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:

      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:

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:

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
      The details regarding why Grievant was disciplined were not discussed in the record.