v. Docket No. 99-BEP-496
BUREAU OF EMPLOYMENT PROGRAMS/
Grievant, Joe White, was an employee of the Bureau of Employment Programs
("BEP"). Grievant was terminated on November 23, 1999, for violation of BEP's
microcomputer policies, i.e., inappropriate use. Grievant argues his termination was
arbitrary and capricious and did not follow BEP's progressive discipline policy. The
requested relief is reinstatement into his former position, his termination reduced to a five-
day suspension, and back pay plus interest. Grievant appealed directly to Level IV, and
a hearing was held on March 13, 2000.
(See footnote 1)
This case became mature for decision on April
19, 2000, after receipt of BEP's proposed findings of fact and conclusions of law.
(See footnote 2)
Grievant made many arguments about his termination, and why it was unfair and
arbitrary and capricious. Grievant made additional arguments at hearing, and Grievant
was allowed to amend his grievance in the interest of fairness, as he was unrepresented.
Grievant contends: 1) BEP did not follow its progressive discipline policy, and his prior
suspension for sexual harassment could not be coupled with this charge to result in
dismissal, as they were not the same offense; 2) BEP treated him more harshly than asimilarly situated employee; 3) his discharge was politically motivated; 4) he did not
commit the acts of which he is accused; 5) he did not receive written notice of his
discharge; and 6) he suffers from a Cyber-Sexual Internet Addiction, and to discharge him
instead of getting him treatment violates the Americans with Disabilities Act.
7. Prior to Grievant's termination, his supervisor, Gwen Stone, observed
Grievant had placed his computer screen at a very odd angle that made it difficult to see
the screen. This position also made it impossible for anyone who entered the office to see
his screen as well. She believed he might be using the computer for personal use, and
reminded him that BEP had the ability to track all the sites he visited on his computer.
Grievant argues BEP failed to follow its progressive discipline policy. A copy of this
policy was not submitted into evidence by either party. The undersigned AdministrativeLaw Judge takes administrative notice that it is typical that a termination for misconduct
can follow a suspension for misconduct. It is also noted the Acceptable Use Policy -
Internet informs employees they may be terminated for a first offense, and Grievant was
on notice of this fact, as he had read the Policy and signed a statement indicating he
understood its contents.
Once a claimant has made a prima facie case of discrimination, the burden shifts
to the employer to articulate some legitimate, nondiscriminatory explanation, which, if
believed by the trier of fact, would support a finding that unlawful discrimination was not
the cause of the employment action. If the employer meets this burden, the presumption
created by the prima facie case "drops out of the picture", and the claimant bears the
ultimate burden of proving that he has been the victim of intentional discrimination. Id. at
58., citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.C. 2742, 125 LED.2d 407
(1993).
(See footnote 8)
Based upon the facts in this case and the following discussion, I find Grievant has
not established a prima facie claim of discrimination under the ADA, because she was not
in the protected class.
(C) being regarded as having such an impairment.
The determination of whether an individual has a disability within the meaning of
the ADA must be decided on a case-by-case basis. Barfield v. Bell South
Telecommunications, Inc., 886 F. Supp. 1321 (S.D. Miss. 1995). For an impairment to
"substantially limit" one or more major life activities, the individual must be unable to
perform, or be significantly limited in the ability to perform, an activity compared to an
"average person in the general population." 29 C.F.R. § 1630.2(j); McKay v. Toyota Motor
Mfg., U.S.A., Inc., 878 F. Supp. 1012 (E.D. Ky. 1995).
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. Theappealing 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.
JANIS I. REYNOLDS
WORKERS' COMPENSATION,
Respondent.
Grievant was orally and immediately terminated on November 23, 1999, for violation
of BEP's Internet Policy, as well as other of BEP's computer policies. He was informed a
search of his computer had revealed he had visited sexually explicit sites and had viewed
"hard core pornography" from the Internet on his work computer. Grievant denied these
charges, but noted he had, at times, accidently stumbled on sexually explicit sites with
multiple "pop ups". BEP followed Grievant's oral termination with a confirmation letter dated November
30, 1999, from Commissioner William Vieweg.
(See footnote 3)
This letter states in pertinent part:
I believe that your dismissal was warranted for violation of the
Bureau's Internet policy and the computer policies of this agency. Your
dismissal was for flagrant and insubordinate disregard of my specific
directions to you in November 1998 in which you were advised that any
additional violations of unprofessional conduct and objectionable behavior
related to sexually explicit activity would not be tolerated. Your recent
behavior is insubordinate to my specific directive. Your disregard of my
expectation and this policy violation lead me to conclude that you continue
to conduct yourself in an unacceptable manner.
It has been reported to me that you have used the Bureau's Internet
to access several graphic, hard-core pornographically explicit web sites.
That report has been investigated by the Management Information Systems
Division and it confirmed that on November 19, 1999, you visited these sites,
More specifically, the record indicates that approximately 20 hard-core
pornographically explicit web sites were visited for periods of time exceeding
that which would have been a result of an accident. This activity is a specific
violation of the Bureau's Internet Policy. That policy was provided to you
and you signed the acknowledgment of it on December 11, 1998.
Resp. Ex. No. 1.
Respondent maintains it has met its burden of proof and demonstrated Grievant
committed the acts for which he was discharged; his discharge was directly related to his
misconduct and was not politically motivated; no disparate treatment occurred; the
progressive discipline policy was followed; and written notice of his termination was sent
to Grievant. Respondent argues Grievant was insubordinate, and his behavior was a
direct violation of the Commissioner's prior directive that his behavior must be
professional, and further "objectionable behavior related to sexually explicit activity would
not be tolerated." Resp. Ex. No. 1. Respondent also indicated Grievant had engaged in
Sexual Harassment, as looking at pornographic materials at work was offensive to others.
Additionally, in reference to Grievant's Cyber-Sexual Internet Addiction, BEP made two
arguments: 1) Grievant has not proven he suffers from this condition; and 2) Grievant
never informed BEP he had this problem, so no accommodation was asked for or could
be received.
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
1. Grievant was employed as an Underwriter I in the Self Insurance Section of
the Workers' Compensation Division of BEP. 2. On November 13, 1998, Grievant received a letter notifying him of a five day
suspension for Sexual Harassment and specifying the charges. This letter reads in
pertinent part:
An investigation was conducted as a result of allegations of Sexual
Harassment filed against you by a co-worker on July 16, 1998. This co-
worker reported that you made lewd and obscene comments to her. When
you were interviewed about these allegations, you denied making any sexual
or inappropriate comments.
Prior to this investigation, in June 1998, another co-worker reported
that you had made unwelcome comments of a sexual nature and that you
had pinched him. After this incident was reported, you were counseled by
Executive Director John E. Burdette, II, and EO Counselor Patricia Skeen
that all employees need to be careful of their actions and words that could
be perceived as inappropriate. Mr. Burdette informed you at the time that
you must refrain from such behavior in the future. You responded by
denying that you made any inappropriate comments to any employee.
Also during the course of the investigation, one witness reported that
in July 1998, you made an offensive, sexual comment to her in front of other
co-workers. Several days later, this employee informed you that she did not
appreciate the remark. You responded by apologizing and affirming that you
would not make comments of that nature to her again.
After the incident in June 1998, you were directed to again read the
state's Sexual Harassment Policy and sign the policy acknowledgment form.
You did so on June 15, 1998. I have carefully reviewed the complaints and
witnesses' statements contained in the investigative report, weighting your
responses to the allegations. . . . Based on the aforementioned, I have
concluded that your suspension is warranted.
While it may appear to you that your comments and actions are
harmless, they are indeed offensive. The State of West Virginia has a
reasonable right to expect its employees to observe a standard of conduct
which will not reflect discredit upon the ability and integrity of its employees.
Your unprofessional conduct and obscene comments are disrespectful and
degrading to others and will no longer be tolerated.
With reference to my expectations that you bring your conduct into
compliance with acceptable standards, please be advised that you will bedismissed from employment with this agency for the next validated
complaint.
Based on the investigation in this matter, I have concluded this action is
warranted due to the fact that your behavior has disrupted operations by
creating an offensive, uncomfortable working environment.
Resp. Ex. No. 3.
3. On November 20, 1998, Grievant received a second letter from
Commissioner Vieweg, notifying Grievant that after consultation with Grievant's
supervisors, he had reconsidered the length of the suspension and had reduced it from
five to three days. Commissioner Vieweg noted, "[i]t is hoped that you recognize the
severity of the allegations against you and the need to modify your behavior to be in
compliance with acceptable work standards. Any future incident of this nature will not be
tolerated and the progressive disciplinary process will be imposed should any occur."
Resp. Ex. No. 3.
4. Grievant grieved this three day suspension, and it was denied at Level II.
After one day of hearing at Level III, Grievant asked to withdraw his grievance, and this
request was granted by Hearing Evaluator Jack DeBolt on January 20, 1999.
(See footnote 4)
Resp. Ex.
No. 4.
5. Contrary to Grievant's testimony, in December 1998, he received BEP's
Acceptable Use Policy - Internet. On December 11, 1998, he signed the EmployeeAcknowledgment Form which stated, "I acknowledge that I have read the WBEP
Acceptable Use Policy- Internet on the above date." Resp. Ex. No. 8.
6. This policy specifies the use of the Internet is for work related activities and
"not for any individual's personal purposes." Section 3.2. Additionally, the Acceptable Use
Policy - Internet contains the following regulations that apply to this grievance:
Section 6: Unacceptable Uses (not all inclusive).
Section 6.7 To download, display or transmit sexually explicit
materials.
Section 6.8 For personal and/or profit-making purposes
Section 1.2 Scope
Section 1.2.2 Violations of this policy will subject an
individual to disciplinary action ranging from a warning,
suspension of privileges, or dismissal from WVBEP and
prosecution under state and/or federal statutes - depending on
the circumstances of the incident.
Termination for a first time offense of this Policy is allowable.
8. BEP has instituted many procedures and practices to maintain the security
of its data and to prevent the abuse and misuse of its work computers. Employees must
use a password to sign on to a computer, and they are required to change this passwordevery three months. Employees are required to lock their computer if they are to be away
from their desk. If the employee forgets to lock the computer, it will lock itself after a ten
minute period without use. The computer cannot be unlocked until the same password
that was used to start it is entered again. When an employee inputs his password it comes
up as a series on X's, and not as the password. Employees are forbidden to share their
passwords with each other.
9. On November 18, 1999, Grievant's wife called for Grievant at work. Grievant
was not in the office as he had taken sick leave to take his daughter to the doctor. Since
the phones in the office must be answered at all times, Grievant had rolled his phone over
to his supervisor, Ms. Stone. Ms. White was very upset and shared with Ms. Stone her
belief that Grievant was downloading pornography from the Internet while he was at work.
10. Ms. Stone was very upset by this information and sought out her supervisor,
Melinda Ashworth Kiss. Ms. Kiss took the information to her supervisor, John "Ed"
Burdette. They contacted Oscar Lewis, the Manager of the Technical Support Division,
and asked him to check out Grievant's computer.
11. When Mr. Lewis checked Grievant's computer, history was only available for
November 17 through November 19. The history on a computer is usually longer than this,
but the history can be reset from the default.
12. Mr. Lewis found Grievant had visited some sites that were non-business
related. He also found Grievant had "visited several graphic, hard core pornographic
sites", and "[b]ased on the number of sites visited, we would have to conclude the visits
were intentional and not accidental." Res. Exhs. 9 & 11. 13. On November 19, 1999, Grievant visited multiple sexually explicit sites
containing hard core, gay pornographic materials. He visited these sites for sixteen
minutes, and to get to some of the sites it was necessary for him to click down through
several screens into these sites. These visits were not accidental. Resp. Ex. No. 11.
14. Mr. Lewis was directed to check Grievant's computer again on November 23,
1999. He found Grievant had again used the computer for non-business related activities,
and had visited inappropriate sites on November 22, 1999. Resp. Ex. No. 9.
15. Mr. Lewis also reviewed Grievant's "cookie" file
(See footnote 5)
and found "Multiple
instances of objectionable site visits. . . ." and site visits for personal use. Res. Exh. 9.
Grievant's "cookie" file and this list contained names of places such as "menchat3.gay",
"sexlist", "sexhound", "sextracker", "bi-curioustv", "porncards", "lovecards", "hotbot",
"gaysexswap", "personalsonline", "ohboys", "outincolumbus", "valueclick" and "babylon-x".
Several of these sites were visited numerous times. Resp. Ex. No. 10.
16. Grievant was confronted with this information on November 23, 1999, the day
he was orally discharged. He denied he had ever used the Internet inappropriately, and
said he may have inadvertently clicked on sexually explicit sites. He also indicated many
other people used the Internet at work for non-business related purposes, and at times
people had forwarded sexually explicit cartoons, etc. to him. Grievant noted that
sometimes he would click on a site, and multiple sites would open up on a screen. 17. To remove multiple site pop-ups from the screen takes only a few seconds,
as the operator needs to point and click each of them off separately. Test. Mr. Lewis.
18. After Grievant's termination, sometime in February or March 2000, Grievant
decided he had Cyber-Sexual Internet Addiction. He came to this conclusion through
discussions with counselors on the Internet. These counselors, who are not licensed to
practice in West Virginia, informed Grievant they believed he probably had this addiction
because he exhibited the symptoms and criteria for the diagnosis.
(See footnote 6)
Grievant has no
medical evidence of his alleged diagnosis.
19. Grievant stated the following in his testimony:
(See footnote 7)
It is true there were substantial and egregious violations of the use of the
Internet. It is also true that there were others who violated the use of the
Internet for personal use. . . .
In one specific incident, a co-worker of mine, whose inappropriate non-
business use of the Internet was apparently as substantial as mine, received
merely a five day suspension.
[S]o the issue that they're using to justify the much more severe punishment
of me, the much more severe discipline of me, than they are using on others
who did very similar, if not identical inappropriate Internet usage, is unfair,
capricious and arbitrary, and based largely on political considerations.
I know I did spend some time looking at inappropriate images on the Internet
on the Bureau's computer system.
20. Grievant's co-worker, who had also been found to have visited sexually
explicit sites, received a five day suspension. He had never received any prior disciplineor counseling. This fact was the reason he was not terminated. In his suspension letter
the co-worker was told he would be dismissed from employment "for the next validated
misuse of the Bureau's information technology resources via the Internet or any other
means." Grt. Ex. No. 3.
21. The work of the self-insured unit can have political overtones because the
unit deals with some of the State's largest employers. Test. Ms. Stone.
22. Ms. Stone has been employed in the self-insured unit for many years and is
currently the supervisor of this unit. She has recommended actions and taken work-
related actions that have not pleased her supervisors. She has "flourished" in this position
and has received excellent evaluations and merit increases. Test. Ms. Stone.
23. In September 13, 1999, an audit Grievant recommended was canceled by
an upper level supervisor. Grievant and Ms. Stone did not agree with that decision. Grt.
Ex. No. 2.
24. On January 5, 2000, after Grievant was terminated, Mr. Burdette sent an E-
mail to multiple employees informing them he was concerned that some staff members
were using the Internet for non-business related purposes. The memo reiterated what type
of materials were not appropriate and notified employees that the memory of various
computers would be reviewed to determine the web sites visited and the duration of each
visit. Grt. Ex. No. 4.
25. Policy 6400.01 discusses proper conduct for BEP employees. This Policy
states that employees are prohibited from "[e]ngaging in sexual or racial harassment". The
list given in the policy is not meant to be all inclusive. The Policy notes it is the employee'sresponsibility to conduct himself in a positive manner toward the Bureau, and "should
deviant and unacceptable behavior continue, proper disciplinary procedures will be
initiated, in accordance with Policy 6400.21/Disciplinary Actions." Resp. Ex. No. 2.
26. The Severance Pay Policy of the West Virginia Division of Personnel
specifies that with an involuntary discharge, if the employer elects immediate separation
from the workplace, the employee is entitled to receive severance pay for the time the
employee otherwise would have worked, up to a maximum of fifteen calendar days
following separation. Because BEP dismissed Grievant immediately, he received this
severance pay in lieu of advance notice.
27. Grievant did not receive written notice of his discharge although Respondent
mailed it.
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. Multiple issues have been raised by the parties, and these will be addressed
separately.
I. Credibility
Although some facts pertinent to this matter are not in dispute, the testimony about
many of the specific events which generated this disciplinary action varied between
Respondent's witnesses and Grievant's testimony. Additionally, Grievant's testimony
varied between his statements that he had looked at sexually explicit sites, and that he had
never seen the material generated from his computer and presented as evidence.
An Administrative Law Judge is charged with assessing the credibility of the
witnesses that appear before her. See Lanehart v. Logan County Bd. of Educ., Docket No.
95-23-235 (Dec. 29, 1995); Perdue v. Dep't of Health and Human Resources/Huntington
State Hosp., Docket No. 93-HHR-050 (Feb. 4, 1993). In these circumstances, where the
existence or nonexistence of certain material facts hinges on witness credibility, detailed
findings of fact and explicit credibility determinations are required. Maxey v. McDowell
County Bd. of Educ., Docket No. 97-33-208 (Apr. 30, 1998); Hurley v. Logan County Bd.
of Educ., Docket No. 97-23-394 (Dec. 11, 1997). See Pine v. W. Va. Dep't of Health &
Human Resources, Docket No. 95-HHR-066 (May 12, 1995). See also Harper v. Dep't of
the Navy, 33 M.S.P.R. 490 (1987). "The fact that [some of] this testimony is offered in
written form does not alter this responsibility." Browning v. Mingo County Bd. of Educ.,
Docket No. 96-29-154 (Sept. 30, 1996).
The United States Merit Systems Protection Board Handbook (MSPB Handbook)
has set out factors to examine when assessing credibility, and this Grievance Board hasrecognized these factors as helpful. Harold J. Asher and William C. Jackson,
Representing the Agency before the United States Merit Systems Protection Board 152-53
(1984). Some factors to consider in assessing a witness's testimony are the witness's:
1) demeanor; 2) opportunity or capacity to perceive and communicate; 3) reputation for
honesty; 4) attitude toward the action; and 5) admission of untruthfulness. Id. Additionally,
the administrative law judge should consider 1) the presence or absence of bias, interest,
or motive; 2) the consistency of prior statements; 3) the existence or nonexistence of any
fact testified to by the witness; and 4) the plausibility of the witness's information. Id.
The undersigned Administrative Law Judge finds the Respondent's witnesses to be
credible. Grievant's supervisors testified Grievant was an excellent worker with good
evaluations, but his inappropriate behavior and violation of policies could not be tolerated.
Further, the testimony of Mr. Lewis was clear and supported by documentation.
As for Grievant's testimony, it was confusing. At the outset of the hearing, he stated
he had looked at sexually explicit sites and had Cyber-Sexual Internet Addiction. Later,
when he found out Mr. Lewis could not specifically swear Grievant was the one who had
operated the computer at the specified time, Grievant stated he had never seen the
sexually explicit materials presented into evidence. Given this set of facts, and especially
Grievant's testimony he had violated BEP's Acceptable Use Policy - Internet, the
undersigned Administrative Law Judge finds Grievant to be less than credible, and finds
he did abuse the Acceptable Use Policy - Internet.
II. Written Notice/Due Process The next issue is Grievant's failure to receive written notice of the grounds for his
termination, as is required by Division of Personnel's Severance Pay Policy. It is well
settled that "[a]n administrative body must abide by the remedies and procedures it
properly establishes to conduct its affairs." Syl. Pt. 1, Powell v. Brown, 160 W. Va. 723,
238 S.E.2d 220 (1977). "However, an allegation that an employer failed to follow a
specific procedural requirement in accomplishing a disciplinary action is an affirmative
defense, and Grievant has the burden of establishing the facts to support such allegation
by a preponderance of the evidence." Bradley v. Cabell County Bd. of Educ., Docket No.
99-06-150 (Sept. 9, 1999). In addition, a grievant must show the procedural error, more
likely than not, influenced the outcome. Otherwise, if the same result would have
inevitably been reached, the procedural violation will be considered as "harmless error."
Bradley, supra; Dadisman v. W. Va. Div. of Rehabilitation Servs., Docket Nos. 98-RS-
023/040 (Mar. 25, 1999).
Additionally, when a "violation of the grievance procedure is merely technical,
following substantial compliance with the procedure, and there has existed between the
employee and his supervisors ongoing communications concerning the employee's
employment problems", this procedural error will not invalidate the action of the employer.
Vosberg v. Civil Serv. Comm'n, 166 W. Va. 488, 275 S.E.2d 640 (1981); See McFadden
v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-428 (Feb. 17, 1995).
See generally Parker v. Defense Logistics Agency, 1 M.S.P.B. 489 (1980).
In this set of circumstances, it does not appear a violation took place. Grievant was
well aware of the charges against him, BEP sent him written notice of the grounds for histermination, and these grounds were obviously the same as those discussed in his
termination meeting. Other BEP employees received their copy of this letter, BEP mailed
a copy to Grievant, and Grievant did not inform his employer he had not received a copy.
This is a situation where any possible violation of the notice procedure was merely
technical, if it occurred at all. BEP engaged in substantial compliance with the notice
procedure, and Grievant knew of the allegations against him because of the discussion on
November 23, 1999. Accordingly, this procedural error will not invalidate the action of the
employer. Vosberg, supra.
III. Insubordination
The issue here is whether Grievant was insubordinate for failing to follow his
supervisor's directives and policies. Insubordination involves the "willful failure or refusal
to obey reasonable orders of a superior entitled to give such order." Riddle v. Bd. of
Directors/So. W. Va. Community College, Docket No. 93-BOD-309 (May 31, 1994); See
Riffle v. Dep't of Transp., Docket No. 99-DOH-364 (Jan. 25, 2000); Webb v. Mason
County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). This Grievance Board has
previously recognized that insubordination "encompasses more than an explicit order and
subsequent refusal to carry it out. It may also involve a flagrant or willful disregard for
implied directions of an employer." Sexton v. Marshall Univ., Docket No. BOR2-88-029-4
(May 25, 1988) (citing Weber v. Buncombe County Bd. of Educ., 266 S.E.2d 42 (N.C.
1980)). See Adkins v. Dep't of Health and Human Resources, Docket No. 98-HHR-151
(Oct. 30, 1998). In order to establish insubordination, an employer must demonstrate that
a policy or directive that applied to the employee was in existence at the time of theviolation, and the employee's failure to comply was sufficiently knowing and intentional to
constitute the defiance of authority inherent in a charge of insubordination. Conner v.
Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995); See English v. Div.
of Corrections, Docket No. 98-CORR-082 (June 29, 1998).
An employee's belief that management's decisions are incorrect, absent a threat to
the employee's health or safety, does not confer upon him the right to ignore or disregard
the order, rule, or directive. Lilly v. Fayette County Bd. of Educ., Docket No. 97-10-084
(Feb. 11, 1998 ). See Parker v. W. Va. Dep't of Health and Human Resources, Docket No.
97-HHR-042B (Sept. 30, 1997). See generally, Meckley v. Kanawha County Bd. of Educ.,
181 W. Va. 657, 383 S.E.2d 839 (1989) (per curiam). "Employees are expected to respect
authority and do not have the unfettered discretion to disobey or ignore clear instructions."
Reynolds v. Kanawha-Charleston Health Dep't, Docket No. 90-H-128 (Aug. 8, 1990) (citing
Meads v. Veterans' Admin. 36 M.S.P.R. 574 (1988)). Additionally, 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 Burton, supra).
"Few defenses are available to the employee who disobeys a lawful directive; the
prudent employee complies first[,] and expresses his disagreement later." Hundley v.
W. Va. Div. of Corrections, Docket No. 96-CORR-399 (Oct. 27, 1997): See Maxey v.
W. Va. Dep't of Human Resources, Docket No. 93-HHR-424 (Feb. 28, 1995). "Generally,
an employee must obey a supervisor's order and then take appropriate action to challenge
the validity of the supervisor's order." Reynolds, supra. "An employee may not disregarda direct order of a superior based upon the belief that the order is unreasonable."
McKinney, supra. "Essentially, an employer can meet its burden [of proof] by showing that
the person giving the order had the authority to do so, and that the order did not require
the employee to act illegally or place himself or co-workers at unnecessary risk." Surber
v. Mingo County Bd. of Educ., Docket No. 96-29-15 (Dec. 12, 1996). See Hundley, supra;
Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995).
The answer as to whether Grievant was insubordinate is clear from the testimony
presented. Grievant willfully refused "to obey reasonable orders of a superior entitled to
give such order." Riddle, supra; Webb, supra. The Acceptable Use Policy - Internet is
specific. Employees are not to use BEP's computers and the Internet for personal use and
are not "[t]o download, display or transmit sexually explicit materials." Grievant admitted
he looked at sexually explicit sites. Even if Grievant had not admitted he looked at
sexually explicit sites, Respondent has established by a preponderance of the evidence
that Grievant did engage in this inappropriate behavior. Accordingly, Respondent has
demonstrated that "a policy or directive that applied to the employee was in existence at
the time of the violation, and the employee's failure to comply was sufficiently knowing and
intentional to constitute the defiance of authority inherent in a charge of insubordination."
Conner, supra.
IV. Failure to follow progressive discipline/Connection of two dissimilar types of
conduct
However, Grievant argues BEP impermissibly tied the two events together to reach
the decision to terminate him, and this action was arbitrary and capricious. He maintains
Commissioner Vieweg's suspension letter states he will only be terminated for another
incidence of Sexual Harassment, and Grievant argues his viewing sexually explicit sites
on the Internet is not Sexual Harassment.
"Generally, an action is considered arbitrary and capricious if the agency did not
rely on criteria intended to be considered, explained or reached the decision in a manner
contrary to the evidence before it, or reached a decision that was so implausible that it
cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v.
Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the
Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health
and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious
actions have been found to be closely related to ones that are unreasonable. State ex rel.
Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as
arbitrary and capricious when "it is unreasonable, without consideration, and in disregard
of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker,
547 F. Supp. 670 (E.D. Va. 1982)). " While a searching inquiry into the facts is requiredto determine if an action was arbitrary and capricious, the scope of review is narrow, and
an administrative law judge may not simply substitute her judgment for that of a board of
education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283
(W. Va. 1982)." Trimboli, supra.
The Commissioner's letter of suspension on November 13, 1998, states
The State of West Virginia has a reasonable right to expect its employees
to observe a standard of conduct which will not reflect discredit upon the
ability and integrity of its employees. Your unprofessional conduct and
obscene comments are disrespectful and degrading to others and will no
longer be tolerated. With reference to my expectations that you bring your
conduct into compliance with acceptable standards, please be advised that
you will be dismissed from employment with this agency for the next
validated complaint.
Resp. Ex. No. 4.
The Commissioner's follow-up letter, reducing the suspension, dated November 20,
1998, states "[i]t is hoped that you recognize the severity of the allegations against you
and the need to modify your behavior to be in compliance with acceptable work standards.
Any future incident of this nature will not be tolerated and the progressive disciplinary
process will be imposed should any occur." Resp. Ex. No. 12.
Both of the letters refer to acceptable conduct as it relates to work behavior, and
they do not specify the Commissioner was only speaking about Sexual Harassment.
Additionally, both letters refer to sexually explicit and sexually related behavior.
Accordingly, the undersigned Administrative Law Judge finds they are closely related, and
the Commissioner's decision to examine Grievant's past misconduct, and tie it with the
current misconduct is not arbitrary and capricious or incorrect. V. Politically motivated termination
Although Grievant argued he was terminated for politically motivated reasons, his
evidence is this area was limited to one E-mail where an upper level supervisor canceled
a September 1999 audit Grievant had planned. He testified big employers in West Virginia
were recommending and pushing for his discharge, and that there were multiple
complaints about him to "the powers that be." The testimony presented by Grievant and
BEP contradicted this theory. Ms. Stone recalled Grievant had received the highest
ratings of anyone she supervised in his most recent evaluation, that there were very few
complaints about Grievant's work, that he was an excellent employee, and his termination
was in no way motivated by political reasons. Ms. Kiss testified Grievant's termination was
not politically motivated, but that with the problems she had with him in recent years, all
dealing with similar behavior, she believed the correct course of action was termination.
Thus, as Grievant's evidence on this issue is very limited, this issue will not be addressed
further. "[M]ere allegations alone without substantiating facts are insufficient to prove a
grievance." Baker v. Bd. of Trustees, Docket No. 97 BOT-359 (Apr. 30, 1998).
VI. Discrimination
Grievant argues he has been discriminated against because another employee who
was disciplined for the same misconduct was only suspended, thus, they were not treated
in the same manner. He maintains that he and the other employee were similarly situated.
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." To prove discrimination a grievant must establish a prima facie case which consists
of demonstrating:
(a) that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his 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 other employee(s), and were not agreed to by the grievant
in writing.
If a grievant establishes a prima facie case, a presumption of discrimination exists, which
the respondent can rebut by presenting a legitimate, nondiscriminatory reason for the
action. However, a grievant may still prevail if he can demonstrate the reason given by the
respondent was pretextual. Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260
(Oct. 19, 1989).
Grievant's argument must fail as he has not proven he was similarly situated to the
employee to whom he compared himself. The employee who received a five day
suspension for the same offense did not have any history of prior disciplinary actions.
Grievant, on the other hand, had received prior counseling on Sexual Harassment, and
subsequently received a suspension for Sexual Harassment. Accordingly, the two
employees are not similarly situated, and Grievant has not proven he was discriminated
against.
VII. Violation of the Americans with Disabilities Act Grievant contends BEP has a duty to provide treatment to him for his disability, and
should not have terminated his employment. Public employers are prohibited from
discriminating in terms and conditions of employment because of "handicap" under the
West Virginia Human Rights Act, W. Va. Code §§ 5-11-1, et seq., or "disability" under the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12112-14 (1994). This Grievance
Board does not have authority to determine liability for claims that arise under the West
Virginia Human Rights Act, which would include a claim of handicap discrimination.
Nevertheless, the Grievance Board's authority to provide relief to employees for
"discrimination", "favoritism", and "harassment", as those terms are defined in W. Va. Code
§ 29-6A-2, includes jurisdiction to remedy discrimination that would also violate the Human
Rights Act. See Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-
099 (Dec. 18, 1996). See Vest v. Bd. of Educ., 193 W. Va. 222, 455 S.E.2d 781 (1995).
The definition of discrimination and the elements a grievant needs to establish are
identified in the prior section.
A review of the applicable law under the Americans With Disabilities Act, 42 U.S.C.
§ 12111, et seq. ("ADA"), reveals Grievant's claims must fail. The ADA provides that:
No covered entity shall discriminate against a qualified individual with
a disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and
privileges of employment.
42 U.S.C. § 12112.
A person making a claim of discrimination under the ADA bears the burden of
proving a prima facie case of discrimination by a preponderance of the evidence. In a
typical ADA case, the claimant must prove that:
(1)
he was in the protected class;
(2)
he was discharged;
(3)
at the time of his discharge he was performing his job at a level that
met his employer's legitimate expectations; and
(4)
his discharge occurred under circumstances that raise a reasonable
inference of unlawful discrimination.
Ennis v. Nat'l Assoc. of Bus. & Educ. Radio, Inc., 53 F.3d 55 (4th Cir. 1995).
The ADA defines "disability" as:
(A) a physical or mental impairment that substantially limits one or more
of the major life activities of such individual;
(B) a record of such impairment; or
Grievant has failed to prove that he has a handicap or is disabled within the
meaning of the ADA. There was no evidence to support the diagnosis of Cyber-Sexual
Internet Addiction, or to support Grievant's assertion this was a physical or mental
impairment that substantially limited his ability to perform one or more of the major life
activities. Additionally, there was no record of such impairment, nor was Grievant
regarded as having such an impairment. Further, Grievant did not inform his employer he suffered from a disability, nor did
he request an accommodation. In fact, Grievant notes he did not suspect he suffered from
this disease until three to four months after his termination. "It is not the employer's duty
or burden to research its employees' medical conditions to determine whether they rise to
the level of a disability." Bowman v. Educ. Broadcasting Auth. Docket No. 96-EBA-464
(July 3,1997); See Myers v. W. Va. Dep't of Transp., Docket No. 96-DMV-304 (Feb. 10,
1997); Lewis v. Mason County Bd. of Educ., Docket No. 94-26-175 (Dec. 12, 1994);
Howell v. W. Va. Dep't of Health and Human Res., Docket No. 90-H-484 (Sept. 27, 1991);
Cordray v. Wood County Bd. of Educ., Docket No. 90-54-267 (Jan. 31, 1991). Accordingly
this argument must also fail.
The above-discussion will be supplemented by the following Conclusions of Law.
1. 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.
2. Respondent did not violate the notice provisions of the Division of
Personnel's Severance Pay Policy. 3. Grievant violated BEP's Acceptable Use Policy - Internet, and this action
constituted insubordination.
4. Grievant failed to demonstrate BEP did not follow its progressive discipline
policy, or that it was arbitrary and capricious for BEP to link the prior suspension with
Grievant's current misconduct when electing to terminate Grievant.
5. Grievant did not meet his burden of proof and demonstrate his termination
was politically motivated. "[M]ere allegations alone without substantiating facts are
insufficient to prove a grievance." Baker v. Bd. of Trustees, Docket No. 97 BOT-359 (Apr.
30, 1998).
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." W. Va. Code § 29-6A-2(d)
7. To prove discrimination a grievant must establish a prima facie case which
consists of demonstrating:
(a) that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his 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 other employee(s), and were not agreed to by the grievant
in writing.
If a grievant establishes a prima facie case, a presumption of discrimination exists, which
the respondent can rebut by presenting a legitimate, nondiscriminatory reason for theaction. However, a grievant may still prevail if he can demonstrate the reason given by the
respondent was pretextual. Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260
(Oct. 19, 1989).
8. Grievant failed to meet his burden of proof and demonstrate he was similarly
situated to the employee to whom he compared himself.
9. Grievant did not demonstrate BEP violated the Americans with Disabilities
Act, as he did not prove he was in a protected class. Grievant did not establish he had a
physical or mental disability that substantially limited one of his major life activities.
10. At no time prior to his discharge did Grievant inform BEP of this alleged
disability or request an accommodation.
Accordingly, this grievance is DENIED.
ADMINISTRATIVE LAW JUDGE
Dated: May 22,2000
Footnote: 1