Kira LeBlanc (Grievant), is employed as a Child Protective Service (CPS) Worker
at the West Virginia Department of Health and Human Resources/Bureau for Children and
Families' Mercer County office (DHHR). She filed this grievance pursuant to
W. Va. Code
§§ 29-6A-1,
et seq., alleging that she was improperly given a verbal reprimand, and that
her caseloads are excessive. The grievance was denied at Level I by Child Protective
Service Supervisor Diana Hagerman on October 19, 1999; and at Level II, by Community
Service Manager John J. Najmulski, on November 5, 1999. A Level III hearing was held
on December 1, 1999. Grievant represented herself at this hearing, and DHHR was
represented by Margaret Waybright. On December 7, 1999, the grievance was denied at
Level III by Commissioner Jack Frazier.
A Level IV hearing was held on February 24, 2000, before the undersigned
administrative law judge, at the Grievance Board's Beckley office. Grievant again
represented herself, and DHHR was represented by Anthony Eates, Esq. The parties
were given until March 31, 2000, to submit proposed findings of fact and conclusions oflaw. DHHR did so, and this grievance became mature for decision on that date.
The following Findings of Fact pertinent to resolution of this matter have been
determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT
1. Grievant is employed as a Child Protective Service (CPS) Worker at the
West Virginia Department of Health and Human Resources/Bureau for Children and
Families' Mercer County office.
2. Grievant's caseload is approximately triple recommended guidelines.
3. Grievant is a dedicated and hardworking employee, who has been with
DHHR for seven years, was CPS Worker of the year in 1994, and works extra hours to
keep up with her caseload.
4. By memo dated December 23, 1998, Grievant's supervisor, Diana Hagerman,
(Hagerman) set deadlines for Grievant's completion of several tasks.
5. By memo dated June 22, 1998, Hagerman informed Grievant that a Family
Assessment due by June 8, 1998, had not been completed, and that this was her second
request.
6. By memo dated May 26, 1999, Hagerman informed Grievant that she had
missed deadlines for Family Assessments and Final Risk Assessments; that these tasks
had been discussed with Grievant monthly; that Hagerman had made changes in
Grievant's working conditions to facilitate her timely completion of her duties; and that
Grievant was not in compliance with policy.
7. Grievant missed some of these deadlines. 8. On September 29, 1999, Grievant was given a verbal reprimand, for
insubordination, for missing some of these deadlines.
In disciplinary matters, the employer has the burden of proving the charges by a
preponderance of the evidence.
W. Va. Code § 29-6A-6;
Evans v. Dep't of Health &
Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997),
Miller v. W. Va. Dep't of
Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997);
Broughton v. W.
Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992). A preponderance of the
evidence is defined as evidence which is of greater weight or more convincing than the
evidence which is offered in opposition to it; that is, evidence which as a whole shows that
the fact sought to be proved is more probable than not.
Black's Law Dictionary (6th ed.
1991);
Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486
(May 17, 1993). Where the evidence equally supports both sides, a party has not met its
burden of proof.
Id.
DHHR verbally reprimanded Grievant for insubordination, for failing to meet
deadlines, imposed by her supervisor, regarding portions of her casework. Grievant argues
that any deadlines she missed were due to her excessive caseload. Grievant seeks the
reversal of her verbal reprimand, and the reduction of her caseload to a manageable size.
DHHR Policy Memorandum 2104, entitled Progressive Discipline, and dated April
26, 1991, provides that verbal reprimands are usually given in lieu of written reprimand
when the infraction is of a minor nature. This policy defines insubordination as
[d]eliberate intentional failure/refusal to comply with instruction from immediatesupervisor[,] and recommends a written reprimand for a first infraction.
Insubordination is the "willful failure or refusal to obey reasonable orders of a
superior entitled to give such order."
Riddle v. Bd. of Directors, So. W. Va. Community
College, Docket No. 93-BOD-309 (May 31, 1994);
Webb v. Mason County Bd. of Educ.,
Docket No. 26-89-004 (May 1, 1989). Insubordination may also be found when an
employee shows a willful disregard for the implied directions of an employer.
Sexton v.
Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988),
citing Weber v. Buncombe
County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980).
To prove insubordination, an employer must demonstrate that a policy or directive
that applied to the employee was in existence at the time of the violation, and the
employee's failure to comply was sufficiently knowing and intentional to constitute the
defiance of authority inherent in a charge of insubordination.
Conner v. Barbour County
Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995). An employer also has the right to
expect subordinate personnel "to not manifest disrespect toward supervisory personnel
which undermines their status, prestige, and authority . . . ."
McKinney v. Wyoming County
Bd. of Educ., Docket No. 92-55-112 (Aug. 3, 1992)(citing
In re Burton Mfg. Co., 82 L.A.
1228 (Feb. 2, 1984)). Insubordination can result in disruption of the workplace such that
it amounts to misconduct of a substantial nature affecting the rights and interests of the
public.
Payne v. W. Va. Dep't of Transp., Docket No. 93-DOH-454 (Apr. 29, 1994).
The facts in this grievance are undisputed. Grievant does not dispute that
Hagerman issued deadlines by which certain caseload tasks, generally Final Assessments
of individual CPS cases, were to be completed, and that she missed some of thesedeadlines. Grievant argues that she missed the deadlines because her individual caseload
is far in excess of recommended guidelines; that all of her co-workers are similarly
overloaded and behind in their casework; that the Final Assessments are not as important
as those parts of her work that initiate CPS cases; that she is a dedicated and hardworking
employee, who has been with DHHR for seven years, was CPS Worker of the year in 1994,
and works extra hours to keep up with her caseload; and that she needs help, not a
reprimand.
For its part, DHHR established that although all of the CPS workers in its Mercer
County office are overloaded with cases, Grievant is the farthest behind in her work; that
it has made changes to Grievant's working conditions to facilitate her work; that Grievant,
during the period of time relevant to this grievance, had the lowest number of completed
assessments, the highest number of overdue assessments, the highest number of
assessments overdue by more than one year, and the lowest number of contacts entered
in DHHR's Family and Child Tracking System computer system; and that Hagerman issued
the memos, referred to in Findings of Fact four, five, and six, directing Grievant to timely
complete certain caseload tasks.
Accordingly, DHHR has established that Grievant failed to obey reasonable orders
of a superior entitled to give such orders.
Riddle,
supra. While it seems harsh and
probably counter-productive for DHHR to assign a dedicated and hardworking employee
approximately triple the recommended caseload, and then discipline her for falling behindin her work, it is within DHHR's discretion to do so.
(See footnote 1)
As noted in
Bennett v. W. Va. Dep't
of Health and Human Resources/Bureau for Children and Families, Docket No. 99-HHR-
517 (Apr. 26, 2000), this Board does not have authority to second guess a state employer's
employment policy, or substitute its management philosophy for DHHR's.
Skaff v.
Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997),
Kincaid v. W. Va. Div. of Corrections,
Docket No. 98-CORR-144 (Nov. 23, 1998).
Finally, Grievant contends that DHHR should transfer or hire sufficient additional
CPS Workers so that their individual caseloads can be reduced from an average of 34 per
worker per month to the recommended number of ten, so that the children of West Virginia
can be better protected from abuse and neglect. Again, this Grievance Board is without
authority to order a state agency to make a discretionary change its policy.
Skaff,
supra,
Id.
Consistent with the foregoing discussion, the following Conclusions of Law are made
in this matter.
CONCLUSIONS OF LAW
1. In disciplinary matters, the employer has the burden of proving the charges
by a preponderance of the evidence.
W. Va. Code § 29-6A-6;
Evans v. Dep't of Health &
Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997),
Miller v. W. Va. Dep't of
Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997);
Broughton v. W.Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992.).
2. Insubordination involves the "willful failure or refusal to obey reasonable
orders of a superior entitled to give such order."
Riddle v. Bd. of Directors, So. W. Va.
Community College, Docket No. 93-BOD-309 (May 31, 1994);
Webb v. Mason County Bd.
of Educ., Docket No. 26-89-004 (May 1, 1989). Insubordination may also be found when
an employee shows a willful disregard for the implied directions of an employer.
Sexton v.
Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988),
citing Weber v. Buncombe
County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980).
3. In order to establish insubordination, an employer must demonstrate that a
policy or directive that applied to the employee was in existence at the time of the violation,
and the employee's failure to comply was sufficiently knowing and intentional to constitute
the defiance of authority inherent in a charge of insubordination.
Conner v. Barbour County
Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995).
4. Respondent DHHR established, by a preponderance of the evidence, that
Grievant was guilty of insubordination.
5. This Grievance Board is without authority to order a state agency to make a
discretionary change in its policy.
Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787
(1997),
Kincaid v. W. Va. Div. of Corrections, Docket No. 98-CORR-144 (Nov. 23, 1998).
Accordingly, this 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 § 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.
ANDREW MAIER
ADMINISTRATIVE LAW JUDGE
Dated April 28, 2000
Footnote: 1 1 The undersigned notes that there is no evidence in this grievance that
Grievant was not working hard or using her work time effectively. See Bragg v. Div. of
Rehabilitative Serv., Docket Nos. 99-RS-478/398 (Mar. 31, 2000), Dadimsan v. W. Va. Div.
of Rehabilitation Services, Docket No. 98-RS-023/040 (Mar. 25, 1999).