Grievant, Kimberly Huston, filed a Motion for Default Judgment, with her employer,
West Virginia Department of Tax and Revenue ("T&R"), in the above-styled grievance on
October 29, 1999, in accordance with
W. Va. Code § 29-6A-3(a)(2). Respondent
requested a Level IV hearing on this matter on November 5, 1999, stating a default did not
occur. After a continuance for good cause shown, a hearing on this matter was held in the
Grievance Board's Charleston, West Virginia, office on January 4, 2000. This default
claim became mature for decision on that date as the parties elected not to submit
proposed findings of fact and conclusions of law. Grievant was represented by Attorney
Priscilla Gay, and T&R was represented by its Attorney, Tim Waggoner.
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. The Level III hearing was held on September 15, 1999.
(See footnote 1)
2. At the close of the September 15, 1999 hearing, Grievance Evaluator Mark
Morton asked the parties if they wished to submit proposed Findings of Fact and
Conclusions of Law.
3. Mr. Waggoner indicated he wished to do so, and the possibility of submitting
these proposals within thirty days was discussed.
4. Grievance Evaluator Morton responded, "If Ms. Gay will waive the five-day
decision rule I think we can accommodate you." Ms. Gay's response was, "Yes I will."
5. The parties agreed that these proposals would be due on October 18, 1999.
6. No written waiver was signed.
7. Grievant believed she was only waiving the timelines for the Proposed
Findings of Fact and Conclusions of Law, and the Decision would be rendered five days
after the Grievance Evaluator received the submissions.
8. The Grievance Evaluator believed Grievant had waived all the timelines for
the Decision, and the standard that now applied was the reasonable time standard.
9. The record at Level III in this grievance was approximately 200 hundred
pages, and there were numerous, complex documents submitted for the Grievance
Evaluator's review and study.
10. On October 29, 1999, Grievant notified Respondent it was in default for
failure to render a Level III decision within five working days.
11. At the time Grievant sent the Notice of Default to the Respondent, the
Grievance Evaluator had completed a portion of the Level III Decision. The GrievanceEvaluator has not yet completed the Decision because he believed the default issue had
removed the grievance from his jurisdiction.
Issues and Arguments
Grievant argues Respondent is in default because it failed to issue a Level III
Decision five days after receipt of the Proposed Findings of Fact and Conclusions of Law.
Grievant acknowledges she offered to waive the procedural timelines, but argues this
waiver was only for the submission of the Proposed Findings of Fact and Conclusions of
Law; thus, Respondent has defaulted in this grievance.
Respondent argues the parties agreed to extend the timelines, and there were no
limitations placed on this waiver; that it only applied to the submission of the proposals.
In the alternative, Respondent argues, if indeed Grievant did not intend to waive the
timelines for all purposes, then the Grievance Evaluator was induced by Grievant's
agreement into believing there was such a waiver; and thus, the failure to issue the
decision in a timely manner was due to excusable neglect.
Discussion
The issue of default in grievances filed by a state employees came within the
jurisdiction of the Grievance Board in 1998. On March 13, 1998, the West Virginia
Legislature passed House Bill 4314, which, among other things, added a default provision
to the state employees grievance procedure, effective July 1, 1998.
(See footnote 2)
That Bill amended
W. Va. Code § 29-6A-3(a), adding the following paragraph relevant to this matter:
(2) Any assertion by the employer that the filing of the grievance
at level one was untimely shall be asserted by the employer on behalf of the
employer at or before the level two hearing. 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. Within five days of the receipt of a
written notice of the 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
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 to comply
with the law and to make the grievant whole.
In addition, House Bill 4314 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."
This Grievance Board had previously adjudicated related issues arising under the
default provision in the grievance statute covering education employees, W. Va. Code
§ 18-29-3(a). See, e.g., Ehle v. Bd. of Directors, Docket No. 97-BOD-483 (May 14, 1998);
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).
When the employer asserts the remedy that would be received is contrary to law
in accordance with W. Va. Code § 29-6A-3(a)(2) because, in fact, no default occurred, the
employer must establish such a defense by a preponderance of the evidence. Williamson
v. W. Va. Dep't of Tax & Revenue, Docket No. 98-T&R-275D (Sept. 30, 1998). See Gruenv. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994). 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).
W. Va. Code § 29-6A-4(c) provides the following directions regarding when
Respondent must act at Level III:
Within five days of receiving the decision of the administrator of the
grievant's work location, facility, area office, or other appropriate subdivision
of the department, board, commission or agency, the grievant may file a
written appeal of the decision with the chief administrator of the grievant's
employing department, board, commission or agency. A copy of the appeal
and the level two decision shall be served upon the director of the division
of personnel by the grievant.
The chief administrator of his or her designee shall hold a hearing in
accordance with section six of this article within seven days of receiving the
appeal. The director of the division of personnel or his or her designee may
appear at the hearing and submit oral or written evidence upon the matters
in the hearing.
The chief administrator or his or her designee shall issue a written
decision affirming, modifying or reversing the level two decision within five
days of the hearing.
(Emphasis added).
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. ofEduc., Docket No. 98-22-375 (Jan. 22, 1999). As stated in Duruttya, supra, the grievance
process is for "resolving problems at the lowest possible administrative level."
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 specified time limits in the grievance statute may be extended for a "reasonable
time" by mutual, written agreement of the parties. See W. Va. Code §29-6a-3(g). Waiver
of the strict statutory timelines is a common occurrence within the context of the grievance
procedure. Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-
296D (Nov. 30, 1999). This practice benefits both parties by allowing employers sufficient
time to give grievances careful attention and care, rather than rushing to judgment.
Jackson v. Hancock County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999). See
Parker, supra.
In retrospect it is clear what happened between the parties. Although they believed
they had agreed to a waiver of the timelines, each party had a different interpretation of
the contents of that waiver. Neither sought clarification from the other as they each
believed the other held the same understanding as they did. Further, this agreement was
understandable given the length of the transcript, the number of exhibits and the
complexity of the data they contained. See Bowyer v. Bd. of Trustees/ W. Va. Univ.,
Docket No. 99-BOT-197D (July 13, 1999). Although the agreement to extend the timelines was not written, it is on the record,
and Grievant's attorney clearly agreed to the extension during a formal, recorded hearing.
This agreement is sufficient to constitute a valid waiver of the time to issue a decision
under the statute, and it is sufficient for substantial compliance. Duruttya, supra; Parker,
supra; Bowyer, supra; Jackson, supra.
Further, it is noted that the time periods in the grievance procedure are not
jurisdictional in nature and are subject to equitable principles of tolling, waiver, and
estoppel. Jackson, supra; Gaskins v. W. Va. Dep't of Health, Docket No. 90-H-032 (Apr.
12, 1990). This Grievance Board has frequently applied such principles, specifically
estoppel, to toll the time for filing a grievance. See, e.g., Lilly v. Raleigh County Bd. of
Educ., Docket No. 94-41-195 (Nov. 28, 1994). Such principles have similarly been applied
in evaluating default cases. Harmon v. Div. of Corrections, Docket No. 98-CORR-284D
(Oct. 6, 1998). In order to prevail in a claim of estoppel, a party must show that there was
a representation made, or information given, by the opposing party which was relied upon,
causing an alteration of conduct or change of position to the first party's detriment. Ara
v. Erie Insurance Co., 182 W. Va. 266, 387 S.E.2d 320 (1989).
Unquestionably, Grievance Evaluator Morton relied upon Grievant's attorney
agreement that the timelines for issuing the Level III Decision were waived. In reliance
upon Grievant's agreement in this regard, T&R delayed issuing the decision beyond the
statutory time limitation of five days after the submission of the Proposed Findings of Fact
and Conclusions of Law. Therefore, the doctrine of estoppel would bar Grievant from now
claiming that a default occurred. Accordingly, the undersigned concludes Respondent has met its burden of proof
in this default claim. The parties' agreement to allow an extension of the statutory time line
at Level III prohibits any claim that a default occurred at that level.
The above-discussion will be supplemented by the following Conclusions of Law.
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 the employer asserts the remedy that would be received is contrary
to law in accordance with W. Va. Code § 29-6A-3(a)(2) because, in fact, no default
occurred, the employer must establish such a defense by a preponderance of the
evidence. Williamson v. W. Va. Dep't of Tax & Revenue, Docket No. 98-T&R-275D (Sept.
30, 1998). See Gruen v. Bd. of Directors, Docket No. 94-BOD-256 (Nov. 30, 1994).
3. The specified time limits in the grievance statute may be extended for a
"reasonable time" by mutual agreement of the parties. See W. Va. Code § 29-6A-3(g).
4. "The agreement reached on the record by the parties at the Level III hearing,
constitutes substantial compliance with [W. Va. Code § 29-6A-3(g)]." Parker v. W. Va.
Dep't of Health and Human Resources, Docket No. 99-HHR-296D (Nov. 30, 1999).
Duruttya v. Bd. of Educ., 181 W. Va. 203, 382 S.E.2d 40 (1989); Bowyer v. Bd. of
Trustees/ W. Va. Univ., Docket No. 99-BOT-197D (July 13, 1999); Jackson v. Hancock
County Bd. of Educ., Docket No. 99-15-081D (May 5, 1999); . 5. A party simply cannot acquiesce to, or be the source of, an error or
misunderstanding during proceedings before a tribunal, and then complain of that error at
a later date. Lambert v. W. Va. Dep't of Health and Human Resources, Docket No. 99-
HHR-326D (Oct. 14, 1999). 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) ("[I]t is not
appropriate for an appellate body to grant relief to a party who invites error in a lower
tribunal.") (Citations omitted).
6. Because Grievant agreed at the end of the Level III hearing to extend the
timelines for issuance of the Decision, she waived entitlement to the default provisions of
W. Va. Code § 29-6A-3(a). Parker, supra; Lambert, supra.
Accordingly, Grievant's Motion for Default is DENIED. This matter is remanded to
Level III for the Grievance Evaluator to issue a Level III Decision within the statutory
timelines from the date he receives this Order.
_________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: February 29, 2000.
Footnote: 1