LeJenna Kelley, employed by the Division of Highway (“DOH”) as a Telephone
Operator, filed a Motion for Default on October 17, 2007, in which she alleges that the level
one hearing evaluator denied Grievant's right to call and examine witnesses. Grievant
asserts this denial to call and examine witnesses results in a denial of due process, as well
as demonstrating the Respondent is acting in bad faith. The undersigned Administrative
Law Judge subsequently conducted a hearing on the motion in the Grievance Board's
Charleston Office on January 9, 2008. Grievant appeared in person and by Gordon
Simmons, West Virginia Public Workers Union, and DOH was represented by Carrie A.
Dysart, Esq. This grievance became mature at the conclusion of the hearing.
Grievant asserts a default occurred in light of Respondent's refusal to hold a level
one hearing in accordance with the procedure as defined by West Virginia Code § 6C-2-
4(a). DOH maintains that a default occurs when an employer fails to provide a grievantwith a required response within the prescribed time limits. West Virginia Code § 6C-2-3(b).
DOH asserts that disallowing a grievant to call and examine witnesses at a level one
hearing does not rise to the level of default as set out by the statute. In the instant
grievance, DOH points out that the level one hearing was conducted within the prescribed
time limits, and a decision was issued in a timely manner.
DOH expressed its contention that the legislative intent in restructuring the
grievance statute was to lessen the formality of level one of the grievance procedure,
thereby increasing the likelihood of efficient resolution of certain grievances by evaluators
who have the authority to grant or deny requested relief. Grievant maintains she requested
a hearing at level one, and that entails the calling and examination of witnesses by
Grievant's representative. DOH concedes, on the effective date of the Board's procedural
rules, it changed its policy and instructed level one evaluator's to allow calling of witnesses
when a hearing is requested.
The burden of proof is upon Grievant when asserting a default has occurred to
prove the same by a preponderance of the evidence.
Donnellan v. Harrison County Bd.
of Educ., Docket No. 02-17-003 (Sept. 20, 2002). 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). West Virginia Code § 6C-2-3(b) sets forth the time lines to be followed at each level
of the grievance procedure. The statute also provides that the administrative law judge
may deny the default, or modify the remedy to be granted to comply with the law or
otherwise make the grievant whole.
In the present grievance, Respondent did provide the level one hearing within the
prescribed time limits, and a decision was issued in a timely manner. Therefore, Grievant's
motion for default in this matter is denied. However, the statute does provide that the
undersigned may craft a remedy to comply with the law or otherwise make the grievant
whole. The record in this matter reflects Grievant made application for a level one hearing
and attempted to call witnesses. The record also indicates that the level one hearing
evaluator denied the request to call and examine witnesses.
West Virginia Code § 6C-2-3(k)(4) provides, in part, as follows:
At level one, the chief administrator may call witnesses and may allow parties
to call witnesses during a conference or hearing upon request. The parties
have the right to call, examine and cross-examine witnesses during any
hearing.
(See footnote 1)
(Emphasis Added).
The above language is clear and unambiguous. The undersigned acknowledges
that default is not the proper remedy to address this set of facts. The proper remedy is to
remand the grievance to level one to allow Grievant the opportunity to exercise her right
to call, examine and cross-examine witnesses during the hearing. Accordingly, Grievant's motion that a default be entered is
DENIED. The grievance
is
REMANDED to the DOH to provide Grievant a level one hearing conducted in
compliance with the statutory procedure.
Entered this 24th day of January, 2008.
___________________________
Ronald L. Reece
Administrative Law Judge
Footnote: 1 Procedural Rules of the W. Va. Public Employees Grievance Board, 156 C.S.R.
1 § 156-1-4 (2007).