STEVEN PASTERNAK,
Grievant,
v. DOCKET NO. 00-BOT-174
BOARD OF TRUSTEES/
MARSHALL UNIVERSITY,
Respondent.
DECISION
This grievance was filed on or about May 2, 2000, by Grievant, Steven Pasternak,
against the Board of Trustees/Marshall University, Respondent ("Marshall"). The
statement of grievance reads as follows:
1. Violation of the level II grievance decision rendered on March 31, 2000
and accepted by the university on April 6th 2000. The Grievance officer, Dr.
Rowe, recommended that the retaliation be removed from items 6 and 7 on
the 6 Month evaluation (now the 9 Month evaluation). The redactions
made to the 6 Month evaluation (now the 9 Month evaluation) removed the
evidence of retaliation and not the retaliation. Crossing out the words
that demonstrated that the evaluation was tainted by retaliation, does not
remove that retaliation but only hides it.
2. Violation of Marshall University's Affirmative Action Policy, Section 504
of the Rehabilitation Act of 1973, Title I of the Americans with Disabilities Act
and § 5-11-9 of the West Virginia State Code for: Unlawful discriminatory
practices/discrimination against the disabled. All employment evaluations
took place while I was being denied reasonable accommodations for my
disability.
As relief Grievant sought:
1. Items 6 and 7 on the 6 Month evaluation (now the 9 Month evaluation)
should be changed to at least a C and the downgraded retaliation
comments removed.
2. All employment evaluations should be removed because they occurred
before reasonable accommodations were implemented, which violates state
and federal law. If this paper work is required to be in my file, then a single
blank 6 Month evaluation with signatures and appropriate boxes checked
off, indicating the end of the probationary period and recommendations for
continuation of employment, should be placed in my file instead.
(See footnote 1)
This grievance resulted from Grievant's disagreement with the manner in which
Marshall personnel implemented a Level II decision from a previous grievance. Grievant
had prevailed on certain issues related to the six month evaluation, as will be discussed
below. Some background information will be helpful in understanding these two
grievances.
Grievant is employed by Marshall as an Academic Counselor/Learning Specialist
in the Buck Harless Student Athlete Program. He has a Bachelor's degree in moderate
special needs and education, a Master's degree in communication sciences and disorders,
additional hours in special education and behavior modification, and a law degree. He
taught for 12 years at a school for the learning disabled, has been a learning disabilities
consultant, and was vice-president of a child advocacy program. In his position atMarshall, he is responsible for testing student athletes for learning disabilities and
diagnosing their learning disabilities. He is also required to monitor the progress of track,
soccer, and golf student athletes to make sure they are meeting academic eligibility
requirements, act as an advisor to these students, and make sure the students register for
classes.
Grievant began his employment in this position at Marshall in November 1998.
Grievant has a learning disability which interferes with his ability to read, write, and
understand instruction. He made clear during the interview process that he had this
disability. His supervisor, Michele Duncan, was aware of his disability. He did not ask for
any accommodations for performing his job when he began his employment, because he
did not believe any would be necessary.
Employees at Marshall serve a six month probationary period. They are to be
evaluated after two, four, and six months of employment. Grievant's first evaluation
occurred after he had been an employee for nearly six months. The evaluation was written
on a four month evaluation form. On April 26, 1999, Grievant expressed his disagreement
with this evaluation in written form, as he is allowed to do, and also requested reasonable
accommodations for his disability in this response. Neither his supervisor nor any other
Marshall employee responded to his request for reasonable accommodations.
In June of 1999, Grievant submitted a complaint to David Harris, Director of Equity
Programs, requesting accommodations for his disability, and asking for an investigation
of discrimination against the disabled by staff in the Buck Harless Student Athlete
Program. Mr. Harris appointed a committee to conduct an investigation and make a report
on the allegations of the complaint. One of the committee members was not available until
November. The committee did not meet until January 2000.
Grievant received a second evaluation in July 1999, after he had been employed
by Marshall for eight months. This evaluation was written on a six month evaluation form. Grievant disagreed with this evaluation and filed a grievance about both his four month
and six month evaluations. The statement of grievance submitted by Grievant in the first
grievance reads as follows:
1. Violation of Probationary Period policies and procedures on page 63 of
the Classified Staff Handbook. All evaluations were completed retroactively.
The issues covered in these reports were based on innuendo that allegedly
happened after my probationary period expired. The issues covered in
these evaluations have been addressed in earlier responses, and I still
contend that these evaluations are inaccurate. My probationary period
ended on 5/2/99. Even with accepting the extension of Probationary Period,
which I did not do, that time expired on June 30th 1999. The February 21st
evaluation, which I did not received [sic] until 2/24/00, comes seven months
after my probationary period officially expired, denying me the benefits and
purpose of the probationary period as set forth in the Classified Staff
Handbook on page 63.
2. Violation of Marshall University's Affirmative Action Policy, Section 504
of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities
Act and § 5-11-9 of the West Virginia State Code for: Unlawful discriminatory
practices/discrimination against the disabled. All requests, whether written
or oral, for reasonable accommodations have been denied or ignored by my
superiors and the University's representatives.
3. Violation of Marshall University's policy of proper[ly] training staff to do
the specific tasks required by the job. With the exception of a two hour
Banner training class, I have received little or no proper training. It is
absurd to consider handing a person with a reading disorder a NCAA
Manual, a University Catalog, and to direct him to a file cabinet filled with
advising guides and copies of sample statistical reports to constitute proper
training. This is especially true when this topic was an in-depth component
of discussion with my search committee and impacted my acceptance of this
position. My acceptance and the University's offer was predicated on this
aspect of the counselor's job, because, as I mentioned at my interview, I was
only an expert as a learning disabilities consultant and would need training
for this position.
The relief sought in the first grievance was:
1. Ending my probationary period and removing all retroactive reviews from
personnel file.
2. Ending discrimination and granting of the requested reasonable
accommodations and assistive technology.
3. Job training by a neutral third party to perform job functions that were
outside the field of a Learning Disabilities Consultant. All further reviews to
be based on specific goals and objectives and completed by a neutral third
party.
On March 31, 2000, Linda P. Rowe, grievance evaluator, submitted her
recommendations on the first grievance to Marshall President Dan Angel. On April 5,
2000, Vice President F. Layton Cottrill, Jr., adopted the recommendations as the Level
II decision, insofar as they do not conflict with existing university policy. The decision
found in Grievant's favor that Marshall did not follow policy regarding employee
performance appraisals by failing to evaluate Grievant at two and four months of service;
using the four month evaluation form to evaluate Grievant at six months of service; being
delinquent by nine days in requesting an extension of Grievant's probationary period;
failing to provide the requisite 'written, planned program covering a specified time to
achieve outlined goals and objectives' as a condition of the extension of the probationary
period; and in being four months delinquent in completing the three month follow-up
performance appraisal following the evaluation done at the end of the extended
probationary period. The decision states there was a retaliatory quality in the
respondent's rating of the grievant on points 6, 'Job Comprehension,' and 7, 'Attitude' of
his July 2, 1999, '6 Months' Probationary Performance Evaluation. It is inappropriate to
use an employee's lawful disagreement with an evaluation as evidence of poor job
performance.
In Marshall's favor, the decision did not find Grievant's probationary period was
extended beyond the limit allowed by policy; that the failure to meet deadlines or the
extension of the probationary period hampered Grievant's ability to benefit from the
probationary period; that the training or job descriptions he was offered were improper or
out of date; or that the overall needs improvement assessment on his performance
evaluation was inaccurate, was made in retaliation for Grievant's request for
accommodation, or that it represented discrimination because of his disability. The
grievance evaluator found a lack of evidence of a hostile work environment. The decision went on to state that insufficient evidence was presented for a
determination of whether the Office of Equity Programs at Marshall responded
appropriately to Grievant's complaints, and that it was beyond the scope of the grievance
to determine what accommodations are reasonable and required to enable grievant to
understand and perform his duties as required.
The decision granted as relief that the probationary performance evaluation labeled
as the four month evaluation be re-labeled as the six month evaluation, and that it be
noted in his personnel file that his supervisor failed to complete two and four month
evaluations. As to the document labeled the six month evaluation, several changes were
required. First, the document was to be re-labeled the nine month evaluation.
(See footnote 2)
Second,
a note was to be appended to it stating that the employee was given an oral plan of
improvement, but was not given a written plan of improvement as required by policy.
Third, items 6 and 7 on the evaluation were to be amended, to reflect grievant's actual
performance during the evaluation period, not the grievant's disagreement with his last
evaluation. Finally, Recommended Continued Employment was to be checked on the
appropriate line.
Further, the decision directed that the Director of Equity Programs respond to the
grievant in writing, by April 14, 2000, describing the actions taken and the strategies
planned to investigate and address grievant's complaints. This investigation was
conducted by a committee. The committee concluded in a written report dated April 6,
2000, that Grievant was denied reasonable accommodations; only with reasonable
accommodations can Grievant's work performance be evaluated accurately; and that,
although the committee could not determine the underlying reason for it, there is a hostile
environment of ridicule and insult in Grievant's work area. Mr. Harris did not endorse thecommittee's report, but recommended that Grievant be allowed access to certain
equipment, and that a piece of equipment be purchased for Grievant's use. Marshall has
been slowly providing Grievant with the equipment he believes he needs in order to be
able to perform his job duties.
Finally, Grievant's supervisor was directed to work closely with the Office of Human
Resources, the Director of Equity Programs, and Grievant, to develop a plan of
improvement that includes specific and measurable goals, standards, and timelines. This
detailed plan should REPLACE the very general review of responsibilities indicated in
respondent's memo of February 21, 2000. As of the Level IV hearing on the instant
grievance, Grievant's personnel file contained no evidence of the February 21, 2000
memo. However, no plan of improvement had been developed to replace the memo.
Neither party appealed this decision. Marshall personnel began implementing the
directives of the decision, and as this process began, Grievant became dissatisfied with
their interpretation of the decision's requirements, and filed this grievance. Specifically,
Grievant disagreed with the changes made to the evaluation which was completed on the
six month evaluation form. On item 6, Job Comprehension, Grievant received a rating
of D, occasionally meets expectations. There are four other possible ratings. The
written comment on this point is [j]ob comprehension is currently not evident. There was
additional language here which was blacked out in Marshall's effort to comply with the
Level II decision, which read as follows, Proof presented in comments to last evaluation
and weekly summaries. The rating was not changed. On item 7, Attitude, Grievant
received a rating of D. The written comments are, [w]illing to accept new ideas. Open
to change. Does not handle criticism well. Again, additional language was blacked out
after the words criticism well, in an effort to comply with the decision. That language was,
as evident by the response to the last evaluation. The rating was not changed.
Discussion
The burden of proof is upon the grievant to establish his allegations by a
preponderance of the evidence.
Canterbury v. Putnam County Bd. of Educ., Docket No.
40-86-325-1 (Jan. 28, 1987).
Respondent argued that the doctrine of
res judicata should be applied in this
grievance to preclude Grievant from relitigating the very same issues litigated in the first
grievance, referring specifically to Grievant's request that all evaluations be removed from
his personnel file.
The doctrine of
res judicata may result in the dismissal of a grievance when a party
seeks to relitigate "matters about which the parties have already had a full and fair
opportunity to litigate and which were in fact litigated."
Liller v. W. Va. Human Rights
Comm'n, 180 W. Va. 433, ___, 376 S.E.2d 639, 646 (1988);
Peters v. Raleigh County Bd.
of Educ., Docket No. 95-41-035 (Mar. 15, 1995). Four conditions must be met in order to
apply the doctrine of
res judicata:
(1) identity in the thing sued for;
(2) identity of the cause of action;
(3) identity of persons, and of parties to the action; and
(4) identity of the quality in the persons for or against whom the claim is
made.
Woodall v. W. Va. Dep't of Transp., Docket No. 93-DOH-393 (Feb. 2, 1994), citing
Wolfe
v. Forbes, 159 W. Va. 34, 217 S.E.2d 899 (1975). "The identicality of issues litigated is
the key component to the application of administrative res judicata."
Liller,
supra.
This Grievance Board has applied this doctrine sparingly, "as the grievance process
is intended to be a fair, expeditious, and simple procedure, and not a 'procedural
quagmire.'"
Harmon v. Fayette County Bd. of Educ., Docket No. 98-10-111 (July 9, 1998),
citing
Spahr v. Preston County Bd. of Educ., 182 W. Va. 726, 393 S.E.2d 739 (1990), and
Duruttya v. Bd. of Educ., 181 W. Va. 203, 382 S.E.2d 40 (1989). The doctrine of
res
judicata has been applied by the Grievance Board, however, to preclude a grievant from
pursuing a grievance on the very same issue raised in a previous grievance, when hefailed to appeal the decision issued in the first grievance to Level IV.
Ashley v. W. Va.
Bureau of Senior Services, Docket No. 00-BSS-506 (Aug. 1, 2000).
Grievant disputed that the elements of this defense were present, arguing first, that
Jim Stephens, Marshall's Director of Human Resource Services, and Mr. Harris were the
Respondents here, while his supervisor was the Respondent in the first grievance. The
Respondent in both grievances was Marshall University, not an individual, and Grievant's
supervisor was involved in both grievances. Grievant also argued that he could raise the
issues of discrimination and harassment each time a new act occurred, and that certain
issues could not be addressed until after Mr. Harris completed his report. While Grievant
is certainly correct that each act of discrimination or harassment may generate a new
grievance, this grievance seeks to revisit whether the four month and six month
evaluations were properly conducted. Any incidents of discrimination or harassment
related to those evaluations occurred before the first grievance was filed and have already
been addressed. As to the argument that completion of Mr. Harris' report was a
prerequisite, the language used in the first grievance with regard to violations of Marshall's
Affirmative Action Policy, the Americans with Disabilities Act, and provisions of the West
Virginia Code, is nearly identical to the language used in the second grievance.
Grievant further argued that because this defense was not raised until the Level IV
hearing, it could not be raised as it was too late, and because he did not know in advance
of the hearing that he would need to prepare for this defense. Nothing requires a
Respondent to raise all its legal arguments before the Level IV hearing. Had Grievant
requested additional time at the hearing to prepare for Respondent's argument, the
undersigned could have considered that request at that time. However, Grievant did not
indicate at the Level IV hearing that he needed additional time to respond to this argument,
even though a second day of hearing was set at the conclusion of the first day of hearing.
Respondent may raise the issue. Much of this grievance is the same as the first grievance, and Grievant cannot
relitigate the very same issues a second time. He accepted the Level II decision.
However, this grievance also challenges whether Marshall followed the first Level II
decision. This is a new issue. Respondent did not challenge whether this issue could be
brought to Level IV for an interpretation of the Level II decision. The undersigned
concludes that it is reasonable, and consistent with the grievance procedure and prior
Grievance Board decisions on similar matters, to allow this issue to be addressed here.
See W. Va. Code § 18-29-5;
Crowder v. Bd. of Trustees, Docket No. 96-BOT-320 (Mar.
31, 1997);
Rush v. W. Va. Dep't of Health and Human Resources, Docket No. 94-HHR-279
(Feb. 7, 1995).
It is understandable that Grievant would be unhappy with Marshall's interpretation
of the Level II decision and the changes made by Marshall to his evaluation. While the
Level II decision did not use the words, change the ratings to a 'C', it concluded that
there was a retaliatory quality in the rating given to Grievant in items 6 and 7, yet the
rating was not changed. Further, the grievance evaluator specifically required that these
two items reflect Grievant's actual performance, not his disagreement with his first
evaluation. In item 7 in particular, it is quite clear that the entire second sentence, not just
the words removed from the evaluation by Marshall personnel, relates to Grievant's
response to his evaluation. The statement that Grievant does not take criticism well refers
to Grievant's response to the evaluation, and only to this response, as evidence of this.
When this entire sentence is removed, the comments are entirely positive, and do not
support a rating of D. The comment in item 6 that Grievant's job comprehension is not
evident also refers solely in the second sentence to Grievant's response to his first
evaluation. All commentary must be removed from item 6 in order to comply with the Level
II decision, and the rating must be changed. As Grievant requested only that the ratings
be changed to C, whether a higher rating is called for need not be addressed. Marshall presented a significant amount of testimony in an effort to demonstrate that
the ratings received by Grievant on his evaluations were appropriate. It will first be noted
that much of that testimony related to events which occurred after the four month and six
month evaluations were completed, and cannot be used in evaluating Grievant's
performance for a period of time preceding these events. Further, if Grievant cannot
relitigate the issue of whether his early evaluations were proper, neither can Marshall. The
only issue here is whether Marshall followed the directives of the Level II decision.
As a final note of caution, it was particularly disturbing to listen to and observe
David Ridpath's animosity toward Grievant at the Level IV hearing. Mr. Ridpath is the
Assistant Athletic Director for Compliance and Student Services in the Buck Harless
Student Athlete Program at Marshall. Grievant had gone over Mr. Ridpath's head to one
of the coaches about a student, and it was obvious that Mr. Ridpath was not going to let
this indiscretion go unpunished. Mr. Ridpath flatly admitted that it was his opinion that
much student behavior which Grievant attributed to learning disabilities, Mr. Ridpath
attributed to laziness. Mr. Ridpath was openly hostile toward Grievant and questioned
Grievant's expertise. Mr. Ridpath has an undergraduate degree in Speech Communication
and a Master's degree in Sports Administration, and admitted he did not know the
characteristics of a learning disabled student. His testimony was that he has talked to
someone who is very well qualified and who is willing to state on the record that some
students are just lazy. When asked by Grievant what the qualifications of this person
were, Mr. Ridpath responded, [m]ore qualifications than you, trust me. They're world
renowned. Mr. Ridpath's attitude toward Mr. Pasternak and toward learning disabled
students is unprofessional and inappropriate, and potentially damaging to learning
disabled students.
Ms. Duncan likewise demonstrated a lack of understanding of the characteristics
of learning disabilities, and the needs of learning disabled students. The expert testimonypresented was that the common misconceptions about students with learning disabilities
are that they are lazy, are not doing enough work, are not giving full effort, they expect
others to do things for them, and that they have no place at Marshall because they cannot
do the same work as other students. The testimony presented demonstrated that learning
disabled students need help with things as simple as getting to appointments at the
scheduled time, because this is a function of the disability. Assisting students with this
simple task is not coddling, as Mr. Ridpath has suggested; it is necessary.
The following findings of fact have been properly made from the record developed
at Levels II and IV.
Findings of Fact
1. Grievant is employed by Marshall as an Academic Counselor/Learning
Specialist in the Buck Harless Student Athlete Program. In his position at Marshall, he is
responsible for testing student athletes for learning disabilities and diagnosing their
learning disabilities. He is also required to monitor the progress of track, soccer, and golf
student athletes to make sure they are meeting academic eligibility requirements, act as
an advisor to these students, and make sure the students register for classes.
2. Grievant began his employment in this position at Marshall in November
1998. Grievant has a learning disability which interferes with his ability to read, write, and
understand instruction. He made clear during the interview process that he had this
disability. His supervisor, Michele Duncan, was aware of his disability. He did not ask for
any accommodations for performing his job when he began his employment, because he
did not believe any would be necessary.
3. Employees at Marshall serve a six month probationary period. They are to
be evaluated after two, four, and six months of employment. Grievant's first evaluation
occurred after he had been an employee for nearly six months. The evaluation was written
on a four month evaluation form. On April 26, 1999, Grievant expressed his disagreementwith this evaluation in written form, as he is allowed to do, and also requested reasonable
accommodations for his disability in this response. Neither his supervisor nor any other
Marshall employee responded to his request for reasonable accommodations.
4. Grievant received a second evaluation after he had been employed by
Marshall for eight months. This evaluation was written on a six month evaluation form.
5. Grievant disagreed with his evaluations and filed a grievance. At Level II he
prevailed in part on his grievance in a decision issued on April 5, 2000. Neither party
appealed the Level II decision to Level III or Level IV.
6. The Level II decision issued April 5, 2000, found in Grievant's favor that
Marshall did not follow policy regarding employee performance appraisals by failing to
evaluate Grievant at two and four months of service; using the four month evaluation form
to evaluate Grievant at six months of service; being delinquent by nine days in requesting
an extension of Grievant's probationary period; failing to provide the requisite 'written,
planned program covering a specified time to achieve outlined goals and objectives' as a
condition of the extension of the probationary period; and in being four months delinquent
in completing the three month follow-up performance appraisal following the evaluation
done at the end of the extended probationary period.
7. The Level II decision issued April 5, 2000, states there was a retaliatory
quality in the respondent's rating of the grievant on points 6, 'Job Comprehension,' and 7,
'Attitude' of his July 2, 1999, '6 Months' Probationary Performance Evaluation. It is
inappropriate to use an employee's lawful disagreement with an evaluation as evidence
of poor job performance.
8. The Level II decision issued April 5, 2000, granted as relief that the
probationary performance evaluation labeled as the four month evaluation be re-labeled
as the six month evaluation, and that it be noted in Grievant's personnel file that his
supervisor failed to complete two and four month evaluations. As to the document labeledthe six month evaluation, several changes were required. First, the document was to be
re-labeled the nine month evaluation. Second a note was to be appended to it stating that
the employee was given an oral plan of improvement, but was not given a written plan of
improvement as required by policy. Third, items 6 and 7 on the evaluation were to be
amended, to reflect grievant's actual performance during the evaluation period, not the
grievant's disagreement with his last evaluation. Finally, Recommended Continued
Employment was to be checked on the appropriate line. The decision also directed that
the Director of Equity Programs respond to the grievant in writing, by April 14, 2000,
describing the actions taken and the strategies planned to investigate and address
grievant's complaints, and it directed Grievant's supervisor to work closely with the Office
of Human Resources, the Director of Equity Programs, and Grievant, to develop a plan
of improvement that includes specific and measurable goals, standards, and timelines.
This detailed plan should REPLACE the very general review of responsibilities indicated
in respondent's memo of February 21, 2000.
9. David Harris, Director of Equity Programs, had already set up a committee
to conduct an investigation into Grievant's complaints and request for accommodation, as
he had received Grievant's complaint in June of 1999. The committee concluded in a
written report dated April 6, 2000, that Grievant was denied reasonable accommodations;
only with reasonable accommodations can Grievant's work performance be evaluated
accurately; and that, although the committee could not determine the underlying reason
for it, there is a hostile environment of ridicule and insult in Grievant's work area. The
committee recommended that accommodations be granted immediately, and that
Grievant's personnel file indicate that all previous evaluations were completed in the
absence of requested accommodations.
10. Mr. Harris did not endorse the committee's conclusions. He recommended
to Marshall's Vice President, F. Layton Cottrill, that certain equipment be purchased, andthat Grievant be allowed access to other equipment. Marshall has been slowly providing
Grievant with the equipment he believes he needs in order to be able to perform his job
duties.
11. As of September 19, 2000, Grievant's personnel file contained no evidence
of the February 21, 2000 memo which the Level II decision required be removed.
However, no plan of improvement had been developed to replace the memo.
12. Marshall personnel re-labeled the six month evaluation as the nine month
evaluation. On item 6, Job Comprehension, the rating of D, occasionally meets
expectations, was not changed. The written comment on this point is [j]ob
comprehension is currently not evident. Marshall blacked out additional language as
follows, Proof presented in comments to last evaluation and weekly summaries. On item
7, Attitude, the rating of D was not changed. The written comments left are, [w]illing
to accept new ideas. Open to change. Does not handle criticism well. Again, additional
language was blacked out as follows, as evident by the response to the last evaluation.
After the Level II decision in the instant grievance, the blacked out language was removed
completely.
13. In item 7 of the evaluation re-labeled as the nine month evaluation, the entire
third sentence, not just the words removed from the evaluation, relates to Grievant's
response to his previous evaluation. The statement that Grievant does not take criticism
well refers to Grievant's response to the evaluation, and only to this response, as evidence
of this. When this entire sentence is removed, the comments are entirely positive, and do
not support a rating of D. The comment in item 6 that Grievant's job comprehension is
not evident also refers solely in the second sentence to Grievant's response to his first
evaluation.
The following Conclusions of Law support the Decision reached.
Conclusions of Law
1. The burden of proof is upon the grievant to establish his allegations by a
preponderance of the evidence.
Canterbury v. Putnam County Bd. of Educ., Docket No.
40-86-325-1 (Jan. 28, 1987).
2. The doctrine of
res judicata may result in the dismissal of a grievance when
a party seeks to relitigate "matters about which the parties have already had a full and fair
opportunity to litigate and which were in fact litigated."
Liller v. W. Va. Human Rights
Comm'n, 180 W. Va. 433, ___, 376 S.E.2d 639, 646 (1988);
Peters v. Raleigh County Bd.
of Educ., Docket No. 95-41-035 (Mar. 15, 1995). Four conditions must be met in order to
apply the doctrine of
res judicata:
(1) identity in the thing sued for;
(2) identity of the cause of action;
(3) identity of persons, and of parties to the action; and
(4) identity of the quality in the persons for or against whom the claim is
made.
Woodall v. W. Va. Dep't of Transp., Docket No. 93-DOH-393 (Feb. 2, 1994), citing
Wolfe
v. Forbes, 159 W. Va. 34, 217 S.E.2d 899 (1975). "The identicality of issues litigated is
the key component to the application of administrative res judicata."
Liller,
supra.
3. This Grievance Board has applied the doctrine of
res judicata sparingly, "as
the grievance process is intended to be a fair, expeditious, and simple procedure, and not
a 'procedural quagmire.'"
Harmon v. Fayette County Bd. of Educ., Docket No. 98-10-111
(July 9, 1998), citing
Spahr v. Preston County Bd. of Educ., 182 W. Va. 726, 393 S.E.2d
739 (1990), and
Duruttya v. Bd. of Educ., 181 W. Va. 203, 382 S.E.2d 40 (1989). The
doctrine of
res judicata has been applied by the Grievance Board, however, to preclude
a grievant from pursuing a grievance on the very same issue raised in a previous
grievance, when he failed to appeal the decision issued in the first grievance to Level IV.
Ashley v. W. Va. Bureau of Senior Services, Docket No. 00-BSS-506 (Aug. 1, 2000). 4. Insofar as this grievance seeks to revisit whether Grievant's four and six
month evaluations were properly conducted, the doctrine of
res judicata precludes the
relitigation of these issues.
5. In item 7 of the evaluation re-labeled as the nine month evaluation, the entire
third sentence must be removed in order to comply with the April 5, 2000 Level II decision,
and the rating must be changed. All commentary must be removed from item 6 in order
to comply with the Level II decision, and the rating must be changed.
6. Administrative Law Judges have the authority to provide such relief as is
deemed fair and equitable.
W. Va. Code § 18-29-5.
Accordingly, this grievance is GRANTED. Respondent is ORDERED to remove all
written comments under item 6 on what has been re-labeled as the nine month evaluation,
and change the rating to C, and to remove the entire third sentence in the written
comments to item 7, and to change the rating to C. Respondent is further ORDERED to
comply with the directive of the first Level II decision to develop a plan of improvement that
includes specific and measurable goals, standards, and timelines. As this plan of
improvement has not been in place, nor has Grievant had the equipment requested to
accommodate his disability until recently, it is FURTHER ORDERED that Grievant NOT
be evaluated again until three months after this new written improvement plan has been
presented to him, and that the evaluation period be for that three month period only.
Any party may appeal this Decision to the Circuit Court of Kanawha County or to
the Circuit Court of Cabell County. Any such appeal must be filed within thirty (30) days
of receipt of this decision. W. Va. Code §18-29-7. 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
Dated: November 30, 2000
Footnote: 1