v. Docket No. 99-DOH-418
WEST VIRGINIA DEPARTMENT OF
TRANSPORTATION/DIVISION OF HIGHWAYS,
Respondent.
JANIS I. REYNOLDS
I[,] Mark Wells[,] was dismissed from my duties with the department of
transportation effective September 25, 1999. I believe that the dismissal
was unfair because State management was unfair in restricting us verbally
of (sic) attending recreational activities such as basketball games and etc.
When in fact we should and are allowed these activities technically. This
unfairness affected my actions directly and indirectly.
RELIEF SOUGHT: I ask the dismissal be rescinded and removed from the
record and that any pay, vacation and sick days lost as a result be reinstated
and a divinative (sic) interpretation of the vague term 'as required' (sic)
regarding use of state vehicles be posted.
As this was a disciplinary grievance, it was appealed directly to Level IV. After
several continuances by agreement of the parties, a Level IV hearing was held on June
9, 2000. This case became mature for decision on that date, as the parties elected tosubmit the case of the record developed at hearing.
(See footnote 2)
Pursuant to this Grievance Board's
past practice, this disciplinary grievance was expedited for Decision.
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
1. Grievant has been employed as a Transportation Technician by DOH for
seven years, working out of the Charleston office.
2. Grievant's position necessitates a lot of travel, and he and his partner, Kevin
Sullivan, were frequently on the road. They stayed in a variety of motels along their
required route.
3. Grievant's driver's license was revoked on December 18, 1997, because of
a May 24, 1997 driving under the influence administrative revocation ("DUI"). He has not
had a valid driver's license since that time. Resp. Ex. No. 4.
4. In earlier years, Grievant and Mr. Sullivan would use the state car for evening
entertainment. Later, after several discussions with their supervisor, Mr. Robert Anthony,
about driving the state car after hours only "as required", Mr. Sullivan became reluctant to
use the state car in the evening for recreational purposes.
5. During the week of April 19, 1999, Grievant and Mr. Sullivan were working
the Elkins area. 6. On April 21 or 22, 1999, Grievant drove the state car without a driver's license
to Elkins after drinking beer and went to a bar. He placed beer in the state vehicle prior to
this trip. He was later arrested for public intoxication.
7. The incident was investigated, and on May 17, 1999, Grievant met with Mr.
Norman Roush, the Deputy Commissioner and Acting Director of the Planning Division.
Grievant was presented with Form RL-544 which informed him that a thirty day suspension
was the planned disciplinary action. Grievant was allowed to respond orally to the
recommendation. Resp. Ex. No. 2.
8. Grievant was suspended for thirty days. He appealed this suspension directly
to Level IV, and this grievance was denied by Decision, Wells v. Dep't of Transp., Docket
No. 99-DOH-245 (Nov. 24, 1999) (Wells I).
9. Grievant's thirty day suspension letter indicated the charges against Grievant
were serious and warranted dismissal; however, he was given the lesser penalty of a 30
day suspension in case he had "a substance abuse problem that can be remedied through
treatment."
10. Grievant did not seek help.
11. Upon his return from suspension, Grievant was directed to not drive the state
vehicle, to let his partner drive, and told his role was to be a recorder.
12. On August 3, 1999, Mr. Anthony received a call from State Trooper Knight.
Trooper Knight informed Mr. Anthony that he had answered a call the previous night about
a man urinating at the end of a woman's driveway. By the time Trooper Knight got there,
he found the woman talking to Grievant, and she indicated she knew him and did not want
to press charges. Grievant was intoxicated and had been driving the state vehicle. Trooper Knight informed Grievant he would not be allowed to drive back to the motel. The
woman volunteered to drive Grievant. Trooper Knight noted a ½ quart of vodka and some
beer in the state vehicle. Resp. Ex. No. 1.
13. Later that night, Trooper Knight received a call from the Elkins police stating
they believed they had seen Grievant with another man, Robert Reiser. When they
attempted to arrest this other man for DUI he had escaped, and they were trying to find
Grievant for information on this individual. They checked the motels without success.
During this check, it was discovered by Trooper Knight that Grievant did not have a valid
driver's license, and the main reason Trooper Knight called Mr. Anthony was to inform him
that Grievant was driving a state vehicle without a valid license. Resp. Ex. No. 1.
14. Grievant and his partner were directed to return to Charleston immediately.
15. On August 20, 1999, Grievant received another RL-455 form stating his
termination was being recommend for operating a state vehicle without a valid driver's
license, after being expressly forbidden to do so, operating a state vehicle while under the
influence of alcohol, and having alcohol in a state vehicle. Grievant was given a
opportunity to meet with Director John Lancaster. Resp. Ex. No. 6.
16. Grievant refused to sign this form, but did write a reply which expressed his
displeasure with the policy that did not allow him to use the state vehicle for recreational
purposes. He indicated he held state management responsible for his actions. Resp. Ex.
No. 8.
17. On September 10, 1999, Grievant was mailed a letter of termination. This
letter noted his prior thirty day suspension for a similar offense, and stated he was being
terminated for "violation of the Drug Free Workplace Policy, driving a state vehicle withouta drivers license, unauthorized use of a state vehicle, operation of a state vehicle while
under the influence of alcohol, and failure to comply with instructions." Resp. Ex. No. 7.
18. After his termination, Grievant realized he was an alcoholic, and sought
treatment. He completed an in-patient, substance abuse treatment program on March 29,
2000.
19. During the Winter, Spring, and Summer of 1999, Grievant was under stress
from the illness and subsequent death of his father and his mother-in-law's Alzheimers.
Grievant also served in combat during the Vietnam Conflict. Grt. Ex. No. 3.
20. During this time, he did not ask for any accommodation and did not request
to be removed from the road.
21. Grievant had previously informed Mr. Anthony that he would quit his job if he
were forced to stay in the office all the time.
At hearing, Grievant basically stated he agreed with the charges brought against
him, but that he believed he deserved another chance as he now realized he was an
alcoholic and had sought treatment. Grievant still maintained DOH's policy of not allowing
employees to use the state vehicle for off-hours activities was unfair.
Respondent argued it met its burden of proof and proved the charges by a
preponderance of the evidence. Respondent noted Grievant had already been given a
second chance when he received his prior suspension. Respondent stated Grievant was
offered an opportunity at that time to seek treatment from the Employee Assistance
Program or a counselor of his choice, but he did not.
State employees who are in the classified service can only be dismissed for "good
cause", meaning "misconduct of a substantial nature directly affecting the rights and
interest of the public, rather than upon trivial or inconsequential matters, or mere technical
violations of statute or official duty without wrongful intention." Syl. Pt. 1, Oakes v. W. Va.
Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980); Guine v. Civil Serv.
Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1965); See also Sections 12.2 and .3,
Administrative Rules, W. Va. Div. of Personnel (June 1, 1998). The West Virginia
Supreme Court of Appeals has also stated that "the work record of a long-term civil service
employee is a factor to be considered in determining whether discharge is an appropriate
disciplinary measure in cases of misconduct. " Buskirk v. Civil Serv. Comm'n, 175 W. Va.
279, 332 S.E.2d 579 (1985). See Blake v. Civil Serv. Comm'n, 172 W. Va. 711, 310
S.E.2d 472 (1983); Serreno v. W. Va. Civil Serv. Comm'n, 169 W. Va. 111, 285 S.E.2d
899 (1982).
The stated reasons for Grievant's dismissal were five-fold: 1) violation of the Drug
Free Workplace Policy; 2) driving a state vehicle without a driver's license; 3) unauthorizeduse of a state vehicle; 4) operation of a state vehicle while under the influence of alcohol;
and 5) failure to comply with directions. These are almost the exact same acts Grievant
committed when he was suspended.
Respondent has proven these charges, and indeed, Grievant, at Level IV, did not
contest that he committed the acts of which he is accused. The Drug Free Workplace
Policy states a workplace is "where work is performed in connection with the employee's
State employment." This Policy confirms that state automobiles are considered as a part
of the "workplace", and "the presence of . . . alcohol in the body system . . . [is] prohibited
in the Workplace." Div. of Personnel's Drug Free Workplace Policy. "Employees who are
in violation of the provisions of the Drug Free Workplace Policy shall be subject to
disciplinary action up to and including termination." Id. The Drug Free Workplace Policy
has a zero tolerance for the consumption of alcohol, and any amount in the body system
in the workplace is a violation, and thus, can be seen as driving under the influence. Wells
I, supra; R H S v. Regional Educ. Serv. Agency, Docket No. 96-RESA-348 (Mar. 31,
1997); Felix v. Dep't of Public Safety, Docket No. 94-DPS-143 (Feb. 15, 1995).
Grievant was under the influence when he was found by Trooper Knight, and he had
been driving the state vehicle. Trooper Knight could see alcohol in this state vehicle.
Trooper Knight believed Grievant was too intoxicated to drive, and he would not allow
Grievant to operate the vehicle to return to the motel. These acts are violations of the Drug
Free Workplace Policy, and Grievant operated a state vehicle while under the influence of
alcohol. See Smith v. W. Va. Dep't of Health and Human Resources, Docket No. 98-HHR-
512 (June 1, 1999); Edens v. Dep't of Highways, Docket No. 98-DOH-224 (Feb. 26, 1999);
Perdue v. W. Va. Dep't of Health and Human Resources, Docket No. 93-HHR-050 (Feb.4, 1994). It is also clear Grievant drove the state car without a driver's license; thus, there
is no need to discuss further whether this charge was proven. The final two charges are
unauthorized use of a state vehicle and failure to follow instructions. Grievant drove the
automobile without a driver's license after he had been specifically instructed not to do so.
Obviously, these charges are proven.
Respondent has met its burden of proof and demonstrated Grievant engaged in the
acts with which he was charged in the dismissal letter, and these act constitute "good
cause". Employers have the right to expect employees to follow the law, rules, and
regulations of the agency for which they work. See Hatfield v. Dep't of Corrections, Docket
98-CORR-020 (Apr. 30, 1998); Scarberry v. Bureau of Employment Programs, Docket No.
94-BEP-625 (Jan. 31, 1995); Smith v. Dep't of Corrections, Docket No. 93-CORR-538
(May 17, 1994). Employers also have the right to expect their employees to obey the laws
of the state of West Virginia that govern their behavior, especially as it impinges on their
employment. See generally Morrison v. Dep't of Labor, Docket No. 99-LABOR-146 (Aug.
31, 1999). Grievant's behavior constituted "misconduct of a substantial nature directly
affecting the rights and interest of the public, rather than . . . trivial or inconsequential
matters, or mere technical violations of statute or official duty without wrongful intention."
Syl. Pt. 1, Oakes, supra; Guine, supra; See also Section 12.3, Administrative Rules, W. Va.
Div. of Personnel (June 1, 1998).
As for Grievant's question about DOH's policy concerning the use of a state vehicle
for recreational purposes, this question was answered in Wells I. Although the policy
discussed in Wells I was DOH's policy, and it stated, "[a]ny employee engaged in official
reimbursable travel away from the home station may park a state vehicle at the hotel/moteland may use the vehicle as required", and the policy submitted in this hearing was the
State's Travel Policy which states, "[s]tate vehicles are for 'official business use' only" the
outcome is the same.
(See footnote 3)
Grievant argues the Policy should allow employees to use the
vehicle for entertainment purposes after work hours. The Policy is clear, indicates state
vehicles may be used "for 'official business use' only", and recreational trips are not
allowed. It is also clear these Policies cannot cover, by any stretch of the imagination,
Grievant's behavior. "'Official business use' only" does not include an employee, without
a driver's license, drinking and then driving a state vehicle.
Grievant argued the penalty was excessive, and he should be given another chance
since he has now seen the error of his ways and sought and received treatment. The
undersigned Administrative Law Judge may mitigate the discipline if the imposed penalty
is clearly excessive or clearly disproportionate to the offense. In assessing whether this
discipline was excessive or disproportionate the undersigned Administrative Law Judge
must look at the totality of the circumstances. Some factors to be considered in the
mitigating analysis include the employee's past disciplinary record, the clarity of notice to
the employee of the rule violated, whether the employee was warned about the conduct,
and other mitigating circumstances. See Stewart v. W. Va. Alcohol Beverage Control
Comm'n, Docket No. 91-ABCC-137 (Sept. 19, 1991). As previously stated in Buskirk,
supra, "the work record of a long-term civil service employee is a factor to be considered
in determining whether discharge is an appropriate disciplinary measure in cases of
misconduct." See Blake, supra; Serrino, supra. However it must be noted thatconsiderable deference is afforded the employer's assessment of the seriousness of the
employee's conduct and the prospects for rehabilitation. Overby v. W. Va. Dep't of Health
and Human Resources, Docket No. 96-HHR-183 (Oct. 3, 1996).
In examining these factors, it is obvious Grievant was warned about his conduct,
was on notice that his behavior would not be tolerated, and had a recent suspension for
the same offense. Grievant was previously informed he could have been dismissed for the
first incident of misconduct, but he was given the lesser penalty of a 30 day suspension in
case he had "a substance abuse problem that can be remedied through treatment." Wells
I, supra. Although it is commendable that Grievant has sought and received treatment, the
undersigned Administrative Law Judge must defer to DOH's judgement. Indeed, DOH was
fortunate Grievant's prior misconduct did not cause serious harm or death to another
motorist. DOH has elected to dismiss Grievant, and the undersigned Administrative Law
Judge cannot substitute her judgement for that of the agency. Overby, supra. The
discipline imposed here was not clearly excessive, and no mitigation by the undersigned
Administrative Law Judge is appropriate in this set of circumstances. See e.g. Hammer
v. Div. of Corrections, Docket No. 94-CORR-1084 (Nov. 30, 1995).
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 morelikely 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 has met its burden of proof by a preponderance of the evidence
and demonstrated that Grievant: 1) violated the Drug Free Workplace Policy; 2) drove a
state vehicle without a driver's license; 3) engaged in unauthorized use of a state vehicle;
4) operated a state vehicle while under the influence of alcohol; and 5) failed to follow
instructions.
3. The term, "for 'official business use' only", utilized in the State of West
Virginia's Travel Regulations, does not include the behaviors Grievant exhibited.
4. Mitigation of punishment imposed by an employer should be granted only
where there is a showing that a particular disciplinary measure is so clearly
disproportionate to the employee's offense that it indicates an abuse of discretion.
Considerable deference is afforded the employer's assessment of the seriousness of the
employee's conduct and the prospects of rehabilitation. See Overby v. W. Va. Dep't of
Health and Human Resources, Docket No. 96-HHR-183 (Oct. 3, 1996).
5. As DOH is due deference in situations of this type, the undersigned
Administrative Law Judge may not substitute her judgement for that of the agency. No
mitigation is appropriate in this situation.
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 thegrievance 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.
ADMINISTRATIVE LAW JUDGE
Dated: June 28, 2000
Footnote: 1
Footnote: 2
Footnote: 3