CECIL LOUGH,

                  Grievant,

v.                                                Docket No. 99-HHR-323

DEPARTMENT OF HEALTH AND HUMAN RESOURCES/
WILLIAM R. SHARPE, JR. HOSPITAL,

                  Respondent.

D E C I S I O N

      This grievance was submitted directly to Level IV   (See footnote 1)  by Grievant Cecil Lough, pursuant to W. Va. Code § 29-6A-4(e), on August 5, 1999, when he was suspended for at least 30 working days, pending an investigation into allegations of misconduct, by Respondent, Department of Health and Human Resources/William R. Sharpe, Jr. Hospital (“HHR”). Grievant sought as relief:

      The suspension lasted for 42 working days, and then Grievant was dismissed from his employment after HHR determined from the investigation results that the allegations of misconduct were true. Grievant did not file another grievance contesting the dismissal, and HHR contended at the Level IV hearing that the dismissal therefore could not be considered in this grievance. After taking evidence on the reasons for the suspension and the dismissal, the undersigned determined that the facts giving rise to the suspension were the same as those which HHR relied upon to justify the dismissal, and the dismissal was merely the final discipline imposed; thus, it was not necessary for a second grievance to be filed.   (See footnote 2) 
      The suspension letter states that Grievant is being suspended pending an investigation into an allegation that he created a sexually hostile work environment. The dismissal letter states that the investigation established the following.













      Having carefully reviewed the evidence presented in this case, the undersigned concludes that the charges against Grievant have been proven, and his dismissal should be upheld. The following Findings of Fact are made based upon a preponderance of the evidence presented at Level IV.   (See footnote 3) 
Findings of Fact

      1.      Prior to his dismissal, Grievant was employed by HHR as a driver at William R. Sharpe, Jr. Hospital in Weston. In this position he was required to drive a state owned vehicle to transport patients to their homes throughout West Virginia. A Health Service Worker also was required to accompany the patient to his or her home.
      2.      On July 21, 1999, Grievant and a female Health Service Worker at the hospital, Michele Martinez, transported a patient to her home in Wheeling, West Virginia. On the return trip, Grievant took Route 2 down the Ohio River, and, except for a brief period when he traveled Route 50, then took other less well traveled two lane roads to Weston. Grievant began masturbating in the car. Ms. Martinez asked him to stop, but he did not do so. At one point he pulled the car off the side of the road and told Ms. Martinez he needed to use the bathroom. When he returned to the car his pants were not zipped and his shirt was hanging out. He told Ms. Martinez they were going to sit there for a while. Ms. Martinez opened the car door, swung her legs out, and smoked a cigarette. When she glanced back in the car she saw that Grievant was masturbating. A truck pulled up behind them and they left immediately. Grievant continued to masturbate in the car while driving. Ms. Martinez asked him to stop it again, but he did not stop. She scooted to the edge of her seat and looked out the window the rest of the way back to Weston.       3.      When they returned to the hospital, Ms. Martinez was visibly upset, and reported to Judy Ratliff, a Health Services Assistant on her unit, that Grievant had been masturbating in the car during the return trip. Grievant then reported the same to a Nurse Manager named Linda, Chip Garrison, Assistant Hospital Administrator, and Jim Turner, Grievant's supervisor.
      4.      The next day Ms. Martinez filed a sexual harassment complaint. The complaint was forwarded by Jack Streets, the Equal Employment Opportunity (“EEO”) counselor at the hospital, to the state EEO office. Melody Jordan of the state EEO office conducted an investigation of the allegations.
      5.      Grievant was suspended without pay on July 22, 2000, for at least 30 working days, pending an investigation of the allegations. The reasons Grievant was suspended were to protect the integrity of the evidence, and because of a concern that his presence would cause a problem for Ms. Martinez, as he is viewed as intimidating. The suspension lasted 42 working days.
      6.      During the investigation Mary Robinson, a Health Service Worker at Sharpe Hospital, reported that during the past year or so, Grievant has masturbated in the car during the entire time they are returning to the hospital from dropping patients off at their homes.   (See footnote 4)  She has continued to ride with him, however, because it is her job to do so.
      7.      Debra Hart, Director of the State EEO office, found the allegations to be substantiated, and recommended that Grievant's employment be terminated, due to theseverity of Grievant's actions.
      8.      Grievant's employment was terminated on September 20, 1999.
      9.      HHR has provided sexual harassment training to Grievant on six occasions.
      10.      On August 2, 1996, Grievant was suspended without pay for two days for asking four female co-workers if they would like to have sex with him; exceeding the speed limit when driving state vehicles; and cursing in front of patients and staff. Grievant did not grieve this suspension.
      11.      On December 18, 1996, Grievant was suspended without pay for 15 days for conducting himself in an unprofessional manner and making threatening and intimidating comments regarding a co-worker. Grievant did not grieve this suspension.
Discussion

      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.
      The employer must also demonstrate that misconduct which forms the basis for the dismissal of a tenured state employee is of a "substantial nature directly affecting rights and interests of the public." House v. Civil Serv. Comm'n, 181 W. Va. 49, 380 S.E.2d 226 (1989). "The judicial standard in West Virginia requires that 'dismissal of a civil service employee be for good cause, which means misconduct of a substantial nature directly affecting rights and interests of the public, rather than upon trivial or inconsequential matters, or mere technical violations of statute or official duty without wrongful intention.' Syl. Pt. 2, Buskirk v. Civil Service Comm'n, [175 W. Va. 279, ___,] 332 S.E.2d 579, 581 (W. Va. 1985); Oakes v. W. Va. Dept. of Finance and Admin., [164 W. Va. 384,] 264 S.E.2d 151 (W. Va. 1980); Guine v. Civil Service Comm'n, [149 W. Va. 461,] 141 S.E.2d 364 (W. Va. 1965)." Scragg v. Bd. of Dir. W. Va. State College, Docket No. 93-BOD-436 (Dec. 30, 1994).
      "State employees may be disciplined for sexual harassment where their conduct creates an intimidating, hostile or offensive work environment for one or more employees." Lanham v. Dep't of Transp., Docket No. 98-DOH-369 (Dec. 30, 1998). See Hall v. W. Va. Dep't of Transp., Docket No. 96-DOH-433 (Sept. 12, 1997); Turner v. W. Va. Div. of Highways, Docket No. 94-DOH-594 (Feb. 27, 1995); Stonestreet v. W. Va. Dep't of Admin., Docket No. 93-ADMN-182 (Nov. 30, 1993). See also Harry v. Marion County Bd. of Educ., Docket Nos. 95-24-575 & 96-24-111 (Sept. 23, 1996).
      Grievant questioned Ms. Martinez's credibility. He also argued that even if the charge were proven, masturbation is not sexual harassment as defined by the sexual harassment policy, as there was no charge of physical contact with Ms. Martinez or that he said anything improper to her, and it is not one of the listed inappropriate behaviors in the policy.
      The first issue which will be addressed is whether masturbation by a male employee, who is driving and has control of a car, in the presence of a female co-worker, while the two of them are alone in a car, is sexual harassment. Clearly it is. However, even if the undersigned were to conclude that continued masturbation in the presence of a female co-worker in a car was not sexual harassment, it would still be the type of behavior under the circumstances that is extremely inappropriate, and dismissal would not be an excessive sanction. It is also behavior which Grievant knew was highly inappropriate, whether he had received training which told him so or not.
      The Division of Personnel's Sexual Harassment Policy states that the purpose ofthe policy is:

The policy goes on to define sexual harassment as:





      The policy lists certain behaviors which are considered to be sexually harassing. Grievant is quite correct that masturbation is not one of the listed behaviors. However, as Respondent pointed out, the list of improper behaviors is not exclusive. The policy states that the behaviors listed are some of those which are sexually harassing, but that the list of behaviors is not all inclusive. Perhaps masturbation is not listed because it is so obviously inappropriate and offensive in the workplace that no one thought it necessary to list it.
      The charges against Grievant, if proven, constitute the type of behavior which would be offensive, and would have the effect, or perhaps even the purpose, of unreasonably interfering with Ms. Martinez's work performance or creating an intimidating, hostile, or offensive working environment.      The next issue is whether Ms. Martinez lied. The United States Merit Systems Protection Board Handbook is helpful in setting out factors to examine when assessing credibility. 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. 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.
      There was nothing in Ms. Martinez's testimony or her demeanor which indicated she was lying about this incident, nor did Grievant present any reason why she would have fabricated this story. When testifying, Ms. Martinez did not state precisely at times what Grievant was doing in the car, stating that he was “rubbing himself” or “rubbing his privates.” However, it is more likely that she was hesitant to use the words “masturbating” and “penis” in the presence of six people in the room, two of whom she did not know, and felt it was clear what Grievant was doing, than that she would not use these words because she was lying. When confronted on cross-examination by Grievant's representative to be more specific, she responded that he “had the whole thing in his hand.” She put her head down as though she were embarrassed. Her co-workers further testified that she was visibly upset upon returning from the trip, and, her testimony was consistent with the statement she gave to the EEO investigator.
      In an effort to demonstrate Ms. Martinez was lying, Grievant questioned why she did not get out of the car if Grievant's actions were so disturbing to her. It was clear from Ms. Martinez's testimony that she had no idea where she was or what was around her. She only knew that the Ohio River was on her right, she was not seeing many houses, andshe was supposed to return to work. The Ohio River is quite a distance from Weston. Her failure to exit the vehicle and begin walking when she was so far from home, did not know anyone, and did not know where she was, was perfectly reasonable and does not demonstrate she was lying.
      Ms. Martinez testified she was told by Judy Ratliff to accompany a patient to Wheeling. She did not know who the driver would be, and had not heard anything from other employees about Grievant. She stated the trip to Wheeling to drop off the patient was pleasant. She stated Grievant wanted to take a back road on the return trip. They stopped at a store to get a drink. She stated that as he drove he started scratching himself, but at that time she was not paying any attention to what he was doing. He then adjusted the radio station and started rubbing himself. Then he turned the radio up. She stated she was not sure at first what he was doing. When she understood that he was masturbating she asked him to stop, but he ignored her. She turned her head toward the window and scooted to the edge of her seat and ignored him. She stated both she and Grievant lit up cigarettes, and started talking, and then he started rubbing himself again. She stated he again adjusted the radio, and then continued to rub himself. She asked him to stop again and he would not do so, and she turned her head. She stated they pulled off the road, and Grievant said he had to go to the bathroom. He got out of the car, and when he returned his pants were unzipped and he was holding them up, and his shirt was out. She did not testify that Grievant had an erection as is in the investigative report. Grievant told her they were going to sit there awhile. She opened the car door and swung her legs out and smoked a cigarette. She glanced back in the car and saw that Grievant had his hand under his shirt and he was stroking himself up and down. A truck pulled up behind the car, and Grievant said they were leaving. About 15 minutes later, Grievant started rubbing himself again. She turned her head and did not look at him the rest of the way back to the hospital. She testified that she was afraid of what Grievant was going todo next, and she is still afraid of him. Ms. Martinez stated she saw Grievant the next day and he had asked her if she was going on another trip. She stated she simply told him, “no,” and she testified candidly that she did not recall him snapping his fingers and saying, “oh, darn” in response, as is in the investigative report.
      After Ms. Martinez's complaint was filed, an investigation began, and another employee, Mary Robinson, came forward with allegations remarkably similar to Ms. Martinez's. Grievant did not question the veracity of this witness, and presented no reason why she would lie, or would conspire with Ms. Martinez against him. Rather, Grievant argued it was the Martinez complaint which led to his dismissal. While it is true that it was the Martinez complaint which led to the investigation, and was the primary reason for the action against Grievant, the dismissal letter clearly states that it was not just one incident which resulted in disciplinary action against Grievant.   (See footnote 5) 
      Ms. Robinson told the EEO investigator that on return trips Grievant is,

. . .


She testified at the Level IV hearing that Grievant has been fondling himself on the returntrips for a year or so. She told the investigator that several of the employees had been in a meeting about a year ago and were told Grievant would be counseled about his behavior. She testified at the Level IV hearing that it made her uncomfortable when Grievant fondled himself when they were on the return trip to the hospital, and that he has done so every time she has ridden with him. She stated, as she told the investigator, that she has continued to ride with him because it is her job. She testified that she had reported Grievant's actions to the other employees on her unit, and a couple of the nurses. She did not know Ms. Martinez.
      Although Grievant did not testify at the Level IV hearing, he spoke to the investigator. His statement begins by stating he swears or affirms that the statements made by him are true and accurate, but the statement is not notarized. It is witnessed. Grievant told the investigator he had been an employee of the hospital for 20 years, and that on the return trip he took Route 2 to New Martinsville, then a road he could not identify by number to Route 18 to Middlebourne, and on to Route 50. He exited Route 50 at Meathouse Fork in Doddridge County, and followed that road to Churchill Road in Lewis County, returning to Weston. He stated he stopped only once on the return trip, at a store in New Martinsville. He responded by saying “[n]o ma'am” when he was asked by the investigator if he pulled off a back road to urinate; whether he rubbed his genitals through his clothing at any time during the trip; and, if he put his hand in his pants at any time. When asked if he returned to the car with his pants unbuttoned or unzipped he responded, “I didn't stop. No ma'am.” He responded that he did not “have a clue” as to why Ms. Martinez would say these things, and when asked if he had had any problems with her he stated he did not even know her.
      As Grievant did not testify at Level IV, his statement was not subject to cross- examination, and the undersigned had no opportunity to observe his demeanor. Ms. Hart testified that Grievant's statement is surprising. She stated those who are accused ofsexual harassment generally have their own story to tell about what transpired, and the statements are usually detailed.
      Grievant's blanket denials given to the investigator are unconvincing. He offered no explanation of what he was doing, or why his female co-workers would make up these stories to hurt him. Respondent has proven through the testimony of Ms. Martinez and Ms. Robinson that it is more likely than not that Grievant committed the acts with which he was charged.
      Grievant pointed out that he was receiving unemployment compensation based upon a finding that Respondent had not proven the charges against him in that forum. Mr. Garrison testified that Respondent had decided not to present any witnesses at the unemployment hearing, because he and others at the hospital were afraid it would be too trying for the witnesses to have to testify both at that hearing and at the grievance hearing. The fact that Grievant prevailed on his unemployment claim based upon different evidence than was presented before the undersigned is of no relevance here.
      Grievant also argued that Virginia Tucker, who signed the termination letter, had no authority to do so; rather the hospital administrator should have done so. Grievant's support for this argument was a one page document, marked as Grievant's Exhibit Number 2. This document is headed “EEO Complaint Process.” Hand-written at the top is a notation, “posted 5/1/00 E/F SSM.” Grievant's representative attempted to have this document admitted into evidence at the telephonic conference on July 11, 2000. He had not provided the undersigned or Respondent's counsel with a copy of this document prior to the conference, and presented no testimony regarding where he obtained the document, or when it became effective. After having the opportunity to review the document, Respondent objected to its admission for these reasons, as well as the fact that it appeared to be a part of a larger packet of documents. Grievant's Exhibit Number 2 is NOT Admitted into evidence because it was not authenticated, and there is no indicationthat if it were authentic it would apply to the time period when Grievant was terminated.   (See footnote 6) 
      Ms. Tucker testified that she is HHR's Assistant Secretary of Operations, and that she has the authority to hire and fire civil service employees of HHR. The undersigned has been presented with no reason to question this. She further testified that she had consulted with Jack Clohan, the hospital's administrator, in making the decision to terminate Grievant's employment.
      The following Conclusions of Law support the Decision reached.
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).
      2.      The employer must also demonstrate that misconduct which forms the basis for the dismissal of a tenured state employee is of a "substantial nature directly affecting rights and interests of the public." House v. Civil Serv. Comm'n, 181 W. Va. 49, 380 S.E.2d 226 (1989). "The judicial standard in West Virginia requires that 'dismissal of a civil service employee be for good cause, which means misconduct of a substantial nature directly affecting rights and interests of the public, rather than upon trivial or inconsequential matters, or mere technical violations of statute or official duty without wrongful intention.' Syl. Pt. 2, Buskirk v. Civil Service Comm'n, [175 W. Va. 279, ___,] 332 S.E.2d 579, 581 (W. Va. 1985); Oakes v. W. Va. Dept. of Finance and Admin., [164 W. Va. 384,] 264 S.E.2d 151 (W. Va. 1980); Guine v. Civil Service Comm'n, [149 W. Va. 461,] 141 S.E.2d 364 (W. Va. 1965)." Scragg v. Bd. of Dir. W. Va. State College, Docket No. 93- BOD-436 (Dec. 30, 1994).
      3.      Respondent proved the charges against Grievant, and that Grievant's actionswere sufficiently egregious to justify his dismissal.

      Accordingly, this grievance is DENIED.

      Any party or the Division of Personnel may appeal this Decision to the circuit court of the county in which the grievance arose, or the Circuit Court of Kanawha County. 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                           ______________________________
                                                      BRENDA L. GOULD
                                                 Administrative Law Judge

Date:      August 29, 2000


Footnote: 1
Grievant also submitted a copy of the grievance to HHR which treated it as a filing at Level III. The grievance was remanded by the Level III grievance evaluator to Level I, and then forwarded to Level IV once it was determined that Grievant could proceed directly to Level IV.
Footnote: 2
Two days of hearing were held at Level IV, on October 18 and November 29, 1999. Grievant was represented by Ron Grogg, and Respondent was represented by Dennise Smith. The parties agreed to the submission of written testimony for Virginia Tucker, after the second day of hearing, as Ms. Tucker was on sick leave, and was not able to attend the hearing. Ms. Tucker's testimony was submitted on December 10, 1999. Mr. Grogg, then asked to cross-examine Ms. Tucker. A telephonic conference was scheduled for January 24, 2000, for this purpose, but because Ms. Tucker had taken a medical leave of absence, the telephonic conference was postponed until March 8, 2000. The Grievance Board staff attempted to contact Mr. Grogg at the appointed time, but he could not be located at the telephone numbers made available to the Grievance Board. A second telephonic conference was scheduled for April 7, 2000, with the same result. Mr. Grogg was given the opportunity to explain why he was not available at the appointed time, and stated he had a family emergency. Mr. Grogg was then directed to confer with Respondent's counsel and provide five dates when both parties would be available for the telephonic conference. No further response was received, and by letter dated June 8, 2000, the undersigned directed Mr. Grogg to comply with the previous directive, or the record would be closed. Mr. Grogg complied with the directive, and the telephonic conference was held on July 11, 2000, for the purpose of allowing cross-examination of Ms. Tucker. Respondent was represented at the telephonic conference by B. Allen Campbell, Esquire. This matter became mature for decision upon receipt of Respondent's written argument on July 21, 2000. Grievant's representative presented oral argument, and declined to submit written argument.
Footnote: 3
Grievant chose not to testify.
Footnote: 4
Ruth Pratt, also a Health Service Worker, reported during the investigation that Grievant had masturbated in the car on a return trip, and that he had propositioned her on that trip. As Grievant was previously disciplined for this incident in 1996, this testimony will not be considered by the undersigned. Shirley Sprouse, Health Service Worker, and Sandy Forinash, Health Service Associate, testified at the Level IV hearing that Grievant had masturbated in the car on a return trip. As their statements are not included in the EEO investigative report, and were not relied upon in disciplining Grievant, their testimony likewise will not be considered by the undersigned. In addition, Ms. Forinash testified that this occurred many years ago, and he had also propositioned her at that time. After that, she would not go on a trip if Grievant was the driver.
Footnote: 5
Although the dismissal letter refers to two other employees reporting similar behavior on earlier trips, the undersigned found only one other employee who reported during the investigation that Grievant had masturbated on a return trip, Ruth Pratt. As previously noted, she filed an EEO complaint in 1996 regarding Grievant's behavior in asking her if she wanted to “fool around,” and he had also masturbated on the return trip.
Footnote: 6
If the document were admitted, it does not support Grievant's argument.