H. GINGER MOORE,

                  Grievant,

v.                                                Docket Nos. 99-HHR-382/451

DEPARTMENT OF HEALTH AND HUMAN
RESOURCES/BUREAU OF CHILDREN
AND FAMILIES,

                  Respondent.

D E C I S I O N

      Grievant, H. Ginger Moore, filed four grievances against her employer, the Department of Health and Human Resources/Bureau of Children and Families ("HHR"), which were advanced to Level IV of the grievance procedure, and have been assigned the two docket numbers referred to in the case style. Three of the grievances contested disciplinary actions: a written reprimand, a 10 day suspension, and a 30 day suspension. Included in the grievance over the 10 day suspension is a leave time issue. The fourth grievance is related to a person, who is not an employee of HHR, failing to submit a report of suspected abuse in writing, after orally making the report. Although the grievances were received at Level IV in the fall of 1999, Grievant asked that a hearing not be set until after the first of the year, because she had a new job, and did not have any leave time. The parties then engaged in settlement discussions which were not successful. A Level IV hearing on these grievances was held on August 15, 2000. Grievant represented herself and HHR was represented by B. Allen Campbell, Esquire. These grievances became mature for decision on October 5, 2000, upon receipt of the last of the parties' written arguments.
      The 10 day suspension was grieved on July 7, 1999. Level I was waived, and the grievance was denied at Level II on July 13, 1999. A Level III hearing was held on October 6 and 7, 1999, and a Level III decision denying the grievance was issued on October 14, 1999. Grievant appealed to Level IV on October 19, 1999.
      The written reprimand was received by Grievant after the 10 day suspension, on July 15, 1999, and was grieved on July 28, 1999. Grievant's supervisor responded at Level I on August 4, 1999, that she was without authority to grant the relief requested. Grievant appealed to Level II, where a decision denying the grievance was issued on August 17, 1999. Grievant appealed to Level III on August 18, 1999. A Level III hearing was held on October 15, 1999. The record does not reflect when the Level III decision was issued, or what the result was. Grievant appealed this grievance to Level IV on October 30, 1999.
      The 30 day suspension was grieved on September 10, 1999, with Grievant filing this grievance at Level IV, as is allowed by W. Va. Code §29-6A-4(e). Grievant sought to have the suspension rescinded, back pay, restoration of sick and annual leave which she would have earned during the suspension period, attorney fees, monetary damages, payment of witness fees, and that disciplinary action be taken against Michelle Branam for “disclosure about employee matters (i.e. conduct),” and “Susan Layne, Supervisor for inappropriate, unprofessional conduct and placing a client as well as worker 'at risk' because of her relationship with the reporter - Violating WV Code of Ethics and discriminatory practices while relating to clients, their families, workers, other agencies, facilities and professionals - Abuse of authority.”
      Grievant stated at the Level IV hearing that she was seeking as relief back pay for 48 days, 3 hours and 40 minutes, restoration of vacation days and holidays, compensation for her time in attending the Level III and Level IV hearings, compensation for her preparation time for the grievances at the rate of four hours per grievance, and expensesfor copying and postage. Grievant is no longer an employee of HHR, having resigned on October 15, 1999, prior to completion of the 30 day suspension, nonetheless, she believes she is entitled to back pay for the entire 30 day period.
      The fourth grievance was filed on August 2, 1999. Grievant's supervisor responded at Level I on August 9, 1999, that the grievance was untimely, and that she had no authority to grant the relief sought. Grievant appealed to Level II, and a decision denying the grievance as untimely, as well as on its merits, was issued on August 17, 1999. The grievance was dismissed as untimely filed at Level III, and was advanced by Grievant to Level IV on October 30, 1999. It reads as follows:



      HHR asked that this fourth grievance be dismissed as untimely filed, and also because Grievant had no standing to pursue this grievance as she was not harmed, and the relief sought was not available from the Grievance Board. Grievant stated at Level IV that she agreed the Grievance Board cannot require HHR to take the action requested.
      The following Findings of Fact are made based upon the record developed at Levels III and IV.
Findings of Fact

      1.      Grievant was employed by HHR as a Protective Service Worker. She had been an employee since June 29,1998.      2.      Susie Layne supervised Grievant. Ms. Layne was on sick leave from May 3 through 23, 1999. Gina Watson acted as the unit supervisor in her absence. When Ms. Layne returned to work on May 24, 1999, she met with Ms. Watson so she could bring her up to date on what had occurred in her absence. Ms. Watson reported that the employees in the unit were complaining about Grievant's attitude.
      3.      Grievant attended GroupWise training on the morning of May 25, 1999. The instructors were employees of another state agency, IS&C. Grievant was rude and disruptive during the training, and at one point loudly stated the training was not worth a damn and she was not learning a thing, got up, and left the training session. Michele Brannon, a Protective Service Worker Trainee, called Ms. Layne and reported this to her.
      4.      When Grievant returned from training around lunchtime, Ms. Layne called her into her office. Ms. Layne administered a verbal reprimand to Grievant for being rude to a mandatory reporter   (See footnote 1)  , being rude and hostile toward her co-workers, and cursing at the instructor during the training that morning. Ms. Layne then asked Grievant why she had refused to take the after hours beeper, and told her refusal to take it was insubordination. Grievant responded that she could not help it if Ms. Layne could not keep her damn schedule straight. When Ms. Layne told Grievant she was being unprofessional, Grievant responded stating that she did not give a fuck what Ms. Layne thought. Ms. Layne stood up, as did Grievant. Ms. Layne told Grievant to get out of her office before she lost her temper, and Grievant responded, “you don't think I can lose my temper.” Ms. Layne again told her to get out of her office. Ms. Layne did not tell Grievant to get out of the building, nor did she give her permission to take compensatory time for the afternoon.
      5.      Grievant left Ms. Layne's office, gathered her personal belongings as though she were not going to return, signed herself out of the office on compensatory time, andleft. Supervisory approval is necessary before an employee can take compensatory time off. Grievant did not ask permission to take compensatory time.
      6.      By letter dated May 26, 1999, Grievant asked Troy Posey, Community Service Manager, in writing, for leave with pay until an official investigation had been conducted into Ms. Layne's conduct on May 25, 1999, and the situation resolved. Mr. Posey received this letter on May 27. The letter related Grievant's account of the meeting on May 25, and accused Ms. Layne of creating a hostile work environment. It further accused Ms. Layne of showing bias toward agencies, other facilities, and workers, of trying to dig up dirt on employees, of relating information to workers about her personal life which Grievant felt was “best left at home,” asking employees to lie for her, unprofessionally referring to Grievant as a “bad ass,” and saying she would leave the toilet seat up for Grievant. The letter disclosed very personal information about Ms. Layne which Ms. Layne had asked Grievant not to disclose to anyone. The letter then related an incident where Grievant fed a quarter into a parking meter and Ms. Layne asked her to “falsify” travel documents to get reimbursement by letting the employee who was driving claim he had paid the quarter, and then letting him reimburse her, or adding the quarter to her own mileage on a travel reimbursement request. Grievant asked Ms. Layne to put in writing that she had told her to report the quarter in this way, and suggested that she find out what the proper procedure was.   (See footnote 2)  Grievant sent a copy of this letter to Jane McCallister, Coordinator at HHR, Ms. Layne, Governor Cecil Underwood, the Attorney General, Congressman Bob Wise, Senator Jay “Rockerfellow,” Senator Robert C. Byrd,and Carolyn Phillips, Temporary Staff Assistant, whom Grievant mentioned in the letter. Mr. Posey did not respond to the request for leave.
      7.      On May 28, 1999, Grievant was notified by letter that she had been placed on unauthorized leave status from 12:50 p.m. to 4:30 p.m. on May 25, 1999; a period of 3 hours and 40 minutes; and that this amount of time would be deducted from her pay, because she had signed herself out as being on compensatory time without permission.
      8.      Grievant called the office, said she was sick, and requested sick leave on May 26, 27, and 28, 1999. May 31, 1999, was a state holiday. Grievant did not report to work on June 1, 2, 3, and 4, 1999, and did not call in to request sick leave for that period. Grievant called Mr. Posey on June 4, 1999, to schedule a meeting with him on June 7, 1999, but she did not tell him she was ill that day. Grievant took annual leave, which had been approved earlier, from June 7 through 11, 1999. Grievant did not submit a doctor's excuse within two days of her return to work. She was aware that a doctor's excuse must be provided within two days of returning to work when an employee has taken more than three consecutive days of sick leave.
      9.      On May 28, 1999, Donna, Mr. Posey's secretary, called Grievant at home to see if she could meet her somewhere to get the beeper she had taken home with her on May 25, 1999, or if Grievant could bring it in. Grievant brought the beeper to the office on May 28, which took her one hour.
      10.      On June 3, 1999, Grievant attended a court proceeding for an hour and a half as a subpoenaed witness. She did not call the office to tell anyone that she would be attending the proceeding.
      11.      Grievant met with Mr. Posey on June 7, 1999, upon her return to work. He did not ask her for a doctor's excuse, and he told her May 26 through June 4 would be counted as sick leave unless something changed. She did not ask Mr. Posey if she needed to provide a doctor's excuse.      12.      Grievant's pay was docked for May 26, 27, 28, and 31 (a holiday)   (See footnote 3)  , and June 1, 2, 3, and 4,1999, as unauthorized leave, because of her failure to provide a doctor's excuse upon her return to work; except she was paid for one hour on May 28 for returning the beeper, and the time she spent in court and traveling to the court, on June 2, 1999.
      13.      Grievant provided a physician's statement to HHR after a Level II grievance conference on July 8,1999. The statement is dated July 8, 1999, and states Grievant was under Dr. Aala Adi's care from May 26 through June 4, 1999, and could return to work on June 7, 1999. The nature of the illness is not provided in the section of the form for this information.
      14.      Grievant saw Dr. Adi only on June 1, 1999. He informed her on that date that she would have to find another primary care physician, and referred her elsewhere. He did not provide any treatment to her.
      15.      By letter dated July 1, 1999, Grievant was suspended for 10 days without pay, from July 12 through 25, 1999, for insubordination, unprofessional conduct, and failure to observe the established procedure for reporting absences. Specifically, the letter states the charges involved her insubordinate behavior toward her supervisor in the May 25, 1999 meeting with Ms. Layne, leaving the office on May 25, 1999, without supervisory approval, failing to report off work on June 1, 2, 3, and 4, 1999, and her behavior at the GroupWise training on May 25, 1999.   (See footnote 4)        16.      Grievant was suspended for 30 days for insubordination, unprofessional conduct, and failure to observe established policies and procedures, by letter dated September 2, 1999. The suspension began on September 13, 1999, and she was to report back to work on October 26, 1999. Respondent presented no evidence in support of the 30 day suspension.
      17.      Grievant resigned her employment with HHR effective October 15, 1999, after serving 24 days of the 30 day suspension.
      18.      On May 5, 1999, a mandatory reporter made a report to HHR of suspected abuse. Grievant was aware on May 7, 1999, that this mandatory reporter had not submitted a written report to HHR, as she told this person to do so. When the mandatory reporter told Grievant she was not aware she had to file a written report, Grievant responded, “well, now you know,” and gave her the fax number.
      19.      Sometime near the end of July, Grievant attended training where she learned that it was a misdemeanor for a mandatory reporter not to provide a written report of abuse or neglect within 48 hours of an oral report. She then filed grievance number four on August 2, 1999, demanding that HHR take action against the mandatory reporter who had not submitted a written report of abuse or neglect in May 1999. HHR raised a timeliness defense to this grievance at Level I of the grievance procedure.
Discussion

      The burden of proof in disciplinary matters rests with the employer, and the employer must meet that burden by proving the charges against an employee by a preponderance of the evidence. W. Va. Code § 29-6A-6; Ramey v. W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988). "The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health and Human Resources, DocketNo. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employer has not met its burden. Id.
      It is well established that "[I]nsubordination involves 'willful failure or refusal to obey reasonable orders of a superior entitled to give such order.' [Citations omitted.] In order to establish insubordination, the employer must not only demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, but that the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination." Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995) (Citations omitted.).
      "'Generally, an employee must obey a supervisor's order and take appropriate action to challenge the validity of the supervisor's order. Employees are expected to respect authority and do not have the unfettered discretion to disobey or ignore clear instructions.' Reynolds [v. Kanawha-Charleston Health Department, Docket No. 90-H-128 (Aug. 8, 1990)], citing Meads v. Veterans Admin., 36 M.S.P.R. 574 (1988) [other citations omitted]." Stover v. Mason County Bd. of Educ., Docket No. 94-26-640 (Feb. 23, 1995). While there are exceptions to this rule, such as where the employee reasonably has health and safety concerns (Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995)), "[a]n employee is not justified i[n] disobeying a reasonable order simply because he/she does not agree with it." Id. "An employer has the right to expect subordinate personnel 'to not manifest disrespect toward supervisory personnel which undermines their status, prestige, and authority . . .'. McKinney v. Wyoming County Bd. of Educ., Docket No. 92-55-112 (Aug. 3, 1992) (citing In re Burton Mfg. Co., 82 L.A. 1228 (Feb. 2, 1984))." English v. Div. of Corrections, Docket No. 98-CORR-082 (June 29, 1998).
      “This Grievance Board has previously noted that insubordination 'encompasses more than an explicit order and subsequent refusal to carry it out.' Sexton v. MarshallUniv., Docket No. BOR2-88-029-4 (May 25, 1988), citing Weber v. Buncombe County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980). Thus, this Board has found that uttering abusive language to a supervisor may constitute insubordination. Payne v. W. Va. Dep't of Transp., Docket No. 93-DOH-454 (Apr. 29, 1994). See Burton Mfg. Co. v. Boilermakers Local 590, 82 Lab. Arb. (BNA) 1228 (1994) (Holley, Arb.).” Casto v. W. Va. Dep't of Educ., Docket No. 00-DOE-143 (Aug. 29, 2000).
      Each of the grievances will be addressed separately.
Grievance Number One - the 10 Day Suspension and the Leave Time Issue.
      Grievant was suspended for 10 days without pay for insubordination, unprofessional conduct, and failure to observe the established procedure for reporting absences. The suspension period was from July 12, 1999, through July 25, 1999. The suspension letter dated July 1, 1999, states that Grievant's supervisor, Susan Layne, met with Grievant on May 25, 1999, to administer a verbal reprimand. While Ms. Layne was discussing Grievant's insubordination, Grievant became angry, stood up, and stated that she worked but other staff did not. The letter continues:







. . .






      Ms. Layne testified she returned to work on May 24, 1999, after having been off work since May 3. Gina Watson, who had acted as supervisor in her absence, briefed her on events upon her return. One of the items about which she was briefed was Grievant's behavior during her absence in being rude to her co-workers, and her attitude. Ms. Watson had previously called Ms. Layne at home on May 18, to tell her that an employee of an outside agency had asked that she call her about Grievant. On May 25, 1999, Ms. Layne received a telephone call from Michelle Brannon, a Protective Service Worker Trainee, telling her that during training that morning, Grievant had cursed at the instructor, and that Grievant and Kevin Loy, a co-worker, had exchanged words.
      As soon as Grievant returned to the office from training Ms. Layne called her into her office. Ms. Layne testified she asked Grievant what was going on, and then proceeded to tell her she had received reports that she was rude to an employee of an outside agency, and told her what the person had said, and handed her the file. Ms. Layne then told Grievant her co-workers had complained that she had been rude and hostile towards them in Ms. Layne's absence, and that she had received a report that Grievant had cursed at the instructor that morning in training. She stated she instructed Grievant to call the employee of the outside agency and the instructor and apologize to both of them. She also told Grievant she should consider this to be a verbal reprimand.      Ms. Layne then asked Grievant why she would not take the after hours beeper. She stated Grievant responded that she had traded with Gina Watson a few weeks earlier. When Ms. Layne told Grievant she was to take the beeper anyway and her refusal to do so was insubordination, Grievant responded that she could not help it if Ms. Layne could not keep her damn schedule straight. Ms. Layne stated she told Grievant she was being unprofessional, to which Grievant responded, “she did not give a, what I thought.”   (See footnote 6)  Ms. Layne stated she stood up at that point because Grievant was cursing at her, and Grievant also stood. She testified Grievant leaned across the desk towards her and Ms. Layne then pointed to the door and told Grievant to leave her office before she lost her temper. Ms. Layne testified Grievant responded, “you don't think I can lose my temper,” and Ms. Layne told her to leave her office now. She stated Grievant leaned toward her, flipped a post-it note toward her own nose, said, “gladly,” and left. Ms. Layne stated she felt threatened by Grievant.
      Grievant stated Ms. Layne called her into her office when Grievant returned from training, put her on beeper duty, accused her of many things that were untrue, threatened her, and screamed at her.      Grievant testified Ms. Layne had asked her why she had not opened a case for Adult Protective Services involving a report of suspected abuse or neglect of an elderly woman. She told Ms. Layne she would need to review the case. She stated Ms. Layne said she had it and “slapped” the file down on the desk. Grievant stated she stood up and said, “do you mind if I see that,” and picked up the file and read it. Grievant testified that Ms. Layne told her the mandatory reporter in this case was a good friend of hers, and she could not believe Grievant would be rude to that person.   (See footnote 7)  Grievantdid not believe she was rude to this person. She explained that she had told this person she needed to send in a copy of her written report within 48 hours, and when she said she didn't know that, Grievant said, “well now you know,” and gave her the fax number.   (See footnote 8)        Grievant's May 26, 1999 letter to Mr. Posey states that Ms. Layne, “all red in the face, glaring at me as if ready to strike, and in a threatening loud tone,” stated, “'[a]pparently, you haven't seen my temper yet,'” and acknowledges that Grievant responded to her supervisor, “no, apparently you haven't seen mine either and I am not afraid of you.” This letter states that prior to this exchange, Grievant had “politely reminded” Ms. Layne that she had switched beeper duty with Ms. Watson, and they were understaffed, she told Ms. Layne she must be having schedule conflicts, that she did not see the need to apologize to anyone, but would do so after reviewing the case, asked for the phone number of the trainer, and then asked if she needed “to know about or do [anything] since there has been conflict with schedules.” The letter states Ms. Layne responded to this by “practically jumping” out of her chair “in a 'provoking manner'” with her fists clinched at her side. Given this description of Ms. Layne's reaction, it is difficult to believe that Grievant had been polite to this point. The letter then states Ms. Layne told Grievant she wanted her to do two things: call the mandatory reporter and call the trainer and apologize. Grievant responded to this by telling her supervisor she would do so after she reviewed the case.
      Grievant's testimony was that Ms. Layne, told her on May 25, 1999, “I want you out of the Department.” However, in Level III Grievant's Exhibit 3, entitled “Response to LevelII Decision by Ginger Moore, Grievant,” Grievant wrote that Ms. Layne had screamed at her, “leave here now and get out.” Grievant stated she believed she was to leave the building. Grievant wrote in her May 26, 1999 letter to Mr. Posey that Ms. Layne told her to “leave here now and get out,” and then told her to “[g]et out of my office!” That letter also states that Grievant responded to this stating, “gladly.”
      As Grievant's testimony differs from Ms. Layne's on what occurred in Ms. Layne's office on May 25, 1999, it is necessary to make a credibility determination. In assessing the credibility of witnesses, some factors to be considered are the witness's: 1) demeanor; 2) opportunity or capacity to perceive and communicate; 3) reputation for honesty; (4) attitude toward the action; and 5) admission of untruthfulness. Harold J. Asher and William C. Jackson. Representing the Agency before the United States Merit Systems Protection Board 152-153 (1984). Additionally, the Administrative Law Judge should consider: 1) the presence or absence of bias, interest, or motive; 2) the consistency of prior statements; (3) the existence or nonexistence of any fact testified to by the witness; and 4) the plausibility of the witness's information. Id; Rosenau v. Tucker County Bd. of Educ., Docket No. 99-47-192 (Nov. 1, 1999); Jarvis v. W. Va. Dep't of Health and Human Serv., Docket No. 97-HHR-318 (July 22, 1999); Burchell v. Bd. of Trustees, Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).
      In evaluating the credibility of Grievant and Ms. Layne, it is useful to consider Grievant's behavior in the GroupWise training on the morning of May 25, 1999, immediately prior to Grievant reporting to Ms. Layne's office. Several employees testified Grievant was unnecessarily rude to the instructor during the training, and had stated she was not learning a damn thing and abruptly left the training. Michelle Brannon testified Grievant told the instructor she could not follow her, that she did not think the instructor's teaching methods were good, and she was not learning anything. She stated Grievant then left the room. When Grievant returned to the training, the instructor assigned anotherinstructor to sit in the back with Grievant to assist her. Ms. Brannon testified she continued to hear Grievant make statements that she was not following the instruction, she did not understand, and criticizing the instructor. She testified that the rest of the group was having problems also, and questions were being asked, but Grievant's tone was “a little harsh.” She stated the instructor was trying to be as accommodating as possible. Ms. Brannon was embarrassed by Grievant's behavior, and, in fact, apologized to the instructor for Grievant's behavior.
      Jack Robertson, Protective Service Worker, testified Grievant told the instructor she was going too fast, and asked how she was ever going to get it if the instructor kept jumping from one subject to another. He felt the instructor was going slowly, and seemed to be doing a good job. He testified employees other than Grievant were asking the instructor questions, and asking her to go over things again. However, he felt Grievant was “almost attacking the instructor,” being overly critical of her, unfair to her, rude and disrespectful. He found Grievant's behavior unprofessional and was embarrassed that someone from his unit would act in this manner.
      Grievant admitted she had stated during the training that the training was not worth a damn, and she was not learning anything. Grievant's written statements, submitted as Level III exhibits indicate that the computer she was using in the training session either was not working properly, or did not have the correct program file loaded so Grievant could follow along. Apparently, Grievant believed the frustration she experienced because of this should excuse her inappropriate behavior.
      Other testimony was offered regarding Grievant's behavior during May of 1999, which, while not relevant to the suspension, demonstrates a pattern of inappropriate behavior by Grievant. Ms. Layne's testimony relating the events of her meeting with Grievant seems more plausible than Grievant's, given Grievant's behavior at the training immediately before she met with her supervisor, and Grievant's own account of Ms.Layne's reaction to what Grievant described as her “polite” manner. However, even Grievant's account of what transpired in her May 25 meeting with Ms. Layne reveals insubordinate behavior. The undersigned finds Ms. Layne's version of what occurred at the May 25 meeting to be more credible than Grievant's.
      The undersigned further concludes that Grievant's supervisor did not tell her to leave the building, and Grievant left without permission. Grievant's correspondence immediately after this event quotes what she was told, and it does not show that Grievant was directed to leave the building, as she later stated in her testimony. It is clear that Ms. Layne told Grievant to get out of Ms. Layne's office. She did not tell her to leave the building. If Grievant truly believed her supervisor was telling her to get out of the building, when did she think she would be allowed to return? She left because she was angry.
      Grievant suggested that Ms. Layne's testimony was not credible, pointing to her testimony about the May beeper schedule placed into evidence as Respondent's Level III Exhibit 11. She compared this to her own Level III Exhibit 24. Although the two documents are clearly different, after comparing the two, and examining the scanty testimony offered regarding the two exhibits, the undersigned is unable to draw any conclusions from the documents.
      Respondent has proven that Grievant's behavior in the GroupWise training was unprofessional and rude; Grievant's behavior toward her supervisor during the meeting on May 25, 1999, was extremely inappropriate, and constitutes insubordination, even if Grievant's version of the meeting is accepted; and Grievant left the building on May 25, 1999, using compensatory time without supervisory approval, which was also insubordination.
      As to the time Grievant was charged with unauthorized leave, the parties agree that Grievant reported off work as being sick on May 26, 27, and 28, 1999. The parties also agree that Grievant did not call the office on June 2, 3, or 4, 1999, to report that she wouldnot be coming to work. Grievant testified she called the office on June 1, 1999, and left a voice mail that she was sick that day. She later testified, however, that she could not be certain she had done so, and Ms. Layne testified Grievant had not called in on June 1. The undersigned concludes that Grievant did not call in on June 1, 1999.
      Grievant's Level III Exhibit 31, entitled Adult Services Organizational Guidelines, states that an employee who is going to be absent from work must have the prior approval of the supervisor. “This means that you are to contact the Supervisor no later than 8:45 a.m., or you will be considered on 'unapproved leave'.” It provides that it is acceptable to leave a message on the supervisor's voice mail. Grievant was aware of this requirement and chose not to comply with it when she failed to call her supervisor to report that she would not be at work on June 1, 2, 3, and 4, 1999, and was insubordinate in failing to follow her supervisor's directive to report to her that she would not be at work.
      As to Grievant's claim that May 26 through June 4, 1999, should not have been charged as unauthorized leave, the Division of Personnel's Administrative Rule 15.6, Unauthorized Leave, provides:

As Grievant did not call to report off work on June 1, 2, 3, or 4, 1999, she did not have authorization to be absent from work, and her pay had to be docked for these days pursuant to this rule. Grievant stated she was not aware she needed to call in on June 2, 3, and 4, because she had asked for leave with pay in her letter to Mr. Posey of May 27, until he had investigated her allegations. Grievant did not indicate Mr. Posey, or anyone else, had approved her request for leave with pay. Her statement that she did not know she had to call in on June 2, 3, and 4, because she had asked for leave with pay in the May 27th letter is not logical. If she truly believed she did not have to call in once she had requested leave, why did she call in on May 28? Further, she was never told that herrequest for leave had been approved. The prudent employee would have checked with Mr. Posey to see whether her leave had been approved.      
      When Grievant returned to work, she did not submit a doctor's excuse for the seven days she failed to report to work. The Division of Personnel's Administrative Rule 15.1(g) provides:


      Grievant argued she was never off work for three consecutive days, because she brought the beeper in on May 28, and was paid for one hour that day, and she attended a court proceeding on June 3, and was paid for two hours and forty minutes that day.
      No one ever asked Grievant to submit a doctor's excuse. As soon as she was told she was being charged with unauthorized leave, Grievant got a doctor to write an excuse for her. It is clear, however, that the doctor's excuse is a complete fabrication, and Grievant knew this to be the case. While it states Grievant was under Dr. Adi's care from May 26 through June 4, 1999, and was released to return to work on June 7, 1999, Grievant testified that Dr. Adi saw her only on June 1, 1999, provided no treatment to her, and referred her elsewhere. Further, Grievant stated in Grievant's Level III Exhibit 10, a letter to Thomas Gunnoe, Regional Director, that her Primary Care Physician refused to treat her on June 1. Grievant's willingness to submit a doctor's excuse to her employer and into evidence which she knew to be false, does not bolster her credibility. Grievant also stated in the letter that she went to the Health Department on June 3, 1999, and wastold her blood sugar was high, and to watch it. Grievant testified that she was sick during this period.
      The Division of Personnel's Administrative Rule 15.4(f) states that sick leave shall be granted for illness or injury which incapacitates the employee from performing her duties. The undersigned concludes that Grievant was not so sick that she could not report to work for seven days. She had no problem bringing the beeper in on May 28, and she had no problem attending a court proceeding on June 3. While Grievant stated she was under subpoena to appear at the court proceeding, if she were so sick she could not report to work, how could she attend a court proceeding? She did not call HHR's attorney to ask to be excused from the subpoena. In her May 27, 1999 letter to Mr. Posey, Grievant asked for leave with pay pending an investigation into Ms. Layne's conduct. When she received no response to this request, she just decided she would not report to work. HHR acted appropriately in charging Grievant with unauthorized leave for the period from May 26 through June 4, 1999.
      Grievant concluded that the reason she was suspended for 10 days, given a written reprimand, and then suspended for 30 days, was because she had found a report made by a “good friend” of Ms. Layne's was not substantiated; that is, she found no abuse or neglect. The mandatory reporter Grievant asserts is a good friend of Ms. Layne's, had called in a report of abuse or neglect on or about May 5, 1999. Ms. Watson assigned Grievant to investigate the report. The mandatory reporter did not submit a written report, and was not told by the person taking the call that she needed to do so. According to Grievant, Ms. Watson told her that the mandatory reporter was a good friend of Ms. Layne's. Although Ms. Watson was called to testify at Level III, neither party asked her whether she had told Grievant this. On May 6, 1999, Grievant investigated the claim and found no abuse or neglect. On May 7, 1999, Grievant contacted the mandatory reporter to tell her she had not found any abuse or neglect. According to Grievant, the mandatoryreporter was not happy with Grievant's conclusions, and told her she was a good friend of Ms. Layne's. Grievant at that time told the mandatory reporter that she was required to submit a written report to HHR within 48 hours of her oral report. The mandatory reporter told her she was not aware of this. Grievant stated she gave the mandatory reporter the fax number for the office, and stated, “well, now you know.” It is this latter statement which Ms. Layne referred to in telling Grievant she had been rude to a mandatory reporter.
      On May 18, 1999, the mandatory reporter called the office to complain about Grievant. Ms. Watson called Ms. Layne at her home to report this, and Ms. Layne attempted to contact the mandatory reporter, without success, but left a telephone number so the mandatory reporter could call her. The mandatory reporter spoke to Ms. Layne at home, complaining that Grievant was rude to her.
      Although Ms. Layne testified repeatedly that the mandatory reporter was only a professional acquaintance of hers, and that this is what she had told Grievant, Grievant insisted that the mandatory reporter was in fact a good friend of Ms. Layne's, because Ms. Watson, Ms. Layne, and the mandatory reporter had all told her this. More than one witness, including Ms. Layne testified repeatedly that Grievant had done a fine job with her investigation of this case, and Grievant herself testified at the Level III hearing on October 6, 1999, at page 44, that Ms. Layne “trusted me about my case work, she chastised me for being rude to her friend.” Ms. Layne had approved Grievant's findings on this case.
      The undersigned finds no evidence to support a finding that Ms. Layne and the mandatory reporter were good friends, regardless of what Grievant believes she was told. If Ms. Watson told Grievant the mandatory reporter was good friends with Ms. Layne, she was wrong. The mandatory reporter did not testify in this proceeding. However, even if Ms. Layne were good friends with the mandatory reporter, there is no evidence that Ms. Layne caused Grievant to be suspended for 10 days, receive a written reprimand, and besuspended for another 30 days simply because Grievant found the report to be unsubstantiated. Grievant was suspended for insubordination, and the evidence supports that the charges of insubordination were well founded.
Grievance Number Two - the Written Reprimand.
      Grievant was given a written reprimand on July 15, 1999, for contacting a family in July about a case which was closed on May 7, 1999, by Grievant. This is the same case reported by the mandatory reporter alleged to be Ms. Layne's good friend. As Grievant is no longer an employee of HHR, this grievance is moot and will not be addressed. However, it will be noted that Grievant admitted in Level III Grievant's Exhibit 7 that she had telephoned a member of the client's family on July 9, 1999.
Grievance Number Three - the 30 Day Suspension.
      Grievant was suspended for 30 days without pay for insubordination, unprofessional conduct, and failure to observe established policies and procedures. While the September 2, 1999 suspension letter lists the specific events alleged to have occurred which constituted the misconduct, as HHR chose not to present any evidence in support of the charges, it is not necessary to provide the details of the suspension. Accordingly, HHR has not met its burden of proof on this grievance.
      Grievant argued she was entitled to back pay for the entire 30 day period, even though she voluntarily resigned her employment effective October 15, 1999. Grievant did not argue she was forced to resign. Grievant has provided no legal theory under which she would be entitled to back pay for a period during which she was not an employee. The State of West Virginia cannot pay someone a salary who is not an employee.
Grievance Number Four - the Mandatory Reporter.
      As noted previously HHR asserted the fourth grievance should be dismissed as untimely filed. The burden of proof is on the respondent asserting that a grievance was not timely filed to prove this affirmative defense by a preponderance of the evidence. Haleand Brown v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996). If the respondent meets this burden, the grievant may then attempt to demonstrate that she should be excused from filing within the statutory timelines. Kessler v. W. Va. Dep't of Transp., Docket No. 96-DOH-445 (July 29, 1997). HHR timely raised the timeliness defense at Level I. W. Va. Code § 29-6A-3.
      As to when a grievance must be filed, W. Va. Code § 29-6A-3(a) provides, in pertinent part:

A grievance must be filed within 10 days following the occurrence of the event upon which the grievance is based. W. Va. Code § 29-6A-4(a) provides, in pertinent part:

Only working days are counted in determining when the 10 day time period runs for filing a grievance. Holidays are not counted. W. Va. Code § 29-6A-2(c).
      The time period for filing a grievance ordinarily begins to run when the employee is unequivocally notified of the decision being challenged. Harvey, supra; Kessler, supra. See 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). Grievant knew on May 7, 1999, that a mandatory reporter had not put her report in writing, as Grievant told her she was required to do so. Her grievance involving the failure of this mandatory reporter to put this report in writing was filed on August 2, 1999, clearly more than 10 days after the event.       Grievant argued she filed her grievance as soon as she became aware that the failure of a mandatory reporter to put the report in writing was a misdemeanor, and she learned this at a training session in late July 1999.
      Spahr v. Preston County Board of Education, 182 W. Va. 726, 391 S.E.2d 739 (1990), discussed the discovery rule of W. Va. Code § 18-29-4. Syllabus Point 1 states, "the time in which to invoke the grievance procedure does not begin to run until the grievant knows of the facts giving rise to the grievance." The same discovery rule found in the education grievance procedure is also found in the grievance procedure for state employees at Code § 29-6A-4. In this case, Grievant was aware of the facts giving rise to the grievance on May 7, 1999. What she learned in July of 1999 was that a statute existed which made the failure to submit a written report a misdemeanor. "'[A]s a general rule, ignorance of the law . . . will not suffice to keep to keep a claim alive.' Reeves v. Wood County Bd. of Educ., Docket No. 91-54-337 (Dec. 30, 1991). '[T]he date a Grievant finds out an event or continuing practice was illegal is not the date for determining whether his grievance is timely filed. Instead, if he knows of the event or practice, he must file within fifteen days of the event or occurrence of the practice.' Harris v. Lincoln County Bd. of Educ., Docket No. 89-22-49 (Mar. 23, 1989)(emphasis in original).” Buck v. Wood County Bd. of Educ., Docket No. 96-54-325 (Feb. 28, 1997). This grievance is dismissed as untimely filed. In addition, whether an employer should report someone who is not even one of its employees to the proper authorities is simply not grievable. W. Va. Code § 29- 6A-2(i).
Other Relief Sought.
      Grievant sought compensation for attending the Level III and Level IV hearings. She will receive back pay for the days she attended the Level III hearings, as this was during the 30 day suspension. She is not entitled to compensation for attending hearings on days when she was no longer an employee of the state.      W. Va. Code § 29-6A-3(p) provides as follows:

The purpose of this statute is to provide employees with time during working hours to prepare for and attend grievance conferences and hearings. At times, grievance hearings continue past regular working hours. This statute does not authorize additional compensation to employees for the time they spend in grievance hearings beyond the regular work day; nor does it authorize non-employees to be so compensated.
      Grievant sought reimbursement of expenses for copying and postage. W. Va. Code § 29-6A-3(l), provides with regard to copying documents for the hearing, “[t]he grievant shall have access to the employer's equipment for purposes of preparing grievance documents subject to the reasonable rules of the employer governing the use of such equipment.” The statute does not address postage in any way. Grievant did not demonstrate that she was denied access to her employer's equipment while she was still an employee. She was still an employee at the time of the Level III hearings. She presented no exhibits at Level IV, and did not demonstrate she incurred any copying costs. Even had she demonstrated she incurred such costs, this statute does not authorize reimbursement of any sort for these expenses at Level IV.      W. Va. Code §29-6A-7, however, states:

The parties presented no evidence regarding their efforts to resolve this dispute which demonstrate HHR acted in bad faith. Accordingly, costs cannot be awarded under this statutory provision either.
      The following Conclusions of Law support the Decision reached.
Conclusions of Law

      1.      Pursuant to W. Va. Code § 29-6A-6, the burden of proof in disciplinary matters rests with the employer, and the employer must meet that burden by proving the charges against an employee by a preponderance of the evidence. Ramey v. W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988).
      2.      It is well established that "[I]nsubordination involves 'willful failure or refusal to obey reasonable orders of a superior entitled to give such order.' [Citations omitted.] In order to establish insubordination, the employer must not only demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, but that the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination." Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995) (Citations omitted.). Where an employee has justifiably misunderstood or misinterpreted a superior's instruction, and has failed to comply with a directive based upon this, the employee has been found lacking the intent necessary to establish insubordination. Wilson v. Marion County Bd. of Educ., Docket No. 98-24-043 (June 23, 1998), citing Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995), and Ramey v. W. Va. Div. of Veterans Affairs, Docket No. 91-VA-115 (Aug. 2, 1991).      3.      "'Generally, an employee must obey a supervisor's order and take appropriate action to challenge the validity of the supervisor's order. Employees are expected to respect authority and do not have the unfettered discretion to disobey or ignore clear instructions.' Reynolds [v. Kanawha-Charleston Health Department, Docket No. 90-H-128 (Aug. 8, 1990)], citing Meads v. Veterans Admin., 36 M.S.P.R. 574 (1988) [other citations omitted]." Stover v. Mason County Bd. of Educ., Docket No. 94-26-640 (Feb. 23, 1995). While there are exceptions to this rule, such as where the employee reasonably has health and safety concerns (Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995)), "[a]n employee is not justified i[n] disobeying a reasonable order simply because he/she does not agree with it." Id. "An employer has the right to expect subordinate personnel 'to not manifest disrespect toward supervisory personnel which undermines their status, prestige, and authority . . .'. McKinney v. Wyoming County Bd. of Educ., Docket No. 92-55-112 (Aug. 3, 1992) (citing In re Burton Mfg. Co., 82 L.A. 1228 (Feb. 2, 1984))." English v. Div. of Corrections, Docket No. 98- CORR-082 (June 29, 1998).
      4.      “This Grievance Board has previously noted that insubordination 'encompasses more than an explicit order and subsequent refusal to carry it out.' Sexton v. Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988), citing Weber v. Buncombe County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980). Thus, this Board has found that uttering abusive language to a supervisor may constitute insubordination. Payne v. W. Va. Dep't of Transp., Docket No. 93-DOH-454 (Apr. 29, 1994). See Burton Mfg. Co. v. Boilermakers Local 590, 82 Lab. Arb. (BNA) 1228 (1994) (Holley, Arb.).” Casto v. W. Va. Dep't of Educ., Docket No. 00-DOE-143 (Aug. 29, 2000).
      5.      Grievant was insubordinate toward her supervisor during the meeting with her on May 25, 1999, she acted in an inappropriate and insubordinate manner during a training session on May 25, 1999, she was insubordinate in leaving the office withoutapproval on May 25, 1999, and she was insubordinate when she failed to call in to report off work or to report to work on June 1, 2, 3, and 4, 1999.
      6.      As Grievant is no longer an employee of HHR, the written reprimand grievance is moot, as no meaningful relief can be granted.
      7.      Respondent did not prove the charges for which Grievant was suspended for 30 days.
      8.      In nondisciplinary matters, the grievant has the burden of proving her grievance by a preponderance of the evidence. Tucci v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 94-DOH-592 (Feb. 28, 1995).
      9.      Grievant did not demonstrate that it was improper for HHR to charge her with unauthorized leave on May 25, 26, 27, 28, and June 1, 2, 3, and 4, 1999.
      10.      A grievance must be filed within 10 days following the occurrence of the event upon which the grievance is based. W. Va. Code § 29-6A-4(a). Grievant did not timely file her grievance relating to the failure of a mandatory reporter to submit a written report, and did not provide a valid excuse to her failure to timely file the grievance.

      Accordingly, the grievance over the 10 day suspension and leave time is DENIED.
      The grievance over the written reprimand is DISMISSED AS MOOT.
      The grievance over the 30 day suspension is GRANTED, and HHR is ORDERED to pay Grievant back pay for 24 days, plus interest at the statutory rate.
      The grievance over the mandatory reporter is DISMISSED AS UNTIMELY FILED.

      Any party or the Division of Personnel may appeal this Decision to the circuit court of the county in which the grievance arose, or the Circuit Court of Kanawha County. 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                                 ____________________________
                                                      BRENDA L. GOULD
                                                 Administrative Law Judge

Date:      November 9, 2000


Footnote: 1
A mandatory reporter is someone who is required to report suspected abuse or neglect to HHR.
Footnote: 2
No testimony was submitted by Grievant to support any of the allegations in this letter. Ms. Layne specifically denied referring to Grievant as a “bad ass” and denied she had said she would leave the toilet seat up for her. Mr. Posey testified about what occurred with regard to the reimbursement of the quarter. His testimony did not support Grievant's allegation against Ms. Layne. These allegations will not be further addressed.
Footnote: 3
The Division of Personnel's Administrative Rules provide that an employee must be in pay status the day before and the day after a holiday in order to be paid for the holiday.
Footnote: 4
The parties offered testimony regarding Grievant's refusal to be on beeper duty, and Grievant's statements to the mandatory reporter. These acts are mentioned in the suspension letter as matters about which Ms. Layne was reprimanding Grievant when she met with Grievant on May 25. There is no indication in the suspension letter that Grievant was suspended for these acts, and the undersigned finds they were not part of the reason for her suspension. They will not be addressed further.
Footnote: 5
Sixty four hours is eight work days. The stated beginning date of the unauthorized leave of May 31, 1999, would result in only five days of unauthorized leave. The undersigned concludes that the beginning date in the letter of the unauthorized leave period of May 31 is incorrect, and it should have read, “this period of unauthorized absence commencing on May 26, 1999.”
Footnote: 6
Ms. Layne later testified that the suspension letter accurately reflects the words Grievant used where it states, “I don't give a fuck what you think.”
Footnote: 7
Ms. Layne testified that the mandatory reporter was not a friend of hers, and denied that she had ever told Grievant this. She testified she did know who the mandatory reporter was, as she had spoken with her when she had worked in another position, butshe had never even met this person. She stated she had told Grievant she was a professional acquaintance of hers, and she had never known the mandatory reporter to be unprofessional or rude. Nonetheless, Grievant insisted throughout these proceedings that the mandatory reporter was a good friend of Ms. Layne's, stating that Ms. Layne had told her this.
Footnote: 8
Gina Watson told Ms. Layne she heard Grievant talking to the mandatory reporter, and she thought Grievant was rude.