LAURA STONE,
Grievant,
v.
WEST VIRGINIA DIVISION OF CORRECTIONS/
MOUNT OLIVE CORRECTIONAL COMPLEX,
Respondent.
DECISION
Laura Stone (Grievant) was employed by the West Virginia Division of Corrections
(CORR), as a Correctional Officer (CO) IV at the Mount Olive Correctional Complex
(MOCC), until her dismissal on September 10, 1999. She filed this action directly at Level
IV on September 13, 1999, alleging that CORR engaged in discrimination, favoritism,
harassment, arbitrary and capricious decision making, retaliation, unethical practices, and
defamation in dismissing her.
(See footnote 1)
Grievant seeks reinstatement, back pay, reimbursement
of her medical expenses and other costs, attorney fees, and otherwise to be made whole.
(See footnote 2)
A Level IV hearing was held on November 22, 1999, before the undersigned
administrative law judge, at the Grievance Board's Beckley office. Grievant wasrepresented at this hearing by Steven Berryman, and CORR was represented by Joe
Wittington, Esq. The parties were given until December 20, 1999, later extended to
January 14, 2000, to submit proposed findings of fact and conclusions of law, and this
grievance became mature for decision on that date.
(See footnote 3)
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 was employed by CORR as a CO IV/Sergeant, for a period of
approximately seven years, until her dismissal on September 10, 1999. During the period
of time relevant to this grievance, Grievant was the Officer in Charge/Supervisor of
MOCC's Visitation Unit. (Visitation).
2. On or about July 10, 1999, Anna Thomas (Thomas) visited inmate David
Williams (Williams). Thomas carried a .22 caliber pistol and 50 rounds of ammunition
through Visitation and into MOCC's Quilliams II (Q2) unit without detection. She gave the
weapon to Williams, who became nervous about it and returned it to her. Thomas left
MOCC with the weapon and ammunition.
3. Williams is a Class Five inmate, the classification used by CORR for its most
dangerous inmates. He is serving a life sentence without mercy for the 1980 murder of a
McDowell County man. Following an escape from the former state maximum securityprison at Moundsville and seizure of hostages, Williams has been locked down in Q2 for
four years.
4. Q2 is the maximum security unit within MOCC, the state's maximum security
prison. Q2 houses MOCC's most dangerous inmates, the worst of the worst.
5. On July 24, 1999, Sergeant Delana Sandford (Sandford) observed CO
Annetta Hickman (Hickman) performing pat-down searches in Visitation improperly.
Hickman patted only the shoulders and backs of two female visitors, and failed to pat-down
the rest of the visitors' bodies.
6. Sandford is the Officer in Charge/Supervisor of MOCC's Canine Unit.
7. Sandford reported the inadequate pat-downs to Hickman's supervisor,
Grievant, but did not prevent the two female visitors from entering MOCC or record their
names. Sandford did not file an incident report about this event or report it immediately
to her supervisor.
8. On July 31, 1999, Thomas again visited Williams. She was given a pat-down
search by Hickman. Thomas again brought the .22 caliber pistol and 50 rounds of
ammunition through Visitation and into MOCC's Quilliams II unit without detection. On this
occasion Williams kept the weapon and ammunition.
9. On both occasions, Thomas, who is extremely obese, concealed the weapon
in her underwear and the ammunition in her vagina.
10. On July 31, 1999, Visitation's metal detector was not functioning properly.
It had to be replaced by Grievant's successor as Officer in Charge/Supervisor of Visitation,
CO Michael Wagoner (Wagoner). 11. On July 31, 1999, Visitation had no hand wand to check visitors who
activated the unit's metal detector. The use of a hand wand was begun by Wagoner.
12. On August 8, 1999, Williams informed MOCC officials that he wanted to talk
with Deputy Warden Michael Coleman (Coleman) about a gun and two staff members.
Williams was escorted from his cell in Q2 to a multi-purpose room, then to the Q2 visiting
room, then to the holding cell in the security wing, and finally to the office of the Associate
Warden for Security. Before reaching this office, Williams twice used bathroom facilities
unescorted.
13. At several points during Williams' travel from his cell to the office of the
Associate Warden for Security, MOCC regulations required that he be strip-searched.
However, he was strip-searched only upon leaving his cell.
14. Williams was strip-searched without the presence of two COs, in violation of
MOCC policy.
15. Williams was out of sight of COs three times during his travel from his cell
to the office of the Associate Warden for Security, but was not strip-searched upon re-
entering their field of vision, in violation of MOCC policy.
16. In the office of the Associate Warden for Security, Williams met with
Coleman and Executive Assistant Cheryl Chandler, seeking to be restored to the main
population of MOCC. During this meeting, Williams pulled the gun from his waistband.
A struggle followed, during which Williams fired two shots, missing Coleman and Chandler
(gun incident). 17. The gun incident was the worst breach of security ever to occur at MOCC.
During the lockdown that followed it, Q2 inmates did substantial damage to MOCC.
18. Between July 24, 1999, when Sandford spoke to Grievant about Hickman's
inadequate pat-down searches, and August 8, 1999, when Williams fired the gun, Grievant
failed to speak to Hickman about her inadequate pat-down searches.
19. Neither Grievant's, nor Sandford's, actions directly allowed the gun into
MOCC.
20. On or about April 2, 1999, CO Larry Hamlin (Hamlin) allowed 48 inmates out
of their cells simultaneously during a lockdown. Hamlin received a written reprimand for
this incident.
21. On a date not reflected in the record of this grievance, Hamlin allowed
several Q2 inmates out of their cells simultaneously, in violation of MOCC policy. This
resulted in the death by strangulation of inmate Blankenship. Hamlin received no
disciplinary action for this incident.
22. On or about August 24, 1999, Lieutenant Howard Shifflet (Shifflet) brought
a loaded .357 Magnum revolver into the Northern Regional Jail and Correctional Facility
in Moundsville and left it in an unlocked locker. This gun was found by an inmate, who
gave it to authorities without incident. Shifflet was not dismissed for this incident.
23. On or about August 16, 1999, CO Kevin Higginbotham (Higginbotham) left
a loaded shotgun locked in a gun rack in his vehicle, with the vehicle's windows open,
outside of MOCC's administration building. This made the shotgun accessible to aninmate, convicted of murder and serving a life sentence without mercy, who works in that
area. Higginbotham received a written reprimand for this incident.
24.
25. West Virginia Division of Personnel Administrative Rule 12.5 states: [i]n
dismissals for cause and other punishments, appointing authorities shall impose like
penalties for like offenses.
26. MOCC policies limit visitors to bringing four dollars into MOCC. As a result,
some visitors leave their excess money at the Visitation Unit desk and forget to reclaim it
later, or throw money to the ground outside visitation, or into trash cans near Visitation.
27. When Wagoner replaced Grievant as Officer in Charge/Supervisor of
Visitation, he found a plastic bag containing $38.15 in a desk drawer in Visitation. The bag
contained the money left behind or discarded by visitors (money incident).
28. The existence of the bag of money had been common knowledge, for several
years, for all COs working in Visitation.
29. It had been the practice at Visitation, for several years, to keep found monies
and use them for such purposes as giving vending machine refunds and buying pizza. 30. MOCC's Investigator, Charles B. Hudson (Hudson), performed investigations
of the gun incident and the money incident, and prepared detailed and thorough reports
of his findings.
31. On August 21, 1999, Grievant told her successor, Wagoner, within earshot
of visitors, that he was processing visitors too slowly; and that she would assist him when
pigs fly.
32 32.
A CO's work at MOCC is of a paramilitary and hierarchical nature.
DISCUSSION
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.
The administrative rules of the West Virginia Division of Personnel provide that an
employee in the classified service may be dismissed for "cause." 143 CSR § 12.2,
Administrative Rule, W. Va. Div. of Personnel (July 1, 1998). The phrase "good cause" hasbeen determined by the West Virginia Supreme Court of Appeals to apply to dismissals of
employees whose misconduct was of a "substantial nature, and not trivial or
inconsequential, nor a mere technical violation 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
(1985);
Guine v. Civil Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1,
Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980).
CORR based its decision to terminate Grievant upon provisions of its Policy
Directive 400.00 (Policy 400), entitled Employee Standards of Conduct and Performance.
Policy 400 is designed to protect the well-being and rights of all employee[s][,] to assure
safe, efficient government operations and to assure compliance with public law.; to
[e]stablish a fair and objective process for correcting or treating unacceptable conduct or
work performance[.]; and to [d]istinguish between less serious and more serious actions
of misconduct and provide corrective action accordingly[.]
Policy 400 provides three levels of disciplinary offenses. A Class A offense includes
types of behavior least severe in nature but which require correction in the interest of
maintaining a productive and well-managed work force. A Class B offense includes acts
and behavior which are more severe in nature and are such that a Third Class B offense
should normally warrant removal. A Class C offense includes acts and behavior of such
a serious nature that a first occurrence should normally warrant an extended suspension
or removal.
Specifically, CORR alleges that Grievant violated § 407-C-22 and § 407-C-24 by
failing to act when informed of Hickman's inadequate pat-down searches; § 407-C-06 bymaintaining the bag of money referred to in Finding of Fact 27; and § 407-B-23 with her
remarks to Wagoner, referred to in Finding of Fact 31. Each of CORR's charges will be
addressed in turn.
§ 407-C-22: Breach of facility security or failure to report any breach or
possible breach of facility security[,] and § 407-C-24: Other actions of similar
nature and gravity.
(See footnote 5)
CORR alleges that Grievant violated this section by failing to act when informed of
Hickman's inadequate pat-down searches. CORR argues that Grievant's inaction
potentially contributed to a weapon having been introduced to the facility. The evidence
confirms that on July 24, 1999, Sandford observed Hickman performing pat-down searches
in the visiting room improperly, by patting only the shoulders and backs of two female
visitors, and failing to pat-down the rest of the visitors' bodies. Sandford reported the
inadequate pat-downs to Hickman's supervisor, Grievant, but did not prevent the two
visitors from entering MOCC or record their names. Sandford did not file an incident report
about this event or report it immediately to her supervisor, and Grievant did not correct
Hickman's inadequate searches for the fifteen day period preceding the August 8, 1999,
gun incident. Grievant argues that the fact she was disciplined for this incident, and
Sandford was not, constitutes prohibited discrimination under
W. Va. Code § 29-6A-2(d).
W. Va. Code § 29-6A-2(d) defines "discrimination" as "any differences in the
treatment of employees unless such differences are related to the actual job responsibilitiesof the employees or agreed to in writing by the employees." To establish a
prima facie case
of discrimination, Grievant must show:
(a) that she is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that she has, to her detriment, been treated by her employer in a
manner that the other employee(s) has/have not, in a significant particular;
and,
(c) that such differences were unrelated to actual job responsibilities of
the grievant and/or the other employee(s) and were not agreed to by the
grievant in writing.
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).
Once the grievant establishes a
prima facie case, the burden shifts to the employer
to demonstrate a legitimate, nondiscriminatory reason for the employment action.
Id.
However, a grievant may still prevail if she can demonstrate the reason given by the
respondent was mere pretext.
Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260
(Oct. 19, 1989).
Grievant has established that she was similarly situated, in a pertinent way, to
Sandford, in that both were Officers in Charge of MOCC units charged with maintaining
security at MOCC and equally subject to CORR policies. Grievant further established that
she was, to her detriment, treated by her employer in a manner that Sandford was not, in
a significant particular; by being charged with a Class C offense for the incident described
above.
Grievant has also established that the difference between her treatment by CORR
and the treatment CORR afforded Sandford was unrelated to their actual jobresponsibilities,
(See footnote 6)
because she established, by a preponderance of the evidence, that
Sandford was equally culpable for the breach of MOCC security that potentially contributed
to the gun incident.
(See footnote 7)
Warden Painter credibly testified to the paramilitary and hierarchical nature of a
CO's work at MOCC; that if Sandford had corrected Hickman's inadequate pat-downs
immediately, instead of referring the problem to Grievant, the gun incident might have been
prevented; that it would have been good if Sandford had acted immediately to correct the
problem; and that Sandford's failure to file an incident report upon seeing Hickman's
inadequate pat-downs was a paper breach of security.
Major Paul Parry (Parry), Chief Correctional Officer of MOCC, credibly testified that
Sandford created a breach of security when she failed to act immediately to stop the two
female visitors, put them back outside, shut down Visitation and sterilize the unit, and then
document the incident; that Grievant should also have acted immediately when informed
of Hickman's inadequate pat-downs by Sandford; and that Operational Procedure #1.50,
MOCC's General Security Orders, is the bible and backbone of security procedures at
MOCC.
Procedure III of Operational Procedure #1.50 states, in pertinent part; [e]ach staff
member is responsible to immediately report to their supervisor activities related to or
indicating escape, security breaches and contraband trafficking[,] and 10. [s]taff will reportall incidents, unusual occurrences, violations of post orders, operational procedures and
policy directives.
Associate Warden of Security William Vest (Vest) credibly testified that Sandford
should have corrected Hickman's inadequate pat-downs immediately, and then documented
the incident; that Sandford breached security when she let the two female visitors leave the
search room after witnessing Hickman's inadequate pat-downs of them; that Grievant
should also have acted immediately when informed of Hickman's inadequate pat-downs by
Sandford; and that Sandford's failure to take immediate action violated MOCC Canine Unit
General Orders.
MOCC Canine Unit General Orders state, in pertinent part; [i]f the situation requires
a decision be made due to an unfolding tactical event, the officer will use good correctional
judgment and attempt to resolve the situation in the favor of facility security and public
safety. Failure to comply with this post order will be cause for disciplinary action. . . .
Investigator Hudson credibly testified that Sandford did not document or immediately
report Hickman's inadequate pat-downs or notify her superiors, in violation of policy, and
that her failure to stop the two female visitors from entering Visitation meant that any type
of contraband could have gotten in.
Katherine Lucas, the Director of CORR's West Virginia Corrections Academy,
credibly testified that Sandford should have filed a report sooner, and that Sandford
violated the letter of Operational Procedure #1.50, but that Grievant did too.
CO Sandford credibly testified that she did not stop the two female visitors or record
their names; that she did not file an incident report or report the incident to her supervisoruntil one week later;
(See footnote 8)
and that she was trained to correct problems at once. Sandford also
admitted that she violated Operational Procedure #4.15 49.
Operational Procedure #4.15 states, in pertinent part; 49. [i]t is the duty and
responsibility of every employee to report to their supervisor the violation of any of the
above rules by another employee.
With this testimony, from some of the highest ranking officers of MOCC, Grievant
has established a
prima facie case of discrimination. Because CORR has not offered or
proven a legitimate, nondiscriminatory reason for its decision to charge Grievant with this
Class C offense while failing to discipline Sandford at all for her similar offense, Grievant
has established that she was the victim of discrimination by CORR when she was charged
with a violation of Policy 400 § 407-C-22 by CORR.
Accordingly, CORR may not rely on this charge in disciplining Grievant.
§ 407-C-06: Theft or unauthorized removal of state records, state property or
other person's property.
CORR alleges that Grievant violated this section by maintaining the bag of money,
containing $38.15, referred to in Finding of Fact 27. Specifically, Grievant is charged with
violating Procedure XXX (30)
(See footnote 9)
of Operational Procedure #1.50 which states, in pertinent
part, [s]taff will contact their supervisor. . . . if a situation occurs which is not covered by
instructions. Inspector Hudson's report, as well as the credible testimony of COs Valerie Adkins,
Howard Montgomery, and Wagoner, established that visitors leave their excess money at
the visitation room desk and forget to get it later, or throw money to the ground outside
visitation, or into trash cans near Visitation; that the existence of the bag of money was
common knowledge for all COs working in Visitation; that the bag of money had existed for
years; that the money properly belonged in MOCC's Inmate Benefit Fund; and that it had
been the practice at Visitation, for several years, to keep found monies and use them for
such purposes as giving vending machine refunds and buying pizza. Grievant argues that
the fact she was disciplined for this charge and that others, who also knew of and used the
bag of money, were not, constitutes discrimination.
However, Warden Painter credibly testified that Grievant, as Officer in
Charge/Supervisor of Visitation, had a greater duty than her subordinates to follow and
enforce CORR and MOCC policies. Warden Painter's argument is well taken. CORR may
impose different penalties on supervisors and subordinates for the same offense, because
they are not similarly situated.
Pauley v. W. Va. Div. Of Corrections, Docket No. 96-CORR-
543 (Oct. 21, 1997). As Officer in Charge/Supervisor of Visitation, Grievant was not
similarly situated to other, subordinate COs in Visitation who knew of and used the bag of
money. Accordingly, the undersigned concludes that Grievant has failed to establish a
prima facie case of discrimination with respect to this charge.
Nevertheless, the record does not support CORR's characterization of this offense
as a Class C offense. Class C offenses are the most serious under Policy 400, being acts
and behavior of such a serious nature that a first occurrence should normally warrant anextended suspension or removal. Examples of these offenses include violence, theft,
physical inmate abuse, trafficking in contraband, use of drugs, use of unauthorized
firearms, weapons, and explosives, and negligence leading to escape, death or injury.
Generally, Class C offenses concern felonious and life threatening violations. It is
unreasonable to maintain that the offense of failing to deposit found monies in the Inmate
Benefit Fund rises to the level of the Class C offenses listed in Policy 400. It is clearly not
of a similar nature and gravity.
It is reasonable to conclude that this offense constitutes, at worst, a Class B offense,
such as 407-B-2: [f]ailure or delay in following a supervisor's instructions
, performing
assigned work or otherwise complying with applicable established written policy or
procedures[,] or
407-B-7: [u]nauthorized possession or use of, loss of, or damage to
records, state property or property of others. Accordingly, CORR has established that
Grievant committed this Class B offense.
§ 407-B-23: Other actions of a similar nature and gravity. To wit,
unprofessional conduct toward a fellow employee.
CORR alleges that Grievant violated this section with her remarks to Wagoner,
referred to in Finding of Fact 31. Wagoner credibly testified that Grievant told him, within
earshot of visitors, that he was processing visitors too slowly; and that she would assist him
when pigs fly. Grievant presented no evidence to prove that this statement was not made
as Wagoner said it was. Accordingly, this charge is established by a preponderance of the
evidence. Interestingly, the portion of Policy 400 relied upon by CORR does not appear to
exist. The list of Class B offenses in the copy of Policy 400 introduced as Respondent's
Exhibit Five ends with B-22: [s]leeping during working hours while at non-security posts.
However, this is of no importance, because CORR has again overcharged Grievant.
(See footnote 10)
The offense charged is clearly a Class A offense under Policy 400
§ 407-A-4:
[d]isrespectful conduct, use of insulting, abusive or obscene language to or about others.
As noted above, Class A offenses are types of behavior least severe in nature but which
require correction in the interest of maintaining a productive and well-managed work
force[,] a description that encompasses trash talking between employees very well.
See
Davidson v. W. Va. Div. of Corrections, Docket No. 96-CORR-133 (May 9, 1997). CORR
has established that Grievant committed this Class A offense.
CONCLUSION
CORR has established that Grievant committed one Class B offense and one Class
A offense under Policy 400. However, Grievant argues that the punishment imposed for
these offenses, dismissal, is so disproportionate to the discipline imposed by CORR for
similar and greater offenses committed by other COs as to constitute another instance of
discrimination under
W. Va. Code § 29-6A-2(d).
The record in this grievance reflects that Grievant was similarly situated, in a
pertinent way, to other COs who were subject to CORR and MOCC policies, committed
violations of them, and were subject to discipline under Policy 400. Grievant furtherestablished that she was, to her detriment, treated by her employer in a manner that other
COs were not, in a significant particular; by being charged with several offenses, and by
being dismissed, when other COs were not.
Grievant has also established that the difference between her treatment by CORR
and the treatment CORR afforded other COs who violated CORR and MOCC policies was
unrelated to their actual job responsibilities,
(See footnote 11)
because she established, by a
preponderance of the evidence, that other COs committed violations of CORR and MOCC
policies far more serious than hers yet received little or no discipline from CORR.
Warden Painter credibly testified that CO Larry Hamlin (Hamlin) allowed several Q2
inmates out of their cells simultaneously, in violation of CORR policy, which resulted in the
death by strangulation of inmate Blankenship, and that Hamlin received no disciplinary
action for this incident although he should have been fired;
(See footnote 12)
that Hamlin allowed 48
inmates out of their cells simultaneously during a lockdown, and that Hamlin received a
written reprimand for this incident; that CO Kevin Higginbotham (Higginbotham) left a
loaded shotgun locked in a gun rack in his vehicle, with the vehicle's windows open, outside
of MOCC's administration building, which made the shotgun accessible to an inmate,
convicted of murder and serving a life sentence without mercy, who works in that area, andthat Higginbotham received a written reprimand for this incident; and that CO Howard
Shifflet (Shifflet) brought a loaded .357 Magnum revolver into the Northern Regional Jail
and Correctional Facility in Moundsville and left it in an unlocked locker, where it was found
by an inmate, who gave it to authorities without incident; and that Shifflet was not dismissed
for this incident.
Chief Correctional Officer Parry credibly testified that the Higginbotham incident was
a serious breach of security. Associate Warden of Security Vest's credible testimony
confirmed that Hamlin allowed 48 inmates out of their cells simultaneously during a
lockdown, and stated that the Higginbotham incident was a severe breach of security, one
equal to Grievant's violation.
Painter, Parry, and Vest also credibly testified to numerous other breaches of
security surrounding the gun incident that did not result in disciplinary action by CORR.
Such breaches included COs allowing Williams out of their sight three times without
subsequent strip searches on the day of the gun incident, Williams being strip-searched
without the presence of two COs, the failure to strip-search Williams when he entered and
exited Q2, and the failure to search Williams after he had a visitor. Significantly, CORR
produced no evidence, and called no witnesses, to show that these incidents did not occur
as Grievant claims they did. It appears from these violations and the lack of disciplinary
action for them that MOCC officials, while properly concerned that a gun was able to enter
MOCC, were less concerned that a gun could be freely transported by a Class Five inmate
within even the most secure areas of MOCC. It must be noted that the Higginbotham incident described above had the direct effect
of placing an inmate incarcerated for murder in the vicinity of a loaded shotgun. The Shifflet
incident had the direct effect of placing a loaded gun in an inmate's hand, and one of the
Hamlin incidents directly resulted in the death of an inmate.
(See footnote 13)
In contrast, no evidence was presented to show that Grievant's, or Sandford's,
actions directly allowed the gun into MOCC. Warden Painter credibly testified that he did
not know whether Grievant's failure to correct Hickman's inadequate pat-downs allowed the
gun to enter MOCC, and that there is no evidence that Hickman did a bad pat-down on the
day of the gun incident. Hudson's investigation report also does not conclude that
Grievant's failure to correct Hickman's inadequate pat-downs allowed the gun into MOCC.
Such a conclusion is impossible due to the combination of circumstances surrounding the
entry of the gun, including the failure of the metal detector, the absence of a hand wand,
contradictory evidence regarding whether Thomas' extreme obesity precluded an effective
pat-down search, and the numerous other breaches of security that contributed to the gun
incident, described above. This conclusion is supported by CORR's letter of September
10, 1999, dismissing Grievant, which cited her inaction as potentially contributing to the
gun incident, and by a memo concerning the gun incident from Warden Painter, dated
August 16, 1999, which stated it is already apparent that we had a number of breaches in
security to allow this incident to occur. Grievant has again established a
prima facie case of discrimination. Because CORR
has not offered or proven a legitimate, nondiscriminatory reason for its decision to dismiss
Grievant while failing to similarly discipline other COs for similar and greater offenses,
Grievant has established that she was the victim of discrimination by CORR with respect
to the punishment, dismissal, imposed by CORR.
(See footnote 14)
This is also a plain violation of West
Virginia Division of Personnel Administrative Rule 12.5, which states: [i]n dismissals for
cause and other punishments, appointing authorities shall impose like penalties for like
offenses[,] as well as Policy 400's requirement of a fair and objective process for
correcting or treating unacceptable conduct or work performance and its mandate to
[d]istinguish between less serious and more serious actions of misconduct and provide
corrective action accordingly[.]
Ordinarily, the undersigned could not sustain a disciplinary action in the face of the
overwhelming proof of discrimination present in the record of this grievance. However, this
disciplinary action concerns the most serious breach of security ever to occur at MOCC.
Under these extraordinary circumstances, CORR's failure to similarly discipline other COs,
such as Sandford, who also potentially contributed to a gun being permitted into MOCC,
or such as Hamlin, Higginbotham, and Shifflet, who committed offenses equal to or greater
than Grievant's, will not stand as a complete bar to discipline of some sort. Therefore, the only issue remaining to be resolved is what discipline should be
imposed.
W. Va. Code § 29-6A-5(b) provides that "[h]earing examiners may provide relief
as is determined fair and equitable in accordance with the provisions of this article, and
take any other action to provide for the effective resolution of grievances not inconsistent
with any rules or regulations of the board or the provisions of this article[.]" In construing
the virtually identical language of
W. Va. Code § 18-29-5, regarding the grievance
procedure for education employees, the West Virginia Supreme Court of Appeals in
Graf
v. West Virginia University, 189 W. Va. 214, 429 S.E.2d 426 (1992), held as follows:
[c]learly the Legislature intended to give the examiners who hear the grievances the power
to fashion any relief they deem necessary to remedy wrongs done to educational
employees by state agencies.
Under Policy 400, a first Class A offense warrants a reprimand to a five day
suspension, with a second such offense warranting a suspension of from six to fifteen days,
a third such offense warranting a suspension of 16 days through dismissal, and a fourth
such offense normally warranting dismissal.
A first Class B offense warrants a suspension of from five to fifteen days, with a
second such offense warranting a suspension of from sixteen to thirty days, and a third
such offense warranting a suspension of 31 days through dismissal.
Respondent CORR has failed to prove, by a preponderance of the evidence, that it
had good cause to dismiss Grievant,
Buskirk,
supra, inasmuch as its Policy 400 does not
contemplate an employee's dismissal for a first Class A offense and a first Class B offense. Consistent with this Board's authority to fashion relief, and bearing in mind the
gravity of the gun incident, the following relief is deemed fair and equitable in this
grievance. Respondent CORR will be ordered to suspend Grievant for the maximum period
of time under the range of penalties set forth in Policy 400 for one Class A first offense, five
days, and one Class B first offense; 15 days, for a total of 20 days suspension without
pay.
(See footnote 15)
CORR will be required to reimburse her for her lost wages and benefits, including
any overtime that she would have worked had she not been dismissed, with interest; to
remove any reference to her dismissal from her file; to grant her any promotions to which
she would have been entitled had she not been dismissed, and to restore her seniority.
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 ofHealth & 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. Dismissal of an employee in the classified service must be for good cause,
which means misconduct of a "substantial nature, and not trivial or inconsequential, nor a
mere technical violation 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 (1985);
Guine v. Civil
Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1,
Oakes v. W. Va. Dep't
of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980).
3. Discrimination is defined as "any differences in the treatment of employees
unless such differences are related to the actual job responsibilities of the employees or
agreed to in writing by the employees."
W. Va. Code § 29-6A-2(d).
4. To establish a
prima facie case of discrimination, Grievant must show:
(a) that she is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that she has, to her detriment, been treated by her employer in a
manner that the other employee(s) has/have not, in a significant particular;
and,
(c) that such differences were unrelated to actual job responsibilities of
the grievant and/or the other employee(s) and were not agreed to by the
grievant in writing.
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).
Once the grievant establishes a
prima facie case, the burden shifts to the employer
to demonstrate a legitimate, nondiscriminatory reason for the employment action.
Id.
However, a grievant may still prevail if she can demonstrate the reason given by therespondent was mere pretext.
Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260
(Oct. 19, 1989).
5. Grievant established, by a preponderance of the evidence, that she was the
victim of discrimination by CORR when she was charged with a violation of Policy 400 §
407-C-22 by CORR.
6. Grievant established, by a preponderance of the evidence, that she was the
victim of discrimination when CORR dismissed her while failing to similarly discipline other
COs for similar and greater offenses.
7. In dismissals for cause and other punishments, appointing authorities shall
impose like penalties for like offenses. West Virginia Division of Personnel Administrative
Rule 12.5.
8 8.
Respondent CORR failed to impose like penalties for like offenses.
9. Respondent CORR proved, by a preponderance of the evidence, that
Grievant committed one Class B first offense by maintaining a bag of money in MOCC's
Visitation unit, and one Class A first offense by using disrespectful language to another CO.
10.
W. Va. Code § 29-6A-5(b)
authorizes the undersigned to provide such relief
as is fair and equitable.
11. Under CORR's Policy 400, a first Class A offense warrants a reprimand to a
five day suspension, and a first Class B offense warrants a suspension of from five to
fifteen days.
12. In light of the gravity of the breach of security that formed the basis for the
discipline imposed on Grievant, suspension for the maximum period of time under the range
of penalties set forth in Policy 400, for the offenses proved, was appropriate.
Accordingly, this grievance is
GRANTED, and Respondent CORR is
ORDERED to
suspend Grievant for 20 days without pay; to reimburse her for her lost wages and benefits,
including any overtime that she would have worked had she not been dismissed, with
interest; to remove any reference to her dismissal from her file; to grant her any promotions
to which she would have been entitled had she not been dismissed, and to restore her
seniority.
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: February 10, 2000
Footnote: 1 15 In making this determination, the undersigned is aware that Policy 400
permits increased penalties when aggravating circumstances exist. Policy 400 § 4.02-A
states [w]hen in the judgment of the Commissioner, and/or the appointing authority,
aggravating circumstances exist specified corrective action or sanctions may be
increased. However, because CORR made no finding of aggravating circumstances in
its letter, dated September 10, 1999, dismissing Grievant, because CORR did not argue,
either at the Level IV hearing or in its proposed findings of fact and conclusions of law, that
aggravating circumstances exist, and due to the egregious extent of the discrimination
proved, Grievant's penalty will not be increased beyond the range of penalties set forth in
Policy 400. To the extent that the gravity of the gun incident might represent aggravating
circumstances, Grievant has been assessed the maximum penalties, within the range of
penalties set forth in Policy 400, for the offenses proved.