ANNETTA HICKMAN,
Grievant,
v.
DOCKET NO. 99-CORR-375
WEST VIRGINIA DIVISION OF CORRECTIONS,
Respondent.
D E C I S I O N
Grievant, Annetta Hickman, Correctional Officer I (COI"), filed this grievance on
September 14, 1999, protesting her dismissal from the West Virginia Division of
Corrections (Corrections), effective September 10, 1999:
On 9/11/99 verbally notified of discharge due to incident involving alleged
smuggled weapon; discharge is in violation of agency/state rules, policies,
procedures, statutes; improper notice; disparate treatment.
Relief sought: Reinstatement; back pay; interest; any lost benefits; attorney
fees.
(See footnote 1)
Following several continuances for good cause, this matter came on for hearing in
the Grievance Board's Charleston, West Virginia, office on April 20, 2000.
(See footnote 2)
Corrections
was represented by its attorney, Leslie K. Tyree, Esq., and Grievant was represented by
Elaine Harris, Communications Workers of America. This matter became mature fordecision on June 1, 2000, the deadline for the parties' proposed findings of fact and
conclusions of law.
(See footnote 3)
SUMMARY OF EVIDENCE
Correction's Exhibits
Ex. 1 -
Report of Investigation by Charles B. Hudson, Investigator, dated August 23,
1999.
Ex. 2 -
West Virginia Division of Correction Training Records of Annetta Hickman.
Ex. 3 -
September 10, 1999 dismissal letter to Annetta Hickman from Howard
Painter, Warden, with attached Letter of Documentation, prepared by Joseph
Wood, dated September 11, 1999.
Ex. 4 -
Victim Impact Statement, dated December 7, 1999, submitted by Howard
Painter, Warden.
Grievant's Exhibits
Ex. 1 -
Indictment of Anna Thomas, in the Circuit Court of Fayette County, West
Virginia.
Ex. 2 -
Visitor Register for Mt. Olive Correctional Complex, for July 3, 10, 24, and 31,
1999.
Ex. 3 -
Official Statement of CO1 Annetta Hickman, taken by Brad Hudson,
Investigator, on August 11, 1999.
Ex. 4 -
Statement of Anna M. Thomas, taken by Corporal L. A. Wheeler and
Sergeant W. E. McGraw, on August 10, 1999.
Ex. 5 -
Transcript of testimony of Kathryn Lucas, Corrections Program Manager II,
from Stone v. W. Va. Division of Corrections, Docket No. 99-CORR-390
(Nov. 22, 1999).
Ex. 6 -
West Virginia Corrections Academy Competency Evaluation Form.
Ex. 7 -
West Virginia Department of Corrections Policy Directive 651.02, Search of
Citizens Visiting Inmate.
Ex. 8 -
Mt. Olive Correctional Complex Procedure 1.50.
Ex. 9 -
Mt. Olive Correctional Complex Procedure 4.15.
Ex. 10 -
Mt. Olive Correctional Complex Canine Unit Post Order Number 1, General
Orders.
Ex. 11 -
West Virginia Department of Corrections Policy Directive 400.00, Employee
Standards of Conduct and Performance.
Ex. 12 -
Charleston Gazette article dated August 14, 1999.
Ex. 13 -
Photograph of gun taken from inmate David Williams, dated August 8, 1999.Ex. 14 -
West Virginia Division of Corrections Commissioner's Message on Equal
Employment Opportunity.
Ex. 15 -
Charleston Daily Mail article dated August 24, 1999.
Ex. 16 -
West Virginia Division of Corrections Legislative Interim Report, dated
September 12, 1999.
Ex. 17 -
Letter of Documentation prepared by Lieutenant Joseph Wood, dated
September 11, 1999.
Testimony
Corrections presented the testimony of Charles Hudson, Kathryn Lucas, Delena
Sanford, and Howard Painter. Grievant testified in her own behalf, and presented the
testimony of Paul Parry and William Vest.
FINDINGS OF FACT
I find, by a preponderance of the evidence, the following facts.
1. Grievant was employed by Corrections as a CO I at the Mt. Olive Correctional
Complex (Mt. Olive), from March 26, 1996, until her dismissal from employment on
September 20, 1999.
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 Mt. Olive's Quilliams II unit without detection. She gave the
weapon to Williams, who became nervous about it and returned it to her. Thomas left Mt.
Olive with the weapon and ammunition. G. Exs. 2, 4.
3. Williams is a Class Five inmate, the classification used by Corrections for its
most dangerous inmates. Following an escape from the former state maximum security
prison at Moundsville and seizure of hostages, Williams has been locked down in Quilliams
II for four years. 4. Quilliams II is the maximum security unit within Mt. Olive, the state's
maximum security prison. Quilliams II houses Mt. Olive's most dangerous inmates, the
worst of the worst.
5. On July 24, 1999, a Saturday, Sergeant Delena Sanford (Sanford) observed
Grievant performing improper pat-down searches in Visitation. Sanford is the Officer in
Charge/Supervisor of Mt. Olive's canine unit.
6. A proper pat-down search includes, but is not limited to, a search of the head
and neck, arms and torso, and groin, legs and buttocks. Officers are advised not to
manipulate the groin area, but they are to physically touch that area in the pat-down
search. G. Ex. 6.
7. On July 24, 1999, Grievant did not pat-down the legs, groin and buttocks of
two female visitors before allowing them to enter the Visitation area.
8. Sanford immediately reported Grievant's improper pat-down searches to
Grievant's supervisor, Laura Stone (Stone), but did not talk to Grievant directly, nor did
she prevent the visitors from entering the Visitation area, or document the incident. Stone
told Sanford she would take care of it.
9. The following Monday, July 26,1999, Sanford reported Grievant's improper
pat-down searches to her (Sanford's) supervisor, but again, did not document the incident.
10. On July 31, 1999, Thomas once again came to Mt. Olive to visit inmate
Williams. G. Ex. 2. She was given a pat-down search by Grievant. Thomas again
brought the .22 caliber pistol and 50 rounds of ammunition through Visitation and into Mt.
Olive's Quilliams II unit without detection. On this occasion, Williams kept the weapon and
ammunition. 11. On both occasions, July 10 and July 31, 1999, Thomas, who is extremely
obese, concealed the weapon in her underwear and the ammunition in her vagina. G. Exs.
4, 12.
12. On the July 31, 1999, visit, Grievant did not pat-down Thomas' groin and
buttocks. Grievant patted down Thomas' legs as far as she could go. LIV Hickman Test.
Grievant did not ask Thomas to lift her abdomen so that she could search her groin area.
13. Visitors coming into Mt. Olive must pass through a metal-detector. There had
been no complaints about the metal-detector not working prior to July 31, 1999. Thomas
passed through the metal-detector with the gun in her underwear. Visitors must also
subject themselves to a pat-down search by a Correctional Officer. From time to time,
Officers also pass a wand detector over a visitor's body. No wand detector was used on
July 31, 1999.
14. On August 8, 1999, Williams informed Mt. Olive officials he wanted to talk
with Deputy Warden Michael Coleman (Coleman) about a gun and two staff members.
Williams was escorted from his cell in Quilliams II to a multi-purpose room, then to the
Quilliams II 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.
15. At several points during Williams' travel from his cell to the office of the
Associate Warden for Security, Mt. Olive regulations required that he be strip-searched.
However, he was strip-searched only upon leaving his cell. 16. 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 reentering
their field of vision, in violation of Mt. Olive policy.
(See footnote 4)
17. In the office of the Associate Warden for Security, Williams met with Coleman
and Executive Assistant Cheryl Chandler. During the meeting, Williams pulled the gun
from his waistband. A struggle followed, during which Williams fired two shots, missing
Coleman and Chandler (the gun incident).
18. The gun incident was the worst breach of security ever to occur at Mt. Olive.
During the lockdown that followed, Quilliams II inmates did substantial damage to Mt.
Olive. R. Ex. 4.
19. Between July 24 and August 8, 1999, neither Stone, Sanford, nor anyone
else, told Grievant she was doing improper pat-down searches, or instructed her on the
proper procedure for a pat-down search.
20. On the evening of August 8, 1999, after the gun incident, Associate Warden
of Security, William Vest, had someone check the metal-detector in the Visitation area, and
found it was not working as required. Specifically, the officer was able to pass through the
metal-detector with his badge and keys. The detector was set at an 8 setting, and the
badge and keys constituted too much metal to be able to pass through at that setting.
21.
Since the gun incident, the metal-detector has been replaced.
22. On a date not reflected in the record of this grievance, Lieutenant Howard
Shifflet (Shifflet) brought his duty weapon into the Northern Regional Jail and CorrectionalFacility and left it in an unlocked locker in the Administration area, which is outside the
security area of the jail. An inmate found the gun and turned it in to authorities without
incident. Shifflet was not dismissed for this incident.
23. On a date not reflected in the record of this grievance, Mt. Olive CO Larry
Hamlin (Hamlin) allowed inmates out of their cells into the dayroom during a lockdown.
The inmates were kept within the day room. Although this resulted in the death of an
inmate, Hamlin only received a written reprimand for this incident. Warden Painter was not
the Warden at Mt. Olive at the time of this incident.
24. On a date not reflected in the record of this grievance, CO Kevin
Higginbotham (Higginbotham) left a weapon in his unlocked vehicle outside the
Administration area at Mt. Olive. The weapon was locked in a rack inside the vehicle,
however. Also, no inmates were present in the area, because Mt. Olive was in lockdown
status at that time. Higginbotham received a letter of reprimand for this incident.
25. Grievant had never previously been disciplined by Corrections.
26. Grievant's supervisor, Stone, was dismissed by Corrections for failing to take
immediate corrective action against Grievant once Sanford informed her, on July 24, 1999,
that Grievant was performing improper pat-downs of visitors.
(See footnote 5)
Sanford was not disciplined
for that incident. 27. Mt. Olive's Investigator, Charles B. Hudson (Hudson), performed an
investigation into the gun incident, and prepared detailed and thorough reports of his
findings. R. Ex. 1.
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" has
been 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 Serv. Comm'n, 175 W. Va. 279, 332 S.E.2d 579(1985);
Guine v. Civil Serv. 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).
Corrections 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, Corrections alleges that Grievant's negligence in performing a proper
pat-down search of Thomas on July 31, 1999, violated Policy 400.00, Section 7.00,
constituting a breach of facility security which resulted in an incident at Mt. Olive that placed
at risk the health, safety and welfare of the public and the employees and the inmates of
the facility. The specific charges are:
§407-C-22 -
Breach of facility security or failure to report any breach or possible
breach of facility security.
§407-C-08 -
Violating safety rules where there is a threat to life.
§407-B-16 -
Intentional violations of rules governing searches.
§407-B-06 -
Failure to observe precautions or personal safety; posted rules;
institutional staff notices; signs; written or oral safety instructions; or
failure to use protective clothing and equipment.
R. Ex. 3.
Grievant has several defenses: (1) she did not improperly pat-down Thomas on July
31, 1999; (2) no one informed her she was doing improper pat-down searches, even after
Sanford observed her on July 24, 1999; (3) the metal detector was not working properly on
July 31, 1999; (4) the investigation into the gun incident was not complete, and therefore,
flawed; (5) she received improper notice; and (6) she has been discriminated against
because other officers have not disciplined in the same manner for like offenses.
1.
Pat-down search. Grievant contends the evidence presented by Corrections
does not prove she did an improper pat-down search of Thomas on July 31, 1999, and no
one witnessed her performing an improper pat-down search on that day. There is no
dispute that Grievant performed the pat-down search of Thomas on July 31, 1999, when
Thomas brought the weapon and ammunition into Mt. Olive. Investigator Hudson
interviewed several other officers who worked in visitation, CO II Janie Booth, CO I Howard
Montgomery, CO I Valorie Adkins, and Grievant's supervisor, Laura Stone. They all
testified they did not have any specific memory of anyone performing improper pat down
searches, but admitted they did not actually observe Grievant patting down Anna Thomas
on July 31, 1999. R. Ex. 1.
Grievant admits she did not physically touch Thomas' groin area due to Thomas'
size, nor did she ask Thomas to lift her abdomen so she could perform that search. Grievant admits she patted down Thomas' legs as far as she could go. The pat-down
procedure clearly requires a pat-down of the groin area, and while officers are advised not
to manipulate that area, they are to physically touch the groin area. G. Ex. 6; LIV Test.,
Painter. Grievant did not do this to Thomas on July 31, 1999, thus, she violated the pat-
down procedures. The simple fact the gun was not found on Thomas' body proves the pat-
down search was not done properly. Grievant's failure to properly pat-down Thomas
resulted in a weapon and ammunition entering Mt. Olive and finding its way into the hands
of a dangerous inmate, Williams, which ultimately resulted in the weapon being discharged
at two Corrections' administrators. There can be no doubt that Grievant's failure to pat-
down Thomas was a violation of the above-stated policy.
2.
Grievant's Knowledge of pat-down procedures.
Grievant alleges no one told her she was performing improper pat-down procedures,
even after Sanford observed her doing so on July 24, 1999. The evidence confirms that on
Friday, July 24, 1999, Sanford observed Grievant 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. Sanford reported the inadequate pat-
downs to Grievant's supervisor, but did not prevent the two visitors from entering Mt. Olive,
or record their names. Sanford did not file an incident report about this event. Sanford did
report it to her own supervisor the following Monday. The evidence also establishes that
Grievant's supervisor, Stone, did not correct Grievant's inadequate searches for the fifteen
day period preceding the August 8, 1999 gun incident. As discussed above, Stone has
already been disciplined for failing to immediately take corrective action with Grievant on
July 24, 1999. In spite of the above, however, Grievant should have known the proper pat-down
procedures. Grievant attended the mandatory Corrections academy training, and received
instruction in pat-down searches while at the academy. Kathryn Lucas, Director of the West
Virginia Training Academy at the time Grievant attended, testified that Grievant had to
physically demonstrate to her instructors that she could properly perform a pat-down search
in order to graduate from the academy. LIV Test., Lucas. In fact, Grievant's training packet
indicates she passed that portion of competency testing and did graduate with her class
from the academy. R. Ex. 2. Grievant had the responsibility as a Corrections Officer to
know how to properly perform pat-down searches, and had, in fact, demonstrated at one
time that she did know how to properly perform pat-downs. Thus, Sanford and Stone's
failure to correct her on July 24, 1999, does not excuse Grievant from following the proper
pat-down search procedure as she was instructed at the West Virginia Training Academy.
3.
Metal Detector. Grievant testified the metal detector did not go off on July 31,
1999, when Thomas passed through it. Thomas, in her statement to Investigator Hudson,
said it went off. Officers Booth, Montgomery, Adkins, and supervisor Stone, all told
Investigator Hudson the metal detector does not always indicate properly, and sometimes
the calibration is off. R. Ex. 1.
Associate Warden Vest had someone check the metal detector the evening of
August 8, 1999, the day of the gun incident. The metal detector did not indicate properly
when the officer passed through, allowing him to enter with keys and other metal on his
person. The metal detector has since been replaced.
It is possible the metal detector did not indicate properly when Thomas passed
through. However, that does not excuse Grievant's failure to properly pat her down. Warden Painter testified that the metal detector is merely a tool to assist the officers in
searching visitors in the Visitation area. Officers are specifically cautioned not to rely solely
on the metal detector for searches, for the simple reason that, as a mechanical device, it
can malfunction. LIV Test., Painter. Thus, even if the metal detector did not indicate on
Thomas as she passed through, Grievant still had the responsibility to properly perform a
pat-down search of her, which she did not do.
4.
Investigation.
Grievant alleges the investigation performed by Investigator Hudson was not
complete and therefore flawed. This allegation was not elaborated on during the level four
hearing, except for the statement that Investigator Hudson did not check the metal detector
himself to see if it was working. However, the evidence establishes that Associate Warden
Vest had the metal detector checked the evening of the gun incident, which would have
been before Investigator Hudson had even begun his investigation. There would have been
no reason for Investigator Hudson to check the detector at a later date, given the fact that
the metal detector was going to be, or had already been, replaced. Grievant has failed to
prove by a preponderance of the evidence that the investigation conducted by Hudson was
not complete or flawed.
5.
Improper Notice.
Where an act of misconduct is asserted in a notice of dismissal, it should be
identified by date, specific or approximate, unless the characteristics are so singular that
there is no reasonable doubt when it occurred. If an act of misconduct involves persons or
property, these must be identified to the extent that the accused employee will have no
reasonable doubt as to their identity. Syl. Pt. 2,
Clarke v. W. Va. Bd. of Regents, 166 W.Va. 702, 279 S.E.2d 169 (1981),
citing Syl. Pts. 4 and 5 of
Snyder v. Civil Serv. Comm'n,
160 W. Va. 762, 238 S.E.2d 842 (1977).
Correction's Policy Directive 400.00 § 4.03 provides that, [p]rior to any demotion or
transfer in lieu of removal, suspension, or removal actions, an employee shall be given
written notice of the offense, an explanation of the agency's evidence in support of the
charge, and a reasonable opportunity to respond. G. Ex. 11.
Grievant did not elaborate on her allegation that she received improper notice of her
dismissal, or that her due process rights were violated. The evidence indicates she was
given notice of her dismissal by letter dated September 10, 1999, which clearly spelled out
the charges against her, and she was given an opportunity to respond to the charges in the
letter. R. Ex. 3. This is all the notice required, and Grievant has failed to prove this charge
by a preponderance of the evidence.
6.
Finally, Grievant alleges she has been discriminated against because other
Correction's officers who have committed breaches of security have not received the same
degree of discipline as she has.
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 responsibilities
of the employees or agreed to in writing by the employees." To establish a
prima facie case
of discrimination, Grievant must show:
(a) that she is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that she has, to her detriment, been treated by her employer in a
manner that the other employee(s) has/have not, in a significant particular;
and,
(c) that such differences were unrelated to actual job responsibilities of the
grievant and/or the other employee(s) and were not agreed to by the grievant
in writing.
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996);
Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992).
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.
Hickman v. W. Va. Dep't of Transp., Docket No. 94-DOH-
435 (Feb. 28, 1995);
See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981);
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251
(1986);
Hendricks,
supra.;
Runyon v. W. Va. Dep't of Transp., Docket Nos. 94-DOH 376 &
377 (Feb. 23, 1995);
Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19,
1989).
Grievant identifies the following officers whom she alleges have committed security
breaches, yet have not received similar discipline: Delena Sanford, Howard Shifflet, Larry
Hamlin, and Kevin Higginbotham.
Grievant contends Delena Sanford is as culpable as she in the gun incident because
Sanford had witnessed Grievant performing improper pat-down searches in the past, but
had not corrected her, thus causing her to go on performing improper pat-down searches.
Sanford has not been disciplined by Corrections. The evidence shows Sanford was present in the visitation area on July 24, 1999, and
witnessed Grievant performing improper pat-down searches of visitors. Sanford
immediately told Grievant's supervisor, Laura Stone, and Stone told Sanford she would take
care of it. Stone did not correct Grievant or fill out any incident reports on this matter.
Sanford told her own supervisor the following Monday, but did not fill out an incident report
on the matter.
Several witnesses for Corrections, including Chief of Corrections, Major Paul Parry,
and Associate Warden of Security, William J. Vest, believe Sanford should have done an
on-the-spot correction of Grievant herself, and that both Sanford and Stone shared
responsibility in not correcting Grievant's improper pat-down searches. They both testified
the proper thing to do would have been to stop the visitors from entering the facility, take
Grievant aside and explain what she had done improperly, and instruct her to search the
visitors again. LIV Test., Parry; Vest.
Warden Howard Painter believes Sanford acted properly by reporting Grievant's
violation to Stone, while admitting she did not follow the letter of the law with regard to
reporting security violations. Painter testified it would have been improper for Sanford to
leave her canine unit in the Visitation area while correcting Grievant. She would have had
to take the canine unit outside, lock it up, and come back and correct Grievant. Painter
believed it was more responsible of Sanford to simply report the violation to Grievant's
supervisor, and Sanford had no reason to believe Stone would not correct the situation. LIV
Test., Painter.
Grievant testified she did not believe it was proper to physically touch the groin area
of a visitor. LIV Test., Hickman. In fact, Grievant admitted she only patted Thomas' legsas far up as she could go, and did not search Thomas' groin area, because her abdomen
was so large it hung down. Painter testified the proper procedure would be to ask Thomas
to hold up her abdomen while a search of her groin area was conducted. Grievant testified
she did not believe that procedure was in compliance with the pat-down policy. LIV Test.,
Hickman.
Clearly, had someone, be it Sanford or Stone, instructed Grievant on July 24, 1999,
that it not only was proper, but required, to physically pat-down a visitor's groin area, and
to ask Thomas to lift her abdomen, she would have known this by the time Thomas visited
on July 31, 1999. Stone was dismissed as a result of the July 24, 1999, incident. Sanford
was not disciplined for not correcting Grievant's pat-down searches, not documenting the
incident, and for permitting the visitors on July 24, 1999, to enter the Visitation area despite
observing Grievant's inadequate pat-down searches.
In
Stone,
supra, the Administrative Law Judge found that Stone and Sanford were
similarly situated as they were both supervisors responsible for correcting the actions of
employees. The Administrative Law Judge found Corrections had offered no legitimate,
nondiscriminatory reason for disciplining Stone, but not Sanford, for the July 24, 1999,
incident, as they were both responsible for immediately correcting Grievant's actions.
In the instant case, while Sanford may have committed a security violation herself
by not immediately correcting Grievant on July 24, 1999, that does not command a
conclusion that Corrections has discriminated against Grievant for allowing Thomas into the
facility without properly patting her down on July 31, 1999.
Sanford was not involved at all with the search of Thomas by Grievant on July 31,
1999, which is the incident for which Grievant was dismissed. Sanford's violation, if any,was not immediately correcting Grievant on July 24, 1999, for performing improper pat-
downs, but instead, reporting her immediately to her supervisor, Stone, and expecting Stone
to take care of the matter.
Grievant's violation was for improperly patting down Thomas on July 31,1999,
allowing a gun and ammunition into the facility, resulting in the most serious breach of
security ever experienced at Mt. Olive. Thus, while Sanford and Grievant may have been
similarly situated with regard to the July 24, 1999, incident, they were not similarly situated
for the incident on July 31, 1999, for which Grievant was dismissed. Sanford simply was
not responsible in any way for permitting a gun and ammunition to find its way into Quilliams
II; Grievant was directly responsible. Grievant has failed to establish that she was similarly
situated to Sanford with regard to her dismissal for the July 31, 1999 gun incident.
Grievant has established that she was similarly situated, in a pertinent way, to other
COs who were subject to Corrections and Mt. Olive policies, committed violations of them,
and were subject to discipline under Policy 400. Grievant further established 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.
Warden Painter 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; 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 ina gun rack in his vehicle, with the vehicle's windows open, outside of MOCC's
administration building, and that 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.
With regard to Hamlin's breach resulting in the death of an inmate, Painter testified
that he was not the Warden of Mt. Olive at the time of this incident, and the resulting
discipline was not within his purview. He testified that, had he been Warden at the time, he
would have dismissed Hamlin, and has told him so. Regarding the incident when Hamlin
let the 48 inmates out of their cells during lockdown, Painter testified the inmates were
released into the day room and kept within the housing unit, which did not constitute a major
breach. Hamlin received a letter of reprimand for this breach.
Higginbotham left an unloaded weapon in his truck in front of the Administration area
of Mt. Olive. The weapon was locked in the truck's gun rack, the prison was in lockdown
at the time, and inmates do not have access to the area where the truck was parked.
Painter testified the breach was not that serious, and Higginbotham had no prior disciplinary
actions. He received a letter of reprimand for this incident.
Shifflet is employed by the Regional Jail and Correctional Facility Authority. He
brought his duty weapon into his Administration area locker, instead of taking it to the
armory. The locker area is outside the secure perimeter and the weapon never entered the
secure facility. A prisoner found the weapon in the locker and turned it in to the
administration. The record is unclear as to what, if any, discipline was given to Shifflet. Painter testified that discipline of employees is decided on a case-by-case basis,
taking into account the severity of the incident, the employees' length of service,
performance, and prior disciplinary record. Not every breach of security or violation of
Corrections' policies results in dismissal.
Painter testified that none of the above incidents was similar in nature to Grievant's
breach of security. Clearly, with the exception of Hamlin's breach resulting in the death of
an inmate, none of the above incidents resulted in any harm or damage to the employees,
inmates, or the facility. While the potential for harm was present in these incidents, no harm
occurred. Grievant failed to perform a proper pat-down, which resulted in real harm to
employees when Williams pulled a gun and fired at Corrections officials, and the resulting
lockdown caused substantial damage to the facility. Painter testified that this breach of
security was the worst breach that has ever occurred at Mt. Olive. Therefore, even though
Grievant established a
prima facie case of discrimination, Corrections has established that
her level of culpability in this matter was greater than any of the above incidents, warranting
the penalty of dismissal.
CONCLUSIONS OF LAW
1. In disciplinary matters, the employer has the burden of proving the charges
by a preponderance of the evidence.
W. Va. Code § 29-6A-6;
Evans v. Dep't of Health &
Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997),
Miller v. W. Va. Dep't of
Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997);
Broughton v. W.
Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992.).
2. 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 amere 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. Where an act of misconduct is asserted in a notice of dismissal, it should be
identified by date, specific or approximate, unless the characteristics are so singular that
there is no reasonable doubt when it occurred. If an act of misconduct involves persons or
property, these must be identified to the extent that the accused employee will have no
reasonable doubt as to their identity. Syl. Pt. 2,
Clarke v. W. Va. Bd. of Regents, 166 W.
Va. 702, 279 S.E.2d 169 (1981),
citing Syl. Pts. 4 and 5 of
Snyder v. Civil Serv. Comm'n,
160 W. Va. 762, 238 S.E.2d 842 (1977).
4. Correction's Policy Directive 400.00 § 4.03 provides that, [p]rior to any
demotion or transfer in lieu of removal, suspension, or removal actions, an employee shall
be given written notice of the offense, an explanation of the agency's evidence in support
of the charge, and a reasonable opportunity to respond. G. Ex. 11.
5. Grievant failed to prove by a preponderance of the evidence that her due
process rights were violated with regard to the notice of her dismissal.
6. 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).
7. To establish a
prima facie case of discrimination, Grievant must show:
(a) that she is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that she has, to her detriment, been treated by her employer in a
manner that the other employee(s) has/have not, in a significant particular;
and,
(c) that such differences were unrelated to actual job responsibilities of the
grievant and/or the other employee(s) and were not agreed to by the grievant
in writing.
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).
8. Grievant established a
prima facie case with regard to Hamlin, Higginbotham,
and Shifflet, that she was the victim of discrimination when CORR dismissed her while
failing to similarly discipline them for similar offenses.
9. CORR proved, by a preponderance of the evidence, that Grievant's offense
was so severe and unique, and resulted in substantial harm to employees and damage to
the facility, that her dismissal was warranted.
Accordingly, this grievance is
DENIED.
Any party 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.
___________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: June 29, 2000
Footnote: 1