ANNETTA HICKMAN,
                  Grievant,

      v.

DOCKET NO. 99-CORR-375

WEST VIRGINIA DIVISION OF CORRECTIONS,

                  Respondent.

D E C I S I O N


      Grievant, Annetta Hickman, Correctional Officer I (“COI"), filed this grievance on September 14, 1999, protesting her dismissal from the West Virginia Division of Corrections (“Corrections”), effective September 10, 1999:

      Following several continuances for good cause, this matter came on for hearing in the Grievance Board's Charleston, West Virginia, office on April 20, 2000.   (See footnote 2)  Corrections was represented by its attorney, Leslie K. Tyree, Esq., and Grievant was represented by Elaine Harris, Communications Workers of America. This matter became mature fordecision on June 1, 2000, the deadline for the parties' proposed findings of fact and conclusions of law.   (See footnote 3) 
SUMMARY OF EVIDENCE

Correction's Exhibits
Ex. 1 - Ex. 2 - Ex. 3 - Ex. 4 -
Grievant's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 - Ex. 7 - Ex. 8 - Ex. 9 - Ex. 10 - Ex. 11 - Ex. 12 - Ex. 13 - Ex. 15 - Ex. 16 - Ex. 17 -
Testimony

      Corrections presented the testimony of Charles Hudson, Kathryn Lucas, Delena Sanford, and Howard Painter. Grievant testified in her own behalf, and presented the testimony of Paul Parry and William Vest.

FINDINGS OF FACT

      I find, by a preponderance of the evidence, the following facts.
      1.      Grievant was employed by Corrections as a CO I at the Mt. Olive Correctional Complex (“Mt. Olive”), from March 26, 1996, until her dismissal from employment on September 20, 1999.
      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 Mt. Olive's Quilliams II unit without detection. She gave the weapon to Williams, who became nervous about it and returned it to her. Thomas left Mt. Olive with the weapon and ammunition. G. Exs. 2, 4.
      3.      Williams is a Class Five inmate, the classification used by Corrections for its most dangerous inmates. Following an escape from the former state maximum security prison at Moundsville and seizure of hostages, Williams has been locked down in Quilliams II for four years.      4.      Quilliams II is the maximum security unit within Mt. Olive, the state's maximum security prison. Quilliams II houses Mt. Olive's most dangerous inmates, the “worst of the worst.”
      5.      On July 24, 1999, a Saturday, Sergeant Delena Sanford (Sanford) observed Grievant performing improper pat-down searches in Visitation. Sanford is the Officer in Charge/Supervisor of Mt. Olive's canine unit.
      6.      A proper pat-down search includes, but is not limited to, a search of the head and neck, arms and torso, and groin, legs and buttocks. Officers are advised not to “manipulate” the groin area, but they are to physically touch that area in the pat-down search. G. Ex. 6.
      7.      On July 24, 1999, Grievant did not pat-down the legs, groin and buttocks of two female visitors before allowing them to enter the Visitation area.
      8.      Sanford immediately reported Grievant's improper pat-down searches to Grievant's supervisor, Laura Stone (“Stone”), but did not talk to Grievant directly, nor did she prevent the visitors from entering the Visitation area, or document the incident. Stone told Sanford she would take care of it.
      9.      The following Monday, July 26,1999, Sanford reported Grievant's improper pat-down searches to her (Sanford's) supervisor, but again, did not document the incident.       10.      On July 31, 1999, Thomas once again came to Mt. Olive to visit inmate Williams. G. Ex. 2. She was given a pat-down search by Grievant. Thomas again brought the .22 caliber pistol and 50 rounds of ammunition through Visitation and into Mt. Olive's Quilliams II unit without detection. On this occasion, Williams kept the weapon and ammunition.      11.      On both occasions, July 10 and July 31, 1999, Thomas, who is extremely obese, concealed the weapon in her underwear and the ammunition in her vagina. G. Exs. 4, 12.
      12.      On the July 31, 1999, visit, Grievant did not pat-down Thomas' groin and buttocks. Grievant patted down Thomas' legs “as far as she could go.” LIV Hickman Test. Grievant did not ask Thomas to lift her abdomen so that she could search her groin area.
      13.      Visitors coming into Mt. Olive must pass through a metal-detector. There had been no complaints about the metal-detector not working prior to July 31, 1999. Thomas passed through the metal-detector with the gun in her underwear. Visitors must also subject themselves to a pat-down search by a Correctional Officer. From time to time, Officers also pass a wand detector over a visitor's body. No wand detector was used on July 31, 1999.
      14.      On August 8, 1999, Williams informed Mt. Olive officials he wanted to talk with Deputy Warden Michael Coleman (“Coleman”) about a gun and two staff members. Williams was escorted from his cell in Quilliams II to a multi-purpose room, then to the Quilliams II 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.
      15.      At several points during Williams' travel from his cell to the office of the Associate Warden for Security, Mt. Olive regulations required that he be strip-searched. However, he was strip-searched only upon leaving his cell.      16.      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 reentering their field of vision, in violation of Mt. Olive policy.    (See footnote 4) 
      17.      In the office of the Associate Warden for Security, Williams met with Coleman and Executive Assistant Cheryl Chandler. During the meeting, Williams pulled the gun from his waistband. A struggle followed, during which Williams fired two shots, missing Coleman and Chandler (the gun incident).
      18.      The gun incident was the worst breach of security ever to occur at Mt. Olive. During the lockdown that followed, Quilliams II inmates did substantial damage to Mt. Olive. R. Ex. 4.
      19.      Between July 24 and August 8, 1999, neither Stone, Sanford, nor anyone else, told Grievant she was doing improper pat-down searches, or instructed her on the proper procedure for a pat-down search.
      20.      On the evening of August 8, 1999, after the gun incident, Associate Warden of Security, William Vest, had someone check the metal-detector in the Visitation area, and found it was not working as required. Specifically, the officer was able to pass through the metal-detector with his badge and keys. The detector was set at an 8 setting, and the badge and keys constituted too much metal to be able to pass through at that setting.
      21.       22.      On a date not reflected in the record of this grievance, Lieutenant Howard Shifflet (“Shifflet”) brought his duty weapon into the Northern Regional Jail and CorrectionalFacility and left it in an unlocked locker in the Administration area, which is outside the security area of the jail. An inmate found the gun and turned it in to authorities without incident. Shifflet was not dismissed for this incident.
      23.      On a date not reflected in the record of this grievance, Mt. Olive CO Larry Hamlin (“Hamlin”) allowed inmates out of their cells into the dayroom during a lockdown. The inmates were kept within the day room. Although this resulted in the death of an inmate, Hamlin only received a written reprimand for this incident. Warden Painter was not the Warden at Mt. Olive at the time of this incident.
      24.      On a date not reflected in the record of this grievance, CO Kevin Higginbotham (“Higginbotham”) left a weapon in his unlocked vehicle outside the Administration area at Mt. Olive. The weapon was locked in a rack inside the vehicle, however. Also, no inmates were present in the area, because Mt. Olive was in lockdown status at that time. Higginbotham received a letter of reprimand for this incident.
      25.      Grievant had never previously been disciplined by Corrections.
      26.      Grievant's supervisor, Stone, was dismissed by Corrections for failing to take immediate corrective action against Grievant once Sanford informed her, on July 24, 1999, that Grievant was performing improper pat-downs of visitors.   (See footnote 5)  Sanford was not disciplined for that incident.      27.      Mt. Olive's Investigator, Charles B. Hudson (“Hudson”), performed an investigation into the gun incident, and prepared detailed and thorough reports of his findings. R. Ex. 1.
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" has been 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 Serv. Comm'n, 175 W. Va. 279, 332 S.E.2d 579(1985); Guine v. Civil Serv. 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).
      Corrections 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, Corrections alleges that Grievant's negligence in performing a proper pat-down search of Thomas on July 31, 1999, violated Policy 400.00, Section 7.00, constituting a breach of facility security which resulted in an incident at Mt. Olive that placed at risk the health, safety and welfare of the public and the employees and the inmates of the facility. The specific charges are:
      §407-C-22 -       §407-C-08 -
      §407-B-16 -
      §407-B-06 -
R. Ex. 3.
      Grievant has several defenses: (1) she did not improperly pat-down Thomas on July 31, 1999; (2) no one informed her she was doing improper pat-down searches, even after Sanford observed her on July 24, 1999; (3) the metal detector was not working properly on July 31, 1999; (4) the investigation into the gun incident was not complete, and therefore, flawed; (5) she received improper notice; and (6) she has been discriminated against because other officers have not disciplined in the same manner for like offenses.
      1.      Pat-down search. Grievant contends the evidence presented by Corrections does not prove she did an improper pat-down search of Thomas on July 31, 1999, and no one witnessed her performing an improper pat-down search on that day. There is no dispute that Grievant performed the pat-down search of Thomas on July 31, 1999, when Thomas brought the weapon and ammunition into Mt. Olive. Investigator Hudson interviewed several other officers who worked in visitation, CO II Janie Booth, CO I Howard Montgomery, CO I Valorie Adkins, and Grievant's supervisor, Laura Stone. They all testified they did not have any specific memory of anyone performing improper pat down searches, but admitted they did not actually observe Grievant patting down Anna Thomas on July 31, 1999. R. Ex. 1.
      Grievant admits she did not physically touch Thomas' groin area due to Thomas' size, nor did she ask Thomas to lift her abdomen so she could perform that search. Grievant admits she patted down Thomas' legs “as far as she could go”. The pat-down procedure clearly requires a pat-down of the groin area, and while officers are advised not to “manipulate” that area, they are to physically touch the groin area. G. Ex. 6; LIV Test., Painter. Grievant did not do this to Thomas on July 31, 1999, thus, she violated the pat- down procedures. The simple fact the gun was not found on Thomas' body proves the pat- down search was not done properly. Grievant's failure to properly pat-down Thomas resulted in a weapon and ammunition entering Mt. Olive and finding its way into the hands of a dangerous inmate, Williams, which ultimately resulted in the weapon being discharged at two Corrections' administrators. There can be no doubt that Grievant's failure to pat- down Thomas was a violation of the above-stated policy.
      2.       Grievant alleges no one told her she was performing improper pat-down procedures, even after Sanford observed her doing so on July 24, 1999. The evidence confirms that on Friday, July 24, 1999, Sanford observed Grievant 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. Sanford reported the inadequate pat- downs to Grievant's supervisor, but did not prevent the two visitors from entering Mt. Olive, or record their names. Sanford did not file an incident report about this event. Sanford did report it to her own supervisor the following Monday. The evidence also establishes that Grievant's supervisor, Stone, did not correct Grievant's inadequate searches for the fifteen day period preceding the August 8, 1999 gun incident. As discussed above, Stone has already been disciplined for failing to immediately take corrective action with Grievant on July 24, 1999.      In spite of the above, however, Grievant should have known the proper pat-down procedures. Grievant attended the mandatory Corrections academy training, and received instruction in pat-down searches while at the academy. Kathryn Lucas, Director of the West Virginia Training Academy at the time Grievant attended, testified that Grievant had to physically demonstrate to her instructors that she could properly perform a pat-down search in order to graduate from the academy. LIV Test., Lucas. In fact, Grievant's training packet indicates she passed that portion of competency testing and did graduate with her class from the academy. R. Ex. 2. Grievant had the responsibility as a Corrections Officer to know how to properly perform pat-down searches, and had, in fact, demonstrated at one time that she did know how to properly perform pat-downs. Thus, Sanford and Stone's failure to correct her on July 24, 1999, does not excuse Grievant from following the proper pat-down search procedure as she was instructed at the West Virginia Training Academy.
      3.      Metal Detector. Grievant testified the metal detector did not go off on July 31, 1999, when Thomas passed through it. Thomas, in her statement to Investigator Hudson, said it went off. Officers Booth, Montgomery, Adkins, and supervisor Stone, all told Investigator Hudson the metal detector does not always indicate properly, and sometimes the calibration is off. R. Ex. 1.
      Associate Warden Vest had someone check the metal detector the evening of August 8, 1999, the day of the gun incident. The metal detector did not indicate properly when the officer passed through, allowing him to enter with keys and other metal on his person. The metal detector has since been replaced.
      It is possible the metal detector did not indicate properly when Thomas passed through. However, that does not excuse Grievant's failure to properly pat her down. Warden Painter testified that the metal detector is merely a tool to assist the officers in searching visitors in the Visitation area. Officers are specifically cautioned not to rely solely on the metal detector for searches, for the simple reason that, as a mechanical device, it can malfunction. LIV Test., Painter. Thus, even if the metal detector did not indicate on Thomas as she passed through, Grievant still had the responsibility to properly perform a pat-down search of her, which she did not do.
      4.      Investigation.
      Grievant alleges the investigation performed by Investigator Hudson was not complete and therefore flawed. This allegation was not elaborated on during the level four hearing, except for the statement that Investigator Hudson did not check the metal detector himself to see if it was working. However, the evidence establishes that Associate Warden Vest had the metal detector checked the evening of the gun incident, which would have been before Investigator Hudson had even begun his investigation. There would have been no reason for Investigator Hudson to check the detector at a later date, given the fact that the metal detector was going to be, or had already been, replaced. Grievant has failed to prove by a preponderance of the evidence that the investigation conducted by Hudson was not complete or flawed.
      5.      Improper Notice.
      Where an act of misconduct is asserted in a notice of dismissal, it should be identified by date, specific or approximate, unless the characteristics are so singular that there is no reasonable doubt when it occurred. If an act of misconduct involves persons or property, these must be identified to the extent that the accused employee will have no reasonable doubt as to their identity. Syl. Pt. 2, Clarke v. W. Va. Bd. of Regents, 166 W.Va. 702, 279 S.E.2d 169 (1981), citing Syl. Pts. 4 and 5 of Snyder v. Civil Serv. Comm'n, 160 W. Va. 762, 238 S.E.2d 842 (1977).
      Correction's Policy Directive 400.00 § 4.03 provides that, “[p]rior to any demotion or transfer in lieu of removal, suspension, or removal actions, an employee shall be given written notice of the offense, an explanation of the agency's evidence in support of the charge, and a reasonable opportunity to respond.” G. Ex. 11.
      Grievant did not elaborate on her allegation that she received improper notice of her dismissal, or that her due process rights were violated. The evidence indicates she was given notice of her dismissal by letter dated September 10, 1999, which clearly spelled out the charges against her, and she was given an opportunity to respond to the charges in the letter. R. Ex. 3. This is all the notice required, and Grievant has failed to prove this charge by a preponderance of the evidence.
      6.       Finally, Grievant alleges she has been discriminated against because other Correction's officers who have committed breaches of security have not received the same degree of discipline as she has.
      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 responsibilities of the employees or agreed to in writing by the employees." To establish a prima facie case of discrimination, Grievant must show:


Hendricks v. W. Va. Dep't of Tax and Revenue
, Docket No. 96-T&R-215 (Sept. 24, 1996); Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992).
      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. Hickman v. W. Va. Dep't of Transp., Docket No. 94-DOH- 435 (Feb. 28, 1995); See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Hendricks, supra.; Runyon v. W. Va. Dep't of Transp., Docket Nos. 94-DOH 376 & 377 (Feb. 23, 1995); Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Grievant identifies the following officers whom she alleges have committed security breaches, yet have not received similar discipline: Delena Sanford, Howard Shifflet, Larry Hamlin, and Kevin Higginbotham.
      Grievant contends Delena Sanford is as culpable as she in the gun incident because Sanford had witnessed Grievant performing improper pat-down searches in the past, but had not corrected her, thus causing her to go on performing improper pat-down searches. Sanford has not been disciplined by Corrections.      The evidence shows Sanford was present in the visitation area on July 24, 1999, and witnessed Grievant performing improper pat-down searches of visitors. Sanford immediately told Grievant's supervisor, Laura Stone, and Stone told Sanford she would take care of it. Stone did not correct Grievant or fill out any incident reports on this matter. Sanford told her own supervisor the following Monday, but did not fill out an incident report on the matter.
      Several witnesses for Corrections, including Chief of Corrections, Major Paul Parry, and Associate Warden of Security, William J. Vest, believe Sanford should have done an on-the-spot correction of Grievant herself, and that both Sanford and Stone shared responsibility in not correcting Grievant's improper pat-down searches. They both testified the proper thing to do would have been to stop the visitors from entering the facility, take Grievant aside and explain what she had done improperly, and instruct her to search the visitors again. LIV Test., Parry; Vest.
      Warden Howard Painter believes Sanford acted properly by reporting Grievant's violation to Stone, while admitting she did not follow the “letter of the law” with regard to reporting security violations. Painter testified it would have been improper for Sanford to leave her canine unit in the Visitation area while correcting Grievant. She would have had to take the canine unit outside, lock it up, and come back and correct Grievant. Painter believed it was more responsible of Sanford to simply report the violation to Grievant's supervisor, and Sanford had no reason to believe Stone would not correct the situation. LIV Test., Painter.
      Grievant testified she did not believe it was proper to physically touch the groin area of a visitor. LIV Test., Hickman. In fact, Grievant admitted she only patted Thomas' legsas far up as she could go, and did not search Thomas' groin area, because her abdomen was so large it hung down. Painter testified the proper procedure would be to ask Thomas to hold up her abdomen while a search of her groin area was conducted. Grievant testified she did not believe that procedure was in compliance with the pat-down policy. LIV Test., Hickman.
      Clearly, had someone, be it Sanford or Stone, instructed Grievant on July 24, 1999, that it not only was proper, but required, to physically pat-down a visitor's groin area, and to ask Thomas to lift her abdomen, she would have known this by the time Thomas visited on July 31, 1999. Stone was dismissed as a result of the July 24, 1999, incident. Sanford was not disciplined for not correcting Grievant's pat-down searches, not documenting the incident, and for permitting the visitors on July 24, 1999, to enter the Visitation area despite observing Grievant's inadequate pat-down searches.
      In Stone, supra, the Administrative Law Judge found that Stone and Sanford were similarly situated as they were both supervisors responsible for correcting the actions of employees. The Administrative Law Judge found Corrections had offered no legitimate, nondiscriminatory reason for disciplining Stone, but not Sanford, for the July 24, 1999, incident, as they were both responsible for immediately correcting Grievant's actions.
      In the instant case, while Sanford may have committed a security violation herself by not immediately correcting Grievant on July 24, 1999, that does not command a conclusion that Corrections has discriminated against Grievant for allowing Thomas into the facility without properly patting her down on July 31, 1999.
      Sanford was not involved at all with the search of Thomas by Grievant on July 31, 1999, which is the incident for which Grievant was dismissed. Sanford's violation, if any,was not immediately correcting Grievant on July 24, 1999, for performing improper pat- downs, but instead, reporting her immediately to her supervisor, Stone, and expecting Stone to take care of the matter.
      Grievant's violation was for improperly patting down Thomas on July 31,1999, allowing a gun and ammunition into the facility, resulting in the most serious breach of security ever experienced at Mt. Olive. Thus, while Sanford and Grievant may have been similarly situated with regard to the July 24, 1999, incident, they were not similarly situated for the incident on July 31, 1999, for which Grievant was dismissed. Sanford simply was not responsible in any way for permitting a gun and ammunition to find its way into Quilliams II; Grievant was directly responsible. Grievant has failed to establish that she was similarly situated to Sanford with regard to her dismissal for the July 31, 1999 gun incident.
      Grievant has established that she was similarly situated, in a pertinent way, to other COs who were subject to Corrections and Mt. Olive policies, committed violations of them, and were subject to discipline under Policy 400. Grievant further established 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.
      Warden Painter 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; 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 ina gun rack in his vehicle, with the vehicle's windows open, outside of MOCC's administration building, and that 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.
      With regard to Hamlin's breach resulting in the death of an inmate, Painter testified that he was not the Warden of Mt. Olive at the time of this incident, and the resulting discipline was not within his purview. He testified that, had he been Warden at the time, he would have dismissed Hamlin, and has told him so. Regarding the incident when Hamlin let the 48 inmates out of their cells during lockdown, Painter testified the inmates were released into the day room and kept within the housing unit, which did not constitute a major breach. Hamlin received a letter of reprimand for this breach.
      Higginbotham left an unloaded weapon in his truck in front of the Administration area of Mt. Olive. The weapon was locked in the truck's gun rack, the prison was in lockdown at the time, and inmates do not have access to the area where the truck was parked. Painter testified the breach was not that serious, and Higginbotham had no prior disciplinary actions. He received a letter of reprimand for this incident.
      Shifflet is employed by the Regional Jail and Correctional Facility Authority. He brought his duty weapon into his Administration area locker, instead of taking it to the armory. The locker area is outside the secure perimeter and the weapon never entered the secure facility. A prisoner found the weapon in the locker and turned it in to the administration. The record is unclear as to what, if any, discipline was given to Shifflet.      Painter testified that discipline of employees is decided on a case-by-case basis, taking into account the severity of the incident, the employees' length of service, performance, and prior disciplinary record. Not every breach of security or violation of Corrections' policies results in dismissal.
      Painter testified that none of the above incidents was similar in nature to Grievant's breach of security. Clearly, with the exception of Hamlin's breach resulting in the death of an inmate, none of the above incidents resulted in any harm or damage to the employees, inmates, or the facility. While the potential for harm was present in these incidents, no harm occurred. Grievant failed to perform a proper pat-down, which resulted in real harm to employees when Williams pulled a gun and fired at Corrections officials, and the resulting lockdown caused substantial damage to the facility. Painter testified that this breach of security was the worst breach that has ever occurred at Mt. Olive. Therefore, even though Grievant established a prima facie case of discrimination, Corrections has established that her level of culpability in this matter was greater than any of the above incidents, warranting the penalty of dismissal.
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.      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 amere 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.      Where an act of misconduct is asserted in a notice of dismissal, it should be identified by date, specific or approximate, unless the characteristics are so singular that there is no reasonable doubt when it occurred. If an act of misconduct involves persons or property, these must be identified to the extent that the accused employee will have no reasonable doubt as to their identity. Syl. Pt. 2, Clarke v. W. Va. Bd. of Regents, 166 W. Va. 702, 279 S.E.2d 169 (1981), citing Syl. Pts. 4 and 5 of Snyder v. Civil Serv. Comm'n, 160 W. Va. 762, 238 S.E.2d 842 (1977).
      4.      Correction's Policy Directive 400.00 § 4.03 provides that, “[p]rior to any demotion or transfer in lieu of removal, suspension, or removal actions, an employee shall be given written notice of the offense, an explanation of the agency's evidence in support of the charge, and a reasonable opportunity to respond. G. Ex. 11.       
      5.      Grievant failed to prove by a preponderance of the evidence that her due process rights were violated with regard to the notice of her dismissal.
      6.      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).
      7.      To establish a prima facie case of discrimination, Grievant must show:


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).
      8.       Grievant established a prima facie case with regard to Hamlin, Higginbotham, and Shifflet, that she was the victim of discrimination when CORR dismissed her while failing to similarly discipline them for similar offenses.
      9.      CORR proved, by a preponderance of the evidence, that Grievant's offense was so severe and unique, and resulted in substantial harm to employees and damage to the facility, that her dismissal was warranted.
      Accordingly, this grievance is DENIED.
            Any party 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.

                                           ___________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: June 29, 2000


Footnote: 1
      Attorney fees are not awarded by this Grievance Board, Smarr v. Wood County Bd. of Educ., Docket No. 54-86-062 (June 16, 1986), and Grievant was not represented by an attorney.
Footnote: 2
      This matter was reassigned for administrative reasons to the undersigned Administrative Law Judge on March 16, 2000.
Footnote: 3
      Neither party submitted fact/law proposals.
Footnote: 4
      This violation is the subject of another dismissal grievance, Childers v. W. Va. Div. of Corrections, Docket No. 99-CORR-403 (June 15, 2000).
Footnote: 5
      Stone's dismissal was reversed, and a 20-day suspension imposed, by this Grievance Board in Stone v. W. Va. Div. of Corrections, Docket No. 99-CORR-390 (Feb. 10, 2000). The Administrative Law Judge found Corrections discriminated against Stone by not disciplining Sanford for the same incident.