v. Docket No. 99-18-397D
On September 10, 1999, Grievant Frank Hughes submitted this appeal to Level IV
of the grievance procedure, alleging Respondent, Jackson County Board of Education,
("JCBOE" or "Board"), had failed to issue the Level II decisions within the time lines set
forth in
W. Va. Code § 18-29-4(b). He requested JCBOE be found in default pursuant to
the provisions of
W. Va. Code §18-29-3(a). A hearing on this matter was held in the
Grievance Board's Charleston, West Virginia office on November 1, 1999, and this default
claim became mature for decision on December 2, 1999, after receipt of Grievant's
proposed findings of fact and conclusions of law.
(See footnote 1)
Grievant was represented by Tilden
"Skip" Hackworth, and JCBOE was represented by Attorney Greg Bailey.
Issues and Arguments
The default issue raised by Grievant is unusual. Grievant argues no hearings were
ever held, and the "meetings" that took place between Grievant and Superintendent Dale
Summitt were conferences not Level II hearings. Thus, the decisions timely issued bySuperintendent Summitt following those "meetings" do not count, Level II hearings were
never held, and Respondent is in default.
Respondent maintains that while there were some procedural irregularities in the
hearing, no default occurred as the hearings were held, and decisions issued within the
required time frames.
After a detailed review of the record in its entirety the undersigned Administrative
Law Judge makes the following Findings of Fact pertinent to this matter.
Findings of Fact
1. Grievant filled two separate grievances on two separate issues. Both
grievances were filed on July 29, 1999.
(See footnote 2)
2. Following a conference with his supervisor, Principal Blaine Hess, both
grievances were denied in separate decisions.
3. After receiving the Level I decisions, Grievant appealed to Level II. Grievant
was informed orally by phone by Superintendent Summitt's Secretary, Sandy Rice, when
and where the hearing would be.
(See footnote 3)
Grievant does not remember exactly what Ms. Rice said
to him when she called to give him notice of the hearing, but he believes Ms. Rice said
there would be a meeting on the specified date.
4. This notice was six days prior to the hearing scheduled for August 19, 1999. 5. Grievant knew these hearings had to be conducted within five days of his
appeal to Level II. (Grievant's test. at Level IV.)
6. Prior to this meeting, Grievant met with Principal Hess and Superintendent
Summitt to go over what would happen at the hearing.
(See footnote 4)
7. Superintendent Summitt told Grievant this would be a Level II hearing.
(See footnote 5)
8. Grievant had a copy of JCBOE's grievance procedure, but had not read it
prior to the Level II hearing.
9. Only Grievant and Superintendent Summitt were present at this hearing.
10. Grievant was not sworn in prior to giving his testimony.
11. The hearing was not recorded by a tape recorder. Superintendent Summitt
wrote the primary points of the discussion down with paper and pencil.
(See footnote 6)
Grievant agreed
that, although this summary was not verbatim, it represented the significant information
presented at the hearing. 12. Grievant was allowed to say what he wanted to say, and did not ask to call
any witnesses. No other witnesses were called. (Grievant's and Superintendent
Summitt's test. at Level IV.)
13. Grievant voiced no objections at any time during the hearing about the
manner in which it had been conducted. (Grievant's and Superintendent Summitt's test.
at Level IV.)
14. After Grievant had presented his evidence on both grievances,
Superintendent Summitt informed Grievant a timely ruling would be made after he
considered the testimony and oral arguments. Level II "transcript."
15. Superintendent Summitt issued Level II decisions on both grievances on
August 25, 1999.
16. Grievant first raised the issue of default for failure to hold a Level II hearing
at the JCBOE's board meeting on September 2, 1999.
17. After discussion, the Board decided to waive the grievances to Level IV, and
did not respond to the issue of default.
18. At the time of this September 2, 1999 discussion, Grievant was offered the
opportunity to cure the procedural irregularities. He did not wish to avail himself of this
opportunity as he believed he had prevailed on the grievances by default.
Discussion
Because 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 (Dec. 31, 1997);
Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).
Effective July 1, 1998, the West Virginia Legislature gave the Grievance Board
authority to administer Levels II and III of the grievance procedure for education
employees.
W. Va. Code § 18-29-5 (1998) provides that "[t]he Board shall administer the
grievance procedure . . . as provided for in section four of this article." Based upon this
change in the statute, the Grievance Board, in
Jackson v. Hancock County Board of
Education, Docket No. 99-15-081D (May 5, 1999), ruled it now had jurisdiction to hear and
decide a grievant's lower level default. A default claim is based on the employer's alleged
procedural violation of failing to respond to the grievance within the time limits contained
in
W. Va. Code § 18-29-4.
Jackson,
supra.
The default provision applicable to school personnel grievances, enacted in 1992,
is contained in
W. Va. Code § 18-29-3(a), and states in pertinent part:
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 theremedy, 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 the 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.
W. Va. Code § 29-6A-4(b) provides the following directions regarding when
Respondent must act at Level II:
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.
The question presented by Grievant is two-fold; whether he had Level II hearings,
and whether he knew or was informed the "meetings" he had were Level II hearings. The
purpose of a Level II grievance hearing is for a grievant to state his case, and to present
whatever evidence he thinks is germane to the issues and the data that supports his
arguments. Thus, it is clear Grievant had the required Level II hearings, and either knew
or should have known these "meetings" were hearings.
Superintendent Summitt testified he told Grievant these were his Level II hearings,
and also told him he would issue decisions ruling on the cases at the end of the hearings.
Grievant could not remember what Ms. Rice told him when she called to schedule the
hearings, or what Superintendent Summitt said at the start of the Level II hearings. Since
Grievant had not read the grievance procedure prior to the hearings, he may not have
known exactly what to expect, but it is also obvious he did not ask. Additionally,Superintendent Summitt had a meeting with Grievant prior to the hearings where
procedures were discussed.
Just as incontrovertible is the fact that there were some procedural irregularities at
these hearings, such as failure to record the hearings, failure to swear Grievant before
taking his testimony, and failure to send written notice of the hearing date. However, this
does not mean they were not hearings. Grievant alleges his grievances should be granted
by default because of these problems. Many of these errors could and were cured by later
proceedings, thus these problems should not and will not be used to grant default.
(See footnote 7)
Hicks
v. Hampshire County Bd. of Educ., Docket No. 97-14-382 (Mar. 18, 1999). Further, default
relates to the failure of Respondent to respond to the grievance within the time limits
contained in
W. Va. Code § 18-29-4.
Jackson,
supra.
It should be noted that this Grievance Board has been directed in the past that "the
grievance process is intended to be a fair, expeditious, and simple procedure, and not a
"procedural quagmire."
Harmon v. Fayette County Bd. of Educ., Docket No. 98-10-111
(July 9, 1998), citing
Spahr v. Preston County Bd. of Educ., 182 W. Va. 726, 393 S.E.2d
739 (1990), and
Duruttya v. Bd. of Educ., 181 W. Va. 203, 382 S.E.2d 40 (1989).
See
Watts v. Lincoln County Bd. of Educ., Docket No. 98-22-375 (Jan. 22, 1999). Additionally,
Spahr,
supra, indicates the merits of the case are not to be forgotten.
Id. at 743.
See
Edwards v. Mingo County Bd. of Educ., Docket No. 95-29-472 (Mar. 19, 1996). Further,
Duruttya,
supra, noted that in the absence of bad faith, substantial compliance is deemed
acceptable.
The issue of default relates only to the issue of whether the hearing was held and
the decision issued in a timely manner pursuant to statute.
Morrison v. Div. of Labor,
Docket No. 99-LABOR-146D (June 18, 1999).
See Jackson,
supra. Grievant had a timely
hearings and received a timely decisions. Further, Grievant did not demonstrate bad faith
on the part of JCBOE. Accordingly, no default occurred in this case.
The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law
1. When a grievant claims 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).
2. Although there were procedural irregularities during the course of the Level
II hearing, since the hearing was held in a timely manner, and the decision was issued in
a timely manner no default occurred.
See Morrison v. Div. of Labor, Docket No. 99-
LABOR-146D (June 18, 1999).
3. Grievant has failed to meet his burden of proof and demonstrate default
occurred in this set of circumstances.
Accordingly, Grievant's Motion for Default is
DENIED. These matters will remain
on the docket for further adjudication at Level IV.
_________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: January 27, 2000.
Footnote: 1