JOSEPH SHEBA,

      Grievant,

v.                                                      Docket No. 00-CORR-005

WEST VIRGINIA DIVISION OF
CORRECTIONS/NORTHERN
REGIONAL JAIL AND CORRECTIONAL
FACILITY,

      Respondent.

DECISION

      Joseph Sheba (“Grievant”) challenges the termination of his employment as a probationary Correctional Counselor II by the West Virginia Division of Corrections (“DOC”). This grievance was filed directly at level four on December 30, 1999. Although probationary employees are not entitled to the expedited grievance process, DOC did not object to this matter being considered at level four, bypassing the lower levels. Accordingly, after several continuances granted for good cause shown, a level four hearing was held in the Grievance Board's office in Wheeling, West Virginia, on May 10, 2000. Grievant was represented by Clark Patterson, a layperson, and DOC was represented by counsel, Leslie K. Tyree. This matter became mature for consideration upon receipt of Grievant's written argument on May 30, 2000.   (See footnote 1) 
      The following findings of fact are made from a preponderance of the evidence.

Findings of Fact

      1.      Grievant began probationary employment with DOC as a CorrectionalCounselor II at the Northern Regional Jail and Correctional Facility (“NRJ”) on July 1, 1999.
      2.      Grievant called off sick on August 23, 1999, September 9, 1999, October 15, 1999, November 7, 1999, and December 3, 1999. On three of these occasions, sick leave was taken on either the day immediately before or the day immediately after Grievant's regular day off.
      3.      Warden Evelyn Seifert held a conference with Grievant in October of 1999. She advised him that he would have to attend the correctional academy to obtain permanent employment at NRJ.   (See footnote 2)  Also during that meeting, Warden Seifert discussed Grievant's absenteeism with him.
      4.      Grievant was verbally advised several times by Warden Seifert and other supervisors that his attendance was not satisfactory.
      5.      On November 22, 1999, Grievant departed from work twenty minutes early without permission.
      6.      On November 23, 1999, Grievant departed from work one hour early without permission.
      7.      On November 24, 1999, Grievant altered his work schedule without permission from his supervisor. Instead of working his scheduled shift from 12:00 p.m. to 8:00 p.m., Grievant worked from 10:00 a.m. until 4:00 p.m, using sick leave for the remaining two hours of his eight-hour shift. November 24, 1999, was the day before Thanksgiving.
      8.      Grievant received one performance evaluation on September 2, 1999. Thisevaluation did not assign a rating to Grievant's performance or discuss any deficiencies in his work.
      9.      On December 17, 1999, Warden Seifert held a conference with Grievant, advising him that disciplinary action was being considered for his abuse of sick leave. Grievant stated that he wanted to stay, and he “didn't realize you were so fussy about attendance.”
      10.      On December 21, 1999, Warden Seifert held another conference with Grievant regarding his alterations of his work schedule without permission. Grievant stated that he had received approval from his supervisor, Leonard Wellman. When Warden Seifert consulted Mr. Wellman regarding Grievant's allegations, Mr. Wellman did not recall approving Grievant's schedule changes.
      11.      By letter dated December 22, 1999, Warden Seifert advised Grievant that he was being dismissed from his position for abuse of sick leave and deviation from regularly scheduled working hours. The dismissal became effective on January 5, 2000, extending Grievant's probationary period by five days.   (See footnote 3) 
Discussion

      When a probationary employee is terminated on grounds of incompetency or unsatisfactory performance, rather than misconduct, the termination is not disciplinary, and the employer carries no burden of proof in a grievance proceeding. The employee has the burden of establishing by a preponderance of the evidence that his services weresatisfactory. Bonnell v. W. Va. Div. of Corrections, Docket No. 89-CORR-163 (Mar. 8, 1990). See Bowman v. W. Va. Educ. Broadcasting Auth., Docket No. 96-EBA-464 (July 3, 1997); Walker v. W. Va. Public Serv. Comm'n, Docket No. 91-PSC-422 (Mar. 11, 1992); See also, Simmons v. Bureau of Employment Programs, Docket No. 97-BEP-531 (Nov. 25, 1998). A dismissal for abuse of leave and attendance problems is a termination for unsatisfactory performance and is not disciplinary in nature. See Giberson v. W. Va. Div. of Corrections, Docket No. 98-CORR-002 (May 29, 1998).
      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.
      Grievant has done little to challenge the allegations against him, and, thus, he has failed to meet his burden of proof. If Grievant had established that his services were satisfactory, then the agency's decision would be deemed arbitrary and capricious. Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996). While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review isnarrow, and an administrative law judge may not simply substitute her judgment for that of the employer. See generally, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276, 283 (1982).
      Grievant's only defense to the charges against him is that he did not receive the performance evaluations to which he was entitled, pursuant to NRJ's Operational Procedure 1.33, which states that, during the probationary period, employees are to be evaluated every two months. It is undisputed in this case that Grievant was only evaluated on one occasion. However, Warden Seifert testified that Grievant was advised on several occasions that his attendance was unsatisfactory, an allegation which Grievant has introduced no evidence to refute. One of the purposes of the evaluations is to advise employees of deficiencies in their performance. It is undisputed that Grievant was well- advised of his attendance problems, despite NRJ's failure to provide him with further evaluations. In any case, absent any other evidence that Respondent's allegations against Grievant are untrue, NRJ's failure to provide further evaluations does not entitle Grievant to permanent employment.
      As a classified state employee, Grievant's termination is governed by the provisions of the Division of Personnel's Administrative Rule (7/98). Section 10.05 of the Rule states:

Further, Section 12.2 of the Rule addresses all dismissals, stating as follows:
      
Grievant has failed to explain or justify his absences from work, nor has he provided any explanation as to why he altered his work schedule without permission. Grievant called no witnesses, such as coworkers or Mr. Wellman, who could have explained or refuted the allegations of unsatisfactory performance. NRJ's Operational Procedure 1.29-8 defines “sick leave abuse” to occur when:

Grievant's five absences in as many months, three of them being in conjunction with weekends or regular days off, easily constitutes a pattern of leave abuse under NRJ's policy.
      Grievant has failed to prove by a preponderance of the evidence that his services were satisfactory, nor has he shown that his dismissal was arbitrary and capricious. Consistent with the foregoing findings and discussion, the following conclusions of law are made.
Conclusions of Law

      1.      Where a probationary employee is terminated on grounds of unsatisfactoryperformance, rather than misconduct, the termination is not disciplinary, and the burden of proof is upon the employee to establish that his services were satisfactory. Bonnell v. W. Va. Dep't of Corrections, Docket No. 89-CORR-163 (Mar. 8, 1990).
      2.      Grievant has failed to prove, by a preponderance of the evidence, that his performance was satisfactory, and that he should not have been dismissed. Bowman v. W. Va. Educ. Broadcasting Auth., Docket No. 96-EBA-464 (July 3, 1997); Smith v. W. Va. Div. of Labor, Docket No. 93-LABOR-347 (Oct. 29, 1993); Walker v. W. Va. Public Serv. Comm'n, Docket No. 91-PSC-422 (Mar. 11, 1992); Bonnell, supra.
      3.      Grievant failed to prove DOC violated any statute, policy, rule, or regulation in dismissing him from employment, or that DOC acted arbitrarily and capriciously in terminating Grievant's probationary employment. Goard v. W. Va. Div. of Corrections, Docket No. 95-CORR-068 (Mar. 20, 1995).

      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, and 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.
Date:      June 21, 2000                  ___________________________________
                                          DENISE M. SPATAFORE
                                          Administrative Law Judge


Footnote: 1
      DOC elected not to file a post-hearing submission.
Footnote: 2
      Warden Seifert testified that Grievant was being “uncooperative” about attending the academy, but she did not elaborate.
Footnote: 3
      The Division of Personnel's Administrative Rule, Section 10.5(a) (7/98) states that, if a probationary employee is dismissed for unsatisfactory performance less than fifteen days before the end of the probationary period, the probationary period must be extended fifteen days from the date of the notice of dismissal.