v. Docket No. 00-DNR-091
DIVISION OF NATURAL RESOURCES,
Respondent.
This personnel action is in accordance to Section 12.3
of the West Virginia Division of Personnel's Administrative
Rule and provides the required notice. Further, this letter shallserve as your last final warning of more severe disciplinary
action, up to and including dismissal, should you fail to adhere
to the directives in this letter or fail to meet the expectations of
your position after your return from suspension. I realize you
have received several final warnings from previous Directors
and Administrators; however, I assure you that this is the last
final warning you will receive. So there is no
misunderstanding, I have reduced to writing my expectations
during a 15 calendar day improvement period. Your
improvement period will begin on Monday, November 1, 1999,
after you return from your five (5) day suspension and end on
Monday, November 15, 1999.
So there is no doubt as to the validity for the need to
take such action, let me share with you the following
occurrences, which are demonstrative of your failure to meet
the agency's work expectations. These occurrences are
representative of either your unwillingness or inability to
adhere to the directives that have been given to you:
Emily Fleming made an unscheduled visit to your office
on Thursday, September 9, 1999. To her dismay, you once
again showed a blatant disregard for keeping your office
professionally organized, to allow for proper performance of
your job duties. It seems that most of the items stored in your
office are of a personal nature and work related items,
necessary to the performance of your job, are not easily
accessible. You are constantly losing important items such as
the state issued purchasing card, the state issued long
distance credit card, program printouts, receipts, the computer
disk containing your weekly report form, list of important
volunteer contacts within your district, memos and letters
detailing assignments and other important information. You
frequently call and disrupt staff members in the Charleston
Office, asking questions about information that has been
forwarded to you time and time again. When asked if you
received or read the information that was sent, your reply is
always Yes, but I cannot find it. Your lack of maintaining
necessary files is taking time away from your ability to serve
the public, which is your primary job responsibility. Moreover,
when you repeatedly call the Charleston Office, you are also
diminishing their work time to serve the public.
It was observed that you cannot access the necessary
equipment needed in your daily work routine without taking
time to physically remove items stacked on top of, or in the
way of your computer, telephone, and typewriter. As a result,
time needed for the actual performance of your job duties,
such as typing your reports or making telephone calls to
volunteers is reduced.
Once again, your normal work schedule of visiting your
counties and giving programs to volunteer groups, had to be
deviated from so that you may accomplish the priority set forth
by Emily in a memo dated September 10, 1999. This priority
was to properly file, organize, and sort all job related materials.
All materials not related to the performance of your job duties
were to be disposed of or taken home. As discussed, these
items included telephone directories of towns not in your
district, bathroom scales, stuffed toys, oversized floral
arrangements, large decorative metal tins, extra pictures and
wall hangings sitting on the floor, and a fur coat and other
wearing apparel hanging on your coat rack. These materials
do not help you do your job. This assignment was to take
place in your office and you were not permitted to take any
work related materials home to accomplish this task. Your
office should portray a professional atmosphere and allow you
to conduct business with ease. You are not to rely on taking
visitors to the conference room for this purpose. You are not
to pull necessary materials from the brochure rack located at
the building entrance, these materials should be easily
accessible in your office. The memo stated the seriousness of
this assignment and notified you that Emily Fleming and Diana
Haid would arrive on September 27, 1999, to see that it was
accomplished.
It was obvious to Emily and Diana, upon their arrival
Monday, September 27, that you had been working on this
assignment, but it was also obvious that it was a long way from
completion. They witnessed you making two trips to your
vehicle, carrying bags of work-related items, with the intent of
taking them home to sort. You were told on several occasions
not to do this. A visitor cannot walk into your office to conduct
business in a minimal amount of time because it is not
organized so that your work related material is easily
accessible. You had a stack of the most recentcorrespondence beside your desk ready to file but you had not
yet filed it. You were given a list of subjects in which to sort
your files under several years ago, which also had to be given
to you several times since because you keep losing it. You
said you purchased non-glare sheet protectors and a special
notebook to help you accomplish this task. You made this
same statement to Diana Haid, last year on November 19,
1998, during a visit she made to your office. Almost a year
later and you still have done nothing about your files.
You were asked to pull some of your files and the
correspondence they contained was several years old. Emily
picked a notebook off the floor and it contained your personal
canceled checks and hospital receipts. A file was pulled from
the file cabinet located in the furnace room and it contained
your personal federal income tax information. You state you
had no idea what was stored in either of your file cabinets.
You had not removed any of the telephone directories of towns
not located in your district. The stuffed toys, the oversized
floral arrangements, the decorative metal tins, the fur coat, and
the stack of pictures were all still in your office. In essence,
you removed work related material and left the personal items.
When asked where several specific items of work related
material was located, you could only find one of those items.
When asked to produce your state issued purchasing card,
you stated you did not have it, that is [sic] was with your
driver's license, in a black satchel, somewhere in your car.
You told Emily and Diana they were responsible for the
state of your office because they had not made more personal
visits to you. It is not their role to cause you to perform your
daily job functions of filing, sorting and organizing your work
related materials. The number of visits from your supervisors
does not relieve you from performing your normal job duties.
Your storage building is in the same situation as your
office. You have no idea what is stored there, with the
exception of your office display. You were informed not to take
any materials from your office to the storage building as there
is no room. You were also informed that the same assignment
for the office applies to the storage building. All work related
materials are to be organized and sorted for easy access. All
items of a personal nature are to be disposed of or takenhome. It has become apparent that you have a huge inventory
of work related materials; however, you do not know exactly
what materials you do have, the amount, or even where certain
materials are located. As a result, you receive more inventory
from the Charleston Office for specific programs. The
Environmental Resources Section takes pride in maximizing
their budget dollars for the many programs and materials that
are available. Your poor inventory practices, which result in
materials being outdated before they are used, are costing tax
payers dollars.
The following summary of occurrences further
demonstrate your failure to meet the agency's work
expectations:
*August 10, 1999, Emily Fleming called you for the
names of the environmental teachers at Clay and Braxton
County High Schools, which you did not know, and did not
know if they were enrolled in the Youth Conservation Program.
*January 22, 1999, your paycheck was docked for
several hours of unauthorized leave for refusing to follow the
policy of obtaining prior approval before taking annual leave.
*December 16, 1998, you were sent a written reprimand
from Diana Haid for abusing the parking privilege set forth at
the District Office, reserved for loading and unloading only.
*September 10, 1998, Diana Haid made a visit to your
office and you were given the priority of organizing your office
in a professional manner so that all work related materials
were easily accessible to you. All meetings were to be
canceled until this was accomplished. You were further
instructed not to take this assignment home.
*August 14, 1998, you were sent a written reprimand
from Emily Fleming for your inappropriate behavior concerning
the proper chain of command at the District Office.
*June 3, 1998, you were sent a memo from Emily
Fleming for inappropriate behavior concerning the proper
chain of command regarding the placement of an additionalAdopt-A-Highway sign and willfully misleading a DOH
employee.
*January 6, 1998, you were sent a memo from Diana
Haid requesting the return of the 1997 Capitol Parking Pass as
soon as possible. You stated you could not find it so you were
assessed a $5 fee, which you did not pay. You returned the
wrong pass on March 3, 1998. Subsequently, you found the
correct pass and returned it on April 5, 1998.
I can only conclude that you have been and continue to
be unwilling or unable to follow directives as indicated in these
referenced occurrences. Further, I wish to emphasize the
seriousness of your insubordinate conduct toward Emily
Fleming and Diana Haid, and the seriousness of your failure
to complete any directives assigned to you by them. It is
important that you understand we are at a point where your
unwillingness or inability to complete assignments has fallen
below the tolerance level. To assist you in meeting these
directives, I am establishing a fifteen (15) calendar day
improvement period, beginning Monday, November 1, 1999,
and ending Monday, November 15, 1999, to bring your
incomplete assignment to acceptable standards. To this end,
I have reduced to writing my expectations of you in regard to
this priority assignment.
1. You are to complete your priority assignment of filing,
organizing, and sorting all job related materials. All materials
not related to the performance of you job duties are to be
disposed of or taken home.
2. Your outside meeting, county visits, presentations,
conferences, etc., will be held at a minimum until this
assignment has been satisfied.
3. You may ask for annual leave approval only in
extraordinary emergency situations, until this assignment has
been satisfied.
4. You are to complete this assignment in your work space
during normal working hours. You will not be approved to use
the conference room. You will not be approved to work over
and adjust your time. You are not to take this work home. You will not be approved flex time to complete this assignment
when others are not in the office.
5. You are not to use any bags of any kind for storage of
materials.
6. You are to organize your files so that you may be able
to retrieve current materials at a moments notice.
7. You are to submit a complete inventory and an
approximate amount of all materials.
8. Before your suspension begins, you are to submit to
Diana Haid, a list of supplies needed for your display at the
Association of Solid Waste Authorities Annual Meeting,
October 21, 1999.
While it is unfortunate that I must take this personnel
action, I believe that any other alternative would serve no
useful purpose. You have been afforded numerous
opportunities to bring your behavior to acceptable standards
and have been repeatedly encouraged to ask for assistance
from your supervisors. In spite of these efforts, you continue
to be either unable or unwilling to meet the expectations of
your position, even with close supervision.
It is my hope that this suspension is sufficient to cause
you to understand not only the seriousness of this matter, but
also that we can no longer tolerate such substandard
behavior. Further, it is my sincere wish that this will cause you
to alter your behavior and meet the work expectations that
have been previously outlined; however, failure to meet these
required standards will result in further disciplinary action, up
to and including your dismissal from your position. You have
received numerous final warnings from previous
administrators. I assure you again that this is your last final
warning. Your immediate supervisor remains available to work
with you on meeting goals and improving behavior.
* * *
DNR Exhibit 2. The burden of proof in disciplinary matters rests with the employer, and the
employer must meet that burden by proving the charges against an employee by a
preponderance of the evidence. W. Va. Code §29-6A-6; Ramey v. W. Va. Dep't of Health,
Docket No. H-88-005 (Dec. 6, 1988). "The preponderance standard generally requires
proof that a reasonable person would accept as sufficient that a contested fact is more
likely true than not." Leichliter v. W. Va. Dep't of Health and Human Resources, Docket
No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the
employer has not met its burden. Id.
Grievant was charged with insubordination relating to her conduct and failure to
satisfactorily complete various requirements, responsibilities, and conditions relating to her
employment. It is well established that "[I]nsubordination involves 'willful failure or refusal
to obey reasonable orders of a superior entitled to give such order.' [Citations omitted.] In
order to establish insubordination, the employer must not only demonstrate that a policy
or directive that applied to the employee was in existence at the time of the violation, but
that the employee's failure to comply was sufficiently knowing and intentional to constitute
the defiance of authority inherent in a charge of insubordination." Stover v. Mason County
Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995) (Citations omitted.). Where an
employee has justifiably misunderstood or misinterpreted a superior's instruction, and has
failed to comply with a directive based upon this, the employee has been found lacking the
intent necessary to establish insubordination. Wilson v. Marion County Bd. of Educ.,
Docket No. 98-24-043 (June 23, 1998), citing Conner v. Barbour County Bd. of Educ.,Docket No. 94-01-394 (Jan. 31, 1995), and Ramey v. W. Va. Div. of Veterans Affairs,
Docket No. 91-VA-115 (Aug. 2, 1991).
"'Generally, an employee must obey a supervisor's order and take appropriate
action to challenge the validity of the supervisor's order. Employees are expected to
respect authority and do not have the unfettered discretion to disobey or ignore clear
instructions.' Reynolds v. Kanawha-Charleston Health Department, Docket No. 90-H-128
(Aug. 8, 1990)], citing Meads v. Veterans Admin., 36 M.S.P.R. 574 (1988) [other citations
omitted]." Stover v. Mason County Bd. of Educ., Docket No. 94-26-640 (Feb. 23, 1995).
While there are exceptions to this rule, such as where the employee reasonably has health
and safety concerns (Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept.
25, 1995)), "[a]n employee is not justified i[n] disobeying a reasonable order simply
because he/she does not agree with it." Id. "An employer has the right to expect
subordinate personnel 'to not manifest disrespect toward supervisory personnel which
undermines their status, prestige, and authority . . .'. McKinney v. Wyoming County Bd. of
Educ., Docket No. 92-55-112 (Aug. 3, 1992) (citing In re Burton Mfg. Co., 82 L.A. 1228
(Feb. 2, 1984))." English v. Div. of Corrections, Docket No. 98-CORR-082 (June 29, 1998).
DNR established that Grievant has experienced ongoing difficulty in satisfactorily
maintaining files, completing paperwork, and functioning in an organized and efficient
manner. In March 1995, Grievant was suspended for three working days for
insubordination, and placed on a sixty calendar day improvement period. In the letter
issued by Maxine Scarbro, Administrator of the Office of Conservation Education and Litter
Control, it was noted that housekeeping in Grievant's office continued to needimprovement despite being directed to rectify the situation in July 1994, and February
1993. Ms. Scarbro again directed Grievant to organize her office and maintain a
professional, business-like atmosphere.
Both Diana Haid, State Environmental Coordinator and Grievant's immediate
supervisor, and Emily Fleming, Chief of the Environmental Resources Section and
Grievant's second level supervisor, testified extensively at the level four hearing. Both
described Grievant's office space as nonfunctional, noting that much material was lying
about in the orange trash bags used by the Adopt-A-Highway program, that her filing
system was not up-to-date or organized in any discernable manner, and that a great deal
of the space was consumed by Grievant's personal effects. Ms. Fleming noted that a
pathway led through the office, but there was not an empty chair to sit on. The supervisors
explained that Grievant's failure to maintain a professional office interfered with her ability
to complete her work as she often lost documents and had to have them replaced, or
simply could not find what she needed in the disarray.
Finally, following a visit to Grievant's office on September 9, 1999, Ms. Fleming
issued a memorandum notifying Grievant that her schedule would be modified for a two
week period, limiting her county visits to two days a week, allowing her the remaining time
to clean and organize her office. She advised Grievant that the assignment was top
priority, and that she was to rid [her] office of 80% of the materials that are stored there.
The supervisors returned to Grievant's office on September 27, and found that while some
progress had been made, Grievant had failed to complete the objective set by Ms.
Fleming. Both opined that Grievant is fully capable of organizing and maintaining heroffice in an acceptable manner, and conclude that her failure to do so after the multitude
of verbal and written warnings constitutes an unwillingness to observe the chain of
command resulting in insubordination.
Grievant asserts that the claims are trivial and unsubstantial, and certainly were not
a willful disobedience which would rise to the level of insubordination. She admits that she
has fallen short in her filing, but denies that documents were stored in garbage bags.
Grievant provided a number of letters attesting to her good character, and asserts that she
made a good faith effort to meet the directives of the September 1999 memorandum, but
states that she was provided an inadequate amount of time, and that she was hampered
by medical problems. She suggests that her supervisors simply do not approve of her
because she is eclectic, and explained that she now lives in fear that her employment will
be terminated. Grievant asserts that the five day suspension was arbitrary and capricious,
and unduly harsh to the point of cruelty, given the tremendous financial loss she has
experienced as a result.
The evidence establishes that Grievant was aware of the necessity for organizing
and maintaining her office in a professional manner. She had participated in a number of
discussions with her supervisors, had received many memoranda, and had even suffered
a previous suspension for the very same reason. Yet, when given a directive to correct
the situation within a specified time period, Grievant knowingly failed to comply. At
hearing, Grievant claimed that she was not given an adequate amount of time to complete
the project, and did not agree to two weeks, but said she could finish it in a few weeks.
If that was the case, Grievant should have notified Ms. Fleming of the error upon receiptof the memorandum, and she did not. Further, six working days to clean a single room
office should be more than adequate, even given the condition described by the
supervisors. The undersigned observed that Grievant does function in a somewhat
slow manner, but she had not made her supervisors aware of any medical conditions
which would hamper her ability to complete the project. At level four she stated that she
had experienced a sudden, substantial weight gain, and offered pharmaceutical flyers on
diuretics, as well as a document indicating that she suffers from diabetes; however, even
at this time, no medical impairment has been proven.
In addition to contending that the penalty she received was discriminatory, Grievant
also asserts that a five day suspension is an unduly harsh punishment. This Grievance
Board has determined that mitigation of the penalty imposed by an employer constitutes
extraordinary relief, and is granted only when there is a showing that a particular
punishment is so clearly disproportionate to the offense committed that imposition of such
a penalty involves an abuse of discretion, Hosaflook v. West Virginia Division of
Corrections, Docket Nos. 98-CORR-446/447 (Jan. 20, 2000), or the penalty is so harsh
under the circumstances, its imposition by the employer involves an arbitrary and
capricious act. Frantz v. W. Va. Dep't of Health & Human Resources, Docket No.
99-HHR-096 (Nov. 18, 1999). Lilly v. Dep't of Health & Human Resources, Docket No. 00-
HHR-093 (May 8, 2000); See Wilkerson v. Lincoln County Bd. of Educ., Docket No.
99-22-420 (Mar. 27, 2000). Considerable deference is afforded to the employer's
determination of the seriousness of the employee's conduct and the prospects forrehabilitation. Overbee v. Dep't of Health & Human Resources, Docket No. 96-HHR-183
(Oct. 3, 1996).
As previously discussed, Grievant was disciplined for insubordination which had
been documented since 1993. Grievant had previously been suspended for three days
for failing to organize and maintain a professional office. Although Grievant asserts that
the offense was trivial, the testimony of her supervisors establishes that the consequences
of her actions were not inconsequential, but caused ongoing disturbances at the Central
Office, and required a great deal of their time to manage. Grievant's continued failure to
complete a simple directive establishes a willfulness on her part which constitutes
insubordination. The penalty imposed in this matter was neither an abuse of discretion
nor disproportionate to the offense.
In addition to the foregoing discussion, the following findings of fact and conclusions
of law are appropriate in this matter.
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.
DATE: September 26, 2000 ________________________________
Sue Keller
Senior Administrative Law Judge