NICK WOUNARIS, JR.,
Grievant,
v. Docket No. 99-BOD-422
BOARD OF DIRECTORS/
WEST VIRGINIA STATE COLLEGE,
Respondent.
DECISION
This grievance was filed by Grievant Nick Wounaris against the Board of
Directors/West Virginia State College, Respondent ("WVSC"), on or about August 20,
1999. The statement of grievance reads:
I am protesting my termination outlined in the letter from Cassandra Whyte
dated 5-19-99. Since I have already prevailed in a prior grievance, this
second termination is an act of blatant retaliation.
(See footnote 1)
The stated relief sought is, "I am requesting my continued employment, and the dismissal
of Cassandra Whyte [and] Hazo Carter, Jr. from employment at W. Va. State College as
disciplinary action for insubordination arising from their reprisal actions."
(See footnote 2)
Grievant was employed by WVSC as Assistant Vice President of Administrative
Affairs and Director of Support Services, an at-will position, until his dismissal on October
8, 1998. This action was grieved, and by Decision dated May 18, 1999, Grievant prevailed
on his claim that WVSC had defaulted at the informal conference stage of the grievance
procedure, and WVSC was ordered to reinstate Grievant to his former position of Assistant
Vice President for Administrative Affairs, with full back pay and benefits, plus interest from
the effective date of his discharge. The decision did not address whether the facts
supported a conclusion that Grievant had been the victim of race discrimination, nor was
a specific determination made that this was the case.
(See footnote 3)
That is, there was no ruling as to
whether there was any merit to Grievant's allegations. Grievant was reinstated and
awarded back pay and benefits because that is the type of relief which this Grievance
Board could grant to an at-will employee who had been the victim of race discrimination;
therefore, the decision found such relief was not clearly wrong or contrary to law.
(See footnote 4)
On May 19, 1999, WVSC again dismissed Grievant from his employment. Grievant
did not report to work at WVSC between the issuance of the Level IV decision granting his
claim of default and reinstating him, and the time the dismissal letter was issued.
Grievant argued he was fired the second time in retaliation for prevailing in his first
grievance. He argued that the first grievance found that WVSC had discriminated against
him, and as he had not been employed at WVSC between the time of his first firing andhis second firing, nothing new could have happened to support a firing; therefore, the
second firing had to be in retaliation for losing the first grievance.
Respondent argued:
West Virginia State College terminated Grievant's employment because the
administration lost confidence in his ability to perform his job duties.
Grievant's past legal actions against the Grievance Board [sic] does not
guarantee him permanent employment with WVSC nor does it insulate him
from normal personnel actions taken by WVSC. West Virginia State College
did not lose its right to terminate, Grievant, a will and pleasure employee, for
loss of confidence in his ability to perform his job duties simply because
Grievant took prior legal action against the Institution. In this case, Dr.
Whyte, Grievant's immediate supervisor, lost confidence in his ability to
perform his job duties in October of 1998. Following his termination,
Grievant did nothing to restore that confidence and in fact acted in a manner
that only contributed to Dr. Whyte's already present lack of faith in his
abilities. Grievant's employment was terminated as [a] result.
As an at-will employee, Grievant could be terminated for good reason, no reason,
or bad reason, provided that he was not terminated for a reason that violates a substantial
public policy.
Williams v. Brown, 190 W. Va. 202, 437 S.E.2d 775 (1993).
See Williams
v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995);
Harless v. First Nat'l Bank,
162 W. Va. 116, 246 S.E.2d 270 (1978);
Wilhelm v. Dep't of Tax & Revenue, Docket No.
94-L-038 (Sept. 30, 1994)
,
aff'd sub nom Wilhelm v. W. Va. Lottery, 198 W. Va. 92, 479
S.E.2d 602 (1996). The burden of proof is upon the at-will employee grievant to
demonstrate a violation of substantial public policy. If this burden is not met, the reasons
for the termination are not at issue, and the termination stands.
This Grievance Board stated in
Wilhelm,
supra, addressing the issue of what
constitutes a violation of substantial public policy:
the discrimination provision of the grievance procedure was not intended to
restrict or limit a State agency's ability to terminate the employment of
statutorily at-will employees. See Williams, supra. The West Virginia
Supreme Court held in Williams, supra, that a duty of good faith and fair
dealing is not owed to an at-will employee in the public sector. Id. at 781.
The Court reasoned that to impose this duty would be contrary to the
general principles . . . that grant the appointing authority an unfettered right
to terminate an appointee. Id. The Court reported it found no jurisdiction
that imposed a duty of good faith and fair dealing upon employers in at-will
public employment and refused to impose such a duty.
The Supreme Court of Appeals of West Virginia found in
Williams v. Brown,
supra,
that termination of an at-will employee for exercising certain constitutional rights is a
violation of substantial public policy. Further, in
Birthisel v. Tri-Cities Health Services
Corp., 188 W. Va. 371, 424 S.E.2d 606 (1992), the Court stated in Syllabus Point 2:
To identify the sources of public policy for purposes of determining whether
a retaliatory discharge has occurred, we look to established precepts in our
constitution, legislative enactments, legislatively approved regulations, and
judicial opinions.
Respondent did not dispute that Grievant's claim of retaliation or reprisal would
constitute a claim sufficient to meet the violation of substantial public policy standard; and
it appears to the undersigned that it would be.
Birthisel,
supra;
McClung v. Marion County
Bd. of Educ., 178 W. Va. 444, 360 S.E.2d 221 (1987).
W. Va. Code § 18-29-3(h)
specifically provides that [n]o reprisals of any kind shall be taken by any employer or
agent of the employer against any interested party, or any other participant in the
grievance procedure by reason of such participation. A reprisal constitutes a grievance,
and any person held to be responsible for reprisal action shall be subject to disciplinary
action for insubordination.
Reprisal is defined by statute as "retaliation of an employer or agent toward a
grievant or any other participant in the grievance procedure either for an alleged injury
itself or any lawful attempt to address it."
W. Va. Code § 18-29-2(p). In order to establish
a
prima facie case of reprisal, a grievant must
prove the following elements:
1) that he/she engaged in protected activity, e.g. filing or participating in a
grievance;
2) that he/she was subsequently treated in an adverse manner by the
employer or an agent;
3) that the employer's official or agent had actual or constructive knowledge
that the employee engaged in the protected activity;
4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment;
and/or
5) the adverse action followed the employee's protected activity within such
a period of time that retaliatory motivation can be inferred.
Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
See
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251
(1986) ;
Fareydoon-Nezhad v. W. Va. Bd. of Trustees at Marshall Univ., Docket No. 94-
BOT-088 (Sept. 19, 1994);
Webb v. Mason County Bd. of Educ., Docket No. 89-26-56
(Sept. 29, 1989).
Respondent also did not dispute that Grievant had met his burden of establishing
a
prima facie case of reprisal, and it is clear that he has done so. If a grievant establishes
a
prima facie case of reprisal, the employer may rebut the presumption of retaliation by
offering legitimate, non-retaliatory reasons for the adverse action. If the respondent rebuts
the claim of reprisal, the employee may then establish by a preponderance of the evidence
that the offered reasons are merely pretextual.
Webb,
supra.
Respondent argued it had
successfully rebutted the presumption by establishing a legitimate, non-retaliatory reason
for firing Grievant. Indeed, it has done so. Obviously a termination immediately following
reinstatement by a Grievance Board decision, where the employee never even resumed
his duties, is suspect. However, under the facts presented in this grievance, the decision
to terminate Grievant a second time was based upon legitimate reasons, given his status
as an at-will employee.
As Assistant Vice President of Academic Affairs, Grievant was in a position of
responsibility at WVSC. He was primarily responsible for food services, public safety, and
the office of human resources. He was also responsible for filling in for Dr. Cassandra
Whyte, as Vice President of Administrative Affairs, in her absence. It was important that
the Administration have confidence in him, and vice versa. Various witnesses testified to
the importance of Grievant's position to WVSC, and how critical it was that the
administrators at WVSC trust each other in order to be able to effectively work together
for the benefit of WVSC. Dr. Whyte testified that Grievant's position had authority overcrucial areas of the institution, and she had to have absolute trust in the individual serving
in that position, and the person serving in that position must be extremely professional,
dependable, and credible, and able to work effectively with many WVSC employees.
Both Dr. Whyte and Dr. Hazo W. Carter, Jr., President of WVSC, testified that they
had lost confidence in Grievant and in his ability to perform his job. Dr. Whyte was
adamant about this. It is clear from their testimony that this loss of confidence occurred
prior to the time Grievant was first terminated, and it is not likely that they had forgotten
the reasons for this when he was terminated the second time. However, they observed
Grievant during the grievance process after his first termination, and found his statements
given under oath during that process to be incredible. In addition, employees came
forward after Grievant's first termination and disclosed information to Dr. Whyte about
Grievant, which she had not previously been aware of, and which further eroded her
confidence in Grievant.
Dr. Carter testified he made the decision to terminate Grievant, based upon Dr.
Whyte's recommendation. He stated he was not retaliating against Grievant, and he had
no reason to do so. He stated that as President of WVSC for over 12 years, he had
confidence in Dr. Whyte's judgement, and accepted her recommendation. He explained
that Dr. Whyte had expressed her concerns to him with Grievant's dependability and
trustworthiness, and had conveyed to him some of the comments she had received from
other employees. He also stated, however, that he had personally observed Grievant
during the Level IV hearing held in the previous grievance, when Grievant had testified
that Dr. Carter had promised to make him a vice president, and he knew that he had not
made that promise to Grievant.
Dr. Whyte testified that employees came to her after Grievant's first termination and
told her Grievant had acted in an intimidating manner, his behavior had been irrational or
outrageous, and they were afraid of him. Employees told her Grievant lacked credibility,and they would have a difficult time working with him again.
Dr. Whyte stated that Grievant had returned to campus after his first termination and
directed employees to make copies for him. He would use employee's telephones. He
would barge into offices and state he would be back at a particular time, without inquiring
as to whether the person would be available then. His dress and cleanliness were also
questioned. She testified that Dr. John Fuller, Director of Registration and Records, had
told her he was not quite sure how to take Grievant's behavior when he popped onto
campus after the first termination. Dr. Erwin Griffin, Vice President for Student Affairs, had
told her he was concerned about Grievant's credibility, and that Grievant's behavior
seemed somewhat outrageous, in that, after the first termination, he would come onto
campus, enter offices, demand that documents be copied, and tell individuals he would be
returning calls to them at certain times.
She stated Carmen Parrish, Director of the Budget, expressed concern about
Grievant's work ethic and habits, and told her she was taken aback by Grievant barging
in after his first termination and stating, make a copy of this. She testified that Ms.
Parrish had asked Grievant to leave the office of the Director of Fiscal Affairs, when he
had entered his office after the secretary told him not to, and used the telephone for a half
hour, placing telephone calls to state agencies, and asking that calls be returned to him
at that office.
Dr. Whyte testified that Lawrence Smith, Director of Fiscal Affairs, had shared with
her telephone conversations he had with Grievant, including one the day before the
hearing in which Grievant had told him, 'I'm not mad at you, Lawrence, for this and give
Dr. Whyte the message that she can expect to have to address my payment tomorrow.'
While Grievant saw this as being polite, Dr. Whyte saw it as intimidating behavior. He had
also told her about Grievant demanding copies and using employee's telephones.
She testified that Helen King, her secretary, brought Grievant's work ethic to herattention after the first termination. She also told her other employees were nervous about
Grievant calling them.
She stated that, after the first termination, Karleen Slaughter, Grievant's secretary,
expressed concern to her about Grievant's work ethic.
She also testified that Grievant had misrepresented his title and duties under oath
during the grievance proceedings following the first termination. She stated he had
testified he was Internal Auditor, and had assumed the job duties of the Internal Auditor,
Mr. James. She stated he had never held this position. She stated she was not sure
Grievant knew what his job was, as his testimony was that he was doing Mr. James' job,
her job, Lawrence Smith's job, Dr. Carter's job, and was filling in for the Chancellor of the
State College and University Systems. She stated she lost faith in Grievant's credibility
when she heard him say at the hearings in the first grievance that he was the selected
candidate for her position, while three people testified that was not true; that he was the
senior administrator at WVSC; that Dr. Carter had indicated to him that he was going to
create a position for him and give him $20,000 more; and that he chaired the search
committee which chose Dr. Carter, when the former president had been the chair. She
stated at some point during the process she formed the belief for the first time that what
she had put down to honest mistakes on Grievant's part were in fact deliberate acts of
manipulation.
Grievant found Dr. Whyte's testimony regarding conversations she had with other
employees about Grievant to be incredible. He called a number of witnesses in an effort
to discredit Dr. Whyte's testimony. Of those witnesses, only one, Dr. Fuller, said he had
not made unfavorable comments to Dr. Whyte about Grievant. Dr. Whyte did not testify
with certainty that Dr. Fuller had talked to her about Grievant, but rather, stated, that
possibly he was one of the employees who had talked to her. The testimony of the
remainder of these witnesses supported Dr. Whyte's testimony. Grievant called other witnesses who reported that they had a fine working
relationship with Grievant, that Grievant had been helpful, and that they would have no
problem working with Grievant again. However, those witnesses who testified they would
have no concerns with Grievant returning to WVSC, or working with him really had not had
much contact with Grievant once he began working in the position of Assistant Vice
President of Administrative Affairs, and none of those witnesses had been identified by Dr.
Whyte as employees who had spoken to her about Grievant.
Grievant's secretary at the time of his termination, Ms. Slaughter, stated that,
although she and Grievant had a good working relationship for ten years, when he was in
the office, she would not want to be his secretary again. She explained that being
Grievant's secretary was stressful. He was not in the office on a regular basis, and many
times she had to try to find him quickly when Dr. Carter or Dr. Whyte was looking for him.
She stated she did not know where he was, but she had telephone numbers he had given
her for the Goldmine in Dunbar, and J.J.'s in South Charleston, and she would try to find
him at those places during work hours. She stated that after Grievant's first termination,
she had talked to Dr. Whyte about Grievant's absences from work to verify what Dr. Whyte
was being told by others. She stated she felt a sense of loyalty to Grievant while he was
still her supervisor, so she had not brought this to Dr. Whyte's attention before. She stated
he had said things to people that she could not believe, such as calling Dr. David Wohl a
butthole in a meeting.
Erwin Griffin, Vice President of Student Affairs, testified that Grievant often was not
in his office during work hours when he had needed to speak with him. He stated that he
would not want to work with Grievant, and he would not have confidence that he could trust
him.
R. Charles Byers, Vice President for Planning and Advancement, stated that he had
always had a good working relationship with Grievant, Grievant had always been helpful,and he would not have a problem working with him now; but thought others at WVSC might
have a problem working with Grievant, and Grievant might have a problem. He did not see
how Grievant could function effectively with some other WVSC employees, if Grievant
returned to the same position.
Barbara Rowell, Director of Human Resources at WVSC, testified she had been
Grievant's subordinate. She stated they had worked closely together and had a good
working relationship. However, she stated she had reservations or concerns about
Grievant returning to WVSC, due to things he has written about WVSC administrators,
which did not indicate he had a positive attitude toward the college, and would put a strain
on relationships. She stated she personally would have a problem with him returning as
her supervisor.
Vicki Barnes, Manager of Food Services at WVSC, testified that Grievant had been
her supervisor, and they had a friendly, open working relationship. She stated Grievant
had a looser management style from what she was used to, and she acted
independently. She stated Grievant never turned her away when she had a question, but
he often was unavailable when she needed him. She stated she sometimes did not know
which choice she should go with, she would have to make the decision on her own, and
if there was a problem, they would have to deal with it later. She further testified that there
were times Grievant had led her to believe that everything was taken care of with regard
to a particular matter, and she would relax and not worry anymore, and then find out the
matter was not taken care of. She stated, nonetheless, that she would not personally have
a problem working with Grievant, but his return would cause a lot of uneasiness on
campus.
Robert Huston, Director of Computer Services at WVSC, testified that he did not
have much of a working relationship with Grievant, but what relationship they had was
okay. He stated he would not have a problem working with Grievant, but it was hispersonal opinion that he was not sure that it would be in the best interest of the college for
Grievant to return to work there.
Helen King, Grievant's first secretary at WVSC, and now Executive Secretary to the
Vice President for Administrative Affairs (Dr. Whyte), testified that Grievant had always
been very helpful to students, when he was there. She stated Grievant had been very
helpful to her when he was first employed at WVSC, and she had defended him when
other employees had made negative comments about him. She concluded, however, that
in recent years, Grievant had demonstrated a lack of professionalism and integrity, and
had been rude. She explained that the last six to eight months Grievant was employed at
WVSC he had been observed in shouting matches with the Vice President for Academic
Affairs during meetings, and he had called an academic dean a butthole in a meeting,
and when he returned to his office he told the employees about this. She stated she is in
charge of keeping track of leave in the administrative affairs office. She stated during the
last six months of his employment, Grievant had missed a lot of work, but had not turned
in leave slips. She would have to ask his secretary for leave slips so she could finish her
reports. She stated he demonstrated a lack of consideration for his most recent secretary,
as he was not on campus when administrators were looking for him, and she would have
to try to track him down. She confirmed that she had spoken to Dr. Whyte about
Grievant's absences and her observations of his actions after his first termination. She
explained she liked Grievant and did not want to say anything bad about him before then,
but that she had a misguided sense of loyalty. She candidly stated if Grievant returned
to WVSC in the same position she would probably do something she did not want to do:
retire.
Grievant argued that those witnesses who said negative things about him were
under the immediate control of Dr. Whyte or Dr. Carter. While that may be true, it is also
true that those witnesses who had no problems with working with Grievant had not hadmuch contact with him in recent years; while those who were most adamant that they
would not work with him again were those who had worked closely with him in recent
years. Grievant did not dispute any of the statements regarding his actions recounted
above, except to suggest as he questioned her, that he was not responsible for Ms.
Barnes' belief in a particular instance that everything was under control when it was not.
The testimony of these witnesses was quite straightforward. Several of them expressed
sorrow that they were compelled to recount these incidents, and tell Grievant to his face
when he was questioning them that he was unprofessional, lacked integrity, and they
would not want to work with him again; but as Ms. King stated, it's the truth.
WVSC has met its burden of proof. While it is possible that the concerns of Dr.
Whyte and others employed at WVSC may not have been sufficiently egregious to support
the good cause standard for termination of a tenured state employee, they certainly were
legitimate concerns about someone in Grievant's position. Grievant was in an important
position at WVSC, and the administrators who would have to work with him closely no
longer have confidence in his ability to perform his job, no longer trust him, and do not
believe he exhibits professional behavior conducive to achieving the goals of WVSC.
Further, he obviously did not demonstrate dedication to WVSC, as he was not on campus
when he was expected to be there to carry out his job duties. Grievant was an at-will
employee, and WVSC no longer desired to employ him in this important position, as his
continued employment was not in the best interests of WVSC. WVSC is not required to
continue to employ Grievant as its representative in this at-will position.
The following findings of fact have been properly made from the record developed
at Levels II and IV.
Findings of Fact
1. Grievant was first employed by WVSC in the mid-1980's. Most recently he
was Assistant Vice President for Administrative Affairs and Director of Support Services. He was an at-will employee.
2. As Assistant Vice President of Administrative Affairs, Grievant was in a
position which was very important to WVSC. He was responsible for food services, the
office of human resources, and public safety. He was also responsible for filling in for Dr.
Cassandra Whyte, as Vice President of Administrative Affairs, in her absence. In order
to effectively serve WVSC, it is critical that other administrators at WVSC trust and have
confidence in the person serving in this position, and vice versa.
3. Grievant's employment was terminated by letter from Vice President of
Administrative Affairs, Dr. Cassandra Whyte, his immediate supervisor, on October 8,
1998. The letter stated he was being dismissed because of loss of confidence.
4. Grievant filed a grievance over his first termination, alleging race
discrimination. Grievant proved WVSC defaulted on his first grievance, and he was
reinstated to his position by decision of this Grievance Board dated May 18, 1999. The
merits of Grievant's allegations of race discrimination were not reached in that decision,
and no finding was made in that decision as to whether Grievant's termination was the
result of race discrimination.
5. Grievant was terminated again on May 19, 1999. He never served in his
position between the time of his first termination and his second termination.
6. Dr Cassandra Whyte, Vice President of Administrative Affairs, has no
confidence in Grievant's ability to perform his duties, and believes that Grievant lacks
credibility. While Dr. Whyte had made her own observations of Grievant which formed
these beliefs, others at WVSC came to her after Grievant was terminated the first time and
shared information with her about Grievant for the first time, which reinforced the
conclusions she had drawn about Grievant.
7. Many employees at WVSC, including administrators, do not trust Grievant,
and have no confidence in his abilities. These employees could not work effectively withGrievant, and it is not in the best interest of WVSC for Grievant to return to work at WVSC
in an administrative capacity.
The following Conclusions of Law support the Decision reached.
Conclusions of Law
1.
As an at-will employee, Grievant could be terminated for good reason, no
reason, or bad reason, provided that he was not terminated for a reason that violates a
substantial public policy.
Williams v. Brown, 190 W. Va. 202, 437 S.E.2d 775 (1993).
See
Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995);
Harless v. First
Nat'l Bank, 162 W. Va. 116, 246 S.E.2d 270 (1978);
Wilhelm v. Dep't of Tax & Revenue,
Docket No. 94-L-038 (Sept. 30, 1994)
,
aff'd sub nom Wilhelm v. W. Va. Lottery, 198 W.
Va. 92, 479 S.E.2d 602 (1996). The burden of proof is upon the at-will employee grievant
to demonstrate a contravention of substantial public policy. If this burden is not met, the
reasons for the termination are not at issue, and the termination stands.
2. A duty of good faith and fair dealing is not owed to an at-will employee in the
public sector.
Wilhelm,
supra.
3. Reprisal is defined by statute as "retaliation of an employer or agent toward
a grievant or any other participant in the grievance procedure either for an alleged injury
itself or any lawful attempt to address it."
W. Va. Code § 18-29-2(p). In order to establish
a
prima facie case of reprisal, a grievant must
prove the following elements:
1) that he/she engaged in protected activity, e.g. filing or participating in a
grievance;
2) that he/she was subsequently treated in an adverse manner by the
employer or an agent;
3) that the employer's official or agent had actual or constructive knowledge
that the employee engaged in the protected activity;
4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment;
and/or
5) the adverse action followed the employee's protected activity within sucha period of time that retaliatory motivation can be inferred.
Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
See
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251
(1986) ;
Fareydoon-Nezhad v. W. Va. Bd. of Trustees at Marshall Univ., Docket No. 94-
BOT-088 (Sept. 19, 1994);
Webb v. Mason County Bd. of Educ., Docket No. 89-26-56
(Sept. 29, 1989).
4. Grievant established the elements necessary for a
prima facie case of
reprisal, and has established a contravention of substantial public policy in his second
termination.
5. If a grievant establishes a
prima facie case of reprisal, the employer may
rebut the presumption of retaliation by offering legitimate, non-retaliatory reasons for the
adverse action. If the respondent rebuts the claim of reprisal, the employee may then
establish by a preponderance of the evidence that the offered reasons are merely
pretextual.
Webb,
supra.
6. WVSC established legitimate, non-retaliatory reasons for terminating
Grievant's employment. The Administration at WVSC lost confidence that he was capable
of effectively performing his job duties, and no longer felt they could trust or depend on
Grievant.
7. Grievant presented no evidence that the offered reasons were merely
pretextual.
Accordingly, this grievance is
DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County. Any
such appeal must be filed within thirty (30) days of receipt of this decision.
W. Va. Code
§18-29-7. 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
Dated: May 15, 2000
Footnote: 1 Since the time of the decision reinstating Grievant, this Grievance Board has
determined that the presumption that an employee has prevailed on his claim when he
proves a default has occurred is rebuttable. In order to rebut the presumption, a
respondent must present clear and convincing evidence that the basic facts underlying the
asserted presumption are not true. Lohr v. Div. of Corrections, Docket No. 99-CORR-
157D (Nov. 15, 1999). The decision reinstating Grievant did not address whether
Respondent had met this burden. Grievant presented no evidence in the instant grievance
which would in any way suggest that he was the victim of discrimination. Whether he
presented such evidence in the first grievance is unknown to the undersigned.