RANDALL PATTERSON,
Grievant,
v. Docket No. 02-DOH-353D
DEPARTMENT OF TRANSPORTATION/
DIVISION OF HIGHWAYS,
Respondent.
ORDER DENYING DEFAULT
On October 29, 2002, the Grievance Board received a letter from Felicia Williams
of the Division of Highways, forwarding the default claim which had been filed at Level III
by Grievant, Randall Patterson. Grievant's default claim against his employer,
Respondent, Department of Transportation/Division of Highways ("DOH"), originally
alleged a default occurred when Grievant did not receive the Level II decision within five
days of the Level II conference. At a pre-hearing telephonic conference held on November
15, 2002, Grievant also asserted a default occurred when his default claim was not
forwarded to Level IV by Ms. Williams in a timely manner. Respondent, represented by
its counsel, Barbara Baxter, Esquire, did not object to this claim being addressed as part
of this default, and Grievant was advised that he would be allowed to pursue that issue.
After a continuance was granted for good cause, a Level IV hearing was held on January
6, 2003, solely for the purpose of taking evidence on the issues of whether a default had
occurred, and whether Respondent had a statutory excuse to default. Grievant represented himself,
and DOH was represented at the hearing by Belinda Jackson, Esquire. The parties
declined to submit written argument, and this default claim became mature for decision at
the conclusion of the Level IV hearing.
The following findings of fact are made based upon the evidence presented at the
Level IV hearing.
Findings of Fact
1. Grievant filed a grievance on July 11, 2002, and met with his supervisor,
Richard E. Crigger, Jr., shortly thereafter. Mr. Crigger issued his Level I written decision
denying the grievance on July 16, 2002.
2. Grievant appealed to Level II, and met with William Bennett, District
Engineer, for his Level II conference on July 25, 2002.
3. Mr. Bennett prepared a response to the grievance on July 30, 2002, and it
was sent to Grievant by certified mail, on July 30, 2002.
4. The postal records reflect that delivery of this piece of mail was attempted on
August 3, 2002, and that a notice was left for Grievant that he had a piece of certified mail
which he needed to pick up. Grievant did not receive this notice from the post office.
5. Grievant called Mr. Bennett's office on August 6, 2002, inquiring about the
Level II response, and a copy of the Level II response was provided to him that day.
6. On August 20, 2002, Grievant received the response which had been sent
by certified mail on July 30.
7. On August 8, 2002, Grievant mailed an appeal of the Level II decision to the
Level III hearing examiner's office, Jeff Black, DOH's Director of Personnel, and the Division of Personnel. Grievant attached a letter to his appeal in which he stated he was
appealing to Level III because he was “unsatisfied with several aspects of the procedure
leading to the unfavorable Level II decision.” He then outlined what had occurred, noting
that he did not receive a Level II response within five days of the Level II conference.
8. Grievant's appeal was received in the Level III hearing examiner's office on
August 12, 2002. Felicia A. Williams in the Level III hearing examiner's office spoke with
Grievant on August 12 or 13, and asked him if he was appealing the Level II decision to
Level III, or claiming default. Grievant told her he was claiming default. Ms. Williams then
informed him that they did not handle defaults at Level III, and she would forward the
documents on to Level IV for him.
9. Grievant heard nothing further about his default claim. On October 29, 2002,
Grievant called Ms. Williams. She told him to contact the Grievance Board, and he did so.
The Grievance Board had no record of the default claim.
10. Ms. Williams forwarded Grievant's default claim to Level IV on October 29,
2002, with a letter stating she had sent the default claim to Level IV on August 12, 2002.
(See footnote 1)
Discussion
The default provision for state employees is found in
W. Va. Code § 29-6A-3(a),
which provides, in pertinent part:
(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.
The burden of proof is upon the grievant who claims a default to prove by a
preponderance of the evidence that a default has occurred.
Donnellan v. Harrison County
Bd. of Educ., Docket No. 02-17-003D (June 6, 2002). Where Respondent asserts a
statutory excuse to the default, the burden of proof is upon Respondent to prove the same
by a preponderance of the evidence.
Grievant's default claim is based upon the fact that he did not receive a Level II
decision within five days of the Level II conference.
W. Va. Code § 29-6A-4 provides as
follows regarding when Respondent must act at Level II:
(b) Level two.
Within five days of receiving the decision of the immediate supervisor,
the grievant may file a written appeal to the administrator of the grievant's
work location, facility, area office, or other appropriate subdivision of the
department, board, commission or agency. The administrator or his
designee shall hold a conference within five days of the receipt of the appeal
and issue a written decision upon the appeal within five days of the
conference.
Respondent pointed out that the grievance procedure statute does not require a
grievant to receive his or her decision within five days. It only requires that the decision be
issued and transmitted to Grievant within five days, and Respondent followed this
procedure. Respondent is quite correct. The fact that Grievant did not receive the decision within five days of the Level II conference is not determinative. Respondent has proven
that the decision was issued and transmitted to Grievant in a timely manner, and that is all
that is required.
Gillum v. Dep't of Transp., Docket No. 98-DOH-387D (Dec. 2, 1998).
As to the issue of the default claim not getting to Level IV until October 2002, the
undersigned concludes that, while Ms. Williams was under no obligation to do so, she did,
in fact, attempt to forward Grievant's default documents to Level IV on August 12 or 13,
2002, as she told Grievant she would, and as they agreed would be done. Somewhere
along the way, however, these documents were simply lost. However, even had Ms.
Williams failed to forward the documents, this would not constitute a default, as there is no
statutory requirement that DOH forward a default claim to Level IV for Grievant.
W. Va. Code § 29-6A-3(a) does require the grievant's employer to request a hearing
on whether the remedy is contrary to law or clearly wrong, within five days of being given
notice of default. The statute is unclear as to what constitutes notice to the employer of
a default. This Grievance Board accepts default claims filed by grievants, and sets them
for hearing without any request by the employer for a hearing, as occurred in this case.
In such cases, the Grievance Board has in the past required the employer to request a
hearing on the remedy within five days of receipt of a Grievance Board order finding, after
a hearing on the issue, that a default had occurred.
Brackman v. W. Va. Div. of
Corrections, Docket No. 99-CORR-374D (Apr. 10, 2000). This Grievance Board has also
found that an employer had an obligation to request a hearing at Level IV within five days
of receipt of a notice that the grievant was claiming default, sent by the grievant to the
Level II grievance evaluator, and the Commissioner of the Division of Highways.
Allison
v. W. Va. Dep't of Transp., Docket No. 99-DOH-415D (Dec. 30, 1998).
The undersigned concludes that Grievant's appeal to Level III, his subsequent
discussion with Ms. Williams, and the agreement that she should send the default claim
to Level IV for disposition does not constitute the notice to the employer contemplated by
the statute which would trigger a requirement that the employer request a hearing at Level
IV.
In addition, it is appropriate to make 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. The burden of proof is upon the grievant who claims a default to prove by a
preponderance of the evidence that a default has occurred.
Donnellan v. Harrison County
Bd. of Educ., Docket No. 02-17-003D (June 6, 2002). Where Respondent asserts a
statutory excuse to the default, the burden of proof is upon Respondent to prove the same
by a preponderance of the evidence.
3.
W. Va. Code § 29-6A-4 requires the employer to issue a Level II decision
within five days of the Level II conference.
4. Respondent demonstrated that the Level II decision was issued and
transmitted to Grievant in a timely manner, and that is all that is required. There is no
requirement that Grievant receive the decision within any particular time frame.
Gillum v.
Dep't of Transp., Docket No. 98-DOH-387D (Dec. 2, 1998).
5. Ms. Williams was under no obligation to forward Grievant's default claim to
Level IV for him, and had she not done so, this would not constitute a default.
6.
W. Va. Code § 29-6A-3(a) requires the grievant's employer to request a
hearing on whether the remedy is contrary to law or clearly wrong, within five days of being
given notice of default. The statute is unclear as to what constitutes notice to the employer
of a default.
7. Grievant's appeal to Level III, his subsequent discussion with Ms. Williams,
and the agreement that she should send the default claim to Level IV for disposition, does
not constitute the notice to the employer contemplated by the statute which would trigger
a requirement that the employer request a hearing at Level IV.
Accordingly, Grievant's request that a default be entered is
DENIED. This grievance
should be, and the same hereby is,
ORDERED REMANDED TO LEVEL III of the
grievance procedure for state employees for hearing within seven days of receipt of this
Order. This grievance is
ORDERED DISMISSED and
STRICKEN from the docket of this
Grievance Board.
BRENDA L. GOULD
Administrative Law Judge
Dated: February 5, 2003
Footnote: 1