STEVEN PASTERNAK,

                  Grievant,

v.                                                DOCKET NO. 00-BOT-174

BOARD OF TRUSTEES/
MARSHALL UNIVERSITY,

                  Respondent.

DECISION

      This grievance was filed on or about May 2, 2000, by Grievant, Steven Pasternak, against the Board of Trustees/Marshall University, Respondent ("Marshall"). The statement of grievance reads as follows:



As relief Grievant sought:



      This grievance resulted from Grievant's disagreement with the manner in which Marshall personnel implemented a Level II decision from a previous grievance. Grievant had prevailed on certain issues related to the “six month” evaluation, as will be discussed below. Some background information will be helpful in understanding these two grievances.
      Grievant is employed by Marshall as an Academic Counselor/Learning Specialist in the Buck Harless Student Athlete Program. He has a Bachelor's degree in moderate special needs and education, a Master's degree in communication sciences and disorders, additional hours in special education and behavior modification, and a law degree. He taught for 12 years at a school for the learning disabled, has been a learning disabilities consultant, and was vice-president of a child advocacy program. In his position atMarshall, he is responsible for testing student athletes for learning disabilities and diagnosing their learning disabilities. He is also required to monitor the progress of track, soccer, and golf student athletes to make sure they are meeting academic eligibility requirements, act as an advisor to these students, and make sure the students register for classes.
      Grievant began his employment in this position at Marshall in November 1998. Grievant has a learning disability which interferes with his ability to read, write, and understand instruction. He made clear during the interview process that he had this disability. His supervisor, Michele Duncan, was aware of his disability. He did not ask for any accommodations for performing his job when he began his employment, because he did not believe any would be necessary.
      Employees at Marshall serve a six month probationary period. They are to be evaluated after two, four, and six months of employment. Grievant's first evaluation occurred after he had been an employee for nearly six months. The evaluation was written on a four month evaluation form. On April 26, 1999, Grievant expressed his disagreement with this evaluation in written form, as he is allowed to do, and also requested reasonable accommodations for his disability in this response. Neither his supervisor nor any other Marshall employee responded to his request for reasonable accommodations.
      In June of 1999, Grievant submitted a complaint to David Harris, Director of Equity Programs, requesting accommodations for his disability, and asking for an investigation of discrimination against the disabled by staff in the Buck Harless Student Athlete Program. Mr. Harris appointed a committee to conduct an investigation and make a report on the allegations of the complaint. One of the committee members was not available until November. The committee did not meet until January 2000.
      Grievant received a second evaluation in July 1999, after he had been employed by Marshall for eight months. This evaluation was written on a six month evaluation form. Grievant disagreed with this evaluation and filed a grievance about both his “four month” and “six month” evaluations. The statement of grievance submitted by Grievant in the first grievance reads as follows:



      The relief sought in the first grievance was:



      On March 31, 2000, Linda P. Rowe, grievance evaluator, submitted her recommendations on the first grievance to Marshall President Dan Angel. On April 5, 2000, Vice President F. Layton Cottrill, Jr., adopted the recommendations as the Level II decision, “insofar as they do not conflict with existing university policy.” The decision found in Grievant's favor that Marshall did not follow policy regarding employee performance appraisals by failing to evaluate Grievant at two and four months of service; using the four month evaluation form to evaluate Grievant at six months of service; being delinquent by nine days in requesting an extension of Grievant's probationary period; failing to “provide the requisite 'written, planned program covering a specified time to achieve outlined goals and objectives' as a condition of the extension of the probationary period;” and in being four months delinquent “in completing the three month follow-up performance appraisal following the evaluation done at the end of the extended probationary period.” The decision states there was a “retaliatory quality in the respondent's rating of the grievant on points 6, 'Job Comprehension,' and 7, 'Attitude' of his July 2, 1999, '6 Months' Probationary Performance Evaluation. It is inappropriate to use an employee's lawful disagreement with an evaluation as evidence of poor job performance.”
      In Marshall's favor, the decision did not find Grievant's probationary period was extended beyond the limit allowed by policy; that the failure to meet deadlines or the extension of the probationary period hampered Grievant's ability to benefit from the probationary period; that the training or job descriptions he was offered were improper or out of date; or that the overall “needs improvement” assessment on his performance evaluation was inaccurate, was made in retaliation for Grievant's request for accommodation, or that it represented discrimination because of his disability. The grievance evaluator found a lack of evidence of a hostile work environment.      The decision went on to state that insufficient evidence was presented for a determination of whether the Office of Equity Programs at Marshall responded appropriately to Grievant's complaints, and that it was “beyond the scope of the grievance to determine what accommodations are reasonable and required to enable grievant to understand and perform his duties as required.”
      The decision granted as relief that the probationary performance evaluation labeled as the four month evaluation be re-labeled as the six month evaluation, and that it be noted in his personnel file that his supervisor failed to complete two and four month evaluations. As to the document labeled the six month evaluation, several changes were required. First, the document was to be re-labeled the nine month evaluation.   (See footnote 2)  Second, a note was to be appended to it stating that the employee was given an oral plan of improvement, but was not given a written plan of improvement as required by policy. Third, items 6 and 7 on the evaluation were to be amended, “to reflect grievant's actual performance during the evaluation period, not the grievant's disagreement with his last evaluation.” Finally, “Recommended Continued Employment” was to be checked on the appropriate line.
      Further, the decision directed that the Director of Equity Programs respond to the grievant in writing, by April 14, 2000, describing the actions taken and the strategies planned to investigate and address grievant's complaints. This investigation was conducted by a committee. The committee concluded in a written report dated April 6, 2000, that Grievant was denied reasonable accommodations; only with reasonable accommodations can Grievant's work performance be evaluated accurately; and that, although the committee could not determine the underlying reason for it, there is a hostile environment of ridicule and insult in Grievant's work area. Mr. Harris did not endorse thecommittee's report, but recommended that Grievant be allowed access to certain equipment, and that a piece of equipment be purchased for Grievant's use. Marshall has been slowly providing Grievant with the equipment he believes he needs in order to be able to perform his job duties.
      Finally, Grievant's supervisor was directed to work closely with the Office of Human Resources, the Director of Equity Programs, and Grievant, “to develop a plan of improvement that includes specific and measurable goals, standards, and timelines. This detailed plan should REPLACE the very general review of responsibilities indicated in respondent's memo of February 21, 2000.” As of the Level IV hearing on the instant grievance, Grievant's personnel file contained no evidence of the February 21, 2000 memo. However, no plan of improvement had been developed to replace the memo.
      Neither party appealed this decision. Marshall personnel began implementing the directives of the decision, and as this process began, Grievant became dissatisfied with their interpretation of the decision's requirements, and filed this grievance. Specifically, Grievant disagreed with the changes made to the evaluation which was completed on the six month evaluation form. On item 6, “Job Comprehension,” Grievant received a rating of “D,” “occasionally meets expectations.” There are four other possible ratings. The written comment on this point is “[j]ob comprehension is currently not evident.” There was additional language here which was blacked out in Marshall's effort to comply with the Level II decision, which read as follows, “Proof presented in comments to last evaluation and weekly summaries.” The rating was not changed. On item 7, “Attitude,” Grievant received a rating of “D.” The written comments are, “[w]illing to accept new ideas. Open to change. Does not handle criticism well.” Again, additional language was blacked out after the words “criticism well,” in an effort to comply with the decision. That language was, “as evident by the response to the last evaluation.” The rating was not changed.
Discussion
      The burden of proof is upon the grievant to establish his allegations by a preponderance of the evidence. Canterbury v. Putnam County Bd. of Educ., Docket No. 40-86-325-1 (Jan. 28, 1987).
      Respondent argued that the doctrine of res judicata should be applied in this grievance to preclude Grievant from relitigating the very same issues litigated in the first grievance, referring specifically to Grievant's request that all evaluations be removed from his personnel file.
      The doctrine of res judicata may result in the dismissal of a grievance when a party seeks to relitigate "matters about which the parties have already had a full and fair opportunity to litigate and which were in fact litigated." Liller v. W. Va. Human Rights Comm'n, 180 W. Va. 433, ___, 376 S.E.2d 639, 646 (1988); Peters v. Raleigh County Bd. of Educ., Docket No. 95-41-035 (Mar. 15, 1995). Four conditions must be met in order to apply the doctrine of res judicata:
      (1) identity in the thing sued for;
      (2) identity of the cause of action;
      (3) identity of persons, and of parties to the action; and

Woodall v. W. Va. Dep't of Transp., Docket No. 93-DOH-393 (Feb. 2, 1994), citing Wolfe v. Forbes, 159 W. Va. 34, 217 S.E.2d 899 (1975). "The identicality of issues litigated is the key component to the application of administrative res judicata." Liller, supra.
      This Grievance Board has applied this doctrine sparingly, "as 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). The doctrine of res judicata has been applied by the Grievance Board, however, to preclude a grievant from pursuing a grievance on the very same issue raised in a previous grievance, when hefailed to appeal the decision issued in the first grievance to Level IV. Ashley v. W. Va. Bureau of Senior Services, Docket No. 00-BSS-506 (Aug. 1, 2000).
      Grievant disputed that the elements of this defense were present, arguing first, that Jim Stephens, Marshall's Director of Human Resource Services, and Mr. Harris were the Respondents here, while his supervisor was the Respondent in the first grievance. The Respondent in both grievances was Marshall University, not an individual, and Grievant's supervisor was involved in both grievances. Grievant also argued that he could raise the issues of discrimination and harassment each time a new act occurred, and that certain issues could not be addressed until after Mr. Harris completed his report. While Grievant is certainly correct that each act of discrimination or harassment may generate a new grievance, this grievance seeks to revisit whether the “four month” and “six month” evaluations were properly conducted. Any incidents of discrimination or harassment related to those evaluations occurred before the first grievance was filed and have already been addressed. As to the argument that completion of Mr. Harris' report was a prerequisite, the language used in the first grievance with regard to violations of Marshall's Affirmative Action Policy, the Americans with Disabilities Act, and provisions of the West Virginia Code, is nearly identical to the language used in the second grievance.
      Grievant further argued that because this defense was not raised until the Level IV hearing, it could not be raised as it was too late, and because he did not know in advance of the hearing that he would need to prepare for this defense. Nothing requires a Respondent to raise all its legal arguments before the Level IV hearing. Had Grievant requested additional time at the hearing to prepare for Respondent's argument, the undersigned could have considered that request at that time. However, Grievant did not indicate at the Level IV hearing that he needed additional time to respond to this argument, even though a second day of hearing was set at the conclusion of the first day of hearing. Respondent may raise the issue.      Much of this grievance is the same as the first grievance, and Grievant cannot relitigate the very same issues a second time. He accepted the Level II decision. However, this grievance also challenges whether Marshall followed the first Level II decision. This is a new issue. Respondent did not challenge whether this issue could be brought to Level IV for an interpretation of the Level II decision. The undersigned concludes that it is reasonable, and consistent with the grievance procedure and prior Grievance Board decisions on similar matters, to allow this issue to be addressed here. See W. Va. Code § 18-29-5; Crowder v. Bd. of Trustees, Docket No. 96-BOT-320 (Mar. 31, 1997); Rush v. W. Va. Dep't of Health and Human Resources, Docket No. 94-HHR-279 (Feb. 7, 1995).
      It is understandable that Grievant would be unhappy with Marshall's interpretation of the Level II decision and the changes made by Marshall to his evaluation. While the Level II decision did not use the words, “change the ratings to a 'C',” it concluded that there was a retaliatory quality in the “rating” given to Grievant in items 6 and 7, yet the rating was not changed. Further, the grievance evaluator specifically required that these two items reflect Grievant's actual performance, not his disagreement with his first evaluation. In item 7 in particular, it is quite clear that the entire second sentence, not just the words removed from the evaluation by Marshall personnel, relates to Grievant's response to his evaluation. The statement that Grievant does not take criticism well refers to Grievant's response to the evaluation, and only to this response, as evidence of this. When this entire sentence is removed, the comments are entirely positive, and do not support a rating of “D.” The comment in item 6 that Grievant's job comprehension is not evident also refers solely in the second sentence to Grievant's response to his first evaluation. All commentary must be removed from item 6 in order to comply with the Level II decision, and the rating must be changed. As Grievant requested only that the ratings be changed to “C,” whether a higher rating is called for need not be addressed.      Marshall presented a significant amount of testimony in an effort to demonstrate that the ratings received by Grievant on his evaluations were appropriate. It will first be noted that much of that testimony related to events which occurred after the “four month” and “six month” evaluations were completed, and cannot be used in evaluating Grievant's performance for a period of time preceding these events. Further, if Grievant cannot relitigate the issue of whether his early evaluations were proper, neither can Marshall. The only issue here is whether Marshall followed the directives of the Level II decision.
      As a final note of caution, it was particularly disturbing to listen to and observe David Ridpath's animosity toward Grievant at the Level IV hearing. Mr. Ridpath is the Assistant Athletic Director for Compliance and Student Services in the Buck Harless Student Athlete Program at Marshall. Grievant had gone over Mr. Ridpath's head to one of the coaches about a student, and it was obvious that Mr. Ridpath was not going to let this indiscretion go unpunished. Mr. Ridpath flatly admitted that it was his opinion that much student behavior which Grievant attributed to learning disabilities, Mr. Ridpath attributed to laziness. Mr. Ridpath was openly hostile toward Grievant and questioned Grievant's expertise. Mr. Ridpath has an undergraduate degree in Speech Communication and a Master's degree in Sports Administration, and admitted he did not know the characteristics of a learning disabled student. His testimony was that he has talked to someone who is very well qualified and who is willing to state on the record that some students are just lazy. When asked by Grievant what the qualifications of this person were, Mr. Ridpath responded, “[m]ore qualifications than you, trust me. They're world renowned.” Mr. Ridpath's attitude toward Mr. Pasternak and toward learning disabled students is unprofessional and inappropriate, and potentially damaging to learning disabled students.
      Ms. Duncan likewise demonstrated a lack of understanding of the characteristics of learning disabilities, and the needs of learning disabled students. The expert testimonypresented was that the common misconceptions about students with learning disabilities are that they are lazy, are not doing enough work, are not giving full effort, they expect others to do things for them, and that they have no place at Marshall because they cannot do the same work as other students. The testimony presented demonstrated that learning disabled students need help with things as simple as getting to appointments at the scheduled time, because this is a function of the disability. Assisting students with this simple task is not coddling, as Mr. Ridpath has suggested; it is necessary.
      The following findings of fact have been properly made from the record developed at Levels II and IV.
Findings of Fact

      1.      Grievant is employed by Marshall as an Academic Counselor/Learning Specialist in the Buck Harless Student Athlete Program. In his position at Marshall, he is responsible for testing student athletes for learning disabilities and diagnosing their learning disabilities. He is also required to monitor the progress of track, soccer, and golf student athletes to make sure they are meeting academic eligibility requirements, act as an advisor to these students, and make sure the students register for classes.
      2.      Grievant began his employment in this position at Marshall in November 1998. Grievant has a learning disability which interferes with his ability to read, write, and understand instruction. He made clear during the interview process that he had this disability. His supervisor, Michele Duncan, was aware of his disability. He did not ask for any accommodations for performing his job when he began his employment, because he did not believe any would be necessary.
      3.      Employees at Marshall serve a six month probationary period. They are to be evaluated after two, four, and six months of employment. Grievant's first evaluation occurred after he had been an employee for nearly six months. The evaluation was written on a four month evaluation form. On April 26, 1999, Grievant expressed his disagreementwith this evaluation in written form, as he is allowed to do, and also requested reasonable accommodations for his disability in this response. Neither his supervisor nor any other Marshall employee responded to his request for reasonable accommodations.
      4.      Grievant received a second evaluation after he had been employed by Marshall for eight months. This evaluation was written on a six month evaluation form.
      5.      Grievant disagreed with his evaluations and filed a grievance. At Level II he prevailed in part on his grievance in a decision issued on April 5, 2000. Neither party appealed the Level II decision to Level III or Level IV.
      6.      The Level II decision issued April 5, 2000, found in Grievant's favor that Marshall did not follow policy regarding employee performance appraisals by failing to evaluate Grievant at two and four months of service; using the four month evaluation form to evaluate Grievant at six months of service; being delinquent by nine days in requesting an extension of Grievant's probationary period; failing to “provide the requisite 'written, planned program covering a specified time to achieve outlined goals and objectives' as a condition of the extension of the probationary period;” and in being four months delinquent “in completing the three month follow-up performance appraisal following the evaluation done at the end of the extended probationary period.”
      7.      The Level II decision issued April 5, 2000, states there was a “retaliatory quality in the respondent's rating of the grievant on points 6, 'Job Comprehension,' and 7, 'Attitude' of his July 2, 1999, '6 Months' Probationary Performance Evaluation. It is inappropriate to use an employee's lawful disagreement with an evaluation as evidence of poor job performance.”
      8.      The Level II decision issued April 5, 2000, granted as relief that the probationary performance evaluation labeled as the four month evaluation be re-labeled as the six month evaluation, and that it be noted in Grievant's personnel file that his supervisor failed to complete two and four month evaluations. As to the document labeledthe six month evaluation, several changes were required. First, the document was to be re-labeled the nine month evaluation. Second a note was to be appended to it stating that the employee was given an oral plan of improvement, but was not given a written plan of improvement as required by policy. Third, items 6 and 7 on the evaluation were to be amended, “to reflect grievant's actual performance during the evaluation period, not the grievant's disagreement with his last evaluation.” Finally, “Recommended Continued Employment” was to be checked on the appropriate line. The decision also directed that the Director of Equity Programs respond to the grievant in writing, by April 14, 2000, describing the actions taken and the strategies planned to investigate and address grievant's complaints, and it directed Grievant's supervisor to work closely with the Office of Human Resources, the Director of Equity Programs, and Grievant, “to develop a plan of improvement that includes specific and measurable goals, standards, and timelines. This detailed plan should REPLACE the very general review of responsibilities indicated in respondent's memo of February 21, 2000.”
      9.      David Harris, Director of Equity Programs, had already set up a committee to conduct an investigation into Grievant's complaints and request for accommodation, as he had received Grievant's complaint in June of 1999. The committee concluded in a written report dated April 6, 2000, that Grievant was denied reasonable accommodations; only with reasonable accommodations can Grievant's work performance be evaluated accurately; and that, although the committee could not determine the underlying reason for it, there is a hostile environment of ridicule and insult in Grievant's work area. The committee recommended that accommodations be granted immediately, and that Grievant's personnel file indicate that all previous evaluations were completed “in the absence of requested accommodations.”
      10.      Mr. Harris did not endorse the committee's conclusions. He recommended to Marshall's Vice President, F. Layton Cottrill, that certain equipment be purchased, andthat Grievant be allowed access to other equipment. Marshall has been slowly providing Grievant with the equipment he believes he needs in order to be able to perform his job duties.
      11.      As of September 19, 2000, Grievant's personnel file contained no evidence of the February 21, 2000 memo which the Level II decision required be removed. However, no plan of improvement had been developed to replace the memo.
      12.      Marshall personnel re-labeled the six month evaluation as the nine month evaluation. On item 6, “Job Comprehension,” the rating of “D,” “occasionally meets expectations,” was not changed. The written comment on this point is “[j]ob comprehension is currently not evident.” Marshall blacked out additional language as follows, “Proof presented in comments to last evaluation and weekly summaries.” On item 7, “Attitude,” the rating of “D” was not changed. The written comments left are, “[w]illing to accept new ideas. Open to change. Does not handle criticism well.” Again, additional language was blacked out as follows, “as evident by the response to the last evaluation.” After the Level II decision in the instant grievance, the blacked out language was removed completely.
      13.      In item 7 of the evaluation re-labeled as the nine month evaluation, the entire third sentence, not just the words removed from the evaluation, relates to Grievant's response to his previous evaluation. The statement that Grievant does not take criticism well refers to Grievant's response to the evaluation, and only to this response, as evidence of this. When this entire sentence is removed, the comments are entirely positive, and do not support a rating of “D.” The comment in item 6 that Grievant's job comprehension is not evident also refers solely in the second sentence to Grievant's response to his first evaluation.
      The following Conclusions of Law support the Decision reached.
Conclusions of Law
      1.      The burden of proof is upon the grievant to establish his allegations by a preponderance of the evidence. Canterbury v. Putnam County Bd. of Educ., Docket No. 40-86-325-1 (Jan. 28, 1987).
      2.      The doctrine of res judicata may result in the dismissal of a grievance when a party seeks to relitigate "matters about which the parties have already had a full and fair opportunity to litigate and which were in fact litigated." Liller v. W. Va. Human Rights Comm'n, 180 W. Va. 433, ___, 376 S.E.2d 639, 646 (1988); Peters v. Raleigh County Bd. of Educ., Docket No. 95-41-035 (Mar. 15, 1995). Four conditions must be met in order to apply the doctrine of res judicata:
      (1) identity in the thing sued for;
      (2) identity of the cause of action;
      (3) identity of persons, and of parties to the action; and

Woodall v. W. Va. Dep't of Transp., Docket No. 93-DOH-393 (Feb. 2, 1994), citing Wolfe v. Forbes, 159 W. Va. 34, 217 S.E.2d 899 (1975). "The identicality of issues litigated is the key component to the application of administrative res judicata." Liller, supra.
      3.      This Grievance Board has applied the doctrine of res judicata sparingly, "as 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). The doctrine of res judicata has been applied by the Grievance Board, however, to preclude a grievant from pursuing a grievance on the very same issue raised in a previous grievance, when he failed to appeal the decision issued in the first grievance to Level IV. Ashley v. W. Va. Bureau of Senior Services, Docket No. 00-BSS-506 (Aug. 1, 2000).      4.      Insofar as this grievance seeks to revisit whether Grievant's “four” and “six” month evaluations were properly conducted, the doctrine of res judicata precludes the relitigation of these issues.
      5.      In item 7 of the evaluation re-labeled as the nine month evaluation, the entire third sentence must be removed in order to comply with the April 5, 2000 Level II decision, and the rating must be changed. All commentary must be removed from item 6 in order to comply with the Level II decision, and the rating must be changed.
      6.      Administrative Law Judges have the authority to “provide such relief as is deemed fair and equitable.” W. Va. Code § 18-29-5.

      Accordingly, this grievance is GRANTED. Respondent is ORDERED to remove all written comments under item 6 on what has been re-labeled as the nine month evaluation, and change the rating to “C,” and to remove the entire third sentence in the written comments to item 7, and to change the rating to “C.” Respondent is further ORDERED to comply with the directive of the first Level II decision to develop a plan of improvement that includes specific and measurable goals, standards, and timelines. As this plan of improvement has not been in place, nor has Grievant had the equipment requested to accommodate his disability until recently, it is FURTHER ORDERED that Grievant NOT be evaluated again until three months after this new written improvement plan has been presented to him, and that the evaluation period be for that three month period only.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or to the Circuit Court of Cabell County. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code §18-29-7. 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                                                                            BRENDA L. GOULD
                                           Administrative Law Judge

Dated:      November 30, 2000                                                 


Footnote: 1
The record does not reflect what occurred at Level I. A Level II hearing was held on May 8, 2000. A Level II decision granting the grievance in part, and denying the grievance in part, was issued on May 15, 2000. Grievant waived Level III, appealing to Level IV on May 20, 2000. A Level IV hearing was scheduled for July 19, 2000, at which time the parties attempted to reach a settlement of the grievance. The parties advised that a settlement had not been reached, and the Level IV hearing was held on September 18 and 19, 2000. Grievant represented himself, and Respondent was represented by Beth Ann Rauer, Esquire. During the course of the hearing, Grievant's Exhibit 16 was marked, and by agreement of the parties, Respondent was given time to evaluate the exhibit after the hearing. Respondent offered no objection to the exhibit, and it is admitted into evidence. Grievant submitted two documents after the close of the Level IV hearing, which he asked be marked as Grievant's Exhibits 17 and 18. As the record in this proceeding was closed at the conclusion of the Level IV hearing, except for receiving objection to Grievant's Exhibit 16, and Grievant presented no reason for reopening the record, these two documents will not be marked as exhibits. This grievance became mature for decision upon receipt of the last of the parties' post-hearing written arguments on November 6, 2000.
Footnote: 2
It is unclear why the grievance evaluator required the document to be labeled “nine months” when the evaluation actually occurred after Grievant had been employed by Marshall for eight months.