LAURA STONE,

                                    Grievant,

v.


WEST VIRGINIA DIVISION OF CORRECTIONS/
MOUNT OLIVE CORRECTIONAL COMPLEX,

                                    Respondent.

DECISION

      Laura Stone (Grievant) was employed by the West Virginia Division of Corrections (CORR), as a Correctional Officer (CO) IV at the Mount Olive Correctional Complex (MOCC), until her dismissal on September 10, 1999. She filed this action directly at Level IV on September 13, 1999, alleging that CORR engaged in discrimination, favoritism, harassment, arbitrary and capricious decision making, retaliation, unethical practices, and defamation in dismissing her.   (See footnote 1)  Grievant seeks reinstatement, back pay, reimbursement of her medical expenses and other costs, attorney fees, and otherwise to be made whole.   (See footnote 2) 
      A Level IV hearing was held on November 22, 1999, before the undersigned administrative law judge, at the Grievance Board's Beckley office. Grievant wasrepresented at this hearing by Steven Berryman, and CORR was represented by Joe Wittington, Esq. The parties were given until December 20, 1999, later extended to January 14, 2000, to submit proposed findings of fact and conclusions of law, and this grievance became mature for decision on that date.   (See footnote 3)  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 was employed by CORR as a CO IV/Sergeant, for a period of approximately seven years, until her dismissal on September 10, 1999. During the period of time relevant to this grievance, Grievant was the Officer in Charge/Supervisor of MOCC's Visitation Unit. (Visitation).
      2. On or about July 10, 1999, Anna Thomas (Thomas) visited inmate David Williams (Williams). Thomas carried a .22 caliber pistol and 50 rounds of ammunition through Visitation and into MOCC's Quilliams II (Q2) unit without detection. She gave the weapon to Williams, who became nervous about it and returned it to her. Thomas left MOCC with the weapon and ammunition.
      3. Williams is a Class Five inmate, the classification used by CORR for its most dangerous inmates. He is serving a life sentence without mercy for the 1980 murder of a McDowell County man. Following an escape from the former state maximum securityprison at Moundsville and seizure of hostages, Williams has been “locked down” in Q2 for four years.
      4.      Q2 is the maximum security unit within MOCC, the state's maximum security prison. Q2 houses MOCC's most dangerous inmates, the “worst of the worst.”
      5.      On July 24, 1999, Sergeant Delana Sandford (Sandford) observed CO Annetta Hickman (Hickman) performing pat-down searches in Visitation improperly. Hickman patted only the shoulders and backs of two female visitors, and failed to pat-down the rest of the visitors' bodies.
      6.      Sandford is the Officer in Charge/Supervisor of MOCC's Canine Unit.
      7.      Sandford reported the inadequate pat-downs to Hickman's supervisor, Grievant, but did not prevent the two female visitors from entering MOCC or record their names. Sandford did not file an incident report about this event or report it immediately to her supervisor.
      8.      On July 31, 1999, Thomas again visited Williams. She was given a pat-down search by Hickman. Thomas again brought the .22 caliber pistol and 50 rounds of ammunition through Visitation and into MOCC's Quilliams II unit without detection. On this occasion Williams kept the weapon and ammunition.
      9.      On both occasions, Thomas, who is extremely obese, concealed the weapon in her underwear and the ammunition in her vagina.
      10.      On July 31, 1999, Visitation's metal detector was not functioning properly. It had to be replaced by Grievant's successor as Officer in Charge/Supervisor of Visitation, CO Michael Wagoner (Wagoner).      11.      On July 31, 1999, Visitation had no hand wand to check visitors who activated the unit's metal detector. The use of a hand wand was begun by Wagoner.
      12.      On August 8, 1999, Williams informed MOCC officials that he wanted to talk with Deputy Warden Michael Coleman (Coleman) about a gun and two staff members. Williams was escorted from his cell in Q2 to a multi-purpose room, then to the Q2 visiting room, then to the holding cell in the security wing, and finally to the office of the Associate Warden for Security. Before reaching this office, Williams twice used bathroom facilities unescorted.
      13.      At several points during Williams' travel from his cell to the office of the Associate Warden for Security, MOCC regulations required that he be strip-searched. However, he was strip-searched only upon leaving his cell.
      14.      Williams was strip-searched without the presence of two COs, in violation of MOCC policy.
      15.      Williams was out of sight of COs three times during his travel from his cell to the office of the Associate Warden for Security, but was not strip-searched upon re- entering their field of vision, in violation of MOCC policy.
      16.      In the office of the Associate Warden for Security, Williams met with Coleman and Executive Assistant Cheryl Chandler, seeking to be restored to the main population of MOCC. During this meeting, Williams pulled the gun from his waistband. A struggle followed, during which Williams fired two shots, missing Coleman and Chandler (gun incident).      17.      The gun incident was the worst breach of security ever to occur at MOCC. During the lockdown that followed it, Q2 inmates did substantial damage to MOCC.
      18.      Between July 24, 1999, when Sandford spoke to Grievant about Hickman's inadequate pat-down searches, and August 8, 1999, when Williams fired the gun, Grievant failed to speak to Hickman about her inadequate pat-down searches.
      19.      Neither Grievant's, nor Sandford's, actions directly allowed the gun into MOCC.
      20.      On or about April 2, 1999, CO Larry Hamlin (Hamlin) allowed 48 inmates out of their cells simultaneously during a lockdown. Hamlin received a written reprimand for this incident.
      21.      On a date not reflected in the record of this grievance, Hamlin allowed several Q2 inmates out of their cells simultaneously, in violation of MOCC policy. This resulted in the death by strangulation of inmate Blankenship. Hamlin received no disciplinary action for this incident.
      22.      On or about August 24, 1999, Lieutenant Howard Shifflet (Shifflet) brought a loaded .357 Magnum revolver into the Northern Regional Jail and Correctional Facility in Moundsville and left it in an unlocked locker. This gun was found by an inmate, who gave it to authorities without incident. Shifflet was not dismissed for this incident.
      23.      On or about August 16, 1999, CO Kevin Higginbotham (Higginbotham) left a loaded shotgun locked in a gun rack in his vehicle, with the vehicle's windows open, outside of MOCC's administration building. This made the shotgun accessible to aninmate, convicted of murder and serving a life sentence without mercy, who works in that area. Higginbotham received a written reprimand for this incident.
      24.       25.      West Virginia Division of Personnel Administrative Rule 12.5 states: ”[i]n dismissals for cause and other punishments, appointing authorities shall impose like penalties for like offenses.”
      26.      MOCC policies limit visitors to bringing four dollars into MOCC. As a result, some visitors leave their excess money at the Visitation Unit desk and forget to reclaim it later, or throw money to the ground outside visitation, or into trash cans near Visitation.
      27.      When Wagoner replaced Grievant as Officer in Charge/Supervisor of Visitation, he found a plastic bag containing $38.15 in a desk drawer in Visitation. The bag contained the money left behind or discarded by visitors (money incident).
      28.      The existence of the bag of money had been common knowledge, for several years, for all COs working in Visitation.
      29.      It had been the practice at Visitation, for several years, to keep found monies and use them for such purposes as giving vending machine refunds and buying pizza.       30.      MOCC's Investigator, Charles B. Hudson (Hudson), performed investigations of the gun incident and the money incident, and prepared detailed and thorough reports of his findings.
      31.      On August 21, 1999, Grievant told her successor, Wagoner, within earshot of visitors, that he was processing visitors too slowly; and that she would assist him “when pigs fly.”
       32 32.
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.
      The administrative rules of the West Virginia Division of Personnel provide that an employee in the classified service may be dismissed for "cause." 143 CSR § 12.2, Administrative Rule, W. Va. Div. of Personnel (July 1, 1998). The phrase "good cause" hasbeen determined by the West Virginia Supreme Court of Appeals to apply to dismissals of employees whose misconduct was of a "substantial nature, and not trivial or inconsequential, nor a mere technical violation 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 (1985); Guine v. Civil Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1, Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980).
      CORR based its decision to terminate Grievant upon provisions of its Policy Directive 400.00 (Policy 400), entitled Employee Standards of Conduct and Performance. Policy 400 is “designed to protect the well-being and rights of all employee[s][,] to assure safe, efficient government operations and to assure compliance with public law.”; to “[e]stablish a fair and objective process for correcting or treating unacceptable conduct or work performance[.]; and to “[d]istinguish between less serious and more serious actions of misconduct and provide corrective action accordingly[.]”
      Policy 400 provides three levels of disciplinary offenses. A Class A offense includes “types of behavior least severe in nature but which require correction in the interest of maintaining a productive and well-managed work force.” A Class B offense includes “acts and behavior which are more severe in nature and are such that a Third Class B offense should normally warrant removal.” A Class C offense includes “acts and behavior of such a serious nature that a first occurrence should normally warrant an extended suspension or removal.”
      Specifically, CORR alleges that Grievant violated § 407-C-22 and § 407-C-24 by failing to act when informed of Hickman's inadequate pat-down searches; § 407-C-06 bymaintaining the bag of money referred to in Finding of Fact 27; and § 407-B-23 with her remarks to Wagoner, referred to in Finding of Fact 31. Each of CORR's charges will be addressed in turn.
      § 407-C-22: “Breach of facility security or failure to report any breach or possible breach of facility security[,]” and § 407-C-24: “Other actions of similar nature and gravity.”   (See footnote 5) 
      CORR alleges that Grievant violated this section by failing to act when informed of Hickman's inadequate pat-down searches. CORR argues that Grievant's inaction “potentially contributed to a weapon having been introduced to the facility.” The evidence confirms that on July 24, 1999, Sandford observed Hickman performing pat-down searches in the visiting room improperly, by patting only the shoulders and backs of two female visitors, and failing to pat-down the rest of the visitors' bodies. Sandford reported the inadequate pat-downs to Hickman's supervisor, Grievant, but did not prevent the two visitors from entering MOCC or record their names. Sandford did not file an incident report about this event or report it immediately to her supervisor, and Grievant did not correct Hickman's inadequate searches for the fifteen day period preceding the August 8, 1999, gun incident. Grievant argues that the fact she was disciplined for this incident, and Sandford was not, constitutes prohibited discrimination under W. Va. Code § 29-6A-2(d).
      W. Va. Code § 29-6A-2(d) defines "discrimination" as "any differences in the treatment of employees unless such differences are related to the actual job responsibilitiesof the employees or agreed to in writing by the employees." To establish a prima facie case of discrimination, Grievant must show:



Hendricks v. W. Va. Dep't of Tax and Revenue
, Docket No. 96-T&R-215 (Sept. 24, 1996).       Once the grievant establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, a grievant may still prevail if she can demonstrate the reason given by the respondent was mere pretext. Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Grievant has established that she was similarly situated, in a pertinent way, to Sandford, in that both were Officers in Charge of MOCC units charged with maintaining security at MOCC and equally subject to CORR policies. Grievant further established that she was, to her detriment, treated by her employer in a manner that Sandford was not, in a significant particular; by being charged with a Class C offense for the incident described above.
      Grievant has also established that the difference between her treatment by CORR and the treatment CORR afforded Sandford was unrelated to their actual jobresponsibilities,   (See footnote 6)  because she established, by a preponderance of the evidence, that Sandford was equally culpable for the breach of MOCC security that potentially contributed to the gun incident.   (See footnote 7) 
      Warden Painter credibly testified to the paramilitary and hierarchical nature of a CO's work at MOCC; that if Sandford had corrected Hickman's inadequate pat-downs immediately, instead of referring the problem to Grievant, the gun incident might have been prevented; that “it would have been good” if Sandford had acted immediately to correct the problem; and that Sandford's failure to file an incident report upon seeing Hickman's inadequate pat-downs was a “paper” breach of security.
      Major Paul Parry (Parry), Chief Correctional Officer of MOCC, credibly testified that Sandford created a breach of security when she failed to act immediately to stop the two female visitors, put them back outside, shut down Visitation and “sterilize” the unit, and then document the incident; that Grievant should also have acted immediately when informed of Hickman's inadequate pat-downs by Sandford; and that Operational Procedure #1.50, MOCC's General Security Orders, is the bible and backbone of security procedures at MOCC.
      Procedure III of Operational Procedure #1.50 states, in pertinent part; “[e]ach staff member is responsible to immediately report to their supervisor activities related to or indicating escape, security breaches and contraband trafficking[,]” and “10. [s]taff will reportall incidents, unusual occurrences, violations of post orders, operational procedures and policy directives.”
      Associate Warden of Security William Vest (Vest) credibly testified that Sandford should have corrected Hickman's inadequate pat-downs immediately, and then documented the incident; that Sandford breached security when she let the two female visitors leave the search room after witnessing Hickman's inadequate pat-downs of them; that Grievant should also have acted immediately when informed of Hickman's inadequate pat-downs by Sandford; and that Sandford's failure to take immediate action violated MOCC Canine Unit General Orders.
      MOCC Canine Unit General Orders state, in pertinent part; “[i]f the situation requires a decision be made due to an unfolding tactical event, the officer will use good correctional judgment and attempt to resolve the situation in the favor of facility security and public safety. Failure to comply with this post order will be cause for disciplinary action. . . .”
      Investigator Hudson credibly testified that Sandford did not document or immediately report Hickman's inadequate pat-downs or notify her superiors, in violation of policy, and that her failure to stop the two female visitors from entering Visitation meant that any type of contraband could have gotten in.
      Katherine Lucas, the Director of CORR's West Virginia Corrections Academy, credibly testified that Sandford should have filed a report sooner, and that Sandford violated the “letter” of Operational Procedure #1.50, but that Grievant did too.
      CO Sandford credibly testified that she did not stop the two female visitors or record their names; that she did not file an incident report or report the incident to her supervisoruntil one week later;   (See footnote 8)  and that she was trained to correct problems at once. Sandford also admitted that she violated Operational Procedure #4.15 49.
      Operational Procedure #4.15 states, in pertinent part; “49. [i]t is the duty and responsibility of every employee to report to their supervisor the violation of any of the above rules by another employee.”
      With this testimony, from some of the highest ranking officers of MOCC, Grievant has established a prima facie case of discrimination. Because CORR has not offered or proven a legitimate, nondiscriminatory reason for its decision to charge Grievant with this Class C offense while failing to discipline Sandford at all for her similar offense, Grievant has established that she was the victim of discrimination by CORR when she was charged with a violation of Policy 400 § 407-C-22 by CORR.
      Accordingly, CORR may not rely on this charge in disciplining Grievant.
      § 407-C-06: “Theft or unauthorized removal of state records, state property or other person's property.”
      CORR alleges that Grievant violated this section by maintaining the bag of money, containing $38.15, referred to in Finding of Fact 27. Specifically, Grievant is charged with violating Procedure XXX (30)   (See footnote 9)  of Operational Procedure #1.50 which states, in pertinent part, “[s]taff will contact their supervisor. . . . if a situation occurs which is not covered by instructions.”       Inspector Hudson's report, as well as the credible testimony of COs Valerie Adkins, Howard Montgomery, and Wagoner, established that visitors leave their excess money at the visitation room desk and forget to get it later, or throw money to the ground outside visitation, or into trash cans near Visitation; that the existence of the bag of money was common knowledge for all COs working in Visitation; that the bag of money had existed for years; that the money properly belonged in MOCC's Inmate Benefit Fund; and that it had been the practice at Visitation, for several years, to keep found monies and use them for such purposes as giving vending machine refunds and buying pizza. Grievant argues that the fact she was disciplined for this charge and that others, who also knew of and used the bag of money, were not, constitutes discrimination.
      However, Warden Painter credibly testified that Grievant, as Officer in Charge/Supervisor of Visitation, had a greater duty than her subordinates to follow and enforce CORR and MOCC policies. Warden Painter's argument is well taken. CORR may impose different penalties on supervisors and subordinates for the same offense, because they are not similarly situated. Pauley v. W. Va. Div. Of Corrections, Docket No. 96-CORR- 543 (Oct. 21, 1997). As Officer in Charge/Supervisor of Visitation, Grievant was not similarly situated to other, subordinate COs in Visitation who knew of and used the bag of money. Accordingly, the undersigned concludes that Grievant has failed to establish a prima facie case of discrimination with respect to this charge.
      Nevertheless, the record does not support CORR's characterization of this offense as a Class C offense. Class C offenses are the most serious under Policy 400, being “acts and behavior of such a serious nature that a first occurrence should normally warrant anextended suspension or removal.” Examples of these offenses include violence, theft, physical inmate abuse, trafficking in contraband, use of drugs, use of unauthorized firearms, weapons, and explosives, and negligence leading to escape, death or injury. Generally, Class C offenses concern felonious and life threatening violations. It is unreasonable to maintain that the offense of failing to deposit found monies in the Inmate Benefit Fund rises to the level of the Class C offenses listed in Policy 400. It is clearly not of a similar nature and gravity.
      It is reasonable to conclude that this offense constitutes, at worst, a Class B offense, such as 407-B-2: “[f]ailure or delay in following a supervisor's instructions , performing assigned work or otherwise complying with applicable established written policy or procedures[,]” or 407-B-7: “[u]nauthorized possession or use of, loss of, or damage to records, state property or property of others.” Accordingly, CORR has established that Grievant committed this Class B offense.
      § 407-B-23: “Other actions of a similar nature and gravity. To wit, unprofessional conduct toward a fellow employee.”
      CORR alleges that Grievant violated this section with her remarks to Wagoner, referred to in Finding of Fact 31. Wagoner credibly testified that Grievant told him, within earshot of visitors, that he was processing visitors too slowly; and that she would assist him “when pigs fly.” Grievant presented no evidence to prove that this statement was not made as Wagoner said it was. Accordingly, this charge is established by a preponderance of the evidence.      Interestingly, the portion of Policy 400 relied upon by CORR does not appear to exist. The list of Class B offenses in the copy of Policy 400 introduced as Respondent's Exhibit Five ends with B-22: “[s]leeping during working hours while at non-security posts.” However, this is of no importance, because CORR has again “overcharged” Grievant.   (See footnote 10)  The offense charged is clearly a Class A offense under Policy 400 § 407-A-4: “[d]isrespectful conduct, use of insulting, abusive or obscene language to or about others.” As noted above, Class A offenses are “types of behavior least severe in nature but which require correction in the interest of maintaining a productive and well-managed work force[,]” a description that encompasses trash talking between employees very well. See Davidson v. W. Va. Div. of Corrections, Docket No. 96-CORR-133 (May 9, 1997). CORR has established that Grievant committed this Class A offense.
CONCLUSION
      CORR has established that Grievant committed one Class B offense and one Class A offense under Policy 400. However, Grievant argues that the punishment imposed for these offenses, dismissal, is so disproportionate to the discipline imposed by CORR for similar and greater offenses committed by other COs as to constitute another instance of discrimination under W. Va. Code § 29-6A-2(d).
      The record in this grievance reflects that Grievant was similarly situated, in a pertinent way, to other COs who were subject to CORR and MOCC policies, committed violations of them, and were subject to discipline under Policy 400. Grievant furtherestablished that she was, to her detriment, treated by her employer in a manner that other COs were not, in a significant particular; by being charged with several offenses, and by being dismissed, when other COs were not.
      Grievant has also established that the difference between her treatment by CORR and the treatment CORR afforded other COs who violated CORR and MOCC policies was unrelated to their actual job responsibilities,   (See footnote 11)  because she established, by a preponderance of the evidence, that other COs committed violations of CORR and MOCC policies far more serious than hers yet received little or no discipline from CORR.
      Warden Painter credibly testified that CO Larry Hamlin (Hamlin) allowed several Q2 inmates out of their cells simultaneously, in violation of CORR policy, which resulted in the death by strangulation of inmate Blankenship, and that Hamlin received no disciplinary action for this incident although he should have been fired;   (See footnote 12)  that Hamlin allowed 48 inmates out of their cells simultaneously during a lockdown, and that Hamlin received a written reprimand for this incident; that CO Kevin Higginbotham (Higginbotham) left a loaded shotgun locked in a gun rack in his vehicle, with the vehicle's windows open, outside of MOCC's administration building, which made the shotgun accessible to an inmate, convicted of murder and serving a life sentence without mercy, who works in that area, andthat Higginbotham received a written reprimand for this incident; and that CO Howard Shifflet (Shifflet) brought a loaded .357 Magnum revolver into the Northern Regional Jail and Correctional Facility in Moundsville and left it in an unlocked locker, where it was found by an inmate, who gave it to authorities without incident; and that Shifflet was not dismissed for this incident.
      Chief Correctional Officer Parry credibly testified that the Higginbotham incident was a serious breach of security. Associate Warden of Security Vest's credible testimony confirmed that Hamlin allowed 48 inmates out of their cells simultaneously during a lockdown, and stated that the Higginbotham incident was a severe breach of security, one equal to Grievant's violation.
      Painter, Parry, and Vest also credibly testified to numerous other breaches of security surrounding the gun incident that did not result in disciplinary action by CORR. Such breaches included COs allowing Williams out of their sight three times without subsequent strip searches on the day of the gun incident, Williams being strip-searched without the presence of two COs, the failure to strip-search Williams when he entered and exited Q2, and the failure to search Williams after he had a visitor. Significantly, CORR produced no evidence, and called no witnesses, to show that these incidents did not occur as Grievant claims they did. It appears from these violations and the lack of disciplinary action for them that MOCC officials, while properly concerned that a gun was able to enter MOCC, were less concerned that a gun could be freely transported by a Class Five inmate within even the most secure areas of MOCC.       It must be noted that the Higginbotham incident described above had the direct effect of placing an inmate incarcerated for murder in the vicinity of a loaded shotgun. The Shifflet incident had the direct effect of placing a loaded gun in an inmate's hand, and one of the Hamlin incidents directly resulted in the death of an inmate.   (See footnote 13) 
      In contrast, no evidence was presented to show that Grievant's, or Sandford's, actions directly allowed the gun into MOCC. Warden Painter credibly testified that he did not know whether Grievant's failure to correct Hickman's inadequate pat-downs allowed the gun to enter MOCC, and that there is no evidence that Hickman did a bad pat-down on the day of the gun incident. Hudson's investigation report also does not conclude that Grievant's failure to correct Hickman's inadequate pat-downs allowed the gun into MOCC. Such a conclusion is impossible due to the combination of circumstances surrounding the entry of the gun, including the failure of the metal detector, the absence of a hand wand, contradictory evidence regarding whether Thomas' extreme obesity precluded an effective pat-down search, and the numerous other breaches of security that contributed to the gun incident, described above. This conclusion is supported by CORR's letter of September 10, 1999, dismissing Grievant, which cited her inaction as “potentially” contributing to the gun incident, and by a memo concerning the gun incident from Warden Painter, dated August 16, 1999, which stated “it is already apparent that we had a number of breaches in security to allow this incident to occur.”             Grievant has again established a prima facie case of discrimination. Because CORR has not offered or proven a legitimate, nondiscriminatory reason for its decision to dismiss Grievant while failing to similarly discipline other COs for similar and greater offenses, Grievant has established that she was the victim of discrimination by CORR with respect to the punishment, dismissal, imposed by CORR.   (See footnote 14)  This is also a plain violation of West Virginia Division of Personnel Administrative Rule 12.5, which states: ”[i]n dismissals for cause and other punishments, appointing authorities shall impose like penalties for like offenses[,]” as well as Policy 400's requirement of “a fair and objective process for correcting or treating unacceptable conduct or work performance” and its mandate to “[d]istinguish between less serious and more serious actions of misconduct and provide corrective action accordingly[.]”
      Ordinarily, the undersigned could not sustain a disciplinary action in the face of the overwhelming proof of discrimination present in the record of this grievance. However, this disciplinary action concerns the most serious breach of security ever to occur at MOCC. Under these extraordinary circumstances, CORR's failure to similarly discipline other COs, such as Sandford, who also potentially contributed to a gun being permitted into MOCC, or such as Hamlin, Higginbotham, and Shifflet, who committed offenses equal to or greater than Grievant's, will not stand as a complete bar to discipline of some sort.       Therefore, the only issue remaining to be resolved is what discipline should be imposed. W. Va. Code § 29-6A-5(b) provides that "[h]earing examiners may provide relief as is determined fair and equitable in accordance with the provisions of this article, and take any other action to provide for the effective resolution of grievances not inconsistent with any rules or regulations of the board or the provisions of this article[.]" In construing the virtually identical language of W. Va. Code § 18-29-5, regarding the grievance procedure for education employees, the West Virginia Supreme Court of Appeals in Graf v. West Virginia University, 189 W. Va. 214, 429 S.E.2d 426 (1992), held as follows: “[c]learly the Legislature intended to give the examiners who hear the grievances the power to fashion any relief they deem necessary to remedy wrongs done to educational employees by state agencies.”
      Under Policy 400, a first Class A offense warrants a reprimand to a five day suspension, with a second such offense warranting a suspension of from six to fifteen days, a third such offense warranting a suspension of 16 days through dismissal, and a fourth such offense normally warranting dismissal.
       A first Class B offense warrants a suspension of from five to fifteen days, with a second such offense warranting a suspension of from sixteen to thirty days, and a third such offense warranting a suspension of 31 days through dismissal.
      Respondent CORR has failed to prove, by a preponderance of the evidence, that it had good cause to dismiss Grievant, Buskirk, supra, inasmuch as its Policy 400 does not contemplate an employee's dismissal for a first Class A offense and a first Class B offense.       Consistent with this Board's authority to fashion relief, and bearing in mind the gravity of the gun incident, the following relief is deemed fair and equitable in this grievance. Respondent CORR will be ordered to suspend Grievant for the maximum period of time under the range of penalties set forth in Policy 400 for one Class A first offense, five days, and one Class B first offense; 15 days, for a total of 20 days suspension without pay.   (See footnote 15)  CORR will be required to reimburse her for her lost wages and benefits, including any overtime that she would have worked had she not been dismissed, with interest; to remove any reference to her dismissal from her file; to grant her any promotions to which she would have been entitled had she not been dismissed, and to restore her seniority.
      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 ofHealth & 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.      Dismissal of an employee in the classified service must be for good cause, which means misconduct of a "substantial nature, and not trivial or inconsequential, nor a mere technical violation 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 (1985); Guine v. Civil Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1, Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980).
      3.      Discrimination is defined as "any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees." W. Va. Code § 29-6A-2(d).
      4.      To establish a prima facie case of discrimination, Grievant must show:



Hendricks v. W. Va. Dep't of Tax and Revenue
, Docket No. 96-T&R-215 (Sept. 24, 1996).       Once the grievant establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, a grievant may still prevail if she can demonstrate the reason given by therespondent was mere pretext. Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      5.       Grievant established, by a preponderance of the evidence, that she was the victim of discrimination by CORR when she was charged with a violation of Policy 400 § 407-C-22 by CORR.
      6.       Grievant established, by a preponderance of the evidence, that she was the victim of discrimination when CORR dismissed her while failing to similarly discipline other COs for similar and greater offenses.
      7.      In dismissals for cause and other punishments, appointing authorities shall impose like penalties for like offenses. West Virginia Division of Personnel Administrative Rule 12.5.
       8 8.       9.      Respondent CORR proved, by a preponderance of the evidence, that Grievant committed one Class B first offense by maintaining a bag of money in MOCC's Visitation unit, and one Class A first offense by using disrespectful language to another CO.
      10.       W. Va. Code § 29-6A-5(b) authorizes the undersigned to provide such relief as is fair and equitable.
      11.      Under CORR's Policy 400, a first Class A offense warrants a reprimand to a five day suspension, and a first Class B offense warrants a suspension of from five to fifteen days.             12.       In light of the gravity of the breach of security that formed the basis for the discipline imposed on Grievant, suspension for the maximum period of time under the range of penalties set forth in Policy 400, for the offenses proved, was appropriate.      
      Accordingly, this grievance is GRANTED, and Respondent CORR is ORDERED to suspend Grievant for 20 days without pay; to reimburse her for her lost wages and benefits, including any overtime that she would have worked had she not been dismissed, with interest; to remove any reference to her dismissal from her file; to grant her any promotions to which she would have been entitled had she not been dismissed, and to restore her seniority.
      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: February 10, 2000


Footnote: 1
      1      Due to the outcome of this Decision, Grievant's claims of favoritism, harassment, arbitrary and capricious decision making, retaliation, unethical practices, and defamation need not be decided.
Footnote: 2
      2      Attorney fees are not awarded by this Grievance Board, Smarr v. Wood County Bd. Of Educ., Docket No. 54-86-062 (June 16, 1986), and Grievant was not represented by an attorney.
Footnote: 3
      3      Grievant's proposals were submitted by Mr. Berryman, and CORR's by paralegal Cindy L. Quillen.
Footnote: 4
      4      The record reflects that Grievant had previously been disciplined once by CORR, but that Warden Painter had gotten that discipline reversed and removed from her personnel file. CORR Policy Directive § 405.04-B mandates that disciplinary actions that are ultimately vacated shall be removed from an employee's personnel file. Such vacated actions may not be relied upon by CORR in future disciplinary actions. Hundley v. W. Va. Div. Of Corrections/Mount Olive Correctional Complex, Docket No. 97-CORR-197A (May 12, 1999); Hundley v. W. Va. Div. Of Corrections/Mount Olive Correctional Complex, Docket No. 96-CORR-399 (Oct. 31, 1997).
Footnote: 5
      5      It is not clear from the record why CORR charged Grievant with two violations of Policy 400 for a single alleged offense.
Footnote: 6
      6      No evidence was presented to show that Grievant agreed to this difference in treatment in writing.
Footnote: 7
      7      As will be discussed later in this Decision, no evidence was presented to show that Grievant's, or Sandford's, actions directly allowed the gun into MOCC.
Footnote: 8
      8 This incident violated Policy 400 § 407-C-22: “[b]reach of facility security or failure to report any breach or possible breach of facility security. . . .”
Footnote: 9
      9      MOCC's letter dismissing Grievant wrongly identifies this section of Operational Procedure #1.50 as “number 29.”
Footnote: 10
      10      CORR has “overcharged” in its disciplinary actions before. Hundley v. W. Va. Div. Of Corrections/Mount Olive Correctional Complex, Docket No. 97-CORR-197A (May 12, 1999).
Footnote: 11
      11      No evidence was presented to show that Grievant agreed to this difference in treatment in writing.
Footnote: 12
      12      Warden Painter testified that Hamlin was not dismissed because his offense occurred under a previous warden. It is noted, however, that CORR often imposes discipline months after an offense. See Hundley v. W. Va. Div. Of Corrections/Mount Olive Correctional Complex, Docket No. 97-CORR-197A (May 12, 1999)(discipline imposed six months after offense). This incident violated Policy 400 § 407-C-17: “[g]ross negligence on the job which results in the escape, death or injury of an inmate. . . .”
Footnote: 13
      13      CO Hamlin reasonably should have foreseen that releasing more than one Q2 inmate at a time, in violation of CORR policy, could result in an inmate being murdered, as numerous inmates have been murdered in Q2. See Ferrell v. W. Va. Div. Of Corrections, Docket No. 96-CORR-194 (Jan. 31, 1997).
Footnote: 14
      14 This is not to say that a grievant who proves disparate treatment in the punishment imposed will always be entitled to a reduction of that punishment, particularly when the employer demonstrates that the punishment imposed was nevertheless reasonable. See Jefferies v. Dep't of Navy, 78 M.S.P.R. 255, 261 (1998).
Footnote: 15
      15      In making this determination, the undersigned is aware that Policy 400 permits increased penalties when aggravating circumstances exist. Policy 400 § 4.02-A states “[w]hen in the judgment of the Commissioner, and/or the appointing authority, aggravating circumstances exist specified corrective action or sanctions may be increased.” However, because CORR made no finding of aggravating circumstances in its letter, dated September 10, 1999, dismissing Grievant, because CORR did not argue, either at the Level IV hearing or in its proposed findings of fact and conclusions of law, that aggravating circumstances exist, and due to the egregious extent of the discrimination proved, Grievant's penalty will not be increased beyond the range of penalties set forth in Policy 400. To the extent that the gravity of the gun incident might represent aggravating circumstances, Grievant has been assessed the maximum penalties, within the range of penalties set forth in Policy 400, for the offenses proved.