JUDY L. YOUNKER,
                  Grievant,

v.                                                Docket No. 98-DPS-066

WEST VIRGINIA DEPARTMENT OF PUBLIC
SAFETY/WEST VIRGINIA STATE POLICE

D E C I S I O N

      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.