CECIL LOUGH,
Grievant,
v. Docket No. 99-HHR-323
DEPARTMENT OF HEALTH AND HUMAN RESOURCES/
WILLIAM R. SHARPE, JR. HOSPITAL,
Respondent.
D E C I S I O N
This grievance was submitted directly to Level IV
(See footnote 1)
by Grievant Cecil Lough,
pursuant to
W. Va. Code § 29-6A-4(e), on August 5, 1999, when he was suspended for
at least 30 working days, pending an investigation into allegations of misconduct, by
Respondent, Department of Health and Human Resources/William R. Sharpe, Jr. Hospital
(HHR). Grievant sought as relief:
To be made whole in every way to include but not limited to returning
grievant back to work with full benefits and all lost time and monies. To
remove any mention of this matter from all files and if this matter is not
resended [sic] fully, that Wm. R. Sharpe hospital and DHHR be charged with
all legal cost involved in settling this matter.
The suspension lasted for 42 working days, and then Grievant was dismissed from
his employment after HHR determined from the investigation results that the allegations
of misconduct were true. Grievant did not file another grievance contesting the dismissal,
and HHR contended at the Level IV hearing that the dismissal therefore could not be
considered in this grievance. After taking evidence on the reasons for the suspension and the dismissal, the undersigned determined that the facts giving rise to the suspension were
the same as those which HHR relied upon to justify the dismissal, and the dismissal was
merely the final discipline imposed; thus, it was not necessary for a second grievance to
be filed.
(See footnote 2)
The suspension letter states that Grievant is being suspended pending an
investigation into an allegation that he created a sexually hostile work environment. The
dismissal letter states that the investigation established the following.
On July 21, 1999, you were engaged to drive the complainant, a female
employee of Sharpe Hospital and a patient who had been discharged, to the
patient's home in Wheeling, W. V., a trip of approximately three hours, one
way. On the return trip from Wheeling to Weston, the complainant reported,
and you confirmed, that you suggested and she agreed to take a different
route back to the hospital for a change in scenery. The complainant
reported that during this return trip she was seated in the front seat of the
vehicle and, while driving, you began to massage your genitals with your
hand and did not stop, even though she asked you to do so.
She reported that after a while, you stopped the car and got out, telling her
you had to urinate and were going to take a break because you didn't want
to return to the hospital too soon. When you returned to the car, she
reported that your trousers were not zipped or fastened and you wereholding them up. After you sat down in the car, she reported that she could
see your underwear and could see that you had an erection. She said that
she then opened the door to smoke a cigarette and a truck pulled up behind
the car, after which you then drove the vehicle from the parking area and
returned to the road.
According to the complainant, after returning to the road, you pulled your
shirt from your trousers and placed your hand under your shirt and into your
underwear and again massaged your genitals with your hand as you drove
the car. Although she again asked you to please stop, she reported that
you ignored her, so she turned her head and slid close to the passenger
door during the rest of the trip home.
Later that day, she said she saw you at the hospital and you made the
following comment to her, Hey baby, you coming on another trip with me
today? She said she told you No, I'm with a patient to which you replied,
Oh, darn, and snapped your fingers.
One other female employee of Sharpe Hospital reported three other
separate incidents of similar behavior by you which occurred during three
recent trips when you were the assigned Driver and she accompanied
patients. She alleged that on each return trip you masturbated through your
clothing while driving the car.
Two other female employees of Sharpe Hospital gave sworn statements
during the current investigation, that you had also subjected them to similar
unsolicited and unwelcomed behavior during earlier trips they had taken with
you. In fact, you were suspended in August 1996 for this behavior and
warned of more severe disciplinary action, including dismissal, for future
infractions. I believe each female's statement of your earlier behavior toward
each of them, when reviewed in the context of the current matter,
demonstrates a pattern of continuing, unacceptable behavior and
corroborates the evidence in the present matter. The sworn statements of
the two female employees of Sharpe Hospital are therefore briefly
discussed:
As reported during the current investigation, approximately three to four
years ago, (snow was on the ground), you and a female employee were on
a return trip and you drove up a back road and backed the vehicle into a
dead end hollow, telling her you had to go to the bathroom. She said that
when you returned to the car, you put your arm behind her on the seat and
asked if she would like to fool around. She said she told you No and you
did not persist; however, you advised her not to tell anyone about it.
Another female employee reported that a few years ago, as part of her job
she accompanied a client to his home and you were the Driver during that
trip. On returning, she said you decided to take a shortcut and you
proceeded up a dirt road with no houses. After telling her you had to use the
bathroom, she said you backed the car down over a steep hill and got out
and went behind the car. She said that through your clothing, you had been
kind of playing with his private parts before that on the way. When you
returned to the car, she said you stretched your arm out to her seat andasked her if she wanted to fool around. She told you No and reminded
you that your wife works at the hospital, you have two children, and she is
married, as well. It was her impression that you glared at her and after
what seemed to her to be a long time, returned to the main road. Finally she
reported that you encouraged her to say nothing about what had happened
and it is her impression that you continue to glare at her, attempting to
intimidate her.
Since sexual harassment rarely occurs outside the privacy of the individuals
involved, credibility of the parties must be ascertained through other means
of investigation. The statements of the complainant and three witnesses are
corroborative of each other which lends credibility to the complainant's
general truthfulness. Since I have no reason to believe they have conspired
or have any motive to be untruthful, I accept the general truthfulness of their
statements. Although you have categorically denied the allegations, your
prior discipline for similar behavior and warning of more severe discipline for
future infractions, causes me to believe that, unlike the other witnesses, you
do have motive to be untruthful. Your denial of the charges, in the face of
credible evidence to the contrary, is sufficient to cause me to conclude that
you have given a false statement, even though you were advised that false
swearing could be grounds for dismissal.
Your continuing overt, sexually explicit behavior and the singular incident of
July 21, 1999, all sworn to by female employees of Sharpe Hospital, causes
me to conclude that the atmosphere you created would be offensive to a
reasonable woman, and is sufficiently offensive to constitute sexual
harassment. Additionally, your behavior on July 21, 1999 and earlier is
consistent with the offense described in West Virginia Code § 61-8-9(a)
which provides, in pertinent part, the following conduct to be a misdemeanor:
A person is guilty of indecent exposure when such person . .
. engages in any overt act of sexual gratification, and does so
under circumstances in which the person knows that the
conduct is likely to cause affront or alarm.
Employees have the right to be free from sexual harassment on the job. As
an employer, the State of West Virginia, has a legal obligation to provide a
work environment free from sexual harassment, whereby no employee is
subjected to unsolicited and unwelcome sexual overtures or conduct either
verbal or physical. Such conduct or harassment will not be tolerated within
the workplace and is prohibited by State and federal anti-discrimination laws
where such conduct has the purpose or effect of interfering with an
individual's work performance or creating an intimidating, hostile, or
offensive working environment. As a public employer, it is not only our
responsibility to provide an environment ensuring the health, safety, and
welfare of the public, but to provide such working environment for our
employees as well. As your job requires you to interact with other
employees of Sharpe Hospital and the public, I believe that we cannot meet
these basic obligations if you remain an employee of this agency.
Additionally, the State and its agencies have reason to expect their
employees to observe a standard of conduct which will not reflect discreditupon the abilities and integrity of their employees, or create suspicion with
reference to their employees' capacity in discharging their duties and
responsibilities. I believe the nature of your misconduct is sufficient to
conclude that you did not meet a reasonable standard of conduct as an
employee of Sharpe Hospital warranting your dismissal.
Having carefully reviewed the evidence presented in this case, the undersigned
concludes that the charges against Grievant have been proven, and his dismissal should
be upheld. The following Findings of Fact are made based upon a preponderance of the
evidence presented at Level IV.
(See footnote 3)
Findings of Fact
1. Prior to his dismissal, Grievant was employed by HHR as a driver at William
R. Sharpe, Jr. Hospital in Weston. In this position he was required to drive a state owned
vehicle to transport patients to their homes throughout West Virginia. A Health Service
Worker also was required to accompany the patient to his or her home.
2. On July 21, 1999, Grievant and a female Health Service Worker at the
hospital, Michele Martinez, transported a patient to her home in Wheeling, West Virginia.
On the return trip, Grievant took Route 2 down the Ohio River, and, except for a brief
period when he traveled Route 50, then took other less well traveled two lane roads to
Weston. Grievant began masturbating in the car. Ms. Martinez asked him to stop, but he
did not do so. At one point he pulled the car off the side of the road and told Ms. Martinez
he needed to use the bathroom. When he returned to the car his pants were not zipped
and his shirt was hanging out. He told Ms. Martinez they were going to sit there for a
while. Ms. Martinez opened the car door, swung her legs out, and smoked a cigarette.
When she glanced back in the car she saw that Grievant was masturbating. A truck pulled
up behind them and they left immediately. Grievant continued to masturbate in the car
while driving. Ms. Martinez asked him to stop it again, but he did not stop. She scooted
to the edge of her seat and looked out the window the rest of the way back to Weston. 3. When they returned to the hospital, Ms. Martinez was visibly upset, and
reported to Judy Ratliff, a Health Services Assistant on her unit, that Grievant had been
masturbating in the car during the return trip. Grievant then reported the same to a Nurse
Manager named Linda, Chip Garrison, Assistant Hospital Administrator, and Jim Turner,
Grievant's supervisor.
4. The next day Ms. Martinez filed a sexual harassment complaint. The
complaint was forwarded by Jack Streets, the Equal Employment Opportunity (EEO)
counselor at the hospital, to the state EEO office. Melody Jordan of the state EEO office
conducted an investigation of the allegations.
5. Grievant was suspended without pay on July 22, 2000, for at least 30 working
days, pending an investigation of the allegations. The reasons Grievant was suspended
were to protect the integrity of the evidence, and because of a concern that his presence
would cause a problem for Ms. Martinez, as he is viewed as intimidating. The suspension
lasted 42 working days.
6. During the investigation Mary Robinson, a Health Service Worker at Sharpe
Hospital, reported that during the past year or so, Grievant has masturbated in the car
during the entire time they are returning to the hospital from dropping patients off at their
homes.
(See footnote 4)
She has continued to ride with him, however, because it is her job to do so.
7. Debra Hart, Director of the State EEO office, found the allegations to be
substantiated, and recommended that Grievant's employment be terminated, due to theseverity of Grievant's actions.
8. Grievant's employment was terminated on September 20, 1999.
9. HHR has provided sexual harassment training to Grievant on six occasions.
10. On August 2, 1996, Grievant was suspended without pay for two days for
asking four female co-workers if they would like to have sex with him; exceeding the speed
limit when driving state vehicles; and cursing in front of patients and staff. Grievant did not
grieve this suspension.
11. On December 18, 1996, Grievant was suspended without pay for 15 days for
conducting himself in an unprofessional manner and making threatening and intimidating
comments regarding a co-worker. Grievant did not grieve this suspension.
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, Docket
No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the
employer has not met its burden.
Id.
The employer must also demonstrate that misconduct which forms the basis for the
dismissal of a tenured state employee is of a "substantial nature directly affecting rights
and interests of the public."
House v. Civil Serv. Comm'n, 181 W. Va. 49, 380 S.E.2d 226
(1989). "The judicial standard in West Virginia requires that 'dismissal of a civil service
employee be for good cause, which means misconduct of a substantial nature directly
affecting rights and interests of the public, rather than upon trivial or inconsequential
matters, or mere technical violations of statute or official duty without wrongful intention.' Syl. Pt. 2,
Buskirk v. Civil Service Comm'n, [175 W. Va. 279, ___,] 332 S.E.2d 579, 581
(W. Va. 1985);
Oakes v. W. Va. Dept. of Finance and Admin., [164 W. Va. 384,] 264
S.E.2d 151 (W. Va. 1980);
Guine v. Civil Service Comm'n, [149 W. Va. 461,] 141 S.E.2d
364 (W. Va. 1965)."
Scragg v. Bd. of Dir. W. Va. State College, Docket No. 93-BOD-436
(Dec. 30, 1994).
"State employees may be disciplined for sexual harassment where their conduct
creates an intimidating, hostile or offensive work environment for one or more employees."
Lanham v. Dep't of Transp., Docket No. 98-DOH-369 (Dec. 30, 1998).
See Hall v. W. Va.
Dep't of Transp., Docket No. 96-DOH-433 (Sept. 12, 1997);
Turner v. W. Va. Div. of
Highways, Docket No. 94-DOH-594 (Feb. 27, 1995);
Stonestreet v. W. Va. Dep't of Admin.,
Docket No. 93-ADMN-182 (Nov. 30, 1993).
See also Harry v. Marion County Bd. of Educ.,
Docket Nos. 95-24-575 & 96-24-111 (Sept. 23, 1996).
Grievant questioned Ms. Martinez's credibility. He also argued that even if the
charge were proven, masturbation is not sexual harassment as defined by the sexual
harassment policy, as there was no charge of physical contact with Ms. Martinez or that
he said anything improper to her, and it is not one of the listed inappropriate behaviors in
the policy.
The first issue which will be addressed is whether masturbation by a male
employee, who is driving and has control of a car, in the presence of a female co-worker,
while the two of them are alone in a car, is sexual harassment. Clearly it is. However,
even if the undersigned were to conclude that continued masturbation in the presence of
a female co-worker in a car was not sexual harassment, it would still be the type of
behavior under the circumstances that is extremely inappropriate, and dismissal would not
be an excessive sanction. It is also behavior which Grievant knew was highly
inappropriate, whether he had received training which told him so or not.
The Division of Personnel's Sexual Harassment Policy states that the purpose ofthe policy is:
to provide a work environment free from sexual harassment whereby no
employee is subjected to unsolicited and unwelcomed sexual overtures or
conduct, either verbal or physical. Employees have the right to be free from
sexual harassment on the job. Such conduct or harassment will not be
tolerated within the workplace and is prohibited by State and federal anti-
discrimination laws where: (1) submission to such conduct is made a term
or condition of employment, either explicitly or implicitly, (2) submission to
or rejection of such conduct by an individual is used as the basis for
personnel actions affecting such individual, or (3) such conduct has the
purpose or effect of interfering with an individual's work performance or
creating an intimidating, hostile, or offensive working environment. Conduct
of this nature will result in appropriate disciplinary action which may include
dismissal.
The policy goes on to define sexual harassment as:
Any unsolicited and unwelcomed sexual advances, requests for sexual
favors, or other verbal, written, or physical conduct of a sexual nature when:
1.
Submission to such conduct is made either explicitly or implicitly as
a term or condition of an individual's employment.
2.
Submission to or rejection of such conduct is used as the basis for
personnel actions affecting an employee, or
3.
Such conduct has the purpose or effect of unreasonably interfering
with an individual's work performance or creating an intimidating,
hostile, or offensive working environment.
The policy lists certain behaviors which are considered to be sexually harassing.
Grievant is quite correct that masturbation is not one of the listed behaviors. However, as
Respondent pointed out, the list of improper behaviors is not exclusive. The policy states
that the behaviors listed are some of those which are sexually harassing, but that the list
of behaviors is not all inclusive. Perhaps masturbation is not listed because it is so
obviously inappropriate and offensive in the workplace that no one thought it necessary
to list it.
The charges against Grievant, if proven, constitute the type of behavior which would
be offensive, and would have the effect, or perhaps even the purpose, of unreasonably
interfering with Ms. Martinez's work performance or creating an intimidating, hostile, or
offensive working environment. The next issue is whether Ms. Martinez lied. The United States Merit Systems
Protection Board Handbook is helpful in setting out factors to examine when assessing
credibility. Harold J. Asher and William C. Jackson,
Representing the Agency before the
United States Merit Systems Protection Board 152-53 (1984). Some factors to consider
in assessing a witness's testimony 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. 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.
There was nothing in Ms. Martinez's testimony or her demeanor which indicated she
was lying about this incident, nor did Grievant present any reason why she would have
fabricated this story. When testifying, Ms. Martinez did not state precisely at times what
Grievant was doing in the car, stating that he was rubbing himself or rubbing his
privates. However, it is more likely that she was hesitant to use the words masturbating
and penis in the presence of six people in the room, two of whom she did not know, and
felt it was clear what Grievant was doing, than that she would not use these words
because she was lying. When confronted on cross-examination by Grievant's
representative to be more specific, she responded that he had the whole thing in his
hand. She put her head down as though she were embarrassed. Her co-workers further
testified that she was visibly upset upon returning from the trip, and, her testimony was
consistent with the statement she gave to the EEO investigator.
In an effort to demonstrate Ms. Martinez was lying, Grievant questioned why she
did not get out of the car if Grievant's actions were so disturbing to her. It was clear from
Ms. Martinez's testimony that she had no idea where she was or what was around her.
She only knew that the Ohio River was on her right, she was not seeing many houses, andshe was supposed to return to work. The Ohio River is quite a distance from Weston. Her
failure to exit the vehicle and begin walking when she was so far from home, did not know
anyone, and did not know where she was, was perfectly reasonable and does not
demonstrate she was lying.
Ms. Martinez testified she was told by Judy Ratliff to accompany a patient to
Wheeling. She did not know who the driver would be, and had not heard anything from
other employees about Grievant. She stated the trip to Wheeling to drop off the patient
was pleasant. She stated Grievant wanted to take a back road on the return trip. They
stopped at a store to get a drink. She stated that as he drove he started scratching
himself, but at that time she was not paying any attention to what he was doing. He then
adjusted the radio station and started rubbing himself. Then he turned the radio up. She
stated she was not sure at first what he was doing. When she understood that he was
masturbating she asked him to stop, but he ignored her. She turned her head toward the
window and scooted to the edge of her seat and ignored him. She stated both she and
Grievant lit up cigarettes, and started talking, and then he started rubbing himself again.
She stated he again adjusted the radio, and then continued to rub himself. She asked him
to stop again and he would not do so, and she turned her head. She stated they pulled
off the road, and Grievant said he had to go to the bathroom. He got out of the car, and
when he returned his pants were unzipped and he was holding them up, and his shirt was
out. She did not testify that Grievant had an erection as is in the investigative report.
Grievant told her they were going to sit there awhile. She opened the car door and swung
her legs out and smoked a cigarette. She glanced back in the car and saw that Grievant
had his hand under his shirt and he was stroking himself up and down. A truck pulled up
behind the car, and Grievant said they were leaving. About 15 minutes later, Grievant
started rubbing himself again. She turned her head and did not look at him the rest of the
way back to the hospital. She testified that she was afraid of what Grievant was going todo next, and she is still afraid of him. Ms. Martinez stated she saw Grievant the next day
and he had asked her if she was going on another trip. She stated she simply told him,
no, and she testified candidly that she did not recall him snapping his fingers and saying,
oh, darn in response, as is in the investigative report.
After Ms. Martinez's complaint was filed, an investigation began, and another
employee, Mary Robinson, came forward with allegations remarkably similar to Ms.
Martinez's. Grievant did not question the veracity of this witness, and presented no reason
why she would lie, or would conspire with Ms. Martinez against him. Rather, Grievant
argued it was the Martinez complaint which led to his dismissal. While it is true that it was
the Martinez complaint which led to the investigation, and was the primary reason for the
action against Grievant, the dismissal letter clearly states that it was not just one incident
which resulted in disciplinary action against Grievant.
(See footnote 5)
Ms. Robinson told the EEO investigator that on return trips Grievant is,
in a state of masturbation. He plays with himself on the way back. It's I
mean it's constant. This has went on for some time. When I say anything
about it to my peers, it's all [sic] you can take care of yourself. You know,
well if you don't want the trips, don't go. Then it's you know you just kind of
leave it at that. So I've never really said too much about it except coming
back and complaining about it, but I've never written him up for it or anything.
But this is what happens and you know it's a constant thing with him.
. . .
He masturbates all the way down the road coming back from wherever
you've been. So sometimes he'll stop and go to the bathroom. You know,
go down over the guard rails and he says he has to go. He parks the car
along the road and he goes down over the hill and then he comes back and
gets in the car and you start out again. But he sets there and constantly
plays with himself.
She testified at the Level IV hearing that Grievant has been fondling himself on the returntrips for a year or so. She told the investigator that several of the employees had been in
a meeting about a year ago and were told Grievant would be counseled about his
behavior. She testified at the Level IV hearing that it made her uncomfortable when
Grievant fondled himself when they were on the return trip to the hospital, and that he has
done so every time she has ridden with him. She stated, as she told the investigator, that
she has continued to ride with him because it is her job. She testified that she had
reported Grievant's actions to the other employees on her unit, and a couple of the nurses.
She did not know Ms. Martinez.
Although Grievant did not testify at the Level IV hearing, he spoke to the
investigator. His statement begins by stating he swears or affirms that the statements
made by him are true and accurate, but the statement is not notarized. It is witnessed.
Grievant told the investigator he had been an employee of the hospital for 20 years, and
that on the return trip he took Route 2 to New Martinsville, then a road he could not identify
by number to Route 18 to Middlebourne, and on to Route 50. He exited Route 50 at
Meathouse Fork in Doddridge County, and followed that road to Churchill Road in Lewis
County, returning to Weston. He stated he stopped only once on the return trip, at a store
in New Martinsville. He responded by saying [n]o ma'am when he was asked by the
investigator if he pulled off a back road to urinate; whether he rubbed his genitals through
his clothing at any time during the trip; and, if he put his hand in his pants at any time.
When asked if he returned to the car with his pants unbuttoned or unzipped he responded,
I didn't stop. No ma'am. He responded that he did not have a clue as to why Ms.
Martinez would say these things, and when asked if he had had any problems with her he
stated he did not even know her.
As Grievant did not testify at Level IV, his statement was not subject to cross-
examination, and the undersigned had no opportunity to observe his demeanor. Ms. Hart
testified that Grievant's statement is surprising. She stated those who are accused ofsexual harassment generally have their own story to tell about what transpired, and the
statements are usually detailed.
Grievant's blanket denials given to the investigator are unconvincing. He offered
no explanation of what he was doing, or why his female co-workers would make up these
stories to hurt him. Respondent has proven through the testimony of Ms. Martinez and Ms.
Robinson that it is more likely than not that Grievant committed the acts with which he was
charged.
Grievant pointed out that he was receiving unemployment compensation based
upon a finding that Respondent had not proven the charges against him in that forum. Mr.
Garrison testified that Respondent had decided not to present any witnesses at the
unemployment hearing, because he and others at the hospital were afraid it would be too
trying for the witnesses to have to testify both at that hearing and at the grievance hearing.
The fact that Grievant prevailed on his unemployment claim based upon different evidence
than was presented before the undersigned is of no relevance here.
Grievant also argued that Virginia Tucker, who signed the termination letter, had
no authority to do so; rather the hospital administrator should have done so. Grievant's
support for this argument was a one page document, marked as Grievant's Exhibit Number
2. This document is headed EEO Complaint Process. Hand-written at the top is a
notation, posted 5/1/00 E/F SSM. Grievant's representative attempted to have this
document admitted into evidence at the telephonic conference on July 11, 2000. He had
not provided the undersigned or Respondent's counsel with a copy of this document prior
to the conference, and presented no testimony regarding where he obtained the document,
or when it became effective. After having the opportunity to review the document,
Respondent objected to its admission for these reasons, as well as the fact that it
appeared to be a part of a larger packet of documents. Grievant's Exhibit Number 2 is
NOT Admitted into evidence because it was not authenticated, and there is no indicationthat if it were authentic it would apply to the time period when Grievant was terminated.
(See footnote 6)
Ms. Tucker testified that she is HHR's Assistant Secretary of Operations, and that
she has the authority to hire and fire civil service employees of HHR. The undersigned
has been presented with no reason to question this. She further testified that she had
consulted with Jack Clohan, the hospital's administrator, in making the decision to
terminate Grievant's employment.
The following Conclusions of Law support the Decision reached.
Conclusions of Law
1. 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).
2. The employer must also demonstrate that misconduct which forms the basis
for the dismissal of a tenured state employee is of a "substantial nature directly affecting
rights and interests of the public."
House v. Civil Serv. Comm'n, 181 W. Va. 49, 380
S.E.2d 226 (1989). "The judicial standard in West Virginia requires that 'dismissal of a
civil service employee be for good cause, which means misconduct of a substantial nature
directly affecting rights and interests of the public, rather than upon trivial or
inconsequential matters, or mere technical violations of statute or official duty without
wrongful intention.' Syl. Pt. 2,
Buskirk v. Civil Service Comm'n, [175 W. Va. 279, ___,] 332
S.E.2d 579, 581 (W. Va. 1985);
Oakes v. W. Va. Dept. of Finance and Admin., [164 W. Va.
384,] 264 S.E.2d 151 (W. Va. 1980);
Guine v. Civil Service Comm'n, [149 W. Va. 461,] 141
S.E.2d 364 (W. Va. 1965)."
Scragg v. Bd. of Dir. W. Va. State College, Docket No. 93-
BOD-436 (Dec. 30, 1994).
3. Respondent proved the charges against Grievant, and that Grievant's actionswere sufficiently egregious to justify his dismissal.
Accordingly, this grievance is DENIED.
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: August 29, 2000
Footnote: 1