Database Search Result Details

First Name Susan
Last Name Kershner
Decision Date 5/11/2017
Docket Number 2014-0731-CONS
ALJ CHL
Respondent Department of Environmental Protection
Employment Type STATE
Job Title Inspector
Topics Accrued Sick Leave Balance; Motion to Dismiss
Primary Issues Whether Respondent proved by a preponderance of the evidence that Grievant’s claim was untimely. Whether Grievant proved by a preponderance of the evidence her claim that her accrued sick leave balance was incorrect.
Outcome Denied
Statutes W. Va. Code § 6C-2-1; W. Va. Code St. R. § 156-1-6.2 (2008); W. Va. Code § 6C-2-3(a)(1); W. Va. Code § 6C-2-4(a)(1); W. Va. Code ST. R. § 156-1-3 (2008)
Related Cases 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), & Duruttya v. Bd. of Educ. of County of Mingo, 181 W. Va. 203, 382 S.E.2d 40 (1989). See Watts v. Lincoln County Bd. of Educ., Docket No. 98-22-375 (Jan. 22, 1999); Edwards v. Mingo County Bd. of Educ., Docket No. 95-29-472 (Mar. 19, 1996); Harvey v. W. Va. Bur. of Empl. Programs, Docket No. 96-BEP-484 (Mar. 6, 1998); Whalen v. Mason County Bd. of Educ., Docket No. 97-26-234 (Feb. 27, 1998); Rose v. Raleigh County Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566 (1997); Naylor v. W. Va. Human Rights Comm'n, 180 W. Va. 634, 378 S.E.2d 843 (1989); Higginbotham v. W. Va. Dep't of Pub. Safety, Docket No. 97-DPS-018 (Mar. 31, 1997); Sayre v. Mason County Health Dep't, Docket No. 95-MCHD-435 (Dec. 29, 1995), aff'd, Circuit Court of Mason County, No. 96-C-02 (June 17, 1996); Ball v. Kanawha County Bd. of Educ., Docket No. 94-20-384 (Mar. 13, 1995); Woods v. Fairmont State College, Docket No. 93-BOD-157 (Jan. 31, 1994); Jack v. W. Va. Div. of Human Serv., Docket No. 90-DHS-524 (May 14, 1991); Lynch v. W. Va. Dep’t of Transp., Docket No. 97-DOH-060 (July 16, 1997), aff’d, Circuit Court of Kanawha County, No. 97-AA-110 (Jan. 21, 1999); Howell v. W. Va. Dep't of Health & Human Res., Docket No. 89-DHS-72 (Nov. 29, 1990); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988); Leichliter v. W. Va. Dep't of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993); Baker v. Bd. of Trustees/W. Va. Univ. at Parkersburg, Docket No. 97-BOT-359 (Apr. 30, 1998); Harrison v. W. Va. Bd. of Directors/Bluefield State College, Docket No. 93-BOD-400 (Apr. 11, 1995)
Keywords Motion to Dismiss; Timeliness; Amended; Sick Leave; Balance; Workers’ Compensation; Buyback; Credit; Hours
Intermediate Court of Appeals
Circuit Court
Supreme Court
Synopsis Grievant initially grieved a pay issue, but such was resolved prior to the level three hearing. Grievant argued that she orally amended her grievance at level one to include a claim that her accrued sick leave balance was incorrect as it did not reflect credits she should have received for buying back sick leave used while she was on workers’ compensation in the early 1990s. Respondent asserted that the grievance had not been amended to include the claim regarding the leave balance, and that the same was untimely. Respondent further asserted that Grievant’s accrued sick leave balance was correct. Grievant orally amended her grievance at level one to include the claim regarding her accrued sick leave balance. Respondent failed to prove by a preponderance of the evidence that this grievance was untimely. Grievant failed to prove her claims regarding her accrued sick leave balance by a preponderance of the evidence. Therefore, the grievance is DENIED.

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