v. Docket No. 04-DOH-350
DEPARTMENT OF TRANSPORTATION/
DIVISION OF HIGHWAYS,
Respondent.
[u]pon timely request in a grievance filed by a state or higher
education employee under W. Va. Code §§ 29-6A-1, et seq.,
an employee shall be allowed to intervene and become a partyto a grievance at any level, when that employee claims the
ruling in a grievance may substantially and adversely affect his
or her rights or property and his or her interest is not
adequately represented by the existing parties.
The following facts are derived from a preponderance of the evidence admitted at
level three.
2. Many DOH employees filed a grievance complaining that the selection
process applied to Grievant and another employee had not been in accordance with
agency rules. Although Grievant was aware of the grievance, he did not attempt to
intervene until the level two conference had been convened. Hearing evaluator Dennis
King did not allow Grievant to intervene at level two, and Grievant took no further action
to preserve his rights.
3. Prior to the level three hearing, DOH entered into a settlement agreement to
resolve the grievance due to concerns that the selection of Grievant would be found
improper because the decision was made by someone other than those who interviewed
the applicants, and was imposed upon the District.
4. As a result of the settlement, the position was reposted and independent
interviewers were secured from outside the District to make a selection “based solely on
the qualifications of the applicants as reflected by their application and experience, as well
at the actual interview.”
5. Grievant applied for the position, and was interviewed along with a number
of other applicants.
6. Kendal Ashworth was selected for the position based upon his 17-18 years
of relevant service to DOH which made him “very knowledgeable with the work. . . .” The
interviewers also determined that he appeared to be a good team player, had good
interpersonal skills, and was very respectful to supervisors and other employees. 7. Grievant had been employed by DOH as a Transportation Crew Chief-
Maintenance in Mason County from 1994-1997, when he left to work in the Sheriff's
Department. The interviewers reported that Grievant used “offensive, inappropriate curse
words during the interview.” Although the cursing was not directed to the gentlemen, DOH
has a policy prohibiting such language, and they found it to be offensive and disrespectful
of other individuals.
8. Following the appointment of Mr. Ashworth, Grievant continues to be
employed by DOH as an Equipment Operator.
Grievant asserts that he should have been permitted to intervene in the grievance
which led to the TCCMain position being reposted. DOH argues that at the time the
grievance was pending, there was no law, rule, or regulation permitting intervention at level
two.
(See footnote 1)
Grievant does not argue that the settlement was improper, or that the subsequentselection of Mr. Ashworth was in violation of any rule, regulation, statute, or policy, and
there is no evidence that DOH acted improperly regarding the settlement or the reposting.
"'The law favors and encourages the resolution of controversies by contracts of
compromise and settlement rather than by litigation; and it is the policy of the law to uphold
and enforce such contracts if they are fairly made and are not in contravention of some law
or public policy.' Syl. Pt. 1, Sanders v. Roselawn Memorial Gardens, Inc., 152 W. Va. 91,
159 S.E.2d 784 (1968)." Syl. Pt. 1, McDowell County Bd. of Educ. v. Stephens, 191 W. Va.
711, 447 S.E.2d 912 (1994).
The Grievance Board has "long recognized the principle that grievance settlements
can only be challenged in later grievances when it is proven by a preponderance of the
evidence that the settlement was not fairly made or was in contravention of some law or
public policy." Myers v. Harrison County Bd. of Educ., Docket No. 01-13-013 (Nov. 21,
2001). See Adkins v. Logan County Bd. of Educ., Docket No. 97-23-216 (Sept. 29, 1997);
Vance v. Logan County Bd. of Educ., Docket No. 95-23-190 (Mar. 15, 1996). The decision
to settle a grievance is within the discretion of the agency, and this determination is based
on each grievance's facts and circumstances. Collins v. Dep't of Transp./Div. of Highways,
Docket No. 03-DOH-053 (July 17, 2003). Grievant has not demonstrated the settlement
of the prior grievance contravened any applicable laws or public policy.
The above-discussion will be supplemented by the following conclusions of law.
2. Although not addressed in W. Va. Code §§ 29-6A-1, et seq., the Grievance
Board has recognized the right of state employees to intervene in matters in which they
have an interest. See Bailey v. W. Va. Dep't of Transp./Div. of Highways and Christine
West, Docket No. 02-DOH-350 (Mar. 31, 2003); Roush and Forbes v. W. Va. Dep't of
Transp./Div. of Highways, Docket No. 01-DOH-573/561 (Feb. 28, 2003); Woodruff v. W.
Va. Div. of Highways and John Corio, Docket No. 99-DOH-477 (May 24, 2000).
3. "'The law favors and encourages the resolution of controversies by contracts
of compromise and settlement rather than by litigation; and it is the policy of the law to
uphold and enforce such contracts if they are fairly made and are not in contravention of
some law or public policy.' Syl. Pt. 1, Sanders v. Roselawn Memorial Gardens, Inc., 152
W. Va. 91, 159 S.E.2d 784 (1968)." Syl. Pt. 1, McDowell County Bd. of Educ. v. Stephens,
191 W. Va. 711, 447 S.E.2d 912 (1994).
4. Grievant failed to prove that a settlement in a related matter was unfairly
made or in contravention of some law or public policy.
5. Grievant was not, in the circumstances of this case, denied due process by
the settlement of a prior grievance.
Accordingly, this grievance is DENIED. Any party or the West Virginia Division of Personnel may appeal this decision to the
Circuit Court of Kanawha County or to the circuit court of the county in which the grievance
occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision.
W. Va. Code § 29-6A-7 (1998). 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 Board with the civil action number so that the record can be
prepared and properly transmitted to the appropriate circuit court.
DATE: FEBRUARY 7, 2005
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE
Footnote: 1