In disciplinary matters,
W. Va. Code § 29-6A-6 places the burden of proof on the
employer.
Broughton v. W. Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31,
1992). More particularly, the employer has the burden of proving each element of a
disciplinary action by a preponderance of the evidence.
Morrison v. W. Va. Bureau of
Commerce, Docket No. 97-DOL-490 (Jan. 15, 1998). A preponderance of the evidence
is generally recognized as evidence of greater weight, or which is more convincing than
the evidence which is offered in opposition to it.
Miller v. W. Va. Dep't of Health & Human
Resources, Docket No. 96-HHR-501 (Sept. 30, 1997);
Petry v. Kanawha County Bd. of
Educ., Docket No. 96-20-380 (Mar. 18, 1997). Where the evidence equally supports both
sides, the employer has not met its burden of persuasion.
Leichliter v. W. Va. Dep't of
Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993).
Furthermore, the employer must demonstrate that misconduct which form the basis
for dismissal of a tenured state employee is of a substantial nature directly affecting the
rights and interests of the public.
Oakes v. W. Va. Dep't of Fin. & Admin., 164 W. Va.
384, 264 S.E.2d 151 (1980). Indeed, the judicial standard in West Virginia requires that
dismissal of a civil service employee be for good cause, and not merely a technical
violation of some statute or official duty without wrongful intent.
Buskirk v. Civil Serv.
Comm'n, 175 W. Va. 279, 332 S.E.2d 579 (1985);
Pingley v. Div. of Corrections, Docket
No. 95-CORR-252 (July 23, 1996).
Further, in reviewing a disciplinary action, the employer's disciplinary policy, in this
case WVDOC Policy Directive 400.00 (PD 400.00 or Policy), must also be taken intoaccount.
Pingley,
supra.
See generally Powell v. Brown, 160 W. Va. 723, 238 S.E.2d 220
(1977). PD 400.00 provides examples of types of misconduct, and recommends sanctions.
The Policy establishes three levels of violations: Class A, Class B, and Class C offenses.
The recommended punishment for the offense is also specified by PD 400.00. The Policy
generally provides a framework for progressive discipline; however, mitigating or
aggravating circumstances may be considered to reduce or enhance the recommended
sanction. PD 400.00 § 4.02.
See Pingley,
supra.
Grievant was charged with one Class B offense (unauthorized absence by failing
to report that he was excused from serving with the National Guard due to illness), and one
Class C offense (threatening a fellow employee). According to PD 400.00, Class A
offenses are the least severe in nature, and generally warrant a reprimand to a 5-day
suspension for a first offense. Class B offenses are more severe in nature, and a 5 to 15-
day suspension is recommended for a first offense. Class C offenses are defined by PD
400.00 to include acts and behavior of such a serious nature that a first occurrence
should normally warrant an extended suspension or removal.
Many of the factual allegations contained in the charges which resulted in this
dismissal are disputed by Grievant. In situations where the existence or nonexistence of
certain material facts hinges on witness credibility, detailed findings of fact and explicit
credibility determinations are required.
Jones v. W. Va. Dep't of Health & Human
Resources, Docket No. 96-HHR-371 (Oct. 30, 1996);
Pine v. W. Va. Dep't of Health &
Human Resources, Docket No. 95-HHR-066 (May 12, 1995).
See Harper v. Dep't of the
Navy, 33 M.S.P.R. 490 (1987). Some factors to consider in assessing the credibility of awitness include the witness' demeanor, opportunity or capacity to perceive and
communicate, reputation for honesty, attitude toward the action, and admission of
untruthfulness. Additionally, the trier of fact should consider the presence or absence of
bias, interest, or motive, the consistency of prior statements, the existence or nonexistence
of any fact testified to by the witness, and the plausibility of the witness' information.
See
Perdue v. Dep't of Health & Human Resources, Docket No. 93-HHR-050 (Feb. 4, 1994).
See generally, Harold J. Asher and William C. Jackson,
Representing the Agency before
the United States Merit Systems Protection Bd. 152-53 (1984). Although the undersigned
Administrative Law Judge was not able to observe the demeanor of the witnesses who
appeared on the first day of hearing, the remaining factors provide an ample basis from
which credibility may be determined. Accordingly, the evidence presented by the parties
on matters in dispute will be discussed in some detail.
The two charges against Grievant arose out of two separate and unrelated
incidents. Therefore, the facts surrounding the two charges will be discussed separately,
beginning with the allegation of threatening or coercing other persons.
On October 19, 1998, Correctional Officer I David Alexander and Correctional
Officer II Sam Gaskins were assigned to Unit 25 at PCC, while Correctional Officer I Todd
Spencer and Grievant were working in Unit 24. Each unit involves a dormitory housing
a number of inmates. The standard procedure at PCC is for the inmates to attend meals
in the dining hall as a unit. Ordinarily, the units are called in rotating order in accordance
with a written schedule posted in each unit office. On October 19, Unit 25 was scheduled to attend the evening meal first, followed by
Unit 24. However, a new employee
(See footnote 4)
assigned to summon units to the dining hall,
mistakenly called for both units to come to the dining hall at the same time. Officer
Alexander noted this problem when he overheard a radio transmission by Grievant
indicating he was preparing to release his unit to go to the dining hall. In order to avoid
having the two units arrive at the same time
(See footnote 5)
, Officer Alexander called Grievant on the
radio, telling him to check the posted feeding schedule, as he was proceeding out of order.
HT Vol. II at 24-25; 57.
(See footnote 6)
Grievant acknowledged the transmission, and the units went to
the evening meal in proper order. HT Vol. II at 26.
Approximately 45 minutes to an hour
(See footnote 7)
later, after Unit 25 returned from the Dining
Hall, Officer Alexander received a telephone call from Grievant in Unit 24. As soon as
Officer Alexander answered the phone, Grievant stated, What the fuck are you trying todo, set me up, or draw me out over the radio? HT Vol. II at 27. Officer Alexander asked
Grievant what he was talking about and Grievant stated, Do you want me to come over
and kick your ass? HT Vol. II at 28. It was apparent to Officer Alexander that Grievant
was angry and excited. In response, Officer Alexander hung up the phone.
Approximately 15 to 20 minutes later Grievant called back and spoke with
Correctional Officer II Sam Gaskins, who was working with Officer Alexander on Unit 25.
Officer Gaskins held the phone out so Officer Alexander could hear what Grievant was
saying. Officer Alexander overheard Grievant state that he wanted to kick Officer
Alexander's fucking ass and they could meet in the parking lot to settle the matter.
Officer Gaskins confirmed that Grievant stated he wanted to meet Officer Alexander in the
parking lot after work. HT Vol. II at 58. Officer Alexander observed that Grievant still
sounded extremely agitated. HT Vol. II at 29-30.
Officer Spencer recalled a radio transmission to Grievant advising they were not
proceeding in accordance with the feeding order. He did not recall anything unusual about
that transmission. However, sometime after they returned from the evening meal, Officer
Spencer overheard a portion of Grievant's side of a telephone conversation. He started
listening more carefully when he noticed Grievant was visibly agitated with the person on
the other end of the phone. Officer Spencer recalled, Grievant stating, Do you have a
fucking problem with the way I'm doing my job? If you do, we can meet in the parking lot,
or words to that effect. HT Vol. II at 6-7, 12, 15.
After discussing the two phone conversations with Officer Gaskins, Officer
Alexander called their regular shift commander, Captain Lewis Stevens, at home, andreported the incident to him. Officer Alexander also prepared a written incident report
describing the events that took place that evening. R Ex 15. As a result of Officer
Alexander's phone call, Captain Stevens notified Major Gary Shaw, PCC's Chief
Correctional Officer, of Officer Alexander's complaint. Consistent with instructions from
Major Shaw, Captain Lewis contacted the acting shift commander, Sergeant Charles Miller,
who spoke to Grievant about the matter, and sent Officer Alexander home one-half hour
early, just to make sure there would be no confrontation at the end of the shift.
(See footnote 8)
HT Vol.
I at 95; HT Vol. II at 32-33; 59. Officer Alexander also mentioned to Correctional Officer
Stephen Hott in a phone conversation that same evening that he really pissed off
Grievant. HT Vol. II at 162-63.
Officer Gaskins testified that, a few days after the incident, he found Grievant's
phone number recorded several times on his caller ID device on his home telephone. HT
Vol. II at 61-62; 69. When he called Grievant back, Grievant asked him not to say
anything about the incident because Grievant was afraid he might lose his job. HT Vol.
II at 61-63.
Grievant presented evidence to demonstrate that no phone calls to Officer Gaskins'
residence in Doddridge County appeared on his local or long-distance telephone bills
covering the period Officer Gaskins testified the calls were made. G Ex 5. However,
Grievant provided no credible testimony or evidence to establish that an unanswered call
recorded on a caller ID terminal, as opposed to being recorded on an answering machineor a voice mail system, would result in a charge to the person initiating the call. Officer
Gaskins was an extremely candid and forthright witness who appeared completely
disinterested in the outcome of this case. If Officer Gaskins displayed any sympathies in
this matter, he appeared to lean toward Grievant's side of events. Further, there is no
viable motive for Officer Gaskins to fabricate a story about Grievant's phone number
appearing on his caller ID terminal, and calling Grievant to find out what he wanted.
Therefore, Officer Gaskins' version of events is credited as being more credible than
Grievant's.
WVDOC also presented testimony from Captain Stevens and Correctional Officer
III Charles Murphy that Grievant had made a threatening statement to Officer Murphy
shortly before a shift change approximately three years ago. HT Vol. I at 34-35; Vol. I at
82-84. Officer Murphy testified that he was leaving work when he passed Grievant
hurrying to duty. After Officer Murphy made some comment to Grievant about how
Grievant was going to arrive late for work, Grievant said: Murphy, I'm tired of your shit. I'll
deal with you later. HT Vol. II at 83. Captain Stevens came around the building and
overheard the very end of the conversation. He recalled Grievant appearing upset, and
saying, I'll deal with you later to Officer Murphy. HT Vol. I at 34.
This incident was not documented by an incident report, and no disciplinary action
was taken. However, evidence of this incident from two first-hand witnesses is admissible
for the limited purpose of demonstrating an event occurred involving another PCC Officer
that is consistent with Grievant's alleged conduct toward Officer Alexander on October 19,
1998. Other than an ineffective attempt to undermine Officer Gaskins' credibility, and
Officer Hott's testimony that there was a second radio transmission by Officer Alexander
which was intended to embarrass Grievant, WVDOC's witnesses were essentially
uncontradicted in their testimony regarding this incident, and Grievant's conduct at PCC
that evening. The undersigned finds that a preponderance of the credible evidence of
record indicates Grievant communicated a threatening statement directed at a co-worker,
Officer Alexander, and this action occurred because Grievant perceived he had been
demeaned or mocked by Officer Alexander in one or more radio transmissions earlier that
evening. Given that Grievant had previously received a 21-day suspension for similar
misconduct directed toward a civilian visitor at PCC, WVDOC had a proper basis for
treating this incident as a Class C offense in accordance with PD 400.00.
The second charge against Grievant involves an unauthorized absence allegation.
In addition to his position with WVDOC as a Correctional Officer II at PCC, Grievant was
a member of the Army National Guard (ANG) at the time of his dismissal. Grievant first
joined the ANG in May 1993, and was honorably separated at his request in March 1994.
At that time, he was going through a divorce, and the requirements of his WVDOC work
schedule made it too difficult to meet the ANG's participation requirements. HT Vol. III at
73-75. Grievant rejoined the ANG in January 1998. HT Vol. III at 75. Grievant provided
his superiors at PCC with a schedule listing the required drill dates he was scheduled to
attend during calendar year 1998 as part of his ANG obligations.
By way of background regarding participation by state employees in the ANG, it
should be noted that
W. Va. Code § 15-1F-1 provides:
All officers and employees of the state, or subdivisions or municipalities
thereof, who shall be members of the national guard or any military reserve
unit of the United States armed services, shall be entitled to leave of
absence from their respective offices or employments without loss of pay,
status or efficiency rating, on the days during which they shall be engaged
in drills, parades or other duty, during business hours ordered by proper
authority, or for field training or active service of the state, for a maximum
period of thirty working days in any one calendar year: Provided, That
effective the second day of August, one thousand nine hundred ninety, all
officers and employees of the state, or subdivisions or municipalities thereof,
who are ordered or called to active duty by the President of the United
States shall be entitled to an additional leave of absence from their
respective offices or employments without loss of pay, status or efficiency
rating for a maximum period of thirty working days. The term "without loss of
pay" means that the officer or employee shall continue to receive his or her
normal salary or compensation, notwithstanding the fact that such officer or
employee may have received other compensation from federal or state
sources during the same period.
The foregoing statute has been implemented in Section 15.10 of the Administrative
Rule of the West Virginia Division of Personnel, 143 C.S.R. 1 § 15.10 (1998), which
provides for military leave in the following terms:
(a) All officers and employees of the State who are members of the National
Guard or of any of the Reserve Components of the Armed Forces of the
Federal Government are entitled to a leave of absence from duty without
loss of pay, status, or efficiency rating, on all days during which they are
engaged in drills or parades during business hours ordered by proper
authority, or for field training or active service for a maximum period of thirty
working days in any one calendar year ordered or authorized by proper
authority. The term "without loss of pay" means that the employee continues
to receive his or her normal salary or compensation, notwithstanding the fact
that the employee may have received other compensation during the same
period. An employee need not exhaust all annual leave or sick leave.
Furthermore, the leave of absence is considered as time worked for the
agency in computing seniority, eligibility for salary increase and experience
with the agency. The terms of this subdivision do not apply under the
provisions of any Selective Training and Service act. An employee shall
submit an official order from the appropriate military officer in support of the
request for military leave.
There is no dispute that Grievant was scheduled to attend ANG drills on May 2 and
3, 1998. Further, the parties agree Grievant called in sick to his ANG First Sergeant on
May 2, and was excused from attending those two days of ANG duty by his Commanding
Officer. In addition, it is clear Grievant made no effort to report to anyone at PCC that he
was not required to attend ANG duty due to illness. HT Vol. III at 89. Likewise, Grievant
made no inquiries to his supervisors at PCC to determine if he was required to report his
being excused from attending ANG training.
Based upon the foregoing facts alone, Grievant obtained a significant benefit in that
he was paid by WVDOC for attending ANG training on May 2 and 3, 1998, as military
leave. Had he reported to PCC that he was sick, he would have been required to take sick
leave for those days. Of course, he would have still been paid by WVDOC for those days,
but he would then have two fewer days of sick leave to his credit. The record indicates
Grievant exhausted his sick leave after undergoing abdominal surgery in November 1997.
HT Vol. III at 75-76. Indeed, it was necessary for Grievant to take annual leave to cover
the duration of his absence. HT Vol. III at 76. Grievant also used annual leave to travel
and visit his daughter at least one weekend a month during the school year, while she was
in the custody of his ex-wife. HT Vol. III at 76. It is also clear that Grievant knew he was
being paid by WVDOC for May 2 and 3 without charge to his annual or sick leave.
In August 1998, Deputy Warden Franklin Phares called Grievant to his office to
advise Grievant he had exhausted his allotted 30 days for ANG participation. As a result,
inasmuch as Grievant had exhausted his annual leave as well, it would be necessary to
take Grievant off the payroll for any days he attended ANG training during the remainderof the year. In addition, Deputy Warden Phares brought up Grievant's previous use of
paid time off to attend non-mandatory ANG training activities in 1994. Grievant filed a
grievance pursuant to the grievance procedure for state employees,
W. Va. Code §§ 29-
6A-1,
et seq., challenging Deputy Warden Phares' actions.
During the subsequent Level II meeting before Warden Liller regarding this
grievance against Deputy Warden Phares, held on August 31, 1998, there was some
discussion about Grievant's attendance at ANG training. WVDOC alleges Grievant misled
his supervisors when questioned about his attendance. Grievant presented a transcript
of that Level II hearing at Level IV. G Ex 9. During that meeting, the following
conversation was recorded:
Frank Phares:
All we're, one of the things we're trying to do is make sure that
your training, you know, the time you take off for National
Guard is legitimate, right?
Theodore Hosaflook:
Frank Phares:
And the times that you are at National Guards, you know, if
you say, in other words, is you say you're at National Guards,
you're at National Guards, and we give you time off, right?
Theodore Hosaflook:
Frank Phares:
And that was one of my questions. I'll ask you again. All the
times you've taken off has been legitimate?
Theodore Hosaflook:
Frank Phares:
And you've been to the guards and you've served your duty,
and we paid you for it, right?
Theodore Hosaflook:
Frank Phares:
Theodore Hosaflook:
During this past year, yes, sir.
G Ex 9 at 21.
Shortly thereafter, on September 3, 1998, Deputy Warden Phares wrote to
Grievant's ANG First Sergeant, Terry Hupp, requesting written verification that the dates
Grievant had charged to military leave during 1998 were for required ANG training, as
opposed to non-mandatory training, and that Grievant was present. R Ex 13. On
September 8, 1998, Sgt. Hupp responded in a letter which confirmed that Grievant's
scheduled training dates were legitimate. However, Sgt. Hupp further indicated Grievant
had been excused from attendance on May 2 and 3, 1998, based upon illness. R Ex 14.
Grievant testified at Level IV, consistent with what he told Major Shaw during his
investigation, that he asked Sgt. Hupp if he should notify his employer, and Sgt. Hupp
responded: Well, you're required to be here. I don't see where you would be required to
call him. HT Vol. III at 83; R Ex 12 (Hosaflook Interview at 4). Sgt. Hupp, called as a
witness by Grievant, denied having advised Grievant that he did not have to notify his
employer. Rather, Sgt. Hupp credibly indicated it was not his responsibility to notify
someone's employer that they had been excused from ANG training, rather that is a matter
between the employer and employee. HT Vol. III at 42. Sgt. Hupp did not contradict
Grievant's testimony that he told Grievant that if his employer called to question Grievant's
attendance, Sgt. Hupp would inform them Grievant had been excused due to illness.
(See footnote 9)
Grievant asserts that he did nothing wrong by failing to report to his employer that
he had been excused from ANG duty due to illness. He also stated that if someone had
asked him if he had attended ANG duty on May 2 and 3, he would have told them he had
been excused. Further, if someone had explained the policy on sick leave to his
satisfaction, he would give up two days of sick leave for those two days he did not attend
ANG drill.
WVDOC contends Grievant was aware of his status from the beginning, as
indicated by his question to Sgt. Hupp. If Grievant really thought there would be no
consequences from being excused from ANG duty for illness, why did he inquire of his
First Sergeant if he was going to notify his employer? Sgt. Hupp's testimony was candid
and forthright. Like Officer Gaskins, he appeared to be sympathetic toward Grievant,
noting that he had no problems with Grievant as an ANG member, and verifying that ANG
service requires more time than the 30 days provided to state employees in the form of
military leave. Where there is any disagreement between Grievant's testimony and Sgt.
Hupp, the undersigned finds Sgt. Hupp's version of events more credible.
WVDOC presented evidence of several prior incidents in which Grievant was
involved, most of which resulted in documented disciplinary action. Moreover, in
determining the appropriate penalty in this matter, WVDOC relied upon these disciplinary
actions which were previously imposed on Grievant during his term of employment at PCC.
Ordinarily, the propriety of a prior disciplinary action, properly documented in the
employee's record and which the employee had an opportunity to challenge, is not anappropriate matter for consideration in a grievance involving a subsequent disciplinary
action.
Williams v. Kanawha County Bd. of Educ., Docket No. 98-20-321 (Oct. 20, 1999);
Aglinsky v. Bd. of Trustees, Docket No. 97-BOT-256 (Oct. 27, 1997);
Jones. v. W. Va.
Dep't of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996);
Nicholson
v. Logan County Bd. of Educ., Docket No. 95-23-129 (Oct. 18, 1995). Similarly, in
accordance with the legal doctrine of
res judicata,
(See footnote 10)
a prior disciplinary action which has
been unsuccessfully challenged through the grievance procedure may not be relitigated
at Level IV.
See Meeks v. Kanawha County Bd. of Educ., Docket No. 96-20-095 (Feb. 28,
1997);
Ramsey v. W. Va. Dep't of Health & Human Serv., Docket No. 90-H-478 (July 31,
1991).
Accordingly, the undersigned Administrative Law Judge will consider the allegations
contained in the 21-day suspension Grievant received in September 1997 (R Ex 8), the
3-day suspension Grievant received in January 1997 (R Ex 7), the written reprimand
Grievant received in March 1996 (R Ex 2), and the verbal reprimand Grievant received in
July 1995 (R Ex 1), as true.
See Aglinsky,
supra;
Perdue,
supra. One of the reprimands
Grievant received was for falsely claiming that he was late to work due to an automobile
accident that never happened. In addition, there was testimony from Major Shaw that
Grievant had misrepresented that his attendance at certain ANG training in 1994 wasmandatory, when it was not. At least two of Grievant's documented reprimands relate to
leave and attendance problems.
Given the foregoing record of duplicity and dishonesty in matters involving leave
and other similar dealings with his employer, and considering the credible testimony of Sgt.
Hupp, Warden Liller, Deputy Warden Phares, and Major Shaw, the undersigned finds that
Grievant's claim of innocence to this allegation is simply not credible. Grievant knew he
was receiving two paid days off without charge to sick or annual leave when he was
excused from ANG training by his Commander, and he had a motive to conceal this
development from his employer so as to retain what limited leave he then had available.
He was given a fair opportunity to truthfully reveal what happened when he was
questioned about his ANG participation by Deputy Warden Phares at the Level II
grievance meeting. A preponderance of the evidence indicates that Grievant was absent
without proper authority on May 2 and 3, 1998. In addition to this technical violation,
Grievant deliberately concealed this absence from his supervisors when questioned about
his ANG attendance. This conduct calls into question Grievant's reliability and integrity
which are essential for effective job performance by a Corrections Officer.
Although not referenced in the dismissal notice, Major Shaw's report to Warden
Liller describing the results of his investigation into Grievant's failure to report that he had
been excused from ANG duty due to illness makes mention of a verbal confrontation
between Grievant and Nurses Melody Turner and Rick Kimble. R Ex 12. On cross-
examination during the first day of hearing, Major Shaw acknowledged that he could not
recall what kind of confrontation was involved. HT Vol. I at 117. Ms. Turner and Mr.Kimble testified that Grievant attempted to obtain Tylenol for an inmate who was seeking
relief for a headache. Ms. Turner had to explain to Grievant that no medication,
prescription or otherwise, could be furnished to an inmate, unless the inmate was first
examined and questioned by a nurse in accordance with the established protocol for
dispensing medication to inmates.
While it is surprising that Grievant, an experienced Corrections Officer, was
apparently unaware of these established procedures, Major Shaw's involvement was
nothing more than receiving and repeating a second-hand rumor. The merits of this
incident are not even collateral to the charges at issue, because WVDOC did not rely on
the truth of the matter in its decision to dismiss Grievant. However, Grievant argues that
WVDOC's pursuit of this matter by requesting complete incident reports from Ms. Turner
and Mr. Kimble supports Grievant's claim he was being singled out for investigation and
discipline.
The undersigned is not persuaded that Grievant's conduct should have been
ignored. An investigation into an alleged attempt by a Corrections Officer to bypass the
established procedure for dispensing non-prescription medication to an inmate is a matter
where WVDOC has a legitimate interest in determining what actually took place. The fact
that Ms. Turner, a Licensed Practical Nurse, determined the issue was settled when she
explained the protocol to Grievant, should not preclude Grievant's employer from following
up to verify whether Grievant was knowingly attempting to avoid the rules to provide a
benefit to an inmate. Grievant also alleges his suspension and dismissal constitute acts of retaliation and
reprisal for his participation in the ANG. Grievant has the burden of proving any alleged
affirmative defenses.
Pingley,
supra;
Smith v. W. Va. Dep't of Corrections, Docket No. 95-
CORR-547 (June 28, 1996). Grievant notes that federal law prohibits an employer from
denying retention in employment to an employee on the basis of the employee's
membership or participation in such activities as the ANG. 38 U.S.C. 4311 (1996).
See
generally King v. St. Vincent's Hosp., 502 U.S. 215 (1991). Grievant advised PCC that he
was being required to attend a 10-week training course in Alabama as a result of changing
his military occupational specialty (MOS) to avionics mechanic. Only a day or so later he
was called in and notified that he was being terminated. HT Vol. III at 83.
The undersigned is not aware of any prior cases where this Grievance Board has
addressed a state employee's contention that a disciplinary action was taken in retaliation
or reprisal for the employee's protected membership in a military component. However,
this Grievance Board has applied
W. Va. Code § 15-1F-1 in cases where the employee
was claiming that he was being treated adversely contrary to the benefits and protection
provided in that statute.
See Coster v. W. Va. Div. of Corrections, Docket No. 96-CORR-
157 (Nov. 4, 1996);
Oliverio v. W. Va. Dep't of Human Serv., Docket No. 89-DHS-154 (Apr.
26, 1990). Assuming Grievant's ANG membership is protected from retaliatory action by
WVDOC under 38 U.S.C. 4311, or
W. Va. Code § 15-1F-1, the standard of proof requiredto establish retaliation for participation in the grievance process can be readily adapted
to this situation.
(See footnote 11)
In general, a grievant alleging unlawful retaliation, in order to establish a
prima facie
case,
(See footnote 12)
must prove:
(1) that the employee engaged in activity protected by the statute;
(2) that the employee's employer was aware of the protected activity;
(3) that, thereafter, an adverse employment action was taken by the employer;
and
(4) that the adverse action was the result of retaliatory motivation or the action
followed the employee's protected activity within such a period of time that
retaliatory motive can be inferred.
Wiley v. W. Va. Div. of Natural Resources, Docket No. 97-DNR-397 (Mar. 26, 1998);
Hoffer v. State Fire Comm'n, Docket No. 95-SFC-441 (June 18, 1996).
See Whatley v.
Metro. Transit Auth., 632 F.2d 1325, 1328 (5th Cir. 1980);
Hochstadt v. Worcester Found.
for Experimental Biology, 425 F. Supp. 318 (D. Mass. 1976),
aff'd, 545 F.2d 222 (1st Cir.
1976);
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d
251 (1986);
Graley v. W. Va. Parkways Economic Dev. & Tourism Auth., Docket No. 91-
PEDTA-225 (Dec. 23, 1991). If a grievant makes out a
prima facie case of reprisal, theemployer may rebut the presumption of retaliation by offering legitimate, nonretaliatory
reasons for its action.
Conner v. Barbour County Bd. of Educ., 200 W. Va. 405, 489
S.E.2d 787 (1997);
Gruen v. Bd. of Directors, Docket No. 95-BOD-281 (Mar. 6, 1997).
See
Mace v. Charleston Area Medical Center Found., Inc., 188 W. Va. 57, 422 S.E.2d 624
(1992);
Shepherdstown Vol. Fire Dep't v. W. Va. Human Rights Comm'n, 172 W. Va. 627,
309 S.E.2d 342 (1983). If the employer succeeds in rebutting the presumption, the
employee then has the opportunity to prove by a preponderance of the evidence that the
reasons offered by the employer for the adverse action were merely a pretext for unlawful
retaliation.
See Conner,
supra;
W. Va. Dep't of Natural Resources v. Myers, 191 W. Va.
72, 443 S.E.2d 229 (1994).
In accordance with the foregoing proof analysis, Grievant established a
prima facie
case of retaliation for membership in the ANG. However, it is apparent from the record
that PCC officials were investigating Grievant's conduct in regard to both charges, the
alleged unauthorized absence in May 1998, and the alleged threat to Officer Alexander
in October 1998, prior to the time Grievant informed them he would have to be absent for
an extended period to attend an ANG training school.
Grievant contends that Warden Liller's comments during his Level II grievance
meeting in August 1998 reflected the Warden's animosity toward Grievant due to his ANG
membership. Warden Liller's statement to Grievant was, I suggest to you, you'd better
find out whether you're going to work, either for us or the Guards. We've been more than
fair with everybody here with National Guard Duty. G Ex 9 at 19. After Grievant
acknowledged that statement, Warden Liller went on to state: And quite honestly,(inaudible). But you do have a job here and that's your primary job. And this can't effect,
sacrifice this job for that job. G Ex 9 at 19.
To fairly place these comments in context, this conversation took place following an
attempt to explain to Grievant that he had used the 30 days he was allotted for ANG duty,
he was out of annual leave, and he still had days that he needed to be off for ANG duty.
Thus, he would have to be taken off the payroll and placed in a non-pay status for those
days. Warden Liller was simply pointing out to Grievant that WVDOC had accommodated
Grievant's ANG obligation to the limit of the law, but Grievant's need or desire to
participate in additional ANG activities would inevitably clash with PCC's need for a
Corrections Officer who was present for duty.
Deputy Warden Phares credibly testified that there are other WVDOC employees
at PCC who hold membership in the ANG or the reserve component of some military
branch in the federal Department of Defense. There was no credible evidence that any
of these other employees had ever been treated adversely as a result of their participation
in the guard or reserve. Rather, there was some evidence that one or more of those
employees had been given preferential treatment over Grievant in that they had been
allowed to take time off or schedule their reserve duties on their regular days off without
being harassed in the manner experienced by Grievant. Although Grievant's ANG
participation is inextricably intertwined with the allegation that he was absent without
proper authority when he failed to report he had not attended ANG training due to illness,
there is no persuasive evidence that his ANG membership or participation was either a
controlling or significant motivating factor in WVDOC's decision to discipline Grievant forfailure to report his actual status.
See Warren v. Dep't of the Army, 804 F.2d 654 (Fed.
Cir. 1986). Indeed, there was no persuasive evidence that Grievant's ANG membership
was a motivating factor in the decision to take the disciplinary actions contested in this
grievance, or to impose the penalty of dismissal for these offenses, considering Grievant's
prior performance and record of disciplinary actions.
Grievant further contends that dismissal is too harsh a penalty for the relatively
minor offenses alleged by WVDOC. This Grievance Board has determined that mitigation
of the penalty imposed by an employer constitutes extraordinary relief, and is granted only
when there is a showing that a particular punishment is so clearly disproportionate to the
offense committed that imposition of such a penalty involves an abuse of discretion.
Considerable deference is afforded to the employer's determination of the seriousness of
the employee's conduct and the prospects for rehabilitation.
Overbee v. Dep't of Health
& Human Resources, Docket No. 96-HHR-183 (Oct. 3, 1996).
Grievant established that his performance evaluations since 1993 have been good
to satisfactory. G Exs 1, 2, 3, & 12. If the two events alleged in this disciplinary action
represented Grievant's first infractions as a WVDOC employee, his argument might have
merit. Unfortunately, Grievant has amassed an unenviable record of disciplinary actions
at PCC, including two suspensions. In each case he was placed on notice that more
severe disciplinary action would be forthcoming if he became involved in additional
misconduct. R Exs 7 & 8. Neither PD 400.00, nor any other policy, rule, regulation, or
statute, requires that a subsequent offense must involve the same form of misconduct to
warrant more severe disciplinary action. Given Grievant's prior track record as aCorrectional Officer at PCC, WVDOC established that dismissal was not an abuse of the
employer's discretion in selecting an appropriate penalty for the infractions proven.
Under PD 400.00 § 4.03, WVDOC had authority to suspend Grievant pending the
outcome of the investigation into the allegation that he threatened another Corrections
Officer. Because that allegation has been sustained, Grievant's suspension is likewise
upheld.
In addition to the foregoing discussion, the following findings of fact and conclusions
of law are appropriate in this matter.
FINDINGS OF FACT
1. Grievant was employed by the West Virginia Division of Corrections
(WVDOC) as a Correctional Officer II assigned to the Pruntytown Correctional Center
(PCC).
2. On July 25, 1995, Grievant's Shift Commander, Captain James Reed, issued
a verbal reprimand to Grievant for calling in sick on a Saturday, shortly after being
counseled on use of sick leave. R Ex 1. Grievant did not grieve this reprimand.
3. On March 4, 1996, PCC Warden J. N. Liller issued a written reprimand to
Grievant for reporting late to work and falsely representing to his supervisors that he had
been held up by traffic resulting from an automobile accident when, in fact, no accident
had taken place. R Ex 2. Grievant did not grieve this reprimand.
4. On January 10, 1997, PCC Acting Warden Franklin D. Phares issued a 3-day
suspension to Grievant for improperly altering a unit log by using white out to mark out
another officer's entry witnessing an inmate using the staff telephone. R Exs 7 & 9. Grievant was warned in the suspension notice that further misconduct could result in more
severe disciplinary action, including dismissal. R Ex 7. Grievant did not grieve this
suspension. HT Vol. III at 70.
5. On September 16, 1997, Warden Liller issued a 21-day suspension to
Grievant for making obscene and abusive comments toward a civilian on PCC property
while Grievant was off duty and out of uniform. R Exs 8 & 10. Grievant filed a grievance
challenging this disciplinary action, and the grievance was denied at Level IV on February
20, 1988. Hosaflook v. W. Va. Div. of Corrections, Docket No. 97-CORR-430 (Feb. 20,
1998). Grievant appealed this Grievance Board's decision to the Circuit Court of Kanawha
County which affirmed the Board's decision on November 17, 1998. R Ex 8A.
6. On October 19, 1998, while working in Unit 24 at PCC, Grievant took offense
at one or more radio transmissions by Correctional Officer I David Alexander. Grievant
later called Officer Alexander on the telephone and said, What the fuck are you trying to
do, set me up, or draw me out over the radio? When Officer Alexander asked Grievant
what he was talking about, Grievant stated: Do you want me to come over and kick your
ass.
7. Later that evening, Grievant made a second call to Unit 25, where Officer
Alexander was working, and spoke to Correctional Officer Sam Gaskins, again offering to
settle his dispute with Officer Alexander in the parking lot at the end of their shift. Officer
Alexander was released from work early that day by his superiors, in order to insure there
would be no altercation. 8. Nearly three years earlier, Grievant engaged in a similar brief tantrum,
directed at another co-worker, Correctional Officer III Charles Murphy. That incident was
not documented, and no disciplinary action was taken as a result of that incident.
9. Grievant is a member of the Army National Guard (ANG). After voluntarily
separating from the ANG in 1994, Grievant rejoined the ANG in January 1998.
10. In accordance with W. Va. Code § 15-1F-1, and the W. Va. Division of
Personnel's Administrative Rule, 143 C.S.R. 1 § 15.10 (1998), WVDOC allows Grievant
to take 30 days of military leave without loss of pay each year, in addition to the annual
and sick leave Grievant receives as a state employee.
11. After Grievant rejoined the ANG in 1998, he provided his supervisors at PCC
with a schedule of the days he was required to attend mandatory ANG training. Included
in that list was May 2, and 3, 1998. On May 2, 1998, Grievant contacted his First
Sergeant, Terry Hupp, and indicated that he was ill and unable to attend ANG training.
Sgt. Hupp advised Grievant's Commanding Officer in the ANG, who excused Grievant from
participating in ANG duty for those two days.
12. Grievant asked Sgt. Hupp if the ANG would report his absence to his
employer, and Sgt. Hupp indicated that, if asked, he would advise WVDOC that Grievant
had been excused from duty for those two days. Sgt. Hupp did not tell Grievant that he
was not obligated to report his absence, as that was a matter between Grievant and his
employer. Grievant did not notify anyone at WVDOC that he had been excused from ANG
duty for those two days, nor did he inquire of anyone at PCC if he was required to provide
such notice. 13. During a meeting with Deputy Warden Phares on August 14, 1998, and a
subsequent Level II meeting in late August with Warden Liller, Deputy Warden Phares,
and James Ielapi, regarding a grievance Grievant filed as a result of the August 14
meeting with Deputy Warden Phares, Grievant was asked if he had attended all required
ANG drill dates during 1998. Grievant replied that he had.
14. During an investigative interview conducted by PCC's Chief Correctional
Officer, Major Gary Shaw, on September 21, 1998, Grievant acknowledged that he had not
attended ANG training on May 2 and 3, 1998, but had called in sick and been excused by
his ANG superiors. Grievant told Major Shaw that he asked his First Sergeant if he should
notify his employer, and stated that Sgt. Hupp told him that he did not see where Grievant
would be required to notify his employer.
15. Once Grievant was excused from ANG duty Grievant knew, or should have
known, that he was no longer entitled to military leave from WVDOC as such leave is
conditioned upon attending required military activities.
16. During his employment with WVDOC, Grievant received overall satisfactory
to good performance ratings on his annual evaluations.
CONCLUSIONS OF LAW
1. Pursuant to W. Va. Code § 29-6A-6, the burden of proof in disciplinary
matters rests with the employer, and the employer must meet that burden by proving the
charges against an employee by a preponderance of the evidence. Wellman v. W. Va.
Dep't of Health & Human Services, Docket No. 93-HHR-079 (Oct. 18, 1993); Ramey v.
W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988). 2. Dismissal of a civil service employee must be for good cause, which means
misconduct of a substantial nature directly affecting the rights and interest of the public,
rather than some trivial or inconsequential matters, or some technical violations of statute
or official duty without wrongful intention. Oakes v. W. Va. Dep't of Fin. & Admin., 164
W. Va. 384, 264 S.E.2d 151 (1980).
3. Seriously wrongful conduct by a civil service employee can lead to dismissal
even if it is not a technical violation of any statute. The test it not whether the conduct
breaks a specific law, but rather whether it is potentially damaging to the rights and
interests of the public. Syl. Pt. 5, Mangum v. Lambert, 183 W. Va. 184, 394 S.E.2d 879
(1990). See Bennett v. W. Va. Dep't of Health & Human Resources, Docket No. 98-HHR-
378 (Apr. 27, 1999).
4. On October 19, 1998, Grievant made a threatening statement to Correctional
Officer I David Alexander, telling him over the telephone while they were both on duty at
Pruntytown Correctional Center (PCC), Do you want me to come over and kick your ass?
Grievant also indicated Officer Alexander should meet him in the parking lot after their shift
to settle their dispute. Grievant's conduct constitutes threatening another person within
the meaning of West Virginia Division of Corrections (WVDOC) Policy Directive 400.00
(PD 400.00).
5. Grievant knowingly and intentionally failed to report to his superiors at PCC
that he had been excused from attending mandatory training with the Army National Guard
on May 2 and 3, 1998, due to illness. As a result, Grievant received two days of paid
military leave, rather than being charged two days of sick leave because he was not atwork. Therefore, Grievant's absence from employment was unauthorized within the
meaning of WVDOC's PD 400.00.
6. Federal law prohibits employers from denying retention in employment to
employees who hold membership in the National Guard or military reserves solely on the
basis of such membership or participation in authorized activities. 38 U.S.C. 4311 (1996).
See King v. St. Vincent's Hosp., 502 U.S. 215 (1991).
7. The party asserting an affirmative defense has the burden of proving that
affirmative defense by a preponderance of the evidence. Hosaflook v. W. Va. Div. of
Corrections, Docket No. 97-CORR-430 (Feb. 20, 1998); Smith v. W. Va. Dep't of
Corrections, Docket No. 95-CORR-547 (June 28, 1996).
8. A grievant alleging unlawful retaliation on the basis of membership in or
participation in the National Guard, in order to establish a prima facie case, must prove:
(1) that the employee engaged in activity protected by the statute;
(2) that the employee's employer was aware of the protected activity;
(3) that, thereafter, an adverse employment action was taken by the employer;
and
(4) that the adverse action was the result of retaliatory motivation or the action
followed the employee's protected activity within such a period of time that
retaliatory motive can be inferred.
Wiley v. W. Va. Div. of Natural Resources, Docket No. 97-DNR-397 (Mar. 26, 1998);
Hoffer v. State Fire Comm'n, Docket No. 95-SFC-441 (June 18, 1996).
9. If a grievant makes a prima facie case of reprisal, the employer may rebut
the presumption of retaliation by offering legitimate, nonretaliatory reasons for its action. Conner v. Barbour County Bd. of Educ., 200 W. Va. 405, 489 S.E.2d 787 (1997). If the
employer succeeds in rebutting the presumption, the employee then has the opportunity
to prove by a preponderance of the evidence that the reasons offered by the employer for
the adverse action were merely a pretext for unlawful retaliation. See Conner, supra;
W. Va. Dep't of Natural Resources v. Myers, 191 W. Va. 72, 443 S.E.2d 229 (1994).
10. Although Grievant made a prima facie case of retaliation, WVDOC
established by a preponderance of the evidence that the decision to terminate his
employment after he participated in the required 30 days annual duty in the Army National
Guard during 1998, and advised WVDOC that he would need to be absent for 10 weeks
to attend a mandatory training course in Alabama, was made for legitimate, non-retaliatory
reasons involving Grievant's unacceptable conduct. See Bennett, supra; Dadisman v.
W. Va. Div. of Rehabilitation Serv., Docket Nos. 98-RS-023/040 (Mar. 25, 1999).
11. The level of discipline may be mitigated if the penalty assessed is clearly
excessive or disproportionate to the offense. Factors to be considered in this analysis
include the length of the employee's service, and his past disciplinary record. Pingley v.
Div. of Corrections, Docket No. 95-CORR-252 (July 23, 1996).
12. Despite Grievant's generally favorable duty performance, given his prior
disciplinary record which includes a verbal reprimand, a written reprimand, a 3-day
suspension, and a 21-day suspension, Grievant has not established a viable basis for
mitigation of the dismissal penalty imposed by WVDOC. See Pingley, supra.
Accordingly, this grievance is DENIED. Any party, or the West Virginia Division of Personnel, may appeal this decision to
the Circuit Court of Kanawha County, or to the "circuit court of the county in which the
grievance occurred." Any such appeal must be filed within thirty (30) days of receipt of this
decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State
Employees Grievance Board nor any of its Administrative Law Judges is a party to such
appeal and should not be so named. However, the appealing party is required by W. Va.
Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The
appealing party must also provide the Board with the civil action number so that the record
can be prepared and properly transmitted to the appropriate circuit court.
LEWIS G. BREWER
ADMINISTRATIVE LAW JUDGE
Dated: January 20, 2000
Footnote: 1