MICHAEL TOMPA,

                        Grievant,

v.                                                      Docket No. 00-PERB-079

WEST VIRGINIA DEPARTMENT OF ADMINISTRATION,
CONSOLIDATED PUBLIC RETIREMENT BOARD,

                        Respondent.

D E C I S I O N

      On February 25, 2000, Michael Tompa (Grievant) submitted this grievance directly to Level IV, in accordance with W. Va. Code § 29-6A-4(e)(2), challenging his 21-day suspension without pay by Respondent West Virginia Department of Administration, Consolidated Public Retirement Board (WVCPRB). Following a continuance for good cause shown, a Level IV hearing was conducted in this Grievance Board's office in Charleston, West Virginia, on May 23, 2000.   (See footnote 1)  At the conclusion of that hearing, the parties made oral closing arguments, waiving written post-hearing briefs, and this matter became mature for decision at that time. Consistent with the practice of this Grievance Board, this disciplinary action has been advanced on the docket for an expedited decision.
DISCUSSION
      Grievant is employed by WVCPRB as a Mail Runner. By letter dated February 16, 2000, Terasa Robertson, WVCPRB's Contribution Manager, and Grievant's immediate supervisor, notified Grievant that he was being suspended for 21 days as follows:


















* * *
R Ex 6 (allegations numbered to facilitate discussion).
      In disciplinary matters, W. Va. Code § 29-6A-6 places the burden of proof on the employer.   (See footnote 2)  Broughton v. W. Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992). More particularly, the employer has the burden of proving each element of a disciplinary action by a preponderance of the evidence. Morrison v. W. Va. Bureau of Commerce, Docket No. 97-DOL-490 (Jan. 15, 1998). 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).      Certain of the factual allegations contained in the charges which resulted in this dismissal are disputed by Grievant. In situations where the existence or nonexistence of certain material facts hinges on witness credibility, detailed findings of fact and explicit credibility determinations are required. Jones v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); Pine v. W. Va. Dep't of Health & Human Resources, Docket No. 95-HHR-066 (May 12, 1995). See Harper v. Dep't of the Navy, 33 M.S.P.R. 490 (1987). Some factors to consider in assessing the credibility of a witness include the witness' demeanor, opportunity or capacity to perceive and communicate, reputation for honesty, attitude toward the action, and admission of untruthfulness. Additionally, the trier of fact should consider the presence or absence of bias, interest, or motive, the consistency of prior statements, the existence or nonexistence of any fact testified to by the witness, and the plausibility of the witness' information. See Perdue v. Dep't of Health & Human Resources, Docket No. 93-HHR-050 (Feb. 4, 1994). See generally, Harold J. Asher and William C. Jackson, Representing the Agency before the United States Merit Systems Protection Board 152-53 (1984). Accordingly, the evidence presented by the parties on matters in dispute will be discussed in some detail.
      Ms. Robertson suspended Grievant for unsatisfactory job performance.   (See footnote 3)  Established failure to perform assigned duties at a reasonably proficient level, for reasonsthat are within the employee's control, may warrant discipline of a state employee. Deyerle v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 95-RS-034 & 96-RS-197 (Nov. 21, 1997). See Dadisman v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 98-RS-023/040 (Mar. 25, 1999). The suspension letter describes four incidents where Grievant failed to properly perform his assigned duties. The first incident involves failure to deliver documents to the Treasurer's Office on time. The second incident concerns failure to use a briefcase to transport documents. The third incident pertains to Grievant's failure to properly log out his whereabouts on a sign-in sheet. The fourth incident relates to a failure to shred certain documents.
      Grievant is employed as WVCPRB's only Mail Runner. When Grievant is not working, or is occupied by other duties, another employee, James W. Hyde II, fills in to perform various Mail Runner duties ordinarily performed by Grievant. As a Mail Runner, one of Grievant's primary duties involves delivering mail and documents among WVCPRB's various offices, as well as to and from other state agencies.
      On certain days, Grievant is given documents to deliver to the Treasurer's Office in another portion of the Capitol Complex. These documents are necessary to accomplish a wire transfer of WVCPRB's cash into an investment account where it will begin drawing interest, thereby generating revenue for the retirement fund. These documents are always accompanied by a cover sheet with a notice in large print which reminds the Mail Runner that these items must be in the Treasurer's Office no later than 9:30 A.M. that same morning. This deadline is based on an arrangement between WVCPRB and theTreasurer's Office to facilitate processing of the required paperwork in that office in time to meet an external deadline for completing the wire transfer.
      At 10:25 A.M. on February 4, 2000, Lori Cottrill, WVCPRB's Accountant, received a call from the Treasurer's Office advising that the investment documents for that day's transfer, amounting to $580,000,   (See footnote 4)  had not yet been received. Ms. Cottrill had placed the documents on Grievant's desk earlier that morning, before he arrived for work at 8:30 A.M. After receiving this call, Ms. Cottrill notified Ms. Robertson, and Ms. Robertson went looking for Grievant to ascertain why the documents had not been delivered by 9:30. Grievant admitted he did not deliver the documents until approximately 10:30 A.M., contending he was busy processing incoming mail, and lost track of time. R Ex 9. In fact, Grievant admitted under cross-examination that he did not leave the office until after 10:00 A.M. Grievant knew he was supposed to deliver the documents by 9:30 A.M., but testified that this deadline “interferes with my work.”
      A preponderance of the evidence indicates that this was not the first time Grievant failed to deliver investment documents on schedule. Indeed, Grievant testified that he ordinarily does not leave the office to deliver the documents until 9:30 A.M., despite the instructions he has received, because he knows that the “real” deadline is 10:00 A.M. Grievant's unilateral interpretation of his work priorities does not excuse his failure todeliver the documents in a timely fashion. Therefore, WVCPRB established that Grievant failed to deliver certain documents to the Treasurer's Office in accordance with his established schedule.
      It is undisputed that one of the Mail Runner's duties is to transport mail between WVCPRB's various offices in and around the Capitol Complex in Charleston, West Virginia. After a package of checks destined for deposit was found in the street in December 1999, Ms. Robertson purchased a briefcase for use by Grievant, or his backup, and gave the briefcase to Grievant on December 30, 1999. Ms. Robertson instructed Grievant to use the briefcase to carry all documents anytime he left the WVCPRB office to deliver items to another location.
      In early January 2000, Myra Woolwine, WVCPRB's Loan Manager, reported to Ms. Robertson that Grievant was observed delivering mail to WVCPRB's office on Quarrier Street, and he was not using a briefcase. Ms. Robertson again spoke with Grievant and reminded him that he was expected to use the briefcase to transport documents, to insure that no more checks were dropped in the street. Subsequent to that meeting, Ms. Woolwine again advised Ms. Robertson that Grievant was delivering mail to her office building without using a briefcase. Ms. Robertson met with Grievant again on the 12th of January, to discuss why he was not carrying the briefcase.
      In his testimony at Level IV, Grievant acknowledged that he had initially failed to transport documents in the briefcase as instructed, complaining that he did not see any reason to use the briefcase. Although Grievant asserted that he had some difficulty “getting used” to carrying the briefcase, it is apparent that Grievant initially disagreed withthe briefcase requirement, and resisted Ms. Robertson's authority to determine the methods and means by which he performs his assigned duties. Grievant recalled one occasion when he took a batch of documents out of the office in the briefcase, and then left the briefcase in his vehicle while carrying the documents in his hands into the Loan Office where Ms. Woolwine worked.
      Grievant appeared to operate on the erroneous assumption that if Ms. Robertson could not prove beyond a reasonable doubt that he was the person who dropped the checks in the street in December 1999, she could not require him to carry the briefcase. The directive to carry interoffice mail in the briefcase was a perfectly appropriate directive for Ms. Robertson to give Grievant, without regard to who dropped the checks. On January 13, 2000, Grievant finally began complying with the directive to carry the briefcase when delivering documents to WVCPRB's Quarrier Street office. However, WVCPRB established that he did not comply with instructions from Ms. Robertson to transport documents in the briefcase until that date.
      One of Grievant's duties includes shredding documents which contain personal information, such as salary history and social security numbers. On February 2, 2000, Ms. Robertson gave Grievant a “large pile” of documents to shred. Ms. Robertson told Grievant to “do what you can everyday until you get this caught up.” Shortly thereafter, Grievant became argumentative with Mr. Hyde, telling him that he, not Grievant, should shred the documents. Ms. Robertson overheard a portion of this conversation, and asked Grievant if there was a problem. Grievant indicated that he knew what he was supposedto do, and he would “take care of it.” Later that same day, Ms. Robertson found virtually all of the documents in a recycling bin, and none of them had been shredded.
      Grievant's testimony on this issue was confusing, although he conceded that he did not consider shredding to be one of his “priorities.” He was vague and equivocal as to when he was first assigned shredding as a part of his job. He first indicated that he was not told about this requirement until Ms. Robertson noted this on his annual performance evaluation. Then, he recalled that Ms. Robertson “might” have sent him an E-mail on this subject earlier.
      Grievant also noted that he reacted to Ms. Robertson's instructions the way he did because “I knew that particular job was Jim Hyde's, and down through time there are many jobs that he just lets go, and the next thing I know, Terasa gives it to me.” Grievant testified that he felt “dumped on.” At one point, Grievant alleged that Mr. Hyde, Grievant's former supervisor, Jane Pinhale, and Jim Sims, WVCPRB's former Executive Director, have been “conspiring” against him since 1991. Grievant's testimony regarding the facts and circumstances surrounding this incident was too evasive and contradictory to be credited. The undersigned finds that a preponderance of the credible evidence of record indicates that Grievant did not make a good faith effort to pursue the shredding assignment, after assuring Ms. Robertson he would take care of it.
      Grievant further suggests that various medical problems, including a back injury, prevent him from bending and leaning over for any extended period of time, actions which he claims are necessary in order to shred documents using the equipment provided by WVCPRB. Ms. Robertson credibly testified that, although Grievant mentioned some of hisailments from time to time, at no time prior to this incident did he report that he could not do the work assigned because of a physical limitation. Moreover, he did not request an accommodation for a medical condition, or provide medical documentation to support such a request. Even the documentation Grievant submitted after the fact is extremely general, and does not indicate a restriction that precludes performing these duties.   (See footnote 5) 
      Ms. Robertson has also experienced difficulty getting Grievant to consistently remember to log out on a sign-in/out sheet when he leaves the office. On October 28, 1999, Ms. Robertson went to Grievant's desk to ask him to make a trip to the Auditor's Office to pick up some checks. Grievant was not at his desk, and the sign-in/out log was not located where it was supposed to be hanging. Ms. Robertson spent approximately an hour and one-half looking for Grievant, without success. She previously sent an E-mail message to Grievant at 10:33 A.M. that day, asking him to pick up those checks. By 4:30 P.M. on October 28, Grievant had not picked up the checks.
      Mr. Hyde is also required to complete a sign-in/out log each day. He admitted that he was forgetful about signing in upon return to the office from running an errand. He also acknowledged that he had been verbally counseled about properly completing the log, and he had been requested to improve his “use of time” on his annual evaluation. Mr. Hyde believed that this criticism was related to his failure to record his return in the sign-in/outlog on occasion. He has never been formally reprimanded or otherwise disciplined for failure to sign in or out properly.
      On October 3, 1997, Grievant was given a “final warning” letter for several work- related shortcomings, including failing to properly sign in and out of the office, failing to make his mail runs on schedule, spending excessive time engaged in conversation at other employee's work stations, appearing to sleep while on duty, and failure to control his emotions by being unduly loud and argumentative. R Ex 3. Grievant wrote a rebuttal to this letter, but did not otherwise contest the action at that time. G Ex G.
      Ordinarily, the propriety of a prior disciplinary action, properly documented in the employee's record and which the employee had an opportunity to challenge, is not an appropriate matter for consideration in a grievance involving a subsequent disciplinary action. Hosaflook v. W. Va. Div. of Corrections, Docket Nos. 98-CORR-446/447 (Jan. 20, 2000); Williams v. Kanawha County Bd. of Educ., Docket No. 98-20-321 (Oct. 20, 1999); Aglinsky v. Bd. of Trustees, Docket No. 97-BOT-256 (Oct. 27, 1997); Jones. v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); Nicholson v. Logan County Bd. of Educ., Docket No. 95-23-129 (Oct. 18, 1995). Thus, WVCPRB may properly consider that previous written warning Grievant was issued in determining the appropriate penalty for the four instances of ineffective duty performance which gave rise to this disciplinary action.
      This prior disciplinary action may also be relied upon by the employer to establish that Grievant was on notice of the importance of signing in and out properly. Much like his testimony on other issues, Grievant's explanation regarding the sign-in/out sheet onOctober 28 was contradictory and equivocal. A preponderance of the evidence indicates that Grievant did not leave the log in its normal location on the date in question, and Ms. Robertson did not find the log when she was looking for Grievant. Therefore, although this is a somewhat technical violation, WVCPRB established that Grievant did not maintain the log as he had been directed.
      Grievant claims he was subjected to harassment in violation of W. Va. Code § 29- 6A-2(l), which defines "harassment" as "repeated or continual disturbance, irritation or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession." In order to establish harassment in violation of W. Va. Code § 29- 6A-2(l), Grievant must show a pattern of conduct, rather than a single improper act. See Hall v. W. Va. Dep't of Transp., Docket No. 96-DOH-433 (Sept. 12, 1997); Phares v. W. Va. Dep't of Public Safety, Docket No. 91-CORR-275 (Dec. 31, 1991). See also Thompson v. Bd. of Trustees, Docket No. 96-BOT-097 (Dec. 31, 1996). In the context of contesting a disciplinary action, allegations of harassment by the employee's supervisor constitutes an affirmative defense, and Grievant has the burden of establishing his allegations on this issue by a preponderance of the evidence. Reynolds v. W. Va. Dep't of Admin., Docket No. 99-ADMN-049 (Sept. 1, 1999). See W. Va. Code § 29-6A-6; Johnson v. Dep't of Health & Human Resources, Docket No. 98-HHR-302 (Mar. 18, 1999).
      Ms. Robertson credibly explained that Grievant will perform his duties satisfactorily for a period of time after he is confronted with a shortcoming. Then, his performance will lapse, and he reverts to less than satisfactory compliance in performing his assigned duties. Accordingly, Ms. Robertson readily acknowledges that she finds it necessary to talkwith Grievant about some aspect of his job performance almost every week. When such a pattern of conduct exists, it is inevitable that Grievant perceives that he is being harassed, particularly if prior supervisors did not hold Grievant to a consistently high standard of performance. However, it is a supervisor's duty to assure that an employee is properly performing the duties their employer has hired them to do. Although this may be annoying to Grievant, and undoubtedly increases the stress he encounters in performing duties that are not inherently complex or demanding, it does not constitute “harassment” prohibited by W. Va. Code § 29-6A-2(l). See Board v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-329D (Sept. 24, 1999); Reynolds, supra. Therefore, none of the prior disciplinary actions issued to Grievant, nor any of the incidents which led to this action alleging ineffective performance of assigned duties, involve “harassment” prohibited by the grievance procedure statute.
      Grievant suffers from a number of medical ailments, including fibromyalgia, degenerative osteoarthritis, major depression, irregular heartbeat, migraine headaches, chronic fatigue, and chronic pain. Grievant's supervisors were generally aware of most of these conditions, although Grievant has not requested an accommodation based upon any particular medical condition or disability. Indeed, none of the diagnoses Grievant claims, either singularly or cumulatively, would explain Grievant's substandard performance as alleged in this suspension. None of these medical conditions prevents Grievant from using a briefcase to carry important documents for his employer. Likewise, none of these conditions prevents him from delivering important documents to their proper recipients in a timely manner, or from signing in and out when leaving the office to run an errand. Priorto this incident, Grievant had not documented any medical condition that would exempt him from shredding documents. Finally, a preponderance of the evidence indicates that the present disciplinary action was based on Grievant's substandard job performance, and was not motivated by Grievant's medical conditions.
      Grievant also asserts that a 21-day suspension is an unduly harsh punishment for the offenses charged. This Grievance Board has determined that mitigation of the penalty imposed by an employer constitutes extraordinary relief, and is granted only when there is a showing that a particular punishment is so clearly disproportionate to the offense committed that imposition of such a penalty involves an abuse of discretion, Hosaflook v. West Virginia Division of Corrections, Docket Nos. 98-CORR-446/447 (Jan. 20, 2000), or the penalty is so harsh under the circumstances, its imposition by the employer involves an arbitrary and capricious act. Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999). See Wilkerson v. Lincoln County Bd. of Educ., Docket No. 99-22-420 (Mar. 27, 2000). Considerable deference is afforded to the employer's determination of the seriousness of the employee's conduct and the prospects for rehabilitation. Lilly v. W. Va. Dep't of Health & Human Resources, Docket No. 00-HHR- 093 (May 8, 2000); Overbee v. Dep't of Health & Human Resources, Docket No. 96-HHR- 183 (Oct. 3, 1996).
      Aside from the written “final warning” issued to Grievant in 1997, WVCPRB did not rely upon any other disciplinary actions in selecting a 21-day suspension as the penalty for Grievant's substandard performance. In over 20 years of employment, Grievant has generally received satisfactory evaluations, and has even been awarded performance-based merit raises, the most recent in 1991. G Ex J. However, on his most recent performance evaluation, rendered by Ms. Robertson in November 1999, Grievant was rated as “needs improvement” in 9 of 23 performance factors. Grievant was rated as “meets expectations” in the remaining categories. R Ex 5. In 1997, Ms. Robertson rated Grievant as “needs improvement” in 3 of the 4 performance categories rated. Even as far back as 1992, when Grievant was rated “fair” to “satisfactory” in all but 1 category, Grievant's supervisor, Jane Pinhale, noted “you need to be more productive.” R Ex 8. Moreover, Ms. Pinhale rated Grievant “unsatisfactory” in the category of “cooperation.” R Ex 8. Thus, although Grievant's performance did not generate other disciplinary actions, there was ample notice from more than one supervisor that Grievant needed to improve his work performance.
      It is unfortunate that Grievant has suffered a lengthy suspension as his first serious disciplinary action. However, Grievant's failure to deliver investment documents on time, and his deliberate refusal to carry documents as instructed in a briefcase, represent more than simple oversight or neglect in the performance of his duties. In addition, the failure to shred documents as directed, given his prior conversations contending that the work should be done by a co-worker, borders on insubordination. The failure to properly maintain the sign-in/out sheet may have involved simple oversight, but Grievant had previously been warned to comply with this requirement. Although reasonable people might differ over whether a 21-day suspension is an unduly harsh penalty for the offenses proven, given the fact that Grievant had previously received a written “final warning” regarding other incidents of substandard performance, and had been counseled to improvehis performance on his annual performance evaluations, the undersigned Administrative Law Judge is unable to conclude that WVCPRB abused its discretion in selecting the penalty in question.
      In addition to the foregoing discussion, the following findings of fact and conclusions of law are appropriate in this matter.
FINDINGS OF FACT

      1.      Grievant is employed by the West Virginia Consolidated Public Retirement Board (WVCPRB) as a Mail Runner. Grievant has been employed by WVCPRB for approximately 24 years.
      2.      Terasa Robertson is employed by WVCPRB as its Contribution Manager, and serves as Grievant's immediate supervisor.
      3.      On October 3, 1997, Ms. Robertson issued a written “final warning” to Grievant regarding various work-related derelictions, including failure to sign in and out of the office, and failing to make his scheduled mail runs on time. R Ex 3. Grievant wrote a rebuttal to this document, but did not file a grievance to challenge the allegations made therein.
      4.      Grievant suffers from fibromyalgia, degenerative osteoarthritis, major depression, irregular heartbeat, migraine headaches, chronic fatigue, and chronic pain. Grievant takes a variety of prescription medications for these conditions. Grievant did not provide medical documentation to WVCPRB, or request an accommodation for his medical conditions until after this suspension was served.              5.      Grievant has generally received satisfactory evaluations during his tenure with WVCPRB, but as recently as November 1999 he was rated as “needs improvement” in 9 of 23 rated categories on his annual performance evaluation.
      6.      On February 4, 2000, Grievant failed to deliver an investment document to the Treasurer's Office until after 10:30 A.M., despite explicit instructions to deliver such documents not later than 9:30 A.M.
      7.      On various occasions between January 3 and January 12, 2000, Grievant failed to carry documents being transported between WVCPRB offices and other state government offices in an employer-provided briefcase, as instructed by Ms. Robertson.
      8.      On February 2, 2000, Grievant failed to make a good-faith effort to shred documents containing personal information, as instructed by his immediate supervisor, because Grievant was upset that this assignment had been given to him instead of a co- worker.
      9.      On October 28, 1999, Grievant failed to properly maintain his sign-in/out log in the manner directed by his immediate supervisor.
      
CONCLUSIONS OF LAW

      1.      Pursuant to W. Va. Code § 29-6A-6, 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. Wellman v. W. Va. Dep't of Health & Human Serv., Docket No. 93-HHR-079 (Oct. 18, 1993); Ramey v. W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988).      2.      Suspension of a civil service employee must be for good cause. See Oakes v. W. Va. Dep't of Fin. & Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980).
      3.      A state employee may be disciplined for failure to perform assigned duties in a reasonably proficient manner, provided the reasons for such failure are within the employee's control. Deyerle v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 95-RS-034 & 96-RS-197 (Nov. 21, 1997). See Dadisman v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 98-RS-023/040 (Mar. 25, 1999).
      4.      The employer established by a preponderance of the evidence that Grievant's performance failed to meet established standards by failing to use an employer- provided briefcase to transport documents as instructed by his immediate supervisor, failing to deliver a time-sensitive document to the Treasurer's Office, failing to comply with instructions to shred documents, and failing to properly maintain a sign-in/out log so that his supervisor and co-workers could determine his whereabouts when away from his work area running assigned errands.
      5.      Harassment is defined as “repeated or continual disturbance, irritation, or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession.” W. Va. Code § 29-6A-2(l).
      6.      Grievant failed to establish that WVCPRB, through his supervisors, engaged in any form of “harassment” prohibited by W. Va. Code § 29-6A-2(l). See Board v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-329D (Sept. 24, 1999); Reynolds v. W. Va. Dep't of Admin., Docket No. 99-ADMN-049 (Sept. 1, 1999).      7.      An allegation that a particular disciplinary measure is disproportionate to the offense proven or otherwise arbitrary and capricious is an affirmative defense, and the grievant bears the burden of demonstrating that the penalty was clearly excessive or reflects an abuse of agency discretion, or an inherent disproportion between the offense and the personnel action. Lilly v. W. Va. Dep't of Health & Human Resources, Docket No. 00-HHR-093 (May 8, 2000); Thompson v. W. Va. Dep't of Health & Human Serv., Docket No. 94-HHR-254 (Jan. 20, 1995).
      8.      Given the severity of Grievant's substandard performance, and that Grievant had been given a written “final warning” in October 1997 regarding substandard performance, and had been rated “needs improvement” in 9 categories on his most recent performance evaluation in November 1999, a 21-day suspension for substandard work performance was not an excessive penalty.
      
      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.

                                                                                                  LEWIS G. BREWER
                                                ADMINISTRATIVE LAW JUDGE

Dated: June 15, 2000


Footnote: 1
      Grievant was represented by counsel, Cynthia Evans. WVCPRB was represented by West Virginia Department of Administration Assistant General Counsel Heather A. Connolly.
Footnote: 2
      The parties did not address whether Grievant's status as an at-will employee alters the employer's burden of proof to any degree. Accordingly, this matter will be treated the same as a disciplinary matter involving a classified state employee. See Newell v. W. Va. Racing Comm'n, Docket No. 90-RC-518 (May 29, 1992).
Footnote: 3
      The suspension letter includes a definition of insubordination, but does not indicate which, if any, of Grievant's actions were considered to be insubordinate. In these circumstances it is questionable whether Grievant was placed on notice that he was charged with insubordination, as well as substandard work performance. Therefore, the insubordination charge will not be considered beyond noting that some of Grievant's actions at least bordered on insubordination.
Footnote: 4
      The suspension letter states the document involved a “$780,000" transfer. Cf. R Ex 6 & R Ex 9. The reason for this discrepancy was not addressed by the witnesses at the Level IV hearing. Because Grievant was simply charged with failing to deliver the document in a timely fashion, and there was no dispute that the document was delivered later than required, this inconsistency need not be further addressed.
Footnote: 5
      Ms. Robertson testified that Grievant recently informed her that he could not stand for an extended period and shred documents. When Ms. Robertson offered to get a chair placed next to the shredder, Grievant noted that he could not sit and shred either. If Grievant can neither sit nor stand, it is not clear what, if any, duties he could be assigned.