JUDY L. YOUNKER,
Grievant,
v. Docket No. 98-DPS-066
WEST VIRGINIA DEPARTMENT OF PUBLIC
SAFETY/WEST VIRGINIA STATE POLICE
Grievant, Judy L. Younker, employed by the West Virginia State Police as a radio
dispatcher in the Martinsburg office, filed a level one grievance on November 19, 1997,
after her request for a second medical leave without pay was denied, and her employment
terminated. The level one and level two grievance evaluators lacked authority to grant the
requested relief. The grievance was denied following an evidentiary hearing at level three,
and the matter was advanced to level four on March 5, 1998. After a number of delays,
a level four hearing was conducted on March 19, 1999, in the Grievance Board's
Morgantown office. Grievant was represented by William B. Carey, Esq., and Respondent
was represented by Assistant Attorney General Dolores A. Martin. Post hearing filings
were concluded on October 18, 1999; however, under cover letter dated November 9,
1999, Mr. Carey requested that an additional medical evaluation be admitted to the record.
On November 10, 1999, the undersigned received a letter from Ms. Martin, objecting to the
admission of the evaluation.
(See footnote 1)
In December, Mr. Carey contacted the undersigned by
telephone to request that the level four decision not be issued until mid-March 2000, in theevent an appeal would be necessary, because he would be outside the United States for
approximately two months.
The facts of this matter are undisputed and may be set forth as the following formal
findings of fact.
Findings of Fact
1. Grievant was first employed by the West Virginia State Police as a radio
dispatcher on September 9, 1977. At the time of her discharge on November 12, 1997,
Grievant's civil service position description was titled Police Telecommunicator
Supervisor.
2. As stated on the position description, the general nature of Grievant's work
was leads and directs the work of a staff of telecommunicators in conjunction with
performing various duties required to operate the radio room and communication
equipment necessary for the efficiency and safety of the uniformed personnel of the
Division of Public Safety. Included in Grievant's duties was the operation of all radio,
telephone, and teletype equipment used to dispatch and receive radio communications.
3. Beginning August 14, 1996, Grievant no longer reported for work due to
emotional stress. 4. In September 1996, Grievant began seeking treatment for depression and
panic attacks, which she attributed to her work. Grievant experienced a number of health
related problems, but primarily complains of nightmares in which friends and family
members are substituted for victims of criminal activity and accidents which she had seen
at work, and agoraphobia.
5. After exhausting her accrued sick and annual leave on April 11, 1997,
Grievant requested and received a medical leave of absence without pay, which expired
on October 12, 1997.
6. Grievant filed a Worker's Compensation claim relating to her condition in
October 1996. The claim was later denied.
7. On October 6, 1997, Grievant requested that she be allowed to remain on
leave without pay until she received approval of her retirement claim.
8. In response to Grievant's request, First Sergeant L.D. Bradley recommended
that the extended leave be denied because her continued absence had caused a
tremendous strain in the communications center of the Martinsburg office, she had
indicated that she would not be returning to work, and could not anticipate when her
retirement claim would be ruled upon. So long as she was on leave, her position could not
be filled.
9. Captain M. M. Taylor, Commander, Company C, also recommended that the
leave be denied, reiterating F/Sgt. Bradley's concern that her absence had created a
hardship on the overall operation of the Martinsburg office.
10. Grievant did not request any accommodation which would allow her to return
to work as a radio dispatcher. 11. There are no other positions at the State Police office which Grievant can
perform.
12. In December 1997, Dr. Michael Gayle, one of Grievant's physicians, advised
former Lieutenant Colonel William Haines that he had been treating Grievant since the
summer of 1996 for problems with depressive anxiety and panic attacks, similar to post
traumatic syndrome. He concluded these conditions were associated with her work. Dr.
Gayle opined that Grievant was not capable of going back to her job with the State Police,
and that he was not even sure that she could engage in any other work because of her
condition.
13. Also in December 1997, Gail A. Shade, M.A., a professional counselor
treating Grievant, advised Lieutenant Colonel Haines that Grievant would never be able
to return to her job with the State Police, and that due to her lack of concentration and
focusing abilities, and her increase in anxiety and panic, Grievant would have a difficult
time securing and retaining any type of employment.
14. By letter dated November 12, 1997, Colonel Gary Edgell, Superintendent of
the West Virginia State Police, notified Grievant that her request for an additional medical
leave of absence without pay was denied, and, because she would be unable to return to
work of any kind for several more years, her employment was terminated.
15. Grievant's petition for early retirement was denied by the Consolidated Public
Retirement Board on the ground that there was insufficient evidence that her condition
prohibited her from returning to work.
Discussion
Although not addressed by the parties, as a civilian working for the Department of
Public Safety, Grievant was an at-will employee.
See John C. v. Dept. of Public Safety,
Docket No. 95-DPS-497 (Jan. 31, 1996). At-will employees may be discharged for good
cause, bad cause, or no cause, unless the termination contravenes some substantial
public policy.
Wilhelm v. Dept. of Tax and Revenue, Docket No. 94-L-038 (Sept. 30, 1994),
aff'd
per curiam,
Wilhelm v. W. Va. Lottery, 198 W. Va. 93, 479 S.E.2d 602 (1996).
See
Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).
However, this Grievance Board has previously determined that the West Virginia
State Police altered the at-will status of civilian employees, and extended additional rights
to those employees, when it promulgated a legislative rule providing for progressive
discipline, among other things (81 C.S.R. 10), pursuant to
W. Va. Code §§15-2-21 and
15-2-25. By the definition of employees found in § 2.10, this rule was made applicable to
civilian employees as well as members of the State Police.
Walker v. Dept. of Public
Safety, Docket No. 98-DPS-056 (Sept. 11, 1998);
Patterson v. Dept. of Public Safety,
Docket No. 95-DPS-572 (May 28, 1996).
See Health Care Cost Review Auth. v. Boone
Memorial Hosp., 196 W. Va. 326, 472 S.E.2d 411 (1996) (when legislative rules have the
effect of a statute). The rule was effective April 1, 1996, and has not been modified.
"It is well-established that a governmental agency must comply with all properly
enacted rules and regulations.
Powell v. Brown, 238 S.E.2d 220 (W. Va. 1977)."
Patterson,
supra. Grievant's at-will status has been altered by the legislative rule, and she is entitled
to the protection afforded by it to all employees of DPS. The burden of proof is, therefore,upon Respondent to prove the charges against Grievant by a preponderance of the
evidence.
(See footnote 2)
Civilian employees of Respondent are granted medical leaves of absence pursuant
to Section 15.08(c) of the Administrative Rule for the Division of Personnel (DOP), which
states in pertinent part:
Medical Leave: Notice to Employee
1. An injured or ill permanent employee upon written
application to the appointing authority
shall be granted a medical leave of absence without pay not to
exceed six (6) months within a twelve month period provided:
a. The employee (1) has exhausted all sick leave and
makes application no later than fifteen (15) calendar days
following the expiration of all sick leave . . .
b. The employee's absence is due to an illness or injury
which is verified by a physician/practitioner on the prescribed
physician's statement form stating that the employee is unable
to perform his or her duties and giving a date for the
employee's return to work or the date the employee's medical
condition will be re-evaluated;
c. A prescribed physician's statement form is submitted
each time the employee's condition is re-evaluated to confirm
the necessity for continued leave; and d. The disability, as verified by a physician/practitioner
on the prescribed physician's statement form, is not of such
nature as to render the employee permanently unable to
perform his or her duties.
The Administrative Rule further provides, in Section 15.08(d), that [f]ailure of the
employee to report promptly at the expiration of a leave of absence without pay, except for
satisfactory reasons submitted in advance to the appointing authority, is cause for
dismissal. Respondent's Leave Without Pay policy for civilian employees, Section 5.04
provides that [e]mployees who fail to return to active duty on the first scheduled work day
following expiration of the Leave Without Pay (LWP) shall be immediately terminated. . .
Respondent asserts that while Grievant was a valued employee with many years
experience and service to the State Police, and Colonel Edgell was sympathetic to her
plight, he was also required to consider the operational needs of the agency, and realized
the position was too vital to leave unfilled for an indefinite period of time. Because
Grievant had been granted one, six month leave of absence, and indicated that she would
not be returning to work, but instead requested an indefinite leave of absence, Respondent
argues that termination of her employment was necessary and proper pursuant to the
provisions cited above.
Respondent denies any violation of W. Va. Code §§5-11-1, et seq., (Human Rights
Act), because Grievant has failed to prove that she is a qualified handicapped person,
under the terms of the statute. In support of that conclusion, Respondent cites Grievant's
own statement that her petition for early retirement was denied on the ground that there
was insufficient evidence that her condition was so bad she could not return to work.
Respondent further notes that Grievant continues to claim that she is unable to perform herjob, thus, she is not a qualified handicapped individual entitled to accommodation under
the Act. Finally, Respondent argues that the element of reasonable accommodation was
never addressed because Grievant never asked for any type of accommodation.
Grievant does not dispute that she is unable to work. She simply argues that
Respondent inflicted the harm upon her, and the denial of an additional medical leave of
absence was an abuse of discretion, and arbitrary. Grievant further asserts that under
W. Va. Code §§5-11-1, et seq., she was entitled to a reasonable accommodation as a
disabled employee. At hearing, Grievant claimed that as a long-term employee who
incurred her disability at the workplace, she should not be terminated, and amended her
request for relief to back pay from August 1996, and front pay until she is eligible to retire.
(See footnote 3)
Cases of abandonment of employment following a medical leave of absence are,
as a general rule, particularly difficult for both parties. Employees who have given many
years of service to the state, and can no longer perform their duties, are desperate to retain
their employment status so they may continue to receive insurance, or other benefits.
While the employer is reluctant to dismiss a valued employee, the position cannot be filled
with another individual, placing a burden on the remaining employees, and/or resulting in
work not being completed. The employer must meet its operational needs in an efficient
manner.
The Grievance Board has determined a number of times that employers are not
required to retain disabled employees on their payrolls when it is obvious that the
employee is physically unable to perform her job duties and the period of disability cannotbe determined. (See Powell v. Wyoming Cablevision, Inc., 184 W. Va.700, 403 S.E.2d
717 at 723 (1991)); Cook v. Div. of Health and Human Resources, Docket No. 99-HHR-
298 (Nov. 30, 1999); Hayden v. Div. of Health and Human Resources/Bureau for Children
and Families, Docket No. 98-HHR-133 (Nov. 22,1999); Hull v. Div. of Culture and History,
Docket No. 98-C&H-360 (February 9, 1999); Gregis v. Div. of Labor, Docket No. 98-DOL-
079 (Nov. 12, 1998). In the present case, it is clear from Grievant's own testimony that she
is physically unable to perform her duties, and the period of her disability cannot be
determined, but appears to be permanent.
Grievant has also failed to prove that the termination of her employment was
arbitrary and capricious. An action is arbitrary and capricious if the agency making the
decision did not rely on criteria intended to be considered; explained or reached the
decision in a manner contrary to the evidence before it, or reached a decision that is so
implausible that it cannot be ascribed to a difference of opinion. See Bedford County
Memorial Hosp., 769 F2d 1017 (4th Cir. 1985). An action may also be arbitrary and
capricious if it is willful and unreasonable without consideration of facts. Black's Law
Dictionary, at 55 (3d Ed. 1985). See State ex rel. Eads v. Duncil, 198 W. Va. 604, 474
S.E.2d 534 (1996). Arbitrary is further defined as being synonymous with bad faith or
failure to exercise honest judgment. Id, Trimboli v. W. Va. Dept. of Health and Human
Servs./Div. of Personnel, Docket No. 93-HHR-322 (June 27, 1997). Respondent's decision
to terminate Grievant's employment was not arbitrary and capricious.
Finally, it does not appear that Grievant is entitled to any relief under W. Va. Code
§§5-11-1, et seq. By her own admission, she is not capable of returning to work at this
time, and likely will never be able to do so. Grievant opined that her present condition isthe result of many years of stress. She stated that because the communications center
was understaffed, she sometimes worked sixteen hour shifts. She claims that she felt
intimidated and had to work, or she would lose her job, having always been told that she
could be replaced. Grievant described her work area as crowded, a fourteen by three and
one-half foot area, with one flourescent light, no control of heat, and subject to noise from
both the secretary's office and the main office. She stated that officers would play tapes
of highway fatalities, suicides, and other crime scenes in her office. As communications
supervisor, she saw an officer pursue an individual into Maryland, after he had been
directed not to, and felt she was in a Catch 22 situation. Should she report him? Due to
the confidential nature of her job, she was not allowed to discuss these matters with
anyone.
Even though a Worker's Compensation claim filed by Grievant was denied, she
presents a detailed description of factors attendant to her position which she believes has
caused her present condition. Most employers, including the State of West Virginia, are
now aware of the role stress plays with individual employees, and their work performance.
In fact, Grievant had been scheduled to attend a Stress Management Class on October
31, 1996. It is unfortunate that such classes were not offered earlier; however, in the
context of Grievant's claim, neither she nor her physicians suggest any accommodation
which would facilitate her return to work at this time. Grievant has failed to prove that she
is entitled to any relief under the provisions of the Human Rights Act.
Consistent with the foregoing findings and discussion, the following conclusions of
law are appropriate in this case.
Conclusions of Law
1. Civilian employees of the Department of Public Safety are at-will employees,
who may be discharged for good cause, bad cause, or no cause, unless the termination
contravened some substantial public policy.
Wilhelm v. Dept. of Tax and Revenue, Docket
No. 94-L-038 (Sept. 30, 1994), aff'd
per curiam,
Wilhelm v. W. Va. Lottery, 198 W. Va. 93,
479 S.E.2d 602 (1996);
John C. v. Dept. of Public Safety, Docket No. 95-DPS-497 (Jan.
31, 1996). However, the Department of Public Safety promulgated a legislative rule,
effective April 1, 1996 (81 C.S.R. 10), which sets forth, among other things, three levels of
offenses, and the discipline which may be imposed for these offenses, thereby creating
additional rights for employees of the Department, which alters the at-will status of all
employees.
Patterson v. Dept. of Public Safety, Docket No. 95-DPS-572 (May 28, 1996).
2. "It is well-established that a governmental agency must comply with all
properly enacted rules and regulations.
Powell v. Brown, 238 S.E.2d 220 (W. Va. 1977)."
Patterson,
supra.
3. "The promulgation of Rules providing that employees can only be discharged
for `cause', serves to shift the burden of proof in disciplinary matters to Respondent to
prove the charges against an employee by a preponderance of the evidence."
Patterson,
supra.
4. A dismissal of employment for abandonment of position following a medical
leave of absence is a disciplinary dismissal, and the burden of proof shall rest with the
employer to prove the charge by a preponderance of the evidence.
Clark v. W. Va. Dept.
of Military Affairs & Public Safety/Division of Juvenile Services, Docket No. 99-DJS-428
(Nov. 30, 1999). 5. Section 15.08(c) of the Administrative Rule for the Division of Personnel
allows an injured employee to be placed on an unpaid medical leave of absence, so long
as a physician's statement justifying continued leave is submitted every thirty days. Failure
of an employee to report to work at the end of such a leave of absence or to provide proper
justification for continued leave is grounds for dismissal.
Baire v. W. Va. Div. of
Corrections, Docket No. 97-CORR-129 (Mar. 11, 1998).
6. Respondent has proven by a preponderance of the evidence that Grievant
did not return to work after a six month medical leave of absence, and that she had no
plans to return to work, but hoped to retain her insurance benefits until such time as she
is eligible to receive retirement benefits.
7. Respondent has not acted in violation of
W. Va. Code §§5-11-1,
et seq.,
because Grievant has not established that she is a qualified handicapped individual who
could perform the duties of her position with a reasonable accommodation.
8. Respondent's action to terminate Grievant's employment was neither
arbitrary and capricious nor clearly wrong.
Accordingly, the grievance is
DENIED.
Any party or the West Virginia Division of Personnel may appeal this decision to the
Circuit Court of Kanawha County or to the circuit court of the county in which the grievance
occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision.
W.Va. Code §29-6A-7 (1998). Neither the West Virginia Education and State Employees
Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and
should not be so named. However, the appealing party is required by W. Va. Code §29-
5A-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.
Date: March 23, 2000 _______________________________________
Sue Keller
Senior Administrative Law Judge
Footnote: 1 This document was a disability evaluation completed at the West Virginia University
School of Medicine in March 1997. The report includes more detail than the other medical
documents submitted on Grievant's behalf, but does not raise any new issues, and will be
made part of the record.
Footnote: 2 The level four hearing had proceeded as though this matter was not disciplinary in
nature, consistent with a number of prior Grievance Board decisions. Subsequently, a
decision was issued on November 30, 1999, noting that abandonment of position cases
had been considered disciplinary in some instances, and nondisciplinary in others. It was
determined that cases of alleged abandonment of position following a medical leave of
absence is disciplinary in nature because the employer is implicitly or explicitly 'charging'
the employee with misconduct, by failing to follow the applicable procedures,
i.e., failure
to make timely reports of his or her condition, and/or for failing to return to work after the
leave has ended. Clearly, in the employer's eyes, the employee has done something
wrong, for which dismissal is justified.
Clark v. W. Va. Dept. of Military Affairs & Public
Safety/Division of Juvenile Services, Docket No. 99-DJS-428 (Nov. 30, 1999). Although
the holding in
Clark requires that the present matter now be considered disciplinary, Ms.
Martin presented a complete case in her client's behalf, and Respondent is not prejudiced
by this turn of events.
Footnote: 3 Grievant is presently fifty years of age.