JOHN COLLINS,
Grievant,
v.
DEPARTMENT OF TRANSPORTATION/
DIVISION OF HIGHWAYS,
Respondent.
ORDER DENYING DEFAULT
John Collins attempted to file a Grievance on April 8, 2002, stating:
Discrimination in Pay: Pay in Lincoln Co. is [too] widespread among the
same classes. Same pay for the same work. There is close to 5 dollars
difference between the highest and lowest paid personnel in this county and
this needs to be fixed.
Grievant thereafter filed with his employer an undated notice stating, Due to time
limits required by state law, this Grievance is in default by the employer. Respondent filed
its Request for Hearing on Default Claim at Level IV on May 22, 2002.
A Level IV default hearing was held on June 27, 2002, before the undersigned
Administrative Law Judge, at the Grievance Board's Charleston office
(See footnote 1)
. Grievant appeared
with his representative, Roger Sowards
, and Respondent was represented by BarbaraBaxter, Esq. The parties elected to file proposed findings of fact and conclusions of law
by July 19, 2002, whereupon the matter became mature for decision. The following
Findings of Fact pertinent to resolution of this matter have been determined based upon
a preponderance of the credible evidence of record.
FINDINGS OF FACT
1. Grievant attempted to file a grievance on April 8, 2002. The grievance
alleged discrimination in pay.
2. Grievant's representative at first attempted to file the grievance directly to
Level II, by delivering it to Barbara King, a secretary in the District Engineer's Office.
3. Ms. King, whose duties include processing grievance forms that are filed at
Level II, reviewed the form and returned it, advising Grievant's representative it must be
filed with Grievant's immediate supervisor at Level I.
4. Grievant and his representative twice more attempted to bypass Level I and
file the grievance at Level II, ignoring Ms. King's clear instructions. Ms. King even gave
Grievant a copy of the Grievance Code detailing the filing procedure, and advised Grievant
that his supervisor could waive Level I. Ms. King finally sent a copy of the grievance form
to Grievant's supervisor.
5. Ms. King is not a Grievance Evaluator and is not in Grievant's administrative
chain of command.
6. Larry Pauley is Grievant's immediate supervisor. He has no control over the
rates of pay of his supervisees, except that he occasionally recommends employees for
merit pay increases. He has no input on the salaries of other employees in the county that
he does not supervise. 7. Larry Pauley denied the grievance at Level I on its merits.
8. A Level II conference was held on April 30, 2002, after which the grievance
was denied.
9. Grievant filed his default claim after the Level II conference.
DISCUSSION
Grievant asserts that a Level II conference should have been scheduled and held
within five days of his first attempt to file at Level II, because Ms. King was not a person
designated by District Engineer Wilson Braley to decide grievance matters.
West Virginia Code § 29-6A-3(a) states in part: 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. If
a default has not occurred, the grievant may proceed to the next level of the grievance
procedure.
Pennington v. W. Va. Div. of Corrections/Anthony Correctional Center, Docket
No. 01-CORR-011D (Feb. 13, 2001). Grievant bears the burden of establishing default by
a preponderance of the evidence.
Donnellan v. Harrison County Bd. of Educ., Docket No.
02-17-003D (June 6, 2002).
Grievant's claim must fail because Grievant caused the error he complained of. He
claimed his grievance was not processed timely after his initial attempt to file it, but his
attempt to bypass Level I and file directly at Level II was not procedurally correct. He was
properly instructed to file it at Level I, and he repeatedly ignored this instruction.
W. Va. Code § 29-6A-4(a) states in part:
Within ten days following the occurrence of the event upon which the
grievance is based, or within ten days of the date on which the event became
known to the grievant, or within ten days of the most recent occurrence of a
continuing practice giving rise to a grievance, the grievant or the designated
representative, or both, may file a written grievance with the immediate
supervisor of the grievant. . . . If a grievance alleges discrimination or
retaliation by the immediate supervisor of the grievant, the level one filing
may be waived by the grievant and the grievance may be initiated at level
two with the administrator or his or her designee, within the time limits set
forth in this subsection for filing a grievance at level one. A meeting may be
held to discuss the issues in dispute, but the meeting is not required.
Grievant argues that his grievance did allege discrimination, so it was permissible
for him to bypass Level I. However, Grievant must read the entire proviso on which he
relies, and he ignores the phrase by the immediate supervisor of the grievant. Grievant
does not allege discrimination by Mr. Pauley, but makes a very broad allegation concerning
pay differences within job classifications. Therefore, he may not unilaterally bypass Level
I.
This Grievance Board has held:
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).)."
Gerencir v. Kanawha County Bd. of Educ., Docket No. 01-20-500D (Nov. 30, 2001), citing
Hanlon v. County Bd. of Educ., 201 W. Va. 305, 496 S.E.2d 447 (1997)
. Grievant's failure
to properly file his claim is the reason Respondent did not make a Level II response afterhe did so. Respondent had no obligation to make a response to an improperly-filed
grievance.
Grievant's claim for relief by default is also untimely. While
W. Va. Code § 29-6A-
3(a)(2) (recited above) does not specify a time within which one must file a notice of
default, the Supreme Court of Appeals of West Virginia has held that, In order to benefit
from the "relief by default" provisions contained in
W. Va. Code § 18-29-3(a) (1992) (Repl.
Vol. 1994), a grieved employee or his/her representative must raise the "relief by default"
issue during the grievance proceedings as soon as the employee or his/her representative
becomes aware of such default.
Hanlon v. Logan County Bd. of Educ., 201 W. Va. 305,
496 S.E.2d 447 (1997);
Harmon v. Fayette County Bd. of Educ., 205 W. Va. 125, 516
S.E.2d 748 (1999). Grievant waited until after receiving an unfavorable Level II decision
before claiming a default occurred at Level I. By failing to claim default as soon as he
believed it had occurred, he waived his right to do so.
In addition to the foregoing discussion, the following conclusions of law are
appropriate in this matter.
CONCLUSIONS OF LAW
1. Grievant bears the burden of establishing default by a preponderance of the
evidence.
Donnellan v. Harrison County Bd. of Educ., Docket No. 02-17-003D (June 6,
2002).
2. If a default has occurred, a grievant is presumed to have prevailed on the
merits of the grievance, and Respondent may request a ruling at Level IV to determine
whether the relief requested is contrary to law or clearly wrong. If a default has notoccurred, the grievant may proceed to the next level of the grievance procedure.
Pennington,
supra.
3. In order to benefit from the "relief by default" provisions contained in
W. Va.
Code § 29-6A-3(a)(2), a grieved employee or his/her representative must raise the "relief
by default" issue during the grievance proceedings as soon as the employee or his/her
representative becomes aware of such default.
Hanlon v. Logan County Bd. of Educ., 201
W. Va. 305, 496 S.E.2d 447 (1997);
Harmon v. Fayette County Bd. of Educ., 205 W. Va.
125, 516 S.E.2d 748 (1999).
4. Grievant did not give timely notice of the default.
5.
W. Va. Code § 29-6A-4(a) states in part:
Within ten days following the occurrence of the event upon which the
grievance is based, or within ten days of the date on which the event became
known to the grievant, or within ten days of the most recent occurrence of a
continuing practice giving rise to a grievance, the grievant or the designated
representative, or both, may file a written grievance with the immediate
supervisor of the grievant. . . . If a grievance alleges discrimination or
retaliation by the immediate supervisor of the grievant, the level one filing
may be waived by the grievant and the grievance may be initiated at level
two with the administrator or his or her designee, within the time limits set
forth in this subsection for filing a grievance at level one. A meeting may be
held to discuss the issues in dispute, but the meeting is not required.
6. Grievant did not allege discrimination by his immediate supervisor, and so
was not entitled to unilaterally bypass Level I. Respondent has no obligation to respond
to an improperly-filed grievance.
7.
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, 438S.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).).
Gerencir v. Kanawha County Bd. of Educ., Docket No. 01-20-500D (Nov. 30, 2001), citing
Hanlon v. County Bd. of Educ., 201 W. Va. 305, 496 S.E.2d 447 (1997)
.
8. Grievant was the cause Respondent's failure to process his grievance
immediately after he initially attempted to file it directly at Level II.
Accordingly, Grievant's request for a determination of default under
W. Va. Code
§ 29-6A-3(a) is
DENIED. This matter is hereby
REMANDED to Level III for processing at
that level, and it is
DISMISSED and
STRICKEN from the docket of this Grievance Board.
DATED: August 26, 2002 ________________________________
M. Paul Marteney
Administrative Law Judge
Footnote: 1 A similar default claim was filed in the matter of Dennis Collins, et al. v. W.
Va. Dep't of Trans./Div. of Highways, Docket No. 02-DOH-150D, based on a separate
grievance but almost identical facts relating to the default claim. Due to the similarity of
evidence and witnesses, the default claims were combined for purposes of hearing.