M. Claire Winterholler, Esq., Assistant Attorney General. This default action became mature for decision at the conclusion of the default hearing.

SUMMARY OF EVIDENCE

Grievant's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 -
Rehab Exhibits

None.

Testimony

      Grievant testified in his own behalf, and presented the testimony of Kitty Dooley and James Quarles.

      

FINDINGS OF FACT

      The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.
      1.      Grievant is employed by Rehab as an Employment Specialist, and filed a grievance on January 4, 2000.      2.      Grievant appealed his grievance to level three by memorandum to James Quarles dated January 26, 2000. G. Ex. 2.
      3.      On January 27, 2000, Mr. Quarles notified Kitty Dooley, a contract level three hearing examiner for Rehab, of Grievant's appeal, and asked her to “schedule a level three hearing within seven working days and notify the grievant and/or his representative.” G. Ex. 1.
      4.      On January 28, 2000, Ms. Dooley met with Mr. Quarles to discuss this grievance. Another grievance involving employee JHP had already been set for hearing in Lewisburg, and Ms. Dooley told Mr. Quarles she would like to set Grievant's level three hearing for that same day, as it would also take place in Lewisburg.   (See footnote 1)  Mr. Quarles agreed with Ms. Dooley that the grievances could be set for the same day.
      5.      Shortly thereafter, JHP's grievance was continued. Approximately two weeks after January 28, 2000, Ms. Dooley contacted Mr. Quarles' secretary to set up another hearing date for JHP and Grievant in Lewisburg.
      6.      On February 18, 2000, Ms. Dooley had a telephone conversation with Warren Morford, Esq., counsel for Rehab. Mr. Morford informed her that Rehab had settled the grievance with JHP. Ms. Dooley informed Mr. Morford she would set Grievant's level three hearing as there was no longer a need to coordinate it with JHP's grievance.      7.      Ms. Dooley sent a Notice of Level Three Hearing for March 8, 2000, to Grievant on February 19, 2000, a Saturday. February 20 was a Sunday, and Monday, February 21 was President's Day, and there was no mail service that day.
      8.      On Tuesday, February 22, 2000, Grievant sent in his Notice of Default to Mr. Quarles and Ms. Dooley. G. Ex. 3.
      9.       10.       At no time between January 26, 2000, the date Grievant appealed to level three, and February 22, 2000, did Grievant have any type of communication from either Mr. Quarles' office or Ms. Dooley.
      11.      Grievant never agreed, either orally or in writing, to extend the time lines for setting his level three hearing.
DISCUSSION

      Effective July 1, 1998, the West Virginia Legislature amended W. Va. Code § 29-6A- 3(a), adding the following paragraph relevant to this matter:

      In addition, it added the following language to W. Va. Code § 29-6A-5(a): "[t]he [grievance] board has jurisdiction regarding procedural matters at levels two and three of the grievance procedure."
      Grievant alleges he should be awarded the subject merit raise, and has prevailed by default at level three, because Rehab failed to comply with level three time lines. Rehab argues that it's failure to timely respond to Grievant's appeal to level three was the result of excusable neglect.
      W. Va. Code § 29-6A-4(c) provides as follows regarding when Rehab must act at Level III:

      If a default has occurred, the grievant is presumed to have prevailed on the merits of the grievance, and Rehab may request a ruling at Level IV to determine whether the relief requested is contrary to law or clearly wrong. If a default has not occurred, thegrievance may be remanded to level three for a hearing on the merits of the grievance. Because Grievant claims he prevailed by default under the terms of the statute, he bears the burden of establishing such default by a preponderance of the evidence. Patteson v. Dep't of Health and Human Resources, Docket No. 98-HHR-326 (Oct. 6. 1998).
      The facts in this matter are undisputed. Grievant appealed his grievance to level three on January 26, 2000, and his level three hearing was not set within seven working days of that date, nor did Grievant agree to waive the time lines, either orally or in writing. The notice of level three hearing was not sent until February 19, 2000, setting the date of the hearing as March 8, 2000.
      It becomes Rehab's burden to demonstrate, by a preponderance of the evidence, that it was prevented from providing a timely response at level three in compliance with W. Va. Code § 29-6A-4(b) “as a result of sickness, injury, excusable neglect, unavoidable cause or fraud” as provided by W. Va. Code § 29-6A-3(a)(2). Rehab claims it's failure was a result of excusable neglect.
      The West Virginia Supreme Court of Appeals has adopted a definition of excusable neglect based upon its interpretation under the Federal Rules of Civil Procedure. “Excusable neglect seems to require a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance with the time frame specific in the rules. Absent a showing along these lines, relief will be denied.” Perdue v. Hess, 199 W. Va. 299, 484 S.E.2d 182 (1997), quoting Bailey v. Workman's Comp. Comm'r., 170 W. Va. 771, 296 S.E.2d 901 (1982), quoting 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1165 (1969).      The Court has noted, “while fraud, mistake and unavoidable cause are fairly easy to spot, excusable neglect is a more open-ended concept. In general, cases arising under the civil rules are comparatively strict about the grounds for a successful assertion of excusable neglect.” Id. Excusable neglect may be found where events arise which are outside the defaulting party's control, and contribute to the failure to act within the specific time limits. See Monterre, Inc. v. Occoquan Land Dev. Corp., 189 W. Va. 183, 429 S.E.2d 70 (1993). However, simple inadvertence or a mistake regarding the contents of the procedural rule will not suffice to excuse noncompliance with time limits. See White v. Berryman, 187 W. Va. 323, 418 S.E.2d 917 (1992); Bailey, supra, n. 8.
      This Grievance Board has found excusable neglect, constituting grounds for denying a claim of default, where misfiled documents caused an agency employee to fail to timely schedule a level three hearing, McCauley, Jr. v. Div. of Corrections, Docket No. 99-CORR- 101D (May 11, 1999); and where an agency employee, who lacked authority to resolve the grievance, failed to schedule a level two hearing because he had just met with grievants on the same issue fewer than two months earlier, and had no new information to present. White v. W. Va. Dep't of Tax and Revenue, Docket No. 99-T&R-003D (Aug. 20, 1999). Excusable neglect, constituting grounds for denying a claim of default, was not found where an employer had a designated substitute employee in place to respond to a grievant's appeal, and that employee simply failed to do so. Toth v. Div. of Corrections, Docket No. 98-CORR-344D (Dec. 10, 1998). See also Brackman v. Div. of Corrections, Docket No. 99-CORR-374D (Apr. 10, 2000).      In the instant case, Ms. Dooley and Mr. Quarles both testified that they assumed the other had obtained the necessary waiver of the statutory time lines for setting the level three hearing from Grievant. Ms. Dooley testified Mr. Quarles' office usually obtained waivers from Grievant. Mr. Quarles testified he believed Ms. Dooley had obtained the waiver from Grievant. As a result, no waiver had been obtained from Grievant, and, in fact, no communication whatsoever was had with Grievant until he filed his Notice of Default on January 22, 2000. Ms. Dooley contacted him the following day, and was surprised to learn that a waiver had not been obtained from him for scheduling the level three hearing.
      Grievant did not allege bad faith on Rehab's part. On the other hand, Rehab has not established a reasonable basis for noncompliance with the time frame specified by the Code. As noted in White v. Berryman, supra, simple inadvertence or a mistake concerning the content of the procedural rules will not suffice to excuse noncompliance of the time limits. That is what happened here. Ms. Dooley and Mr. Quarles were completely aware of Grievant's level three appeal at all times. They simply failed to respond in a timely manner.
      Accordingly, Grievant's request for a finding of default at level three under W. Va. Code § 29-6A-3(a)(2) is GRANTED, and Rehab may proceed to show that the remedy sought by Grievant is contrary to law or clearly wrong. Rehab may request a Level IV hearing, within five days of the receipt of this written order granting default, to present evidence and/or argument on this issue. In the event Rehab does not request a heariing within five days of receipt of this order, an order will be entered granting the relief requested.

                                           __________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: May 15, 2000


Footnote: 1
       Initials were used as JHP's grievance has no relevance to this grievance, other than the date it was set for a level three hearing.