PAMELA WILEY,
Grievant,
v. Docket No. 00-BEP-205
BUREAU OF EMPLOYMENT PROGRAMS/
WORKERS COMPENSATION DIVISION,
Respondent.
D E C I S I O N
This grievance was filed by Grievant, Pamela Wiley, against her employer, the
Bureau of Employment Programs/Workers Compensation Division ("BEP"), on or about
June 3,1999, after she was suspended for 10 days without pay. She sought as relief that
the suspension be removed from all her files, both at BEP and the Division of Personnel,
that she be awarded back pay, plus interest, that her leave, benefits and increment be
restored, and to be made whole in every way.
(See footnote 1)
Grievant was suspended for insubordination and for using foul and abusive
language to her supervisor. The suspension letter, dated April 28, 1999, describes
Grievant's acts as follows:
1. On March 11, 1999 Carl Hanning instructed you, via email; to enter
all the field audit requests received from various units. On April 15, 1999 you
were again instructed by Mr. Hanning in a telephone conversation to enter
all of the field audit requests received from various units. You responded to
Mr. Hanning by using foul and abusive language and stating that you did not
have time to do this work. You then hung up on him. As of April 20, 1999,
you have not turned the completed work in to your supervisor. A copy of
Carl Hanning's memo is attached.
2. On March 4, 1999, you were instructed to change your cubicle due to
a realignment of the underwriting teams. You were instructed to make the
move by a supervisor, acting on behalf [of] the Director of Underwriting. You
made the move after being told to do so on four separate occasions.
3. Using computer equipment for other than Bureau business is in
violation of the Bureau's written policy. On March 17, 1999 Carl Hanning
warned you, verbally, not to play computer games. On March 31, 1999, your
supervisor again had to instruct you not to play computer games, this time,
at the direction of the Director of Underwriting.
4. On March 1, 1999 you were instructed to complete and turn in a
status report to Sandy Brunty on a weekly basis. You were reminded of this
requirement on March 8 and again on March 11, 1999. It was not until you
received several requests that you finally complied.
5. From September 1998 to March 1999 you have posted thirteen ½
hour leave slips as the result of accumulated tardiness. Each leave slip
represents the accumulation of times you were from 6 to 12 minutes late.
You have been counseled about your tardiness on several occasions and
have taken no corrective action.
Your behavior has become disruptive to the work environment and
affects the morale of your co-workers. Previous disciplinary actions,
counseling, and training have not achieved corrective behavior. The above-
cited incidences of insubordination and inappropriate behavior indicate your
continued unwillingness to work in a cooperative manner.
It is important for you to know that your conduct continues to be below
acceptable levels. One of management's most basic obligations is to
maintain good employee-employer relationships. Your behavior continues
to seriously impair my ability to exert leadership and also distracts
supervisory and management staff from effectively and efficiently
accomplishing the mission of the Bureau.
This is your second suspension while working for the Bureau. Any
further incidences of foul, offensive or rude behavior, insubordination, or
disruptive behavior may result in termination of your employment.
(See footnote 2)
The following Findings of Fact are made based upon the record developed at Level
III.
Findings of Fact
1. Grievant is employed by BEP as an Employment Programs Specialist in the
Workers' Compensation Division. She has been an employee since 1975.
2. Carl Hanning supervised Grievant from February 1, 1999, to January 17,
2000. On April 15, Mr. Hanning called Grievant on the telephone at her work station. He
told her he needed her to perform an assignment. She responded, I don't have time for
this shit, and hung up on him.
3. Mr. Hanning immediately went to Grievant's work station. He asked her to
come to his office and she arrived within a few minutes. He then asked her why she had
spoken to him as she had. She responded that she was not feeling well and needed to
take some natural herbs. She did not indicate that she did not understand what he was
talking about, or that she did not mean for him to hear what she had said. Mr. Hanning felt
that Grievant exhibited remorse for her action.
4. Grievant was not given any deadlines for completing any of her assignments,
and she eventually completed all assignments given to her.
5. On March 3, 1999, at 9:00 a.m., movers arrived to move the entire office
staff. No one had any notice that the movers were coming on that day, although the
supervisory staff had developed a plan in anticipation of the move. Sandy Brunty was in
charge of the move. She told Grievant she needed to move all of her things to a different
assigned cubicle, which was just a few feet away from the cubicle she was in. Mr.
Hanning's supervisor, Gere Flick, had previously told Grievant her concerns about having
enough space would be taken care of. She translated this as she would not have to move. Ms. Brunty told Grievant she was the person in authority with regard to the move, and that
she was using the office plan given to her and developed by Mr. Flick. Grievant
complained that it would take her days to move, that the new space assigned to her was
too small, and that Mr. Flick had told her she would not have to move. Grievant tried to call
Mr. Flick, but could not reach him. Ms. Brunty again told her to move. Grievant refused
to do so. Rick Granstaff, the team leader for one of the units, told Grievant to move and
she refused. Ms. Brunty again told Grievant to move and she did so beginning around
noon. Grievant's failure to move when she was told to do so delayed two other employees
who were also trying to move.
6. On March 17, 1999, Mr. Hanning cautioned Grievant not to play games on
her computer. Grievant responded by telling him she only played computer games during
lunch and breaks. Mr. Hanning did not tell Grievant this was acceptable. She continued
to play games on her computer at work. After that, Mr. Flick told Mr. Hanning to tell
Grievant she was to stop playing computer games, except before or after work. On March
31, 1999, Mr. Hanning sent Grievant an e-mail with this directive, and Grievant did not play
games on her computer after that.
7. BEP has a policy in place, Administrative Directive 4100.14, which precludes
personal use of computers by employees. Grievant was aware of this policy. BEP also
has in place a Policy entitled Microcomputer Policy, which states in § 3.1, (Games and
unauthorized software will not be permitted on BEP equipment.) Grievant was aware of
this policy.
8. Games were on Grievant's computer when she received it, and they were not
removed by the computer personnel in the office responsible for doing so. Grievant was
not responsible for removing games from her computer.
9. On March 1,1999, Mr. Hanning directed Grievant, via e-mail, to begin turning
in a weekly status report each Friday afternoon to Sandy Brunty, and provided her with aform to be used in preparing the status reports. Grievant questioned why the form did not
address the research she does, and was told this was not an area which was of concern
to the Performance Council, and the forms were developed from strict guidelines handed
down by the Council. A status report was due on March 5, 1999. Grievant did not turn in
the status report until she was reminded to do so by Mr. Hanning on March 8, 1999. This
was the only time Grievant was late turning in this report. Other employees in the office
were also late in turning in their status reports. One employee had three reports past due
at one time. Although these other employees were underwriters, their reports were due
on Fridays, the same as Grievant's was.
10. On April 23, 1999, Mr. Hanning's supervisor, Gere Flick, informed employees
by memorandum that, effective immediately, two instances of inexcusable tardiness, that
is, for reasons not beyond the employee's control, would result in a verbal warning.
Additional instances of tardiness would result in a written reprimand, and/or other
disciplinary action. The memorandum also states that if the supervisor determines that the
employee is abusing this procedure or is habitually late, disciplinary action will be taken
to correct the problem. Prior to the issuance of this memorandum, it was office practice
to allow employees to use annual leave when they were late in arriving at work.
11. Grievant consistently arrived at work five to seven minutes late, and also
returned from lunch late. Mr. Hanning would excuse her tardiness if traffic was tied up, if
there was an accident, or for other valid reasons beyond Grievant's control. Otherwise, he
had another employee keep track of the number of minutes Grievant was late, and when
the time added up to 30 minutes, he would ask Grievant for a leave slip. He also told
Grievant she needed to correct this behavior. Mr. Hanning saw no improvement in
Grievant's behavior.
12. The record does not reflect whether Grievant was late in arriving at work
between April 23 and April 28, 1999. 13. Grievant was suspended by letter dated April 28, 1999, for 10 days for
insubordination.
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.
It is well established that "[I]nsubordination involves 'willful failure or refusal to obey
reasonable orders of a superior entitled to give such order.' [Citations omitted.] In order
to establish insubordination, the employer must not only demonstrate that a policy or
directive that applied to the employee was in existence at the time of the violation, but that
the employee's failure to comply was sufficiently knowing and intentional to constitute the
defiance of authority inherent in a charge of insubordination."
Stover v. Mason County Bd.
of Educ., Docket No. 95-26-078 (Sept. 25, 1995) (Citations omitted.).
"'Generally, an employee must obey a supervisor's order and take appropriate
action to challenge the validity of the supervisor's order. Employees are expected to
respect authority and do not have the unfettered discretion to disobey or ignore clear
instructions.'
Reynolds [v. Kanawha-Charleston Health Department, Docket No. 90-H-128
(Aug. 8, 1990)],
citing Meads v. Veterans Admin., 36 M.S.P.R. 574 (1988) [other citations
omitted]."
Stover v. Mason County Bd. of Educ., Docket No. 94-26-640 (Feb. 23, 1995).
While there are exceptions to this rule, such as where the employee reasonably has health
and safety concerns (
Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept.25, 1995)), "[a]n employee is not justified i[n] disobeying a reasonable order simply
because he/she does not agree with it."
Id. "An employer 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))."
English v. Div. of Corrections, Docket No. 98-CORR-082 (June 29, 1998).
This Grievance Board has previously noted that insubordination 'encompasses
more than an explicit order and subsequent refusal to carry it out.'
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). Thus, this Board has found that uttering abusive
language to a supervisor may constitute insubordination.
Payne v. W. Va. Dep't of
Transp., Docket No. 93-DOH-454 (Apr. 29, 1994).
See Burton Mfg. Co. v. Boilermakers
Local 590, 82 Lab. Arb. (BNA) 1228 (1994) (Holley, Arb.).
Casto v. W. Va. Dep't of Educ.,
Docket No. 00-DOE-143 (Aug. 29, 2000).
Mr. Hanning testified that it was his practice to give Grievant assignments in writing,
because if he gave her assignments orally, she would deny she had been given the
assignments. He also found that she would argue with him about assignments when he
spoke with her, and that he had fewer arguments and confrontations with her if he used
e-mail. Mr. Hanning felt that Grievant's reaction to being given assignments orally
constituted a refusal to follow a reasonable order, that her behavior constituted a pattern
of insubordination, and that she did not generally show respect toward him.
Mr. Hanning stated that sometime in February 1999, he asked Grievant to record
all the outstanding field audit requests she had received from other units. He wanted to
know the number of requests she received, and he wanted the requests to quit going
through Grievant and go through him. He asked her for this information on March 8 and
on March 11. He testified he called Grievant on the telephone on April 15 to again ask forthis same information, and it was at this time Grievant responded by telling him she did not
have time for this shit, and hung up on him. He did not believe the conversation had ended
at the time this response was given, and was certain Grievant had directed the comment
at him, and had hung up on him. He testified that when Grievant came to his office she
cried and was remorseful for what she had said.
Grievant testified that when Mr. Hanning called her on April 15, 1999, he had given
her a new assignment. She felt like he was not working with her, but was just telling her
what he wanted done and to do it. She felt she had more work than she could do, and that
here was another thing that I wasn't familiar with. She stated:
There was a period of silence. I thought Carl had hung up and I said,
I don't have time for this shit, and I started to cry. I was upset. I actually left
my desk, went to the bathroom, and regained my composure. When I came
back, Carl was at my desk. He said, he wanted to see me and I went into his
office. But I did not direct that comment at Mr. Hanning. It was something
that I said. I really did not believe that he was on the telephone, and I really
did feel like I had just had the world's largest pile of crap just dumped on my
head.
She admitted that she apologized to Mr. Hanning when she met with him in his office, and
that she had asked him to bear with her mood swings related to hormonal changes. She
stated she was sorry for not maintaining control. She did not indicate that she had told Mr.
Hanning she thought he had already hung up, and that she did not mean for him to hear
her inappropriate response.
When asked on cross-examination whether she felt that she was allowed to talk in
this manner to her supervisor, she responded, I felt that I showed Carl Hanning as much
respect or more respect than he showed me. The next question was, Do you feel that
you have a position of authority and supervision over Carl Hanning? Grievant's response
was, I have 27 years of experience. I know what I am talking about. These are not
frivolous _ She was then directed to answer the question asked, and responded, No.
Grievant was asked, Do you feel that your supervisor has the authority to define what your
assignments will be in light of the needs of the unit as a whole? Grievant responded, Theassignments as given weren't meeting the needs of the unit as a whole and I was trying
to point that out. When asked if she accepted that it is a reasonable thing for your
employer, your supervisor to decide what tasks you are to perform and when you should
do them and the priority, she responded, No. Grievant further stated, I worked really
hard to make a lot of improvements in this process and I just felt like Carl came into the job
with a bad-ass attitude that he was going to make me conform and do it this way. There
was really better ways to do it.
Grievant admitted that she frequently disagreed with Mr. Hanning's directives, but
she did not see herself as argumentative. She stated she was simply trying to explain that
what he was asking her to do was not practical, based upon her experience. She
described one instance where Mr. Hanning told her Mr. Flick wanted 10 audits to be
assigned to a particular accounting firm, and she told him that firm had let her know they
did not want any audits at that time because they could not do them. Mr. Hanning
responded that Mr. Flick wanted them done. Grievant, however, continued to press her
point, telling Mr. Hanning the firm was not going to complete the audits. Again Mr. Hanning
told her Mr. Flick wanted them to go out to this firm. Grievant continued to argue with Mr.
Hanning's assignment, stating, by her own admission, Carl, if Gere wanted [you] to jump
off the bridge, would you jump off the bridge[?] I said the man is not going to do the audits.
Why are we sending out assignments that they are not going to complete. So finally he
called [the accounting firm] and [they] told him they didn't want any audits. I mean, it went
through like half an hour of this. Carl, they don't want audits. They told me they don't want
audits. They told me they're not going to do audits. She continued, When [Carl] would
say, Gere says, do this then I would say, does Gere know this or did you tell Gere that?
Gere is my boss, and it's not my place to tell him that. I felt like maybe if Gere had that
information, Gere would have made a different decision, because they were uninformeddecisions. She further stated that she had gotten in trouble for assigning 15 audits to one
group and 15 to another when Mr. Hanning had told her to assign 10 audits to one group.
As Grievant denies that she intended for Mr. Hanning to hear her comment, and Mr.
Hanning testified that the conversation was not over when Grievant responded to him in
such an inappropriate manner, it is necessary to determine whether Grievant's testimony
is credible. In assessing the credibility of witnesses, some factors to be considered 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.
Harold J. Asher and William C. Jackson. Representing the Agency before the United
States Merit Systems Protection Board 152-153 (1984). 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.
Id;
Rosenau v. Tucker
County Bd. of Educ., Docket No. 99-47-192 (Nov. 1, 1999);
Jarvis v. W. Va. Dep't of Health
and Human Serv., Docket No. 97-HHR-318 (July 22, 1999);
Burchell v. Bd. of Trustees,
Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).
While the undersigned did not have the opportunity to observe the witnesses, the
testimony may still be examined and evaluated using the above factors. The undersigned
does not find Grievant's testimony to be credible. If Grievant truly did not believe Mr.
Hanning was on the telephone when she made the comment, surely she would have told
him that immediately when he called her to his office. Further, it is very apparent that
Grievant had little respect for Mr. Hanning, and openly questioned his authority
continuously. While she may have let these words slip before she could catch herself, she
said them and they were directed at Mr. Hanning. As she said, she was sorry she had not
maintained better control. Regardless of whether Grievant intended for Mr. Hanning to hear the comment,
however, her response was directed at her supervisor, and she stated her comment out
loud, where other employees could hear her. Her response to Mr. Hanning constitutes
insubordination.
Grievant testified that other employees, and even Mr. Hanning, had used profanity
in the office, but had not been disciplined. Grievant was not disciplined for using profanity.
She was disciplined for her improper response to her supervisor, including the use of
profanity directed toward him. She provided no evidence that any other employee had
acted in such a manner toward his or her supervisor.
It is unclear to the undersigned whether part of the reason Grievant was disciplined
was for failing to complete an assignment, as it would appear that paragraph number one
of the suspension letter is really directed toward the comment previously addressed, even
though it does state that an assignment had not yet been completed by a particular date.
If this was intended to be part of the reason for discipline, the charge has not been proven.
There was no testimony that Grievant was given any deadlines for completion of
assignments. She did turn in all her assigned work, even though at least one assignment
took her much longer than Mr. Hanning thought it would. The evidence also did not
establish that the reason this assignment took so long was due to insubordination. There
was some testimony that one assignment may not have been turned in in the form
requested by Mr. Hanning, but Mr. Hanning's testimony on the issue of the assignments
given to Grievant was not sufficiently clear for the undersigned to conclude that he had a
problem with her in this regard. To the contrary, Mr. Hanning's testimony on this point
indicated that Grievant had eventually completed the assignments given to her.
As to the incident where Grievant was directed to move to a different cubicle and
refused, Grievant argued that her failure to comply with Ms. Brunty's directive to move was
justified, because Mr. Flick had given her the impression she would not have to move; thatit was blown out of proportion because she did move; and that it occurred almost two
months before she was disciplined, and she was not counseled in the interim. She also
argued it is clear that Mr. Flick did not intend for her to be disciplined if she moved after Ms.
Brunty told her to do so a third time, as he had told Ms. Brunty when she told him of the
problem to give her one more chance.
The time lapse between the event and the discipline is insignificant. Grievant's
failure to follow Ms. Brunty's directive was not justified. An employee is to do as she is
directed. If Grievant later clarified with Mr. Flick that Ms. Brunty was mistaken, the move
could have then been reversed. It was not hazardous to Grievant to simply do as she had
been told by a person in authority, but instead she chose to refuse to do as she was told,
not once, but three times, simply because she disagreed with the directive. She testified
that the move did not make any sense to her. This was Grievant's typical response to
authority. She was insubordinate, she wasted Ms. Brunty's time, and that of the employee
trying to move to Grievant's space. Corrective action was appropriate. It is not clear to the
undersigned that Mr. Flick's comment to Ms. Brunty to give Grievant one more chance
meant he did not believe she should not be disciplined. It is just as likely that he simply
meant to ask her one more time, and if she did not move he would then tell her himself.
Mr. Flick's state of mind and intent with regard to Grievant cannot be determined from this
comment.
Grievant argued that the existence of games on the computer was inconsistent with
BEP's policy. First, most, if not all, software packages include computer games, whether
you want them or not. Mr. Hanning testified this was the case with BEP's computers.
However, he also testified that the games were to have been removed from all the
computers. Second, whether the games were never removed from Grievant's computer
for some reason, or they were placed on her computer by someone after they wereremoved, just because games were on the computer does not mean Grievant had to play
them.
Nonetheless, it is naive to believe that an employee will not play games on the
computer if they are left there. This whole argument obscures the point, however. The
question is whether Grievant was insubordinate when she continued to play games on the
computer after Mr. Hanning cautioned her.
Grievant argued Mr. Hanning did not give her a clear directive not to play computer
games during the work day. Grievant testified that she did not understand that Mr.
Hanning was cautioning her not to play computer games. She testified as follows:
On the 17th of March on St. Patrick's Day, Carl came back to my
cubicle during break and I was playing the game. He said, Pam, what are
you doing? I said, I'm on break, you know, playing this game. He sat down.
It was solitaire. It wasn't Hearts. I've never played Hearts in my life. But
anyhow he said, what are you doing. I said, it's break. He said something
about the games that they didn't have it on his computer anymore, but you
know that was the end of that conversation. If that was a caution, I certainly
wasn't aware of it. A couple of days after that, sometime may [sic] the end
of next week, a co-worker Mark Hooker, who was my cubicle mate came
back and said, you know, maybe you had better watch playing the games
because Carl said he [sic] could [sic] something done in field audit if you
weren't spending all day playing these games. So that made me mad. So
I went into Carl's office to confront him, and I say, hey, what's the problem?
I told you that I only did this at breaks and lunch. You know I'm very
sensitive about having walk-ins on the floor. If there were walk-ins I always
discontinued playing the game. Again, I left his office with the impression
that that was okay to do on my breaks and lunch.
She stated that she was aware of one other employee who played games frequently, and
two other employees who played games on the computer occasionally. Mr. Hanning
testified he was not aware of other employees playing computer games.
Mr. Hanning recorded his conversation with Grievant later the same day it occurred
on a piece of note paper, and placed it in Grievant's file. His notes of the conversation
indicate that the conversation occurred in his office, at 8:20 in the morning, and read:
I cautioned Pam about playing Hearts on her computer. She explained that
she only played Hearts during breaks and never while an employer was on
the floor.
Mr. Hanning stated he refers to all computer games as Hearts. His notes reflect that he
also asked her why she was coming to work late every day.
The undersigned finds Mr. Hanning's testimony regarding this incident, as it is set
forth in Finding of Fact Number 6, and his notes, to be more accurate than Grievant's. The
undersigned also finds, based upon Grievant's response to Mr. Hanning, that Grievant
knew she was being cautioned not to play computer games at any time. This is an
instance when Mr. Hanning gave Grievant an oral directive, rather than a written one. Mr.
Hanning acknowledged oral directives were not effective with Grievant. While Mr. Hanning
could have been more direct, the undersigned concludes that Mr. Hanning's oral cautioning
of Grievant was sufficient. The fact that Grievant chose to argue with Mr. Hanning about
his statement by telling him she was only playing on breaks, and that he did not respond
to her, is of no moment under the circumstances, and it is not a justifiable
misunderstanding or misinterpretation of a supervisor's directive. It is simply one more
instance of Grievant openly expressing disagreement with her supervisor. It is
unbelievable that Grievant would go to her supervisor's office to confront him about
whether she could play games on her computer during work hours.
Grievant again argued she should not have been punished for this more than a
month later. She did not offer any policy, law, rule, or regulation which would preclude this.
Again, the time lapse between the event and the discipline is insignificant.
Grievant stated that the status sheets were a huge sore point with her. She stated
she felt they were inadequate to reflect what she does. She stated sometimes she would
get busy and forget to complete them on Friday afternoons, and would complete them on
Monday. She stated she did not deliberately set out not to complete them on time. She
later stated, however, that her report was late only once. Finally, she stated other
employees had submitted status reports late, without any consequences; and in fact, Ms.Brunty had sent an e-mail at one point warning people that if they did not get their status
reports in they would not get credit for the week.
Respondent proved that Grievant submitted her very first status report late. It did
not submit proof that any other reports were submitted late, although Grievant's own
testimony raises the question of whether this occurred. The first status report was due on
March 5, 1999, and Grievant submitted it on Monday, March 8, 1999, after being reminded
to do so. The suspension letter is in error when it states she was reminded again on March
11, 1999, to submit this status report. She was reminded on March 11, 1999, that she was
to submit a status report the next day.
Grievant pointed out that the Division of Personnel's Administrative Rule 12.5
requires that like penalties be imposed upon all employees for like offenses. She argued
she could not be punished for turning in one report late when the underwriters had been
allowed to turn in their weekly reports late without any consequences.
Grievant proved that other employees had been late in submitting weekly reports.
Respondent attempted to draw a distinction between Grievant and these other employees
simply because they were underwriters. The underwriters' reports were due the same day
as Grievant's. Respondent did not demonstrate any reason for the underwriters to be
allowed a grace period for submitting weekly reports. Respondent did not dispute that
none of the underwriters have been disciplined for failure to timely submit weekly reports.
Grievant cannot be punished for her one instance of late filing when others in the unit were
allowed to submit their reports late without any consequences.
As to her tardiness in arriving at work, Grievant admitted she was frequently late.
She noted, however, that she often stays at the office 30 minutes to an hour after her
scheduled time to go home, but this apparently was not taken into consideration. When
asked if Mr. Hanning explained to her that she would be severely disciplined if hertardiness did not stop, she answered: Absolutely not. He just said I needed to make [an]
effort to improve and I tried to make those accommodations.
Mr. Hanning testified that Grievant was late two to three times a week; he believed
this was excessive; and he told her this had to stop. She continued to arrive at work late
despite his directive not to do so. He also testified, however, that the practice in the office
was to allow employees to come to work late if they filled out leave slips. He did not agree
with the practice.
Respondent has proven Grievant was late arriving at work, was told to correct this
behavior, and continued to arrive late. Whether Grievant stayed after her regular work
hours five minutes or five hours has no bearing on this issue. Mr. Hanning expected her
to be at work on time, and he was her supervisor. This was not an unreasonable
expectation. However, it is clear that, until Mr. Flick issued the memorandum on April 23,
1999, referred to in Finding of Fact Number 10, the office practice allowed this behavior,
and the charges regarding tardiness related to a period of time ending in March 1999.
Grievant has demonstrated she was treated differently than other employees with
regard to being punished for arriving at work late, and the charge cannot be sustained for
that reason. It was the office practice to simply require the employee to take annual leave
when the employee was late. Mr. Hanning cannot hold Grievant to a different standard
than his other employees. However, Grievant should be aware that, now that Mr. Flick has
issued a memorandum which appears to change the office practice, so long as that
practice is applied even handedly, it may be applied to her in the future.
Grievant argued that, even if some of the charges were proven, the penalty should
be reduced because she was had been employed a long time by BEP, and her evaluation
performed by Mr. Hanning for the period October 1, 1998, through September 30, 1999,
was good, with Grievant receiving ratings of exceeds expectations in several categories,
and showing no ratings of needs improvement. Mr. Hanning testified he decided theevaluation should reflect Grievant's performance after the suspension, and she had been
a good employee since that time. Grievant also argued this good evaluation demonstrates
the charges should not be sustained because the evaluation is evidence she was always
a good and dedicated employee, inasmuch as it seems fairly unlikely that Ms. Wiley was
suddenly transformed from a disruptive, abusive, insubordinate employee into a very good
one in such a short span of time. The undersigned cannot draw this conclusion from the
evaluation. Grievant's responses to her supervisor, and her attitude toward him, as
evidenced by her own testimony, were improper and insubordinate. Hopefully, the
evaluation reflects that the 10 day suspension got Grievant's attention.
While Respondent cannot prevail on the charges of tardiness and turning in reports
late, the undersigned finds these charges to be minor compared to Grievant's blatantly
insubordinate responses to Mr. Hanning, her attitude toward him, and her failure to move
when told by Ms. Brunty to do so. Accordingly, the undersigned will not modify the 10 day
suspension, as the disciplinary action is not clearly disproportionate to the proven
misconduct.
See Hammer v. Div. of Corrections, Docket No. 94-CORR-1084 (Nov. 30,
1995). BEP may choose to do so on its own, if it believes that is appropriate.
The following Conclusions of Law support the Decision reached.
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.
Ramey v. W. Va. Dep't
of Health, Docket No. H-88-005 (Dec. 6, 1988).
2. It is well established that "[I]nsubordination involves 'willful failure or refusal
to obey reasonable orders of a superior entitled to give such order.' [Citations omitted.]
In order to establish insubordination, the employer must not only demonstrate that a policy
or directive that applied to the employee was in existence at the time of the violation, butthat the employee's failure to comply was sufficiently knowing and intentional to constitute
the defiance of authority inherent in a charge of insubordination."
Stover v. Mason County
Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995) (Citations omitted.).
Where an
employee has justifiably misunderstood or misinterpreted a superior's instruction, and has
failed to comply with a directive based upon this, the employee has been found lacking the
intent necessary to establish insubordination.
Wilson v. Marion County Bd. of Educ.,
Docket No. 98-24-043 (June 23, 1998), citing
Conner v. Barbour County Bd. of Educ.,
Docket No. 94-01-394 (Jan. 31, 1995), and
Ramey v. W. Va. Div. of Veterans Affairs,
Docket No. 91-VA-115 (Aug. 2, 1991).
3. "'Generally, an employee must obey a supervisor's order and take
appropriate action to challenge the validity of the supervisor's order. Employees are
expected to respect authority and do not have the unfettered discretion to disobey or
ignore clear instructions.'
Reynolds [v. Kanawha-Charleston Health Department, Docket
No. 90-H-128 (Aug. 8, 1990)],
citing Meads v. Veterans Admin., 36 M.S.P.R. 574 (1988)
[other citations omitted]."
Stover v. Mason County Bd. of Educ., Docket No. 94-26-640
(Feb. 23, 1995). While there are exceptions to this rule, such as where the employee
reasonably has health and safety concerns (
Stover v. Mason County Bd. of Educ., Docket
No. 95-26-078 (Sept. 25, 1995)), "[a]n employee is not justified i[n] disobeying a
reasonable order simply because he/she does not agree with it."
Id. "An employer 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))."
English v. Div. of Corrections, Docket No. 98-
CORR-082 (June 29, 1998).
4. This Grievance Board has previously noted that insubordination
'encompasses more than an explicit order and subsequent refusal to carry it out.'
Sextonv. 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). Thus, this Board has found that uttering
abusive language to a supervisor may constitute insubordination.
Payne v. W. Va. Dep't
of Transp., Docket No. 93-DOH-454 (Apr. 29, 1994).
See Burton Mfg. Co. v. Boilermakers
Local 590, 82 Lab. Arb. (BNA) 1228 (1994) (Holley, Arb.).
Casto v. W. Va. Dep't of Educ.,
Docket No. 00-DOE-143 (Aug. 29, 2000).
5. Grievant was insubordinate toward her supervisor in uttering abusive
language directed at him, and toward Ms. Brunty when she was acting in a supervisory
capacity by refusing to move to a different cubicle when directed to do so. Grievant did not
justifiably misunderstand or misinterpret Mr. Hanning's cautioning her not to play games
on her computer, as she argued with him when he cautioned her. She was insubordinate
in continuing to play computer games during work hours after being cautioned by him not
to do so.
6. The Division of Personnel's Administrative Rule 12.5 requires that like
penalties be imposed upon all employees of an agency for like offenses.
7. Respondent proved that Grievant turned in one weekly report late; however,
Grievant demonstrated other employees were not disciplined for failing to turn in weekly
reports in a timely manner. Grievant cannot be disciplined for her late report when others
have not been punished for this.
8. Respondent proved Grievant was late in arriving at work on a regular basis.
However, until April 23, 1999, the office practice was to allow tardiness if the employee
turned in a leave slip. There was no evidence that Grievant was late in arriving at work
between April 23 and the date of the suspension letter, April 28, 1999, nor was the time
period included in the charges. Grievant cannot be treated differently than other
employees, and cannot be punished for her tardiness prior to April 23, 1999.
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: October 4, 2000
Footnote: 1