DIXIE L. LANDIS,
Grievant,
v. Docket No. 00-HHR-172
WEST VIRGINIA DEPARTMENT OF
HEALTH & HUMAN RESOURCES/
WILLIAM R. SHARPE HOSPITAL,
Respondent.
DECISION
Dixie L. Landis (Grievant) initiated this grievance on January 21, 2000, challenging
Respondent's decision to deny her educational leave to obtain a Licensed Practical
Nursing (LPN) degree. The grievance was denied at levels one and two. A level three
hearing was held on May 5, 2000, followed by a written decision, denying the grievance,
dated May 12, 2000. Grievant appealed to level four on May 19, 2000. A hearing was held
in the Grievance Board's office in Elkins, West Virginia, on August 2, 2000. Grievant
represented herself, and Respondent appeared by counsel, Anthony D. Eates. The parties
elected not to submit written post-hearing arguments, so this grievance became mature for
consideration at the conclusion of the level four hearing.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant is employed by the Department of Health and Human Resources
(DHHR) at William R. Sharpe Hospital (Sharpe Hospital) as a Health Services Worker. 2. In April of 1999, Grievant applied for and was accepted to the LPN program
at Fred Everly Technical Center.
3. Grievant requested educational leave with pay for the period of January 3,
2000, through December 10, 2000.
4. Janice Woofter, Nurse Manager and Grievant's immediate supervisor, denied
Grievant's request for educational leave, because Grievant's absence would require that
the other employees in her unit work overtime to provide sufficient coverage. Also, she
denied the request because Grievant had recently been involved in the progressive
disciplinary process.
(See footnote 1)
5. Grievant's leave request was referred to Sharpe Hospital's Educational
Committee, which approved the request.
6. Grievant's request was ultimately denied by Sharpe Hospital Administrator
Jack Clohan, because there would not be sufficient staff on Grievant's unit. Mr. Clohan did
approve a $500 stipend for the spring semester, so that Grievant could attend the program
on her own time.
7. Ms. Woofter has adjusted Grievant's schedule, so that Grievant could attend
LPN classes on weekdays. Grievant has been working double shifts on the weekends,
along with one night shift during the week.
8. Pursuant to an Order from the West Virginia Supreme Court of Appeals in
the decision entitled
E.H. v. Matin, 168 W. Va. 248, 284 S.E.2d 232 (1981), the Kanawha
County Circuit Court issued the Hartley Plan, Civil Action No. 81-585 (1986), whichprovided specific directives regarding the reorganization of West Virginia's mental health
care facilities in order to provide proper care to their patients. As part of the Hartley Plan,
the facilities were directed to provide educational opportunities for staff, including leave and
stipends, so that proper staffing levels of qualified personnel could be achieved.
9. Since the implementation of the Hartley Plan, DHHR, the Division of
Personnel, and Sharpe Hospital have developed specific policies regarding educational
leave for employees.
10. Sharpe Hospital has had no vacant positions for LPNs since 1998 and has
no current plans for adding LPN positions to its staff.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden of
proving her grievance by a preponderance of the evidence. Procedural Rules of the
W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996);
Payne v.
W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code
§ 29-6A-6. A preponderance of the evidence is generally recognized as evidence of
greater weight, or which is more convincing than the evidence which is offered in
opposition to it.
Miller v. W. Va. Dep't of Health & Human Resources, Docket No.
96-HHR-501 (Sept. 30, 1997);
Petry v. Kanawha County Bd. of Educ., Docket No.
96-20-380 (Mar. 18, 1997). Where the evidence equally supports both sides, the
employee has not met her burden of persuasion.
Dixon v. W. Va. Div. of Corrections,
Docket No. 98-CORR-243 (Aug. 24, 1998).
See Leichliter v. W. Va. Dep't of Health &
Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Grievant contends that, by refusing to grant her request for paid educational leave,
DHHR and Sharpe Hospital have violated specific provisions of the Hartley Plan. She
believes that the provisions of § 7.08.02 of the Plan require that DHHR grant her request.
That section states:
By January 1, 1984, each facility will send a minimum of 1 staff aide to a
certified LPN school each year through a process of competitive selection
and will grant educational leave with pay for this period with a payback
arrangement. Where approved, by the Director, facilities may substitute
other direct care paraprofessional staff and other comparable training as
appropriate to facility needs.
DHHR contends that there are a variety of reasons why this portion of the Hartley
Plan does not mandate that Grievant be granted paid educational leave. In addition to the
provision cited above, § 7.07.03 of the Plan also requires DHHR, by October 1, 1984, to
develop revised policies and procedures for educational leave with full salary subject to
a competitive selection process and approval of the Director of [DHHR]. In response to
that directive, DHHR enacted Personnel Policy 2660 (8/17/84), which states that
educational leave with pay may be granted under the following conditions:
The selection process is based upon a review of the personnel records of the
employees of [DHHR]. The Director . . . determines if it would be in the best
interest of the Department to provide any such employees with additional
training or instruction . . . .
Quite clearly, this policy grants DHHR the discretion to determine which employees, if any,
should be allowed educational leave, in view of the personnel records of the applicants and
the needs of the agency.
Moreover, as DHHR points out, the Hartley Plan is now sixteen years old, and many
of its provisions are outdated and have been superceded by agency and state policies.
The Division of Personnel (DOP), which enacts rules and regulations governing theemployment of all classified state employees, has promulgated the following provision
regarding educational leave:
An agency authorized by law to subsidize advanced educational training for
classified employees may grant to selected employees educational leave
subject to conditions stipulated by that agency. The procedures for granting
educational leave and compensatory payment shall be filed with the Director
of Personnel.
DOP Administrative Rule, § 15.12(a) (7/98). This provision also leaves decisions regarding
educational leave within the sound discretion of the agency. In addition, § 15.12(b) allows
an agency to grant an unpaid leave of absence to an employee who wishes to pursue an
education.
DHHR also provided evidence, through the testimony of Sharpe Hospital's Director
of Nursing and Personnel Director, that the facility no longer needs additional LPNs, due
to changed conditions over the past sixteen years. Sharpe Hospital has become an
accredited mental health facility since the Hartley Plan was implemented, and it is subject
to specific staffing requirements in order to hold its accreditation. Accordingly, because it
is required to have at least one Registered Nurse (RN) per unit, Sharpe Hospital has
focused its efforts on recruiting RNs. Clearly, if the facility is not understaffed insofar as
its need for LPNs is concerned, the Hartley Plan does not require Respondent to send
Grievant to LPN school, which would not serve the interests of the agency or Sharpe
Hospital. As set forth above, §7.08.02 of the Plan, while stating that each facility should
send one employee to LPN school each year, also states that other staff and training can
be substituted, with approval, according to facility needs.
Grievant also contends that her supervisor and Administrator Clohan did not have
the authority to deny her leave request, which was approved by the education committee. DOP has also enacted a policy entitled Educational Expense Reimbursement/Leave
Program (8/1/96), which states that when sufficient funds are available and when in the
best interest of the agency, educational leave may be granted. If an agency chooses to
implement such a program, DOP's policy requires that it include an Agency Selection
Committee. However, the committee may only make recommendations, with the ultimate
decision being made by the designee of the agency head. In the instant case, that
designee would be Mr. Clohan, who determined that the interests of the facility would not
be served by Grievant being granted educational leave.
"A grievant's belief that his supervisor's management decisions are incorrect is not
grievable unless these decisions violate some rule, regulation, or statute, or constitute a
substantial detriment to or interference with the employee's effective job performance or
health and safety."
Ball v. Dep't of Transp., Docket No. 96-DOH-141 (July 31, 1997). Such
personnel decisions are reviewed under the arbitrary and capricious standard of review,
which requires a searching and careful inquiry into the facts; however, the scope of review
is narrow, and the undersigned may not substitute her judgment for that of the agency.
See generally,
Harrison v. Ginsberg, 286 S.E.2d 276 (W. Va. 1982). Generally, an
agency's action is arbitrary and capricious if it did not rely on factors that were intended to
be considered, entirely ignored important aspects of the problem, explained its decision
in a manner contrary to the evidence before it, or reached a decision that is so implausible
that it cannot be
ascribed to a difference of view.
Bedford County Memorial Hosp. v.
Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985).
Under the circumstances presented, DHHR acted appropriately within its discretion
in refusing Grievant's request for leave. The evidence established that Sharpe Hospitalhas no vacant LPN positions and does not need any more personnel in that area of
expertise. In addition, Grievant's absence would have created a financial hardship for the
facility, requiring that the other health service workers in her unit regularly work overtime
to meet staffing needs. Finally, Grievant has admittedly been involved in several
disciplinary actions recently, so her employer's decision not to confer upon her the benefit
of a one-year paid educational leave is understandable and within its discretion to make.
Grievant has failed to prove that this decision was arbitrary and capricious or an abuse of
DHHR's broad discretion with regard to such matters.
Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law
1. In a non-disciplinary matter, Grievant has the burden of proving her grievance
by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State
Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996);
Payne v. W. Va. Dep't of Energy,
Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code § 29-6A-6.
2. Generally, an agency's action is arbitrary and capricious if it did not rely on
factors that were intended to be considered, entirely ignored important aspects of the
problem, explained its decision in a manner contrary to the evidence before it, or reached
a decision that is so implausible that it cannot be ascribed to a difference of view.
Bedford
County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985).
3. "A grievant's belief that his supervisor's management decisions are incorrect
is not grievable unless these decisions violate some rule, regulation, or statute, or
constitute a substantial detriment to or interference with the employee's effective jobperformance or health and safety."
Ball v. Dep't of Transp., Docket No. 96-DOH-141 (July
31, 1997).
4. Grievant failed to prove by a preponderance of the evidence that
Respondent's decision to deny her paid educational leave was arbitrary and capricious, an
abuse of its broad discretion, or a violation of any policy, rule, regulation, or statute.
Accordingly, this grievance is DENIED.
Any party or the West Virginia Division of Personnel may appeal this decision to the
Circuit Court of Kanawha County or to the circuit court of the county in which the grievance
occurred, and 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: August 23, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1