KIRA LEBLANC,
                              Grievant,
v.                                                      Docket No. 99-HHR-518
WEST VIRGINIA DEPARTMENT
OF HEALTH AND HUMAN RESOURCES/
BUREAU FOR CHILDREN AND FAMILIES,

                              Respondent.

DECISION

      Kira LeBlanc (Grievant), is employed as a Child Protective Service (CPS) Worker at the West Virginia Department of Health and Human Resources/Bureau for Children and Families' Mercer County office (DHHR). She filed this grievance pursuant to W. Va. Code §§ 29-6A-1, et seq., alleging that she was improperly given a verbal reprimand, and that her caseloads are excessive. The grievance was denied at Level I by Child Protective Service Supervisor Diana Hagerman on October 19, 1999; and at Level II, by Community Service Manager John J. Najmulski, on November 5, 1999. A Level III hearing was held on December 1, 1999. Grievant represented herself at this hearing, and DHHR was represented by Margaret Waybright. On December 7, 1999, the grievance was denied at Level III by Commissioner Jack Frazier.       
      A Level IV hearing was held on February 24, 2000, before the undersigned administrative law judge, at the Grievance Board's Beckley office. Grievant again represented herself, and DHHR was represented by Anthony Eates, Esq. The parties were given until March 31, 2000, to submit proposed findings of fact and conclusions oflaw. DHHR did so, and this grievance became mature for decision on that date.
      The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT

      1.      Grievant is employed as a Child Protective Service (CPS) Worker at the West Virginia Department of Health and Human Resources/Bureau for Children and Families' Mercer County office.
      2.      Grievant's caseload is approximately triple recommended guidelines.
      3.      Grievant is a dedicated and hardworking employee, who has been with DHHR for seven years, was CPS Worker of the year in 1994, and works extra hours to keep up with her caseload.
      4. By memo dated December 23, 1998, Grievant's supervisor, Diana Hagerman, (Hagerman) set deadlines for Grievant's completion of several tasks.
      5. By memo dated June 22, 1998, Hagerman informed Grievant that a Family Assessment due by June 8, 1998, had not been completed, and that this was her second request.
      6. By memo dated May 26, 1999, Hagerman informed Grievant that she had missed deadlines for Family Assessments and Final Risk Assessments; that these tasks had been discussed with Grievant monthly; that Hagerman had made changes in Grievant's working conditions to facilitate her timely completion of her duties; and that Grievant was not in compliance with policy.
      7. Grievant missed some of these deadlines.      8. On September 29, 1999, Grievant was given a verbal reprimand, for insubordination, for missing some of these deadlines.
DISCUSSION
      In disciplinary matters, the employer has the burden of proving the charges by a preponderance of the evidence. W. Va. Code § 29-6A-6; Evans v. Dep't of Health & Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997), Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997); Broughton v. W. Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992). A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      DHHR verbally reprimanded Grievant for insubordination, for failing to meet deadlines, imposed by her supervisor, regarding portions of her casework. Grievant argues that any deadlines she missed were due to her excessive caseload. Grievant seeks the reversal of her verbal reprimand, and the reduction of her caseload to a manageable size.
      DHHR Policy Memorandum 2104, entitled Progressive Discipline, and dated April 26, 1991, provides that verbal reprimands “are usually given in lieu of written reprimand when the infraction is of a minor nature.” This policy defines insubordination as “[d]eliberate intentional failure/refusal to comply with instruction from immediatesupervisor[,]” and recommends a written reprimand for a first infraction.      
      Insubordination is 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); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). Insubordination may also be found when an employee shows a willful disregard for the 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).
      To prove insubordination, an employer must demonstrate 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 v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995). An employer also 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 In re Burton Mfg. Co., 82 L.A. 1228 (Feb. 2, 1984)). Insubordination can result in disruption of the workplace such that it amounts to misconduct of a substantial nature affecting the rights and interests of the public. Payne v. W. Va. Dep't of Transp., Docket No. 93-DOH-454 (Apr. 29, 1994).
      The facts in this grievance are undisputed. Grievant does not dispute that Hagerman issued deadlines by which certain caseload tasks, generally Final Assessments of individual CPS cases, were to be completed, and that she missed some of thesedeadlines. Grievant argues that she missed the deadlines because her individual caseload is far in excess of recommended guidelines; that all of her co-workers are similarly overloaded and behind in their casework; that the Final Assessments are not as important as those parts of her work that initiate CPS cases; that she is a dedicated and hardworking employee, who has been with DHHR for seven years, was CPS Worker of the year in 1994, and works extra hours to keep up with her caseload; and that she needs help, not a reprimand.
      For its part, DHHR established that although all of the CPS workers in its Mercer County office are overloaded with cases, Grievant is the farthest behind in her work; that it has made changes to Grievant's working conditions to facilitate her work; that Grievant, during the period of time relevant to this grievance, had the lowest number of completed assessments, the highest number of overdue assessments, the highest number of assessments overdue by more than one year, and the lowest number of contacts entered in DHHR's Family and Child Tracking System computer system; and that Hagerman issued the memos, referred to in Findings of Fact four, five, and six, directing Grievant to timely complete certain caseload tasks.       
      Accordingly, DHHR has established that Grievant failed to obey reasonable orders of a superior entitled to give such orders. Riddle, supra. While it seems harsh and probably counter-productive for DHHR to assign a dedicated and hardworking employee approximately triple the recommended caseload, and then discipline her for falling behindin her work, it is within DHHR's discretion to do so.   (See footnote 1)  As noted in Bennett v. W. Va. Dep't of Health and Human Resources/Bureau for Children and Families, Docket No. 99-HHR- 517 (Apr. 26, 2000), this Board does not have authority to second guess a state employer's employment policy, or substitute its management philosophy for DHHR's. Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997), Kincaid v. W. Va. Div. of Corrections, Docket No. 98-CORR-144 (Nov. 23, 1998).
      Finally, Grievant contends that DHHR should transfer or hire sufficient additional CPS Workers so that their individual caseloads can be reduced from an average of 34 per worker per month to the recommended number of ten, so that the children of West Virginia can be better protected from abuse and neglect. Again, this Grievance Board is without authority to order a state agency to make a discretionary change its policy. Skaff, supra, Id.
      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
CONCLUSIONS OF LAW

      1.       In disciplinary matters, the employer has the burden of proving the charges by a preponderance of the evidence. W. Va. Code § 29-6A-6; Evans v. Dep't of Health & Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997), Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997); Broughton v. W.Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992.).
      2.      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); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). Insubordination may also be found when an employee shows a willful disregard for the 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).
      3.      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 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 v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995).
      4. Respondent DHHR established, by a preponderance of the evidence, that Grievant was guilty of insubordination.
      5.      This Grievance Board is without authority to order a state agency to make a discretionary change in its policy. Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997), Kincaid v. W. Va. Div. of Corrections, Docket No. 98-CORR-144 (Nov. 23, 1998).
      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. 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.
            
                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated April 28, 2000



Footnote: 1
      1 The undersigned notes that there is no evidence in this grievance that Grievant was not working hard or using her work time effectively. See Bragg v. Div. of Rehabilitative Serv., Docket Nos. 99-RS-478/398 (Mar. 31, 2000), Dadimsan v. W. Va. Div. of Rehabilitation Services, Docket No. 98-RS-023/040 (Mar. 25, 1999).