v. Docket No. 97-BEP-139R
This grievance is before the undersigned Administrative Law Judge on remand from
the Kanawha County Circuit Court pursuant to an Order dated June 14, 2000. In that
Order Judge Andrew MacQueen remanded the matter "for the purpose of determining the
specific remedy to which the petitioner is entitled as a result of her wrongful termination."
The Court noted the relief in the Level IV Decision was couched in "broad, general
language", and that the undersigned Administrative Law Judge "ha[d] not had the
opportunity to address the specific issued (sic) raised on appeal . . . ."
After receipt of this Order on July 6, 2000, a phone conference was held on July 12,
2000, to allow the parties' attorneys to address the issues and to discuss how they wished
the remand to be handled. They decided they would submit written arguments and
documents to support their positions. This case became mature for decision on August
18, 2000, the date these arguments were due.
(See footnote 1)
Original Grievance Information
In April 1997, Grievant, Vonda Spencer, grieved her March 20, 1997 termination
stating:
I have been terminated from my position of Medical Claims Analyst I
effective March 20, 1997. This action is unwarranted and violates WV Code
& WV Code of Personnel Rules & Regulation. There (sic) reason given by
management for my dismissal is my absence due to a medical leave. This
medical leave is related to a hostile work environment which the Worker's
Compensation Administration have (sic) refused to correct.
The original relief sought was fairly specific and stated:
1. Reinstate me to my position with full back pay and full benefits with
interest.
2. Require management to protect me from the hostile work environment
by what ever means necessary.
3. In any and all other ways to be made whole.
This grievance was granted, and the undersigned Administrative Law Judge
directed BEP to place Grievant in a position comparable to the position she had when she
was terminated and within the same pay grade. Since the threatening employee was no
longer employed, it was possible that this placement could have returned Grievant to her
prior position. Respondent was also directed to award Grievant back pay from the date
of discharge, March 20, 1997. Pursuant to Grievant's request, interest was to be paid on
this back pay award. Grievant's seniority and other benefits were to be treated as if she
had not been dismissed.
Issues and Arguments
The sole issue before the undersigned Administrative Law Judge is clarification of
the original relief that was granted based on the record developed during the originalgrievance proceedings. Grievant's current list of relief sought is lengthy and will be
discussed in some detail.
After a detailed review of the submissions by the parties and the prior grievance
Decision, the following Findings of Fact are appropriate.
Findings of Fact
1. The Level IV Decision granting the grievance was issued February 26, 1999.
Throughout the Level IV hearing, Grievant was represented by her union representative
and did not have an attorney either at hearing or to write her post-hearing submissions.
2. BEP did not elect to appeal this adverse decision.
3. Grievant appealed the Level IV Decision to the Kanawha County Circuit
Court on March 29, 1999.
(See footnote 2)
4. On April 29, 1999, Grievant's attorney spoke to BEP's Attorney and was
informed she was working on the details of Grievant's reinstatement.
5. On May 20, 1999, Grievant's attorney wrote to Matt Woodward at BEP saying
Grievant's reinstatement was overdue and a mandamus action would be filed if the
necessary details were not in place by May 31, 1999, because BEP was "intransigent".
6. On May 25, 1999, BEP's Attorney informed Grievant she was to return to
work on June 1, 1999.
7. Grievant's attorney responded Grievant was self-employed, it would take two
weeks for her to close out her affairs, and she could not return to work until June 15, 1999. 8. BEP redid all the necessary paper work, and Grievant returned to work on
June 15, 1999. At Grievant's request, she was returned to a different supervisor and a
different location, although this was not required by the original decision. Grievant was
also reinstated to her original classification although the requirement was for a similar
classification within the same pay grade.
9. On June 8, 1999, Grievant and her attorney met with BEP's attorney and
BEP's Director of Personnel.
10. A proposed settlement agreement was sent to Grievant's attorney on
September 9, 1999.
11. This settlement agreement was rejected by letter dated October 26, 1999,
and the areas of disagreement were outlined in some detail.
12. On November 4, 1999, BEP's attorney responded to this letter and corrected
what she saw as errors in Grievant's attorney's understanding of the agreement.
13. There is no additional information about what transpired from that time until
the Remand Order dated June 14, 2000, was issued. At the time the remand Order was
issued, the case was "DISMISSED and STRICKEN" from the Court's docket.
14. By letter dated June 5, 2000,
(See footnote 3)
Grievant's attorney notified this Grievance
Board about the Remand Order.
15. By letter dated July 13, 2000, Grievant's attorney filed a Motion for Award of
Attorney's Fees and Costs with the Kanawha County Circuit Court Clerk, Cathy Gatson. This Motion was attached to Grievant's remand argument and no information has been
provided as to the status of this Motion.
(See footnote 4)
Discussion
Each of the various forms of relief Grievant seeks will be addressed separately. It
should be noted that Grievant had the burden of proof in this grievance, and she was
required to present evidence to support all the necessary relief she sought.
A. Restoration of sick and annual leave taken prior to her dismissal.
Although Grievant took some annual leave prior to her first leave of absence which
began August 1, 1996, the amount is unknown, and was not specified in the record.
Grievant did take annual leave from June 24 through 28,1996. Grievant was also placed
on unauthorized leave without pay and received a suspension prior to August 1, 1996.
Accordingly, the amount of leave Grievant took and the type of leave Grievant was on until
August 1, 1996, is not known.
Grievant argues it is only fair that she receive the return of all leave she took prior
to receiving permission to take her leaves of absence without pay. Since an employee
cannot take a leave of absence until she is without leave (pursuant to Division of
Personnel Rules), it is presumed Grievant had taken all of her leave. What is not clear
from the record and was not addressed by the parties at the original Level IV hearing was
when this leave was taken, what type was taken, and how much Grievant alleges she took
as the result of the hostile work environment. Given this state of affairs, no restoration ofsick or annual leave benefits can be granted. There is no information on which to base
this relief.
B. Pay and restoration of all benefits for the time Grievant was on leaves of
absence.
As stated in the original Decision, Grievant received a Family Medical Leave of
Absence from August 1, 1996, through October 1996; a Medical Leave of Absence from
November 4, 1996, to January 24, 1997; and Personal Leave from January 28, 1997, to
February 21, 1997. All these leaves were unpaid. It is unclear from the record why the
first request was for a Family Medical Leave.
Grievant argues she should receive restoration of all benefits and other entitlements
due to her "psychiatric injury" which she sustained from June 25, 1996, through June 15,
1999. Respondent argues Grievant is not entitled to this relief for multiple reasons. First,
Grievant did not request this form of relief in her Statement of Grievance, and this is an
attempt on Grievant's part to change her grievance. Second, no evidence was offered at
Level IV about the amount of time Grievant believed she took off because of "work related
stress."
The evidence to support a claim for "psychiatric injury" is minimal at best, and there
was no evidence to support a claim lasting until June 15, 1999, when Grievant returned
to work. The only evidence Grievant submitted included the following documents.
Grievant had a Physician's statement from Dr. Mahmood Partovi indicating she had been
under his care since June 28, 1996, and Grievant could not return to work at this time.
Grievant subsequently submitted another letter from Dr. Partovi dated July 5, 1996,indicating Grievant was being treated for an Anxiety Disorder, and that she was scheduled
to see a psychiatrist on July 23, 1996. Grievant later was seen by Dr. Elma Bernardo, a
psychiatrist, on July 23, 1996. She diagnosed Grievant as having an "acute distress
disorder brought on by the problems of the job" and stated Grievant was unable to work
at present. There was no clear evidence of subsequent treatment and follow-up that would
support a finding of a long-term "psychiatric injury". Further, Grievant testified that while
work was stressful, it was not the only area in which she was experiencing difficulty at this
time.
Given the dearth of information presented at hearing, the undersigned
Administrative Law Judge did not grant Grievant compensation during the time she was
in leave of absence status, and did not intend by the absence of granting this relief to imply
it should be granted. Although this is not clearly stated in the relief ordered, it should be
noted that compensation was not granted for her leave of absence time, and compensation
was only granted for the time after Grievant's termination.
C. Payment for Grievant's medical and psychiatric bills, including payment for
future treatment and a lump sum payment for permanent injury.
No evidence was presented about Grievant's medical bills. Additionally, the type
of relief Grievant is seeking for a work-related injury is not properly addressed to this
agency. Compensation for a work-related injury is appropriately addressed to Workers'
Compensation. Accordingly, the undersigned Administrative Law Judge did not intend for
Grievant to be granted this relief. As for the award of a lump sum payment that Grievant seeks, this relief is similar
to "pain and suffering" damages. In Snodgrass v. Kanawha County Board of Education,
Docket No. 97-20-007 (June 30, 1998), this Grievance Board stated, "[a]n administrative
law judge may 'provide such relief as is deemed fair and equitable in accordance with the
provisions of this article . . .'. W. Va. Code § 18-29-5(b).
(See footnote 5)
This Grievance Board has
applied this Code Section to encompass such issues as back pay, travel reimbursement,
seniority, and overtime, to make grievants whole. It has not utilized this Section to award
"tort-like" damages for pain and suffering, and will not choose to do so in this case." Walls
v. Kanawha County Bd. of Educ., Docket No. 98-20-325 (Dec. 30, 1998). Accord, Vest v.
Bd. of Educ. of County of Nicholas, 193 W. Va. 222, 225, 227 n.11, 455 S.E.2d 781
(1995).
The original relief discussion noted W. Va. Code § 29-6A-5(b) provides that
"[h]earing examiners are hereby authorized and shall have the power to . . . provide such
relief as is deemed fair and equitable in accordance with the provisions of this article, and
such other powers as will provide for the effective resolution of grievances not inconsistent
with any rules or regulations of the board or the provisions of this article." See, e.g., Holly
v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Standifur v. Univ.
of W. Va. Bd. of Trustees, Docket No. 92-BOT-017 (Oct. 30, 1992); Rexroat v. Boone
County Bd. of Educ., Docket No. 91-03-233 (June 15, 1992). This same provision on the education side was construed by the Supreme Court of
Appeals of West Virginia in Graf v. West Virginia University, 189 W. Va. 214, 429 S.E.2d
426 (1992), as follows:
Clearly the Legislature intended to give the examiners who hear the
grievances the power to fashion any relief they deem necessary to remedy
wrongs done to educational employees by state agencies.
. . .
The Legislature's purpose in establishing the entire Educational Employees
Grievance Board was to provide a relatively quick, yet fair procedure to
resolve disputes between state educational employees and the State's
educational institutions so that "effective job performance may be enhanced
and the citizens of the community may be better served." W. Va. Code
18-29-1 [1992]. Furthermore, the grievance procedure was established "to
provide a simple, expeditious and fair process for resolving problems ... and
shall be construed to effectuate that purpose." W. Va. Code 18-29-1 [1992].
The Legislature has made the determination that the state is better served
by allowing hearing examiners to determine "fair and equitable" relief in a
simple and quick setting. This system is designed to invest scarce
government resources in solving problems rather than investing those
resources in an army of lawyers to go to court to defend against every
employee complaint.
Id. at 220-21, 502-03. After a review of the Decision and applicable case law, the
undersigned Administrative Law Judge declines to award this type of relief as there was
insufficient evidence to support this remedy, and this relief is outside the relief granted by
the Grievance Board.
D. Payment from June 1, 1999, to June 15, 1999.
Of course this issue did not arise until after this grievance was decided. However,
since the undersigned Administrative Law Judge has been directed to deal with this issue
on remand she will do so. This appears to be a case of "be careful for what you ask for,you just might get it." In a May 20, 1999 letter, Grievant's attorney demanded Grievant be
returned to work immediately or a Writ of Mandamus would be filed. On May 25, 1999,
Grievant was directed to return to work on June 1, 1999. This was not convenient for
Grievant, and she chose to delay her return to work for valid, personal reasons. BEP was
not in control of this situation and should not be required to pay Grievant for the time she
chose not to return to work.
E. Attorney's fees.
Grievant has asked this Grievance Board to award attorney fees for her appeal to
the Circuit Court. This would certainly be outside the jurisdiction of this administrative
agency. Additionally, even if Grievant's attorney had represented Grievant at the Level
IV hearing, which he did not do, the undersigned Administrative Law Judge would not have
the authority to grant this type of relief. An administrative law judge is not at liberty to grant
attorney's fees at Level IV of a grievance procedure much less to award attorney's fees for
a proceeding in circuit court. As to the issue of whether attorney fees, expenses, and
costs can be awarded at the lower levels,
W. Va. Code § 29-6A-7 states:
Both employer and employee shall at all times act in good faith and make
every possible effort to resolve disputes at the lowest level of the grievance
procedure. The hearing examiner may make a determination of bad faith and
in extreme instances allocate the cost of the hearing to the party found to be
acting in bad faith. The allocation of costs shall be based on the relative
ability of the party to pay the costs.
No finding of bad faith was made in the original grievance.
W. Va. Code § 29-6A-9 also provides guidance and states:
Any employer failing to comply with the provisions of this article may be
compelled to do so by mandamus proceeding and shall be liable to any partyprevailing against the employer for court costs and attorney fees, as
determined and established by the court.
Clearly this type of relief is left to the courts to grant.
Additionally, W. Va. Code § 29-6A-10 discusses an employee's right to attorney's
fees and costs.
If an employee appeals to a circuit court an adverse decision of a hearing
examiner rendered in a grievance proceeding pursuant to provisions of this
article or is required to defend an appeal and the person substantially
prevails, the adverse party or parties is liable to the employee, upon final
judgment or order, for court costs, and for reasonable attorney's fees, to be
set by the court, for representing the employee in all administrative hearings
and before the circuit court and the supreme court of appeals, and is further
liable to the employee for any court reporter's costs incurred during any
administrative hearings or court proceedings: Provided, That in no event
shall such attorney's fees be awarded in excess of a total of one thousand
five hundred dollars for the administrative hearings and circuit court
proceedings nor an additional one thousand dollars for supreme court
proceedings: Provided, however, That the requirements of this section shall
not be construed to limit the employee's right to recover reasonable
attorney's fees in a mandamus proceeding brought under section nine [§
29-6A-9] of this article.
Here, the Decision was not adverse to Grievant nor was she required to defend an
appeal. Again, this section speaks to attorney fees at the circuit court level. This
Code
Section does not allow the undersigned to award attorney's fees or expenses for an appeal
to circuit court.
F. Annual increment.
There was discussion by the parties about whether the settlement agreement
correctly calculated Grievant's annual increment pay. It is sufficient to say here that the
relief directed BEP to treat her as if she had been employed from March 20, 1997, until herreturn to work.
(See footnote 6)
Grievant is to receive the proper annual increment time credited to her
and to be paid the proper annual increment pay as if she had been present at work during
this time.
G. Summary
In summary, the undersigned Administrative Law Judge has examined the relief
originally requested by Grievant, the relief originally intended to be granted to Grievant by
the February 26, 1998 Decision, and the questions raised by the parties. There was no
intent to return to Grievant any annual leave or sick leave that she took prior to her
placement on leaves of absence. There was no intent to compensate Grievant for her
leaves of absence. Grievant did not place into the record any information about the
number and types of these days that she believed were caused by the hostile work
environment.
(See footnote 7)
No payment of medical bills was to be granted as there was no information
on this issue. At no time was there ever a consideration of a lump sum payment for
"psychiatric injury", attorney fees, or costs. Along that same vein, there was never a claim
for any "tort-like" damages, nor was one considered.
Grievant was to receive all compensation due her from the date of discharge, March
20, 1997, to the date of her reemployment, including interest. This was to include all
annual leave, sick leave, and holidays she would have accrued if she had worked during
this period, as well as seniority, and any other benefits. These benefits were to includecalculation of Grievant's annual increment time and pay as if she had been at work during
the time from March 20, 1997, to June 1, 1999.
The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law
1. As this grievance did not involve a disciplinary matter, Grievant had the
burden of proving her grievance by a preponderance of the evidence. Procedural Rules
of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996);
Toney
v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999);
Bowen v. Kanawha
County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999);
Holly v. Logan County Bd.
of Educ., Docket No. 96-23-174 (Apr. 30, 1997).
See W. Va. Code § 18-29-6.
2. Pursuant to
W. Va. Code § 29-6A-5(b), " Hearing examiners may . . . provide
relief as is determined fair and equitable in accordance with the provisions of this article
. . . ."
3. The Grievance Board may not award attorney fees, and costs may only be
awarded with a finding of bad faith.
W. Va. Code §§ 29-6A-7, 9, & 10.
4. No finding of bad faith was made in this case. Additionally, no information
was provided about any type of costs Grievant may have due to filing this grievance.
5. An administrative law judge may "provide such relief as is deemed fair and
equitable in accordance with the provisions of this article . . . ."
W. Va. Code § 29-6A-5(b).
6. This Grievance Board has applied this above-cited
Code Section to
encompass such issues as back pay, travel reimbursement, seniority, and overtime, to
make grievants whole. It has not utilized this Section to award "tort-like" damages for painand suffering, and will not choose to do so in this case.
Walls v. Kanawha County Bd. of
Educ., Docket No. 98-20-325 (Dec. 30, 1998);
Snodgrass v. Kanawha County Board of
Education, Docket No. 97-20-007 (June 30, 1998).
Accord,
Vest v. Bd. of Educ. of County
of Nicholas, 193 W. Va. 222, 225, 227 n.11, 455 S.E.2d 781 (1995).
7. No "tort-like" damages can or will be awarded in this grievance.
8. The relief that was originally intended to be awarded is specified at pages
12 and 13 of this Decision. Additionally, the relief not addressed by the parties at the
Level IV hearing, but discussed on remand has been considered and decided.
Accordingly, the relief sought is
DENIED, in part, and
GRANTED, in part.
Any party, or the West Virginia Division of Personnel, may appeal this decision to
the Circuit Court of Kanawha County, or to the "circuit court of the county in which the
grievance occurred." Any such appeal must be filed within thirty (30) days of receipt of this
decision.
W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State
Employees Grievance Board nor any of its Administrative Law Judges is a party to such
appeal and should not be so named. However, the appealing party is required by
W. Va.
Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The
appealing party must also provide the Board with the civil action number so that the record
can be prepared and properly transmitted to the appropriate circuit court.
JANIS I. REYNOLDS
ADMINISTRATIVE LAW JUDGE
Dated: August 31, 2000
Footnote: 1