VONDA SPENCER,
            Grievant,

v.                                                      Docket No. 97-BEP-139R

BUREAU OF EMPLOYMENT PROGRAMS/
WORKERS' COMPENSATION DIVISION,
            Respondent.

D E C I S I O N on R E M A N D

      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:

The original relief sought was fairly specific and stated:



      
      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:

. . .



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:

      No finding of bad faith was made in the original grievance.

      W. Va. Code § 29-6A-9 also provides guidance and states:


      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.


      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
      On remand, Grievant was represented by Attorney Roger Forman, and Respondent was represented by BEP's Counsel, Patricia Shipman.
Footnote: 2
      Letters by Grievant's attorney indicate this appeal was filed to insure a complete recovery.
Footnote: 3
      It is assumed the date was intended to be July 5, 2000, as June 5, 2000, would be before the Kanawha County Circuit Court Order was signed. This Order was received on July 6, 2000.
Footnote: 4
      It was unclear why this Motion was filed in the Kanawha County Circuit Court as the case was dismissed from that arena.
Footnote: 5
      The Code Section for this provision in the state grievance procedure is W. Va. Code § 29-6A-5(b)
Footnote: 6
      The date here would be June 1, 1999, not June 15, 1999.
Footnote: 7
      Additionally, a portion of this time was a suspension Grievant did not grieve and which cannot be considered here.