JOHN RIDENHOUR,
Grievant,
v.
DOCKET NO. 99-DJS-267
WEST VIRGINIA DEPARTMENT OF MILITARY
AFFAIRS & PUBLIC SAFETY/DIVISION OF
JUVENILE SERVICES,
Respondent.
D E C I S I O N
Grievant, John Ridenhour, filed this grievance on June 28, 1999, protesting his
dismissal from the West Virginia Department of Military Affairs & Public Safety/Division of
Juvenile Services (DJS), effective June 17, 1999. A level four hearing was held in the
Grievance Board's Charleston, West Virginia, office on September 8, and November 1,
1999. This case became mature for decision on December 20, 1999, the deadline for the
parties' proposed findings of fact and conclusions of law. DJS was represented by C. Scott
McKinney, Esq., Assistant Attorney General, and Grievant was represented by Walt Auvil,
Esq., Pyles & Auvil.
(See footnote 1)
BACKGROUND
Grievant first became employed at the North Central Regional Juvenile Detention
Center (NCRJDC or Center) in or about 1995. Prior to becoming Director of the
NCRJDC, Grievant was a Youth Service Worker. Grievant was promoted to Director of the
Center in or about August 1998. While still a Youth Service Worker, Grievant met
Stephanie Miller, a volunteer college intern at the Center, in April or May 1998. As a Youth
Service Worker, Grievant had no supervisory authority over Ms. Miller. Grievant and Ms.
Miller became romantically involved and remained involved until approximately June or July
1998. Grievant broke off the relationship with Ms. Miller at that time, because once he
became Director, he would be her supervisor. At the time of their romantic involvement,
Grievant was separated from his wife. Grievant and his wife eventually got back together,
and his wife was aware of his relationship with Ms. Miller.
On May 5, 1999, Timothy D. Melton, Deputy Director of Juvenile Services, received
a phone call from Harold Connor, a Juvenile Detention Officer I at NCRJDC. Mr. Connor
complained to Mr. Melton about unfair scheduling, shift stacking, and favoritism by the
Director of the facility toward select staff members, which created a hostile working
environment. R. Ex. 1, Statement of Harold Connor
(See footnote 2)
; G. Ex. X.
Mr. Connor alleged Grievant stacked shifts by putting too many people on one shift
and not enough on the rest of the shifts to effectively run the Center. He explained thefavoritism as the Director having certain favorite employees who were granted privileges
in scheduling, which other staff members were not. Mr. Connor also alleged Grievant was
having an affair with Ms. Miller, that several incidents had occurred at the facility regarding
Ms. Miller, Grievant, and Grievant's wife which had not been reported, and that this
situation created a hostile working environment at the facility. Specifically, Mr. Connor said
that Ms. Miller had been arrested by the Wood County Sheriff's Department on state
property, that Grievant's wife came to the Center and chased [Ms. Miller] around the
parking lot in view of the residents, and that Ms. Miller attempted suicide at the end of April
1999, and Grievant and his wife transported her to the hospital. Mr. Connor never went
to Grievant about his concerns, but went directly to Grievant's superior, Mr. Melton. R. Ex.
1, Statement of Harold Connor; G. Ex. X.
Mr. Melton immediately left Charleston and went to the NCRJDC in Parkersburg to
assess the situation. When he arrived, he took the schedules and the log books from the
Center to his hotel room to review. Grievant met Mr. Melton in his hotel room, and they
discussed the allegations which Mr. Connor had made against him. Mr. Melton asked him
why these incidents which allegedly took place on Center grounds had not been reported
by Grievant. Grievant responded he was aware Ms. Miller had been arrested, but it was
before she was an employee of the Center, and she was not in uniform. He denied his
wife chased Ms. Miller around the Center parking lot, stating she and Ms. Miller met in
a church parking lot up the road from the Center. Finally, Grievant stated he and his wife
had helped Ms. Miller when she attempted suicide, but that it was off state property, was
a personal matter, and he did not think it needed to be reported. After talking with Grievantabout the allegations, Mr. Melton informed him there would be a fact-finding investigation
into the complaints made by Mr. Connor.
The next day, May 6, 1999, Mr. Melton went to the Center and began working on
a new schedule. The new schedule was developed, and Mr. Melton informed the staff
there would be an investigation into the allegations made against Grievant, and that he,
Mr. Melton, would not be involved in the investigation. G. Ex. X. On May 11, 1999, Ms.
Miller, Grievant, and Mr. Melton discussed the allegations against her, and he informed her
there would be an investigation. On May 12, 1999, Mr. Melton met with Manfred Holland,
Director of DJS, Dallas Staples, Investigator, and DeeAnn Groves, Human Resources
Director, and explained the need for a formal fact-finding investigation into the allegations
raised at NCRJDC. On May 13, 1999, the investigation began and staff members reported
to the Parkersburg Holiday Inn to be interviewed by Mr. Staples and Ms. Groves. Mr.
Melton filled in at the Center as needed, and transported officers to and from the Center
for interviews.
On May 17, 1999, Mr. Melton issued a fifteen (15) day suspension letter to Grievant,
pending the outcome of the investigation. Mr. Melton informed Grievant he was to have
no contact with employees at NCRJDC, and that he could not come to the Center or
discuss the investigation with any employee of DJS. G. Ex. L. Ms. Miller was also
suspended for fifteen (15) days, pending the outcome of the investigation.
On June 17, 1999, Manfred Holland issued Grievant a dismissal letter based upon
the investigation conducted by Mr. Staples and Ms. Groves. G. Ex. M. The dismissal letter
is reproduced as follows:
This is to inform you of my decision to dismiss you from your employment with the
Division of Juvenile Services for deliberate gross misconduct that is contrary to the policies
of the Division and the interests of the State of West Virginia. You will be compensated for
the days that you have been suspended, and you will receive an additional fifteen days of
severance pay after this date, but you are not to return to work
Last month, a member of your staff contacted the Division's central office and stated
that he had been appointed to act as a representative to voice numerous concerns about the
work environment at the North Central Regional Juvenile Detention Center (NCRJDC). It
was alleged that you were having an extra-marital affair with a subordinate officer which
caused considerable tension at the facility, that you intentionally intimidated some of your
staff members, that you displayed favoritism toward other staff members, and that your
actions and attitude generally caused disruption in the efficient and safe operation of the
facility. The Division initiated an investigation, which revealed substantial misconduct on your
behalf.
You openly admit that you had an extra-marital affair with Stephanie Miller that
continued right up to the point when she began full-time employment as a Juvenile Detention
Officer at NCRJDC. The staff at NCRJDC report that your relationship with Ms. Miller
continued in some form until the present. Whether or not you were having a consensual
sexual relationship is not as important as the negative impact that your relationship clearly
had on the working environment.
Some examples of incidents which made the staff feel uncomfortable or insulted are
as follows:
*
You and the officer with whom you admit to having an extra-marital affair often spent
time alone together in your office behind closed doors and blinds;
*
You and she had loud verbal arguments that could be heard by staff and juvenile
residents;
*
Your wife and Ms. Miller had some kind of confrontation directly outside of the
facility, which was seen by staff and juvenile residents; the incident became the topic
of gossip among the staff and juveniles.
The investigation revealed that the NCRJDC staff has become divided and many feel that
you unfairly give preferential treatment to your favorite staff members, especially Ms. Miller.
For instance, you often allowed Ms. Miller to perform light secretarial duties or just hang out
in your office while she was on duty, thus leaving the JDO's on the floor short-staffed,
creating added risk to the staff and the residents.
Ms. Miller was frequently late for work without repercussion, while you disciplined
other staff for tardiness. You adjusted Ms. Miller's reporting time from 7:00 a.m. to 7:30 a.m.
and again to 8:00 a.m. while no other staff was given such consideration; and you allowed
her to falsely indicate on her time sheets that she reported on time when she had not.
Ms. Miller was given a more favorable shift while more senior staff members were
not, causing them to believe that by such favoritism you have intentionally discriminated
against others.
I blame you for Ms. Miller's poor job performance. While she denies that she was
a victim of unwanted sexual harassment, clearly your relationship with her interfered with her
work performance. Your actions created an intimidating, hostile, and offensive work
environment for other staff members because they had to take up the slack when Ms. Miller
was not on the floor, and because they had to endure the fallout from your affair in the
workplace.
However, you have created a hostile work environment by your actions that are
totally separate from your relationship with Ms. Miller. You made comments in front of staff
to the effect that you didn't want to hire an applicant that you had interviewed because she
was too fat to fit through the door or sit at the desk. One female staff member reported that
she was a victim of sexual harassment at work by a male JDO. Based on her experience
with you, she said that she felt that she couldn't bring the incident to your attention because
you would just laugh at her .
Many of your staff report that they have lost respect for you. Your conduct is
especially egregious because you are expected to set an example for your employees. The
employees under your supervision rely on you for training, leadership, and direction in
complying with the Division's policies and responding to problems they encounter in their
daily activities. Your failure to exercise supervisory skills and to follow policy makes it difficult
to enforce compliance by your staff. The Division has invested many hours and much
expense to provide you with training in hopes that you would use it to set the proper example
for your staff. You have attended training concerning sexual harassment and/or hostile
working environments on March 24, 1998; June 17, 1998, October 28, 1998; December 8-
10, 1998; January 20, 1999; and January 26, 1999. You have deliberately disregarded your
training and have thereby betrayed the trust invested in you by the Division.
Your conduct that created a hostile working environment is in violation of the Equal
Employment Opportunity Act, the West Virginia Human Rights Act, and Division of Personnel
and Division of Juvenile Services policies concerning sexual harassment and discrimination.
Pursuant to Division of Juvenile Services Polity Directive 4.01, Section 6.01, the actions listed
above would alone warrant severe discipline and removal from any supervisory position.
However, I believe you are guilty of hiding information from the central office to the extent that
your dismissal is warranted.
You have deliberately withheld security-related information from your supervisors at
the central office in violation of Division of Juvenile Services Policy Directive 4.01, Section
7.00, C23. You failed to report each of the following incidents:
*
Local law-enforcement authorities came to NCRJDC seeking to arrest JDO
Stephanie Miller;
*
Your wife and JDO Stephanie Miller had a confrontation at or near the facility;
*
On or about May 1, 1999, you transported JDO Stephanie Miller to the hospital
because she had attempted suicide.
Each of these incidents warranted a report to the central office so that appropriate
action could be taken to ensure the facility's security. If one of your security officers is
arrested or attempts suicide, they may not meet the standards of fitness that are established
to protect the residents and staff of your facility. You have been trained and are aware of
these standards of fitness, and you should have appreciated the serious nature of each of
these incidents. I can see no excuse for your failure to report these incidents. I must
conclude that you deliberately intended to conceal these incidents from your superiors. I
therefore believe that you have not met the standards of conduct which the Division and the
State have a right to expect of you, thus warranting this dismissal.
The State and it's agencies, has reason to expect it's employees to observe a
standard of conduct which will not bring discredit upon the State's ability to provide honest
service to the public which it serves or create suspicion with reference to the State's integrity
and capacity to provide for the health, safety, and welfare of the public. I believe, whether
you agree or not, you have failed the standard, warranting your dismissal as Director. I
further believe the above is sufficient for me to conclude you have not met the most basic
responsibility of maintaining good employer relations. Considering the nature of your
misconduct I must conclude that your continued employment in another capacity would make
it difficult for another director to exert leadership while you are present and you yourself
would be ineffectual in discharging the duties and responsibilities of the director's position.
Should you require further explanation, please advise and I will respond accordingly
G. Ex. M.
To summarize, Grievant was dismissed for several violations of DJS Policy Number
4.01: Employee Standards of Conduct and Performance. Policy 4.01 delineates three
classes of offenses, with Class A being the least severe, Class B including acts and
behavior which are more severe in nature, and Class C, including acts and behavior of
such a serious nature that a first occurrence should normally warrant an extended
suspension or removal. R. Ex. 2. Grievant was charged with three separate Class C(23)
offenses for breach of facility security or failure to report any breach or possible breach
of facility security. R. Ex. 2. These charges are:
(a)
failing to report local law-enforcement authorities came to NCRJDC seeking
to arrest JDO Stephanie Miller;
(b)
failing to report [your] wife and JDO Stephanie Miller had a confrontation at
or near the facility; and (c)
failing to report that on or about May 1, 1999, [you] transported JDO
Stephanie Miller to the hospital because she had attempted suicide.
R. Ex. 2.
(See footnote 3)
Grievant was also charged with violation of Policy 6.01, Sexual Harassment and
Other Discrimination, based on his relationship with Ms. Miller, the hostile work
environment that relationship engendered at the Center, as well as several other actions
either personally or of others which Grievant condoned towards female members of the
Center. Section 6.01 provides that employees found to have engaged in discrimination
on the basis of . . . sex (including sexual harassment) shall be counseled and shall be
disciplined for a Class B or C offense, depending on the specific facts and circumstances
surrounding the incident. R. Ex. 2. Finally, Grievant was charged with engaging in favoritism with regard to scheduling,
work assignments, and tolerating excessive tardiness or absences. These alleged acts of
favoritism generally, but not always, were directed at Ms. Miller.
Each of the allegations addressed in the dismissal will be discussed separately
below.
A.
Failure to report local law enforcement authorities came to NCRJDC seeking
to arrest JDO Stephanie Miller.
DJS' evidence establishes that local law enforcement authorities came to NCRJDC
twice seeking Ms. Miller on bad check charges. The first time this occurred, in January
1999, Ms. Miller was an intern with DJS, not in uniform, and not yet employed by DJS. Ms.
Miller explained to Grievant that she was going through a divorce and her husband had
withdrawn all of her money from her checking account unbeknownst to her, and that, as
a result, she had written checks on an empty account.
At the time of the January, 1999, incident, Ms. Miller's paperwork had been
submitted for permanent employment with DJS. Grievant testified he telephoned Mr.
Melton at the central office immediately and informed him that Ms. Miller had been picked
up at the Center by the police. Mr. Melton testified he was not aware the arrest had taken
place at the Center. However, he testified that fact would not have changed his mind
about hiring her. In any event, Mr. Melton told Grievant he was not concerned with a bad
check charge, and that if she paid the checks, not to worry about it, and go ahead with herpaperwork. Mr. Melton did not tell Grievant to fill out an incident report regarding Ms.
Miller's arrest, and Grievant did not fill out an incident report. LIV Melton Test.
Mr. Melton testified it is a concern when police come to the facility looking for a staff
person, and that police cannot come in and take an officer off the floor without permission
from the Director. It is a safety and security concern that a replacement be found for the
officer before he or she is taken off the floor. As noted above, Ms. Miller was not an officer
or an employee of DJS at the time of her arrest.
Investigator Staples also testified that having sheriff's department deputies come
to the NCRJDC seeking Ms. Miller on bad check charges was a security concern and that
the failure to report police officers looking to arrest a juvenile detention officer [was] a
possible breach of facility security.
The second time the police came to the Center looking for Ms. Miller was in the
Spring of 1999. At that time, she was on a medical leave of absence. JDO Stephen
Blosser testified he met the police at the door, informed them Ms. Miller was not there, and
they left. He did not recall whether he told Grievant of this incident or not. LIV Blosser
Test. Grievant testified he was unaware in the Spring of 1999 that police had again come
looking for Ms. Miller. However, around that time a newspaper article mentioned a
Stephanie Miller as having outstanding criminal charges. Grievant directed Gary Vincent,
his Office Assistant, to contact the sheriff's department to determine if this was the same
Stephanie Miller that worked at the Center. Mr. Vincent was told that Ms. Miller had arecord of false pretenses, and that she had satisfied the charges against her. LIV
Grievant Test.; LIV Vincent Test.
It is true Grievant did not complete an incident report on Ms. Miller's arrest in
January 1999, when she was an intern. It is not true that he did not report the incident.
Mr. Melton testified Grievant reported to him about the arrest, if not immediately when it
happened, soon thereafter, and before she was hired permanently by DJS. Mr. Melton
testified her arrest was not of concern to him, and he gave Grievant the go-ahead to
process her paperwork for hiring. Mr. Melton did not tell Grievant to fill out an incident
report on the matter.
Grievant did not report or fill out an incident report on the police visit in the Spring
of 1999 because he did not know about it. Mr. Blosser testified he was not sure whether
he told Grievant the police had come looking for Ms. Miller or not. Considering Mr.
Blosser's ability to recall most other matters in infinite detail, and his more than ample
documentation, it is more probable than not that he did not tell Grievant the police had
come looking for Ms. Miller. See, R. Ex. 1, Statement of Stephen Blosser.
Mr. Holland characterizes Grievant's conduct in not reporting these incidents an
attempt to intentionally hide information from DJS. This charge has not been proven.
Clearly, there was no attempt by Grievant to hide these incidents. In January 1999, he
contacted Mr. Melton shortly, if not immediately, after the police had taken Ms. Miller from
the Center, and sought his advice before proceeding to hire her permanently. With respect
to the second incident, the evidence establishes Grievant did not even know the police hadcome looking for Ms. Miller. As far as Grievant directing Mr. Vincent to call the police about
the newspaper reference to Ms. Miller, it is plausible that once he was informed by the
police that she had satisfied the bad check charges, he did not feel it was necessary to
report this to Mr. Melton. Mr. Melton had already told him once that Ms. Miller's bad check
charges did not concern him. DJS has failed to prove Grievant deliberately did not report
Ms. Miller's arrest to the central office in an attempt to hide that information.
B.
Failure to report Ms. Miller's confrontation with Grievant's wife outside the
Center.
In December 1998, Grievant's wife came to the Center and spoke with Grievant in
the Center parking lot. Later, she drove up the road from the Center to a church parking
lot, and waited for Ms. Miller to leave work. When Ms. Miller left work, she turned the
opposite way from the church, and Mrs. Ridenhour pulled out of the church parking lot and
followed her. They later had a conversation on the side of the road.
DJS alleges this incident occurred in the Center parking lot, and in full view of the
residents of the Center. The evidence does not support DJS' theory. The only employee
who actually saw Mrs. Ridenhour and Ms. Miller together was Iasia Griffith, and she swore
in her statement to Mr. Staples that the incident occurred in a church parking lot up the
road from NCRJDC. R. Ex. 1, Statement of Iasia Griffith. Ms. Griffith stated she was
coming into the NCRJDC parking lot as Ms. Miller was leaving. She noticed Mrs.
Ridenhour sitting in her car up the road in the church parking lot, and when Ms. Miller
exited the NCRJDC, Mrs. Ridenhour followed her. Ms. Miller and Mrs. Ridenhour testified their meeting was the result of a
misunderstanding. Mrs. Ridenhour had called the facility earlier and asked to speak to
Grievant. Ms. Miller answered the phone, and instead of putting it on hold, she hung up
on Mrs. Ridenhour. Mrs. Ridenhour testified she visited the Center that day, and she and
Grievant were seen talking in the Center parking lot. After she left, she decided to wait in
the church parking lot for Ms. Miller to ask her why she had hung up on her. She expected
Ms. Miller to turn right out of the NCRJDC driveway, which would take her past the church,
but she turned left instead, which prompted Mrs. Ridenhour to follow her. Ms. Miller
stopped further along the road, and they had a discussion, after which they went their
separate ways. There is no evidence that this discussion was threatening in any manner.
Mr. Blosser, JDO Lisa Grimes, and JDO Tomas Worstell stated some residents had
observed this meeting between Ms. Miller and Mrs. Ridenhour out of their windows, and
were gossiping about it. None of the residents gave statements or were called to testify,
and neither Mr. Blosser, Ms. Grimes, nor Mr. Worstell actually witnessed the meeting
between Ms. Miller and Mrs. Ridenhour. R. Ex. 1, Statements of Stephen Blosser, Lisa
Grimes, Tomas Worstell.
This December, 1998 interaction between Ms. Miller and Mrs. Ridenhour occurred
off the NCRJDC grounds, was non-threatening, and did not involve Grievant. DJS alleges
this confrontation constituted a breach or possible breach of security, which Grievant failed
to report, thus constituting a Class C Offense under Policy 4.01. Neither Mr. Staples nor
Mr. Melton elaborated as to how this meeting between Mrs. Ridenhour and Ms. Millerposed a breach or possible breach of security of the Center. DJS has failed to establish
how this incident possibly constituted a breach or possible breach of security at NCRJDC,
or why Grievant should have been expected to report this incident to his superiors. DJS
has failed to prove by a preponderance of the evidence this charge against Grievant.
C.
Failure to report Ms. Miller's attempted suicide.
In May, 1999, Ms. Miller attempted suicide. This attempt occurred in Ms. Miller's
car, and off the grounds of NCRJDC. Grievant and his wife were contacted by Ms. Miller's
mother, who was concerned for her safety, and they found her in her car. They
transported her to the hospital for treatment.
Within a week of this occurrence, Grievant informed Mr. Melton of Ms. Miller's
attempted suicide. Mr. Melton criticized Grievant for not informing him sooner, and for his
failure to complete an incident report. LIV Melton Test. At Mr. Melton's direction, Grievant
completed an incident report. LIV Melton Test.; LIV Grievant Test.
Mr. Staples characterized someone who attempts suicide as a weak link whose
mere presence in the facility could cause the whole security scheme to break down. LIV
Staples Test. DJS has established how having a mentally unstable JDO employed at the
facility could result in a breakdown of security, as well as be an unwelcome role model for
the troubled youth who are housed there.
Grievant testified he did not report the incident immediately after it happened,
because he was unsure of how to handle such a sensitive matter. Within the week, Mr.Melton was at the Center, and Grievant told him about Ms. Miller's attempted suicide. Mr.
Melton told him to fill out an incident report, and he did.
DJS has failed to prove Grievant violated Policy No. 4.01 by not reporting Ms.
Miller's attempted suicide immediately after it occurred. There is nothing in Policy 4.01 that
designates some limited period of time for reporting incidents, after which an employee can
be disciplined. Grievant did report the incident a week later, and acknowledged his mistake
in not reporting it sooner. Further, Ms. Miller did not return to work during that week
following her attempted suicide, so any potential threat to the facility, staff or residents from
Ms. Miller was nonexistent. The undersigned concludes Grievant did report Ms. Miller's
attempted suicide within a reasonable period of time to his superior, Mr. Melton, and DJS
has failed to prove this charge against Grievant.
D.
1.
DJS charged Grievant with engaging in favoritism with respect to scheduling, that
day shift was overstaffed and night shifts were short on staff. Specifically, Grievant
allegedly stacked the schedule to favor Ms. Miller and JDO Harlan Lott. DJS did not
identify what definition of favoritism it was relying on in making these charges. However,
W. Va. Code § 29-6A-2(h) defines favoritism as unfair treatment of an employee as
demonstrated by preferential, exceptional or advantageous treatment of another or other
employees. Generally, it is an employee bringing the charge of favoritism against his or
her employer with regard to another employee's treatment. In this case, it is the employer,DJS, bringing the charge of favoritism against its employee. While the test for proving
favoritism under
Code § 29-6A-2(h) remains essentially the same regardless of who the
complainant is, it has been tailored below to reflect that it is the employer, not the
employee, bringing the charge. In order to establish a
prima facie showing of favoritism,
DJS must establish the following:
(a) that the favored employees are similarly situated, in a pertinent way, to
one or more other employee(s);
(b) that the other employee(s) have been given advantage or treated with
preference in a significant manner not similarly afforded them;
(c) that the difference in treatment has caused a substantial inequity to them
and that there is no known or apparent justification for this difference.
Blake v. W. Va. Dept. of Transp., Docket No. 97-DOH-416 (May 1, 1998).
See McFarland
v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). If DJS
establishes a
prima facie case of favoritism, the Grievant may rebut this showing by
articulating a legitimate reason for his actions. However, DJS can still prevail if it can
demonstrate that the reason proffered by Grievant was mere pretext.
See Burdine,
supra;
Frank's Shoe Store,
supra;
Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281
(Jan. 28, 1990).
DJS has failed to establish a
prima facie case of favoritism against Grievant. Mr.
Connor brought the scheduling issue to Mr. Melton's attention, claiming shifts were stacked
and some shifts were understaffed. When Mr. Melton arrived at the Center to look into thescheduling allegations, he found some shifts were understaffed and some were
overstaffed. He affirmed the day shift was weighted. He created a three-shift rotating
scheduling with equal number of employees, and told Grievant he would do the schedule
and take that monkey off his back. LIV Melton Test. Mr. Melton never testified he found
any evidence of favoritism in the schedule, nor did he testify that Ms. Miller and Mr. Lott
were being given favorable treatment with regard to the scheduling.
Grievant testified that when he became Director, about 14 of the 17 employees at
the Center came to him to request they remain on the shifts to which they were currently
assigned. He utilized the same schedule that had been in place under the old Director, Mr.
Mitchell, and did not change anything. Everyone who made a request for a shift got what
they wanted. LIV Ridenhour Test.
The above statements summarize the totality of evidence presented regarding the
scheduling allegations against Grievant. Based on this evidence, the undersigned cannot
find that DJS has made a
prima facie case, let alone proven by a preponderance of the
evidence, that Grievant engaged in favoritism in maintaining a schedule that had been in
effect before he was the Director.
2.
DJS alleges Grievant engaged in favoritism toward Ms. Miller by allowing her to
work in the office, failing to discipline her for being late and missing work, and failing to
report she was arrested at the Center. This last allegation has been found unproven and
will not be discussed again. Ms. Miller had been an intern at the Center and had served in a temporary capacity
before being hired permanently. When a JDO I position opened up in December or
January 1999, Grievant first offered the position to Sherri Muleix, the cook at the Center.
She turned down the position, and Grievant next offered it to Ms. Miller. Grievant testified
when Ms. Miller first began working as a JDO, she was a good employee. However, she
was going through a divorce at the time of her employment at the Center, and it affected
her work. He testified he was unaware at first that she was missing a lot of work, because
she was working on the floor, and the supervisors did not inform him of her absences. He
admitted Ms. Miller spent a large amount of time in his office discussing her problems with
him.
Sometime at the beginning of 1999, Officer Gary Vincent was scheduled to transfer
from his position of Office Assistant at the Center. He began training another officer, Dodie
Turner, to fill that spot, or at least help out until someone was hired. Mr. Vincent testified
Ms. Turner did not work out and just quit coming to be trained. Thereafter, Grievant
conducted interviews for the position, and selected one of the two applicants for the
position. She later informed him she did not want the job. Finally, Grievant asked Mr.
Melton if he could offer the position to Ms. Miller, and Mr. Melton told him to go ahead.
Grievant offered her the Office Assistant position, and she accepted. Ms. Miller worked in
the Office Assistant position for only a short time before going on medical leave of
absence. She did not return to work until mid-March. Grievant had previously disciplined Ms. Miller for tardiness and missing work, in the
form of verbal and written reprimands. G. Ex. D. When she agreed to fill the Office
Assistant position, he counseled her again that she needed to come to work on time. LIV
Grievant Test.; LIV Vincent Test.
While Ms. Miller was on medical leave, Grievant repeatedly told her she needed to
submit proper documentation, and she finally turned it in.
Also during this time, Grievant was proceeding with his plan to terminate Ms. Miller
at the end of her 90-day probationary period. He had asked Mr. Vincent to call the
Personnel office to find out what the procedure was for terminating a probationary
employee. LIV Grievant Test.; LIV Vincent Test. Grievant testified Mr. Melton was aware
that he was planning on terminating Ms. Miller at the end of her probationary period.
DJS has failed to show Grievant demonstrated any favoritism towards Ms. Miller.
First, he initially offered the JDO position to Sherri Muleix, before offering it to Ms. Miller.
He had previously given Ms. Miller written reprimands for tardiness and missing work, and
had verbally counseled her about those deficiencies. He offered the Office Assistant
position to two other individuals before offering it to Ms. Miller. Finally, he was in the
process of terminating her probationary employment when the investigation into the
allegations against him commenced.
Grievant admits Ms. Miller spent a lot of time in his office behind closed doors. He
testified they talked about her personal problems, and other things, and that they were
friends. This alone does not support a charge that Grievant was engaging in favoritismtowards Ms. Miller to the detriment of any other employee. Grievant was Ms. Miller's
superior. If she had problems she needed to discuss, it was part of his responsibility to
hear her out. Other employees may speculate and conjecture what went on between
Grievant and Ms. Miller in his office, but there is no evidence to suggest it was anything
other than conversation. Employees complained that she left them short-staffed, but
again, there is no evidence that this was intentional on Grievant's part. Thus, DJS has
failed to prove the charge of favoritism against Grievant.
E.
1.
Affair with Stephanie Miller.
The dismissal letter charges Grievant with having an extra-marital affair with a
subordinate officer, Stephanie Miller. Although DJS maintains it was not concerned with
the affair itself, but rather the effect the affair had on the Center, it went to great lengths to
establish the affair existed, and continued, throughout Grievant's tenure as Director. DJS'
stated concern was that Grievant, by engaging in an affair with a subordinate officer,
opened up the Center and State of West Virginia to a sexual harassment lawsuit by Ms.
Miller.
DJS has failed to prove Grievant engaged in a sexual relationship with a
subordinate officer. Both Grievant and Ms. Miller admit having a romantic relationship
while she was an intern at the facility, and while Grievant was a Youth Service Worker.
Grievant did not have any supervisory authority over Ms. Miller at that time. Grievant and
Ms. Miller testified the relationship was severed when Grievant was named Director of theCenter, as he then would have supervisory authority over her. DJS has presented no
evidence that the affair continued past that point, other than the speculation of employees
at the Center.
Most of the employees who gave statements during the fact-finding investigation
assumed Grievant and Ms. Miller were having an affair, because they spent a lot of time
together in his office. For example, Harold Connor stated Grievant was apparently having
an affair with Miller. R. Ex. 1, Statement of Harold Connor. Tomas Worstell stated he had
no first hand knowledge of an affair between Grievant and Ms. Miller. R. Ex. 1, Statement
of Tomas Worstell. Sherri Muleix stated Grievant and Ms. Miller had used her as a
mediator when they were involved, and as far as I know it continues, but did not actually
state she knew this, or that Grievant or Ms. Miller told her it continued. R. Ex. 1, Statement
of Sherri Muleix. Joetta Hall stated Grievant told her he had a relationship with Ms. Miller
prior to her becoming employed at the Center. R. Ex. 1, Statement of Joetta Hall. Gary
Vincent stated he never saw any evidence of a love type relationship between Grievant
and Ms. Miller. R. Ex. 1, Statement of Gary Vincent. Stephen Blosser stated Grievant had
admitted having an affair with Ms. Miller when she was an intern. R. Ex. 1, Statement of
Stephen Blosser.
(See footnote 4)
None of these employees witnessed anything which would serve to prove by a
preponderance of the evidence that Grievant and Ms. Miller continued their romantic
involvement while he was Director of the facility and she a subordinate employee. DJS has
failed to support this allegation.
3.
DJS also alleges Grievant created a hostile environment at the Center due to his
relationship with Ms. Miller, in violation of its Sexual Harassment policy. DJS Policy 4.01,
Section 6.01 regarding sexual harassment does not define sexual harassment, but merely
states that employees who engage in it shall be disciplined. However, DJS submitted the
West Virginia Division of Personnel's (DOP) definition of sexual harassment, including
hostile environment, which is defined as:
Conduct which has the purpose or effect of unreasonably interfering with an
individual's work performance or creating an intimidating or offensive working
environment.
DJS Ex. 3.
Grievant attended training on sexual harassment provided by DJS and DOP,
wherein he received information describing hostile environment as behavior which can
be verbal, non-verbal, or physical. The key is the term 'unwelcome.' If an employee finds
the behaviors objectionable or offensive they may constitute sexual harassment. DJS Ex.
3. One of the incidents presented by DJS to show Grievant was responsible for a
hostile environment involved JDO Lisa Grimes and JDO Harlan Lott. Briefly, Ms. Grimes
alleged Mr. Lott had told her to give a sugar-tit to a resident who was complaining. Ms.
Grimes took this as a reference to her body, and was offended. She told another co-
worker, Mr. Blosser, about the statement, and told him she was upset. The merits of this
incident are more fully discussed in
Lott v. W. Va. Dept. of Public Safety, Docket No. 99-
DJS-278 (Dec. 16, 1999). Important to this case, however, is the fact that Ms. Grimes
never told Grievant about the statement, or that she was upset. LIV Grimes Test. Ms.
Grimes testified she did not tell Grievant because he would have laughed at her.
Regardless of the reason, Grievant cannot be charged with condoning sexual harassment
in this instance because he never knew about it.
Mr. Blosser complained there was a great deal of sex talk, dirty jokes, horseplay,
and other behaviors in the Center which he deemed unprofessional. He told Grievant
when he became Director that this type of behavior bothered him. Shortly after Grievant
became Director, he issued a memorandum to all staff at the Center that any conduct of
a sexual nature would not be tolerated within the Center.
Despite Mr. Blosser's objection to this type of behavior, he admitted he may have
been counseled by Grievant for touching a female co-worker on the buttocks, and for biting
another co-worker on the breast. Mr. Blosser characterized these incidents as just joking
around. Another situation which DJS alleges caused a hostile environment were loud
arguments heard by staff members and residents between Grievant and Ms. Miller. Mr.
Vincent testified he heard Ms. Miller yelling in Grievant's office once, but did not hear
Grievant yelling. Mr. Vincent also testified Ms. Miller told him she was supposed to take
medication for her violent behavior. Mr. Worstell testified Ms. Miller made people
uncomfortable by her reactions and emotions. He heard Grievant and Ms. Miller arguing
in the office. Ms. Grimes testified Ms. Miller made her uncomfortable. Grievant admitted
he had arguments with Ms. Miller about work. In one instance in particular, he yelled at her
over the phone because she failed to report for work.
The next incident creating a hostile environment involved an applicant for the Office
Assistant position who was extremely overweight. LIV Vincent Test. Ms. Grimes testified
she heard Grievant making disparaging remarks about the woman's weight, which made
her uncomfortable. R. Ex. 1, Statement of Lisa Grimes; LIV Grimes Test. Mr. Vincent, who
participated in the interview of the applicant with Grievant, testified he never heard Grievant
make any remarks about the woman. Mr. Vincent testified he and Grievant discussed the
need to be careful during the interview in asking the applicant if she would be comfortable
in the work surroundings. He testified the office space where she would be working was
extremely small and cramped.
Shortly after Ms. Grimes began working at the Center, Grievant and Mr. Lott played
a practical joke on her by putting shaving cream on the telephone receiver. She stated she
was upset about this incident. R. Ex. 1, Statement of Lisa Grimes. Ms. Grimes testified at level four that she had sex one time with Grievant, and that
she felt pressured into it in order to be hired as a permanent employee at the Center. Mr.
Blosser testified he observed Grievant attempting to seduce Ms. Grimes, and it made him
mad and uncomfortable, because he had seen what happened to Ms. Miller. LIV Blosser
Test. Ms. Grimes did not report this incident to anyone at the Center, and in fact, did not
report it to Mr. Staples in any one of her three meetings with him during the investigation
into Grievant's conduct. It was not until her level four testimony that Ms. Grimes made this
statement. Grievant denies having sex with Ms. Grimes. While this incident, if true, could
serve to establish sexual harassment on the part of Grievant, it was not a part of Grievant's
dismissal letter, and was never reported to anyone in authority at DJS. Furthermore, it
completely contradicts Ms. Grimes' statement to Mr. Staples that, at no time during her
training under Grievant, did he make her feel uncomfortable. R. Ex. 1, Statement of Lisa
Grimes. Thus, the undersigned chooses to give very little weight to Ms. Grimes' testimony
in this regard.
Finally, the instances involving Mrs. Ridenhour and Ms. Miller, Ms. Miller's attempted
suicide, and the police coming to the Center for Ms. Miller, were also presented as
evidence of a hostile environment at the Center.
Frankly, other than those involving Ms. Grimes, none of the above incidents have
anything to do with a hostile environment as defined by the sexual harassment policy. DJS
has confused a hostile work environment under the sexual harassment policy with just
plain poor morale at the Center. As noted above, DJS has failed to prove Grievant treatedMs. Miller in a preferential manner at the Center to the detriment of other employees.
Furthermore, it seems Ms. Miller was the problem in the majority of the complaints, not
Grievant. Apparently, Ms. Miller had a volatile temper and erratic mood swings and
outbursts which made her co-workers uncomfortable around her. The employees
speculated Grievant never did anything to discipline Ms. Miller, and tolerated her behavior
and work habits, but this, too has been demonstrated to be untrue.
Despite all of these problems at the Center under Mr. Ridenhour's leadership, it
is very important to note that Mr. Melton testified he had no complaints about Mr.
Ridenhour's work performance, and had never disciplined Mr. Ridenhour. In fact, up until
his suspension, Mr. Ridenhour's personnel file was blemish-free.
Basically, we have some employees who resented and/or did not like Ms. Miller, and
did not believe Grievant was doing anything to fix the situation with her, because they
believed he was still engaged in an on-going affair with her. None of this has been proven,
and thus, we are left with a group of disgruntled workers, one of which has a history of
confrontation with management in general, and Mr. Ridenhour, in particular, from the days
when he was a Youth Service Worker. See R. Ex. 1, Statement of Stephen Blosser.
It is helpful to compare this case with another involving a claim of hostile work
environment by employees against a director stemming from a relationship with a female
subordinate, to see that Grievant did not create a hostile work environment. In
Wilson v.
W. Va. Dept. of Transp., Docket No. 96-DOH-019 (May 16, 1996), the grievant was
demoted and transferred from his position of Transportation Realty Manager of theDepartment of Highways' District Seven Office, for allowing a personal relationship with a
subordinate employee to create an adverse work environment in the unit to the extent that
he was unable to effectively manage the unit. Although there was no policy prohibiting
office relationships, the potential problems with having a relationship with a subordinate
had been discussed with the grievant. The ALJ found in that case that the grievant had
lost his objectivity as a result of his personal relationship, and had become unable to
effectively manage the District Seven office. All but one of the grievant's subordinates had
filed complaints against him, alleging a hostile work environment. As stated in
Wilson,
It should be noted that, just because the work continued to flow from that
office, and the Birch River project was essentially completed under
Grievant's watch, that does not mean that Grievant had not lost his ability to
effectively manage the personnel in his office. Management entails more
than just ensuring work production. Management also involves fostering
harmonious relationships between employees, and addressing problems
which affect employee morale. . . Regardless of whether grievant was
showing favoritism towards Ms. Kessler or not, he was in a situation as a
supervisor involved with a subordinate, where he should have scrutinized
every decision he made and every action he took to ensure that he did not
create an appearance on impropriety.
DOH did not object to his relationship with the subordinate, but rather, was
concerned that grievant would lose his objectivity in dealing with others in his office. DOH
succeeded in proving the grievant had lost his objectivity with regard to the female
subordinate with whom he was having a romantic relationship.
In this case, DJS has not proven Grievant lost his objectivity with regard to Ms.
Miller, in relation to other workers at the Center. In fact, it has been shown that Grievant
disciplined her, both verbally and in writing, for her tardiness and absences, and was in theprocess of terminating her probationary employment when the investigation was
commenced against him. The undersigned does not doubt that some of the employees
at the Center felt they could not talk to Grievant about Ms. Miller, because he had had a
romantic relationship with her, and some believe they were still involved. However, no
concrete evidence has been produced to support this feeling. Only Mr. Blosser testified
that Grievant would get defensive when discussing Ms. Miller, but gave no specific
examples of how or when this occurred.
The undersigned is not blind, however, to the fact there are serious morale problems
at the Center, and that DJS has every right to try to correct that situation. However, as
there have been no disciplinary actions against Grievant, and indeed, no complaints by Mr.
Melton, his superior, prior to this incident, it cannot be concluded that DJS gave Grievant
any opportunity as Director to try to correct these problems.
FINDINGS OF FACT
1. Local law enforcement officials came to the Center in January 1999 to arrest
Stephanie Miller on bad check charges. Ms. Miller was not an employee of DJS at the
time, and was not in uniform.
2. Grievant reported to his superior, Mr. Timothy Melton, that local law
enforcement officials came to the Center to arrest Stephanie Miller in January 1999.
3. Local law enforcement officials came to the Center in the Spring of 1999
looking for Ms. Miller again. JDO Stephen Blosser met the officers at the door of theCenter, and told them Ms. Miller was not there. The officers left, and Mr. Blosser did not
inform Grievant that they had come looking for Ms. Miller.
4. Grievant did not know local law enforcement officials had come to the Center
again in the Spring of 1999 looking for Ms. Miller, who was on a medical leave of absence,
and thus, did not report the visit to Mr. Melton.
5. Mrs. Ridenhour parked in a church parking lot near the Center, waiting for
Ms. Miller to leave work. She followed Ms. Miller away from the Center, and they spoke
on the side of the road.
6. Grievant did not report this incident to Mr. Melton.
7. Ms. Miller attempted suicide in May 1999. Grievant and his wife were called
by Ms. Miller's mother, and they found her and transported her to hospital for treatment.
This incident occurred off the Center premises, and during the evening hours when
Grievant was not on duty.
8. Grievant reported Ms. Miller's attempted suicide to Mr. Melton within a week
of its occurrence, and completed an incident report at Mr. Melton's directive.
9. Grievant and Ms. Miller had a romantic relationship while Grievant was a
Youth Service Worker and she an intern at the Center. When Grievant became Director
of the Center, he severed his relationship with Ms. Miller.
10. When Grievant became Director, he utilized the same schedule that had
been in place under the old Director. 11. Grievant did not give Ms. Miller any preferential treatment during the course
of her employment at the Center. Grievant gave her written and verbal reprimands over
tardiness and absences, and continued to counsel her about her work performance
throughout her career.
12. Grievant offered the JDO position to Ms. Sherri Wolford Mulneix before
offering it to Ms. Miller. He offered the Office Assistant position to two other individuals
before offering it to Ms. Miller.
13. Grievant was in the process of terminating Ms. Miller's probationary
employment at the time the investigation into allegations against him commenced.
14. Grievant did not create a hostile work environment due to his relationship with
Ms. Miller.
CONCLUSIONS OF LAW
1. In disciplinary proceedings involving state employees,
W. Va. Code § 29-6A-
6 places the burden of proof on the employer, and the standard of proof is by a
preponderance of the evidence.
E.g.,
Davis v. Dept. of Motor Vehicles, Docket No. 89-
DMV-569 (Jan. 20, 1990). State employees, such as Grievant, who are in the classified
service
(See footnote 5)
can only be dismissed for cause, meaning misconduct of a substantial nature
directly affecting the rights and interest of the public, rather than upon trivial orinconsequential matters, or mere technical violations of statute or official duty without
wrongful intention. Syl. Pt. 1,
Oakes v. W. Va. Dept. of Fin. and Admin., 164 W. Va. 384,
264 S.E.2d 151 (1980);
Guine v. Civil Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364
(1965);
W. Va. Code § 29-6A-6;
Logan v. Regional Jail Auth., Docket No. 94-RJA-225
(Nov. 29, 1994);
Davis v. W. Va. Dept. of Motor Vehicles, Docket No. 89-DMV-569 (Jan.
22, 1990); Section 12.02, Administrative Rule, W. Va. Div. of Personnel (Aug. 3, 1993).
2.
W. Va. Code § 29-6A-29(h) defines favoritism as unfair treatment of an
employee as demonstrated by preferential, exceptional or advantageous treatment of
another or other employees.
3. The West Virginia Division of Personnel defines hostile environment under
its Sexual Harassment Policy, as conduct which has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an intimidating or offensive
working environment.
4. DJS has failed to prove Grievant violated Policy 4.01 by failing to report that
law enforcement officials came to the Center to arrest Ms. Miller, that Ms. Miller and Mrs.
Ridenhour had a confrontation at the Center, and that Ms. Miller attempted to commit
suicide.
4. DJS has failed to prove by a preponderance of the evidence that Grievant
engaged in favoritism with regard to scheduling, absences, tardiness, or work assignments,
with respect to Ms. Miller or any other officer. 5. DJS has failed to prove that Grievant created a hostile work environment as
that is defined in the West Virginia Division of Personnel's Sexual Harassment Policy.
Accordingly, this grievance is
GRANTED and DJS is hereby
ORDERED to reinstate
Grievant to his position as Director of NCRJDC with all back pay, benefits, and interest, to
which he is entitled.
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.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: January 20, 2000
ADDENDUM A
SUMMARY OF EVIDENCE
DJS' Exhibits
Ex. 1 -
Statements of Lisa Grimes, Stephen Blosser, Becky Lynn Hendrickson, Joetta Hall,
Gary Vincent, Harold Connor, Roger N. LeMasters, Tomas Worstell, Iasia Griffiths,
Sherry Muleix, John Ridenhour, and Stephanie Miller.
Ex. 2 -
West Virginia Division of Juvenile Services Policy Number 4.01: Employee
Standards of Conduct and Performance.
Ex. 3 -
Summary of Training provided by DJS to John Ridenhour.
Ex. 4 -
May 16, 1999 memorandum from Roger N. LeMasters to Dallas Staples.
Ex. 5 -
May 18, 1999 Incident Report by Tomas Worstell.
Ex. 6 -
Division of Juvenile Services Employee Handbook.
Ex. 7 -
January 8, 1999 memorandum from John Ridenhour to Phyllis Carter.
(See footnote 6)
Grievant's Exhibits
Ex. A -
Undated handwritten memorandum from Stephanie Miller.
Ex. B -
Undated page from the NCRJDC log book.
Ex. C -
May 1999 NCRJDC work schedule.
Ex. D -
December 7, 1998 and December 11, 1998, written warnings from John
Ridenhour to Stephanie Miller.
Ex. E -
May 28, 1999 memorandum from T. D. Melton, Director, NCRJDC, to All
Staff re: work schedule.
Ex. F -
May 20, 1999 memorandum from Michael Hale, Acting Director, NCRJDC to All
Staff re; Staff Conduct and Expectations.
Ex. G -
Undated handwritten memorandum from Iasia Griffiths.
Ex. H -
May 12, 1999 handwritten memorandum from Gary Vincent.
Ex. I -
May 12, 1999 handwritten memorandum from Dodie Turner.
Ex. J -
May 12, 1999 handwritten memorandum from Sherri Muleix to John Ridenhour.
Ex. K -
January 5, 1999 handwritten memorandum from Sherri Wolford to John
Ridenhour.
Ex. L -
May 17, 1999 suspension letter from T. D. Melton to John Ridenhour.
Ex. M -
June 17, 1999 dismissal letter from Manfred Holland to John Ridenhour.
Ex. N -
Withdrawn.Ex. O -
Letters of commendation and recommendation from 1997 and 1998
regarding John Ridenhour's performance.
Ex. P -
October 31, 1997 grievance form by Stephen Blosser; November 4, 1997
memorandum from Doug Mitchell to Stephen Blosser.
Ex. Q -
July 15, 1998 grievance form by Stephen Blosser with attached handwritten
notes from Greg Seabolt, Dodie Turner, and Carissa Griffiths.
Ex. R -
November 5, 1998 handwritten letter from Stephen Blosser to John
Ridenhour.
Ex. S -
August 4, 1998 handwritten letter from Stephen Blosser to Doug Mitchell,
Tom Westfall and John Ridenhour.
Ex. T -
August 7, 1998 handwritten letter from Stephen Blosser.
Ex. U -
August 5, 1998 statement of Stephen Blosser.
Ex. V -
Handwritten notes of Stephen Blosser.
Ex. W -
Portions of handwritten notes of Stephen Blosser.
Ex. X -
June 2, 1999 letter of documentation by T. D. Melton.
Ex. Y -
Personnel Action Form (WV-11) of Timothy Dean Melton.
Ex. Z -
Division of Personnel Application for Examination of Timothy D. Melton.
Ex. AA -
Handwritten drawing of NCRJDC.
Ex. BB -
June 2, 1999 Incident Report by Harlan Lott.
Ex. CC -
Handwritten drawing of NCRJDC parking area and surrounding area.
Testimony
DJS presented the testimony of Dallas Staples, Lisa Grimes, Stephen Blosser,
Timothy Melton, and Gary Vincent. Grievant testified in his own behalf, and presented the
testimony of Sherri Muleix, Harlan Lott, and Jennifer Ridenhour.
Footnote: 1