Grievant,
v. Docket No. 99-DOT-485D
WEST VIRGINIA DIVISION OF HIGHWAYS,
Respondent.
Joseph D. Riffle (Grievant) filed a motion for default judgment against his employer,
the West Virginia Division of Highways (DOH), on November 16, 1999, in accordance with
W. Va. Code § 29-6A-3(a)(2). After two continuances granted for good cause shown, on
January 7, 2000, Grievant requested that a decision be rendered based upon the lower
level record. DOH did not object this request, and this matter became mature for
consideration on February 4, 2000. Grievant has represented himself throughout this
grievance proceeding, and DOH was represented by Timbera Wilcox, Esquire.
After a detailed review of the record in its entirety, the following findings of fact are
made.
2. The grievance was denied at levels one and two.
3. A level three hearing was conducted by Brenda Craig Ellis, Esquire, on
August 14, 1998.
4. At the conclusion of the level three hearing, the following discussion
occurred:
Ellis:
6. A level three decision was issued by Ms. Ellis on November 8, 1999.
W. Va. Code § 29-6A-3(a) provides, in pertinent part, that a grievant shall prevail
by default 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, injury, excusable neglect, unavoidable cause or
fraud. 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).
This Grievance Board has previously held that, because the default provision
affects substantive rights, it cannot be applied to pending cases. Therefore, since this
grievance was filed on October 3, 1997, and the default provision of W. Va. Code §
29-6A-3(a) did not take effect until July 1, 1998, it is not applicable to this grievance.
Jenkins-Martin v. Bureau of Employment Programs, Docket No. 98-BEP-285 (Sept. 24,
1998). Grievant is not entitled to relief on the grounds of default.
The above discussion will be supplemented by the following conclusions of law.
1. The grievant prevails by default 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, injury,
excusable neglect, unavoidable cause or fraud." W. Va. Code §29-6A-3(a).
2. When a grievant asserts his employer is in default in accordance with W. Va.
Code § 29-6A-3(a)(2), the grievant bears the burden of establishing his claim for default
by a preponderance of the evidence. Cody v. Div. of Juvenile Serv., Docket No.
99-DJS-190D (Aug. 3, 1999); Friend v. W. Va. Dep't of Health & Human Resources,
Docket No. 98-HHR-346D (Nov. 25, 1998).
3. Because the default provision in W. Va. Code §29-6A-3(a)(2), is substantive
in nature, it cannot be applied retroactively, and does not affect grievances filed prior to
July 1, 1998. Jenkins-Martin v. Bureau of Employment Programs, Docket No. 98-BEP-285
(Sept. 24, 1998).
Accordingly, Grievant's Motion for Default is DENIED. This matter will remain on
the docket for further adjudication at Level IV. The parties are requested to confer and
provide three mutually agreed upon dates to conduct the Level IV hearing on the
merits of this grievance, or notify this office if a decision on the lower level record
is desired, within five days of the date of this Order. The Grievance Board does not
consider this Order to be a final order or decision which is appealable to circuit court under
the provisions of W. Va. Code §§ 29-6A-7 or 29A-5-4.
Date: March 3, 2000 ________________________________
Denise M. Spatafore
Administrative Law Judge