CLAUDIA JONES,
Grievant,
v. Docket No. 99-DOE-495D
DEPARTMENT OF EDUCATION,
Respondent.
ORDER DENYING DEFAULT
On November 3, 1999, Respondent, Department of Education ("DOE"), filed at
Level IV, a "Request for Hearing to Determine Whether There Has Been Default,"
stating that a letter had been received from Grievant's representative on November 1,
1999, alleging DOE had failed to timely respond at level one, and Grievant, Claudia
Jones, was entitled to prevail by default.
(See footnote 1)
Grievant was represented by Perry Bryant,
and DOE was represented by Kitty Dooley, Esquire. A Level IV hearing was held on
Respondent's request on December 15, 1999. The parties elected not to file written
argument, and this matter became mature for decision at the conclusion of the
hearing.
W. Va. Code § 18-29-1 provides that DOE's employees may utilize theeducation employees grievance procedure. The default provision for education
employees is found in W. Va. Code § 18-29-3(a), which provides:
A grievance must be filed within the times specified in section four of
this article and shall be processed as rapidly as possible. The number of
days indicated at each level specified in section four of this article shall
be considered as the maximum number of days allowed and, if a decision
is not rendered at any level within the prescribed time limits, the grievant
may appeal to the next level: Provided, That the specified time limits
may be extended by mutual written agreement and shall be extended
whenever a grievant is not working because of such circumstances as
provided for in section ten, article four, chapter eighteen-a of this code.
Any assertion by the employer that the filing of the grievance at level one
was untimely must be asserted by the employer on behalf of the
employer at or before the level two hearing. 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 the remedy,
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 that 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.
Effective July 1, 1998,
W. Va. Code § 18-29-5 was amended to provide that
the Grievance Board "shall administer the grievance procedure at levels two, three and
four, . . . as provided for in section four of this article . . .." Based upon this provision,
the Grievance Board now has jurisdiction to hear an education employee's default
claim, when the default occurs at levels two or three.
Jackson v. Hancock County Bd.
of Educ., Docket No. 99-15-081D (May 5, 1999). However, the default here is
alleged to have occurred at level one. Nonetheless, "should the employer appeal theemployee's default declaration on the narrow grounds that the remedy received is
contrary to law or clearly wrong, this Grievance Board has jurisdiction to decide such
an appeal.
Gruen v. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994);
Wadbrook v. W. Va. Bd. of Directors, Docket No. 93-BOD-214 (Aug. 31, 1993);
Flowers v. W. Va. Bd. of Trustees, Docket No. 92-BOT-340 (Feb. 26, 1993)."
Ehle
v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998). This includes a
contention by the employer that "any remedy would be clearly wrong because, in fact,
no default occurred at the lower levels of the grievance procedure."
Id.
Grievant's claim of default is based upon an assertion that her supervisor failed
to timely respond to her grievance after her conference with him at Level I, preceding
the filing of a grievance. Grievant claims her supervisor said at her conference that he
would give a response within two weeks, by October 15, 1999, and he did not do so.
W. Va. Code § 18-29-4(a) provides as follows regarding the grievance procedure at
Level I:
(1) Before a grievance is filed and within fifteen days following the
occurrence of the event upon which the grievance is based, or within
fifteen days of the date on which the event became known to the
grievant or within fifteen days of the most recent occurrence of a
continuing practice giving rise to a grievance, the grievant or the
designated representative shall schedule a conference with the immediate
supervisor to discuss the nature of the grievance and the action, redress
or other remedy sought.
The conference with the immediate supervisor concerning the
grievance shall be conducted within ten days of the request therefor, and
any discussion shall be by the grievant in the grievant's own behalf or by
both the grievant and the designated representative.
(2) The immediate supervisor shall respond to the grievance within
ten days of the conference.
(3) Within ten days of receipt of the response from the immediate
supervisor following the informal conference, a written grievance may be
filed with said supervisor, or in the case where the grievance involves an
event under the jurisdiction of a state institution of higher education, the
grievance shall be filed with said supervisor and the office of personnel,
by the grievant or the designated representative on a form furnished by
the employer or agent.
(4) The immediate supervisor shall state the decision to such filed
grievance within ten days after the grievance is filed.
Further,
W. Va. Code § 18-29-3(i) provides:
Except for the informal attempt to resolve the grievance as
provided for in subsection (a), section four of this article, decisions
rendered at all levels of the grievance procedure shall be dated, shall be
in writing setting forth the decision or decisions and the reasons therefor,
and shall be transmitted within the time prescribed to the grievant and
any representative named in the grievance. If the grievant is denied the
relief sought, the decision shall include the name of the individual at the
next level to whom appeal may be made.
Respondent argued no default occurred, as the parties had agreed after the
conference with Grievant's supervisor that Grievant would provide additional
information to her supervisor, and while some of that information was provided by
Grievant on the tenth working day after the conference, not all of the information was
provided. Accordingly, Respondent argued Grievant had waived her right to enforce
the statutory timelines for a response.
(See footnote 2)
While Respondent did not specificallyarticulate that the remedy would be clearly wrong because no default occurred, the
result is the same, and it is appropriate that this matter be reviewed at Level IV.
Respondent did not question whether a default could occur at the pre-filing
conference stage. This Grievance Board has found that a default may occur at this
stage of the procedure.
Wounaris v. Bd. of Directors, Docket No. 99-BOD-033D (May
18, 1999).
The burden of proof is upon the respondent claiming no default has occurred,
or asserting an affirmative defense, to prove the same by a preponderance of the
evidence, due to the presumption set forth in
W. Va. Code § 18-29-3(a) that the
grievant has prevailed on the merits.
Ehle,
supra. "The preponderance standard
generally requires proof that a reasonable person would accept as sufficient that a
contested fact is more likely true than not."
Leichliter v. W. Va. Dep't of Health and
Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence
equally supports both sides, the party bearing the burden has not met its burden.
Id.
The following findings of fact are derived from the record developed at the Level
IV hearing.
Findings of Fact
1. During 1999 employees of the Department of Education were reclassified.
Grievant was not satisfied with the title her position had been assigned in thereclassification. On or about September 20, 1999, Grievant completed a grievance
form complaining of her classification, and put it in the chair of her supervisor, Phillip
Uy, Coordinator of the Fiscal Office.
2. Mr. Uy had been employed by DOE since June 28, 1999. He was not
familiar with the grievance procedure. He read the grievance form, and believed
Grievant would contact him to set up a conference.
3. Grievant talked with Mr. Uy on September 27, 1999, about her grievance,
and told him her representative wanted to schedule a meeting. She gave Mr. Uy some
dates for a meeting, and the conference was scheduled and held on October 1, 1999.
All parties considered this to be the conference preceding the filing of a grievance.
Grievant, her representative, and Mr. Uy were in attendance.
4. Mr. Uy explained to Mr. Bryant that he was a fairly new employee, this
was his first grievance, and he was not familiar with the grievance procedures. Mr.
Bryant told Mr. Uy not to worry about it, as they were not at the written grievance
stage, but were just having an informal conference to discuss the issues. The parties
agreed at the conference that information needed to be gathered for Mr. Uy to review
so he could make a decision, and that Grievant would provide Mr. Uy with a list of
employees in state government in the job classification she desired and certain state
job descriptions. Mr. Uy mentioned a date of two weeks from October 1. Mr. Uy
believed this was the target date for Grievant to get the information to him. Grievant
believed this was the date Mr. Uy said he would have a response to her. 5. Grievant handed Mr. Uy the job descriptions on October 15 or 19, 1999.
(See footnote 3)
She did not provide the list of employees, and told Mr. Uy she was unable to obtain
that information because her position was unique. Mr. Uy told her he would look at
the information while he was at a seminar, which ran from October 19 through 22,
1999. Grievant did not tell Mr. Uy this was not acceptable to her.
6. Grievant talked to Mr. Uy about her classification issue on October 25,
1999. She again told him she was unable to obtain the list of employees. Mr. Uy told
her he was working on her problem. She told him to check his schedule and they
would meet again with her representative, and that she would be out of the office a
lot because her mother was ill. She wanted to meet again to get his answer and to
discuss what the next step would be.
7. Mr. Uy intended to make his own efforts to obtain the list of employees,
as he wanted to review this information before making his decision, because Grievant
had told him there were positions which demonstrated she was underclassified. He
was trying to help Grievant get the classification she wanted, and that was his
intention from the beginning.
8. On November 1, 1999, Grievant filed a default claim with DOE.
Discussion
Although
W. Va. Code § 18-29-3(a) provides that the timelines may be
extended by mutual
written agreement, it is not necessary to reduce the agreement
to writing if the parties have verbally agreed, or the Grievant's actions constitute a
waiver of the statutory time requirements.
Martin v. Randolph County Bd. of Educ.,
195 W. Va. 297, 465 S.E.2d 399 (1995);
Bowyer v. Bd. of Trustees, Docket No. 99-
BOT-197D (July 13, 1999).
See also,
Hanlon v. County Bd. of Educ., 201 W. Va.
305, 496 S.E.2d 447 (1997). The timelines were extended in this matter by the
actions and agreements of the parties.
It appears to the undersigned that it is more likely than not that October 15 was
the agreed target date for getting the information to Mr. Uy, for three reasons. First,
Mr. Uy did not know when Grievant would get the information to him, so how would
he be able to pick a date for a response? Second, October 15 is the date Grievant
says she gave the information to Mr. Uy, indicating a target date for the information
to be provided. Third, by statute, October 15 was already set as the date a response
was due,
(See footnote 4)
so why would Mr. Uy need to give her that response date?
Regardless of what was said at the conference about October 15, it is clear the
parties agreed that additional information would be provided to Mr. Uy before he made
his decision. Part of that information was not provided to him until 10 working days,
or more, after the conference, and the rest of the information was never provided. Getting the information to Mr. Uy was the prerequisite to his response, and Grievant
could not expect a response until after he had the opportunity to review the
information.
Bowyer,
supra. Mr. Uy told Grievant he would review it the following
week, and she did not object.
Grievant then, on October 25, 1999, told Mr. Uy she wanted him to schedule
a meeting with Mr. Bryant, indicating to the average person that the process was
ongoing. Mr. Uy intended to do what he could to assist Grievant in achieving her goal,
but he needed some time to review the information she had provided, and try to obtain
the additional information they had talked about. Grievant never told him this was
unacceptable.
A party simply cannot acquiesce to, or be the source of, an error during
proceedings before a tribunal and then complain of that error at a later
date. See e.g. State v. Crabtree, 198 W. Va. 620, 627, 482 S.E.2d
605, 612 (1996)("Having induced an error, a party in a normal case may
not at a later stage of the trial use the error to set aside its immediate
and adverse consequences."); Smith v. Bechtold, 190 W. Va. 315, 319,
438 S.E.2d 347, 351 (1993)("It is not appropriate for an appellate body
to grant relief to a party who invites error in a lower tribunal." (Citation
omitted).)."
Hanlon,
supra, at 201 W. Va. 316. No default occurred under the facts of this case.
(See footnote 5)
The undersigned is frankly disturbed by this default claim. The primary purpose
of the grievance procedure is to allow the parties a forum to attempt to work problems
out, and that is what Mr. Uy was trying to do. Mr. Uy did not simply dismissGrievant's complaint out of hand because he was too busy, or felt her complaint was
frivolous. He was going to bat for her, which is to be commended. His efforts
obviously were not appreciated, which is unfortunate, as it is possible Mr. Uy will not
make this same mistake again.
In addition, it is appropriate to make the following conclusions of law.
Conclusions of Law
1. "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."
W. Va. Code § 18-29-3(a).
2. Before filing a grievance "the grievant or the designated representative
shall schedule a conference with the immediate supervisor to discuss the nature of the
grievance and the action, redress or other remedy sought. . . . The immediate
supervisor shall respond to the grievance within ten days of the conference."
W. Va.
Code § 18-29-4(a).
3. The burden of proof is on a respondent appealing a claim of default to
Level IV to prove by a preponderance of the evidence that no default occurred, or that
it has a statutory excuse for noncompliance with the statutory timelines, due to the
presumption set forth in
W. Va. Code § 18-29-3(a) that the grievant has prevailed on
the merits.
Ehle v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998).
4. The statutory timelines may be extended by mutual agreement, or by the
actions of the parties.
Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 465S.E.2d 399 (1995);
Bowyer v. Bd. of Trustees, Docket No. 99-BOT-197D (July 13,
1999).
5. Respondent proved no default occurred, as the timelines for Grievant's
supervisor's response were extended by agreement of the parties, and Grievant, by her
actions, waived her right to assert a default occurred under these circumstances.
Accordingly, the default claim is DENIED. This matter should be, and the same
hereby is, ORDERED REMANDED TO LEVEL I of the grievance procedure for education
employees for proper adjudication. Grievant's supervisor is directed to give his
response to the conference within ten days of receipt of this Order. This matter is
ORDERED DISMISSED and STRICKEN from the docket of this Grievance Board.
BRENDA L. GOULD
Administrative Law Judge
Dated: January 3, 2000
Footnote: 1