THEODORE HOSAFLOOK,

                        Grievant,

v.                                                DOCKET NOS. 98-CORR-446/447

WEST VIRGINIA DIVISION OF CORRECTIONS,
PRUNTYTOWN CORRECTIONAL FACILITY,

                        Respondent.

D E C I S I O N

      On November 6, 1998, Theodore Hosaflook (Grievant) submitted a grievance directly to Level IV, in accordance with W. Va. Code § 29-6A-4(e)(2), challenging his dismissal by Respondent West Virginia Division of Corrections (WVDOC). Previously, on October 26, 1998, Grievant initiated a grievance challenging a 15-day suspension he was issued on October 22, 1998. The parties agreed to consolidate these matters for hearing at Level IV. Following a series of continuances, a Level IV hearing was commenced on June 4, 1999, in this Grievance Board's office in Elkins, West Virginia.   (See footnote 1)  The parties were unable to complete the record on the first day of hearing, and the hearing was reconvenedand concluded in this Grievance Board's office in Morgantown, West Virginia, on August 17 and 18, 1999.   (See footnote 2) 
      On August 20, 1999, Grievant filed a Motion to Reopen Record to Admit Document. Without objection from Respondent, that motion was granted by Order dated September 20, 1999. A transcript of the hearing was prepared and provided to the parties on September 30, 1999.   (See footnote 3)  A briefing schedule was then established, and this matter became mature for decision on November 8, 1999, after receipt of post-hearing written arguments from the parties. Consistent with the practice of this Grievance Board, this disciplinary action has been advanced on the docket.
BACKGROUND
      Grievant was employed by Respondent West Virginia Division of Corrections (WVDOC) as a Correctional Officer II at its Pruntytown Correctional Center (PCC). On October 22, 1998, WVDOC notified Grievant that he was being suspended without pay for 15 days as follows.




      Grievant filed a grievance challenging this suspension on October 26, 1998. Thereafter, on November 6, 1998, Grievant was issued a notice setting forth the reasons for his dismissal from employment with WVDOC. Pertinent portions of that notice state:

Unauthorized Absence of One (1) to Three (3) Days



Threatening or Coercing Other Persons:












            “I don’t think it (dismissal) is fair.”

* * *

R Ex 11 (emphasis in original).

DISCUSSION
      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:
      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:
      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:
Theodore Hosaflook:
Frank Phares:
Theodore Hosaflook:
Frank Phares:
Theodore Hosaflook:
Frank Phares:
Theodore Hosaflook:
Frank Phares: Theodore Hosaflook:
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

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

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
      At that hearing, before Administrative Law Judge Denise Spatafore, Grievant was represented by counsel, Timothy R. Miley, of the Law Offices of Thomas G. Steele. Respondent was represented by Assistant Attorney General Charles Houdyschell.
Footnote: 2
      For administrative reasons, this grievance was reassigned to the undersigned Administrative Law Judge on July 15, 1999. After the initial day of hearing, Grievant obtained alternative representation, and was thereafter represented by Nancy Grossman of Milliron and Grossman. Respondent continued to be represented by Assistant Attorney General Houdyschell.
Footnote: 3
      This transcript was prepared in view of the change in Administrative Law Judges and Grievant's counsel following the first day of hearing.
Footnote: 4
      This person was identified by some witnesses as Correctional Officer Brandon Jones and by others as Officer Spencer. The identity of this individual is not critical to any issues in dispute.
Footnote: 5
      One of the units consisted of male inmates while the other unit's inmates were female. The standard practice at PCC was to avoid “mixing” the two groups at meal time.
Footnote: 6
      The transcript of the Level IV hearing will be cited as “HT Vol. I at ,” with Vol. I representing the day of hearing conducted on June 4, 1999, Vol. II representing August 17, 1999, and Vol. III representing August 18, 1999.
Footnote: 7
      There was some evidence that there was another intervening incident where there was additional confusion about which inmates were to be released to go to the institution's gymnasium. According to Grievant and another witness, Officer Hott, Officer Alexander made another comment over the radio such as: “That's the problem with people around here. Everyone's always getting in too much of a hurry.” It was not clear that these comments were directed at Grievant. Officers Alexander and Gaskins did not recall the incident.
Footnote: 8
      Officer Alexander had recently returned to work following back surgery to remedy an on-the-job training injury. Neither Officer Alexander nor his supervisors wanted to risk having his back re-injured in even a minor altercation.
Footnote: 9
      Even if Sgt. Hupp had advised Grievant that he did not have to report his release from attending ANG duty due to illness, Grievant had no basis to rely upon Sgt. Hupp's representation. Although Sgt. Hupp is a member of the West Virginia Army National Guard, his primary employer is the federal government through the Department of the Army. Thus, Sgt. Hupp has no knowledge of the policies on sick leave applying to stateemployees, generally, or WVDOC employees, in particular.
Footnote: 10
      Res judicata is a well-established legal doctrine stating that a final judgment rendered on the merits by a court of competent jurisdiction is conclusive as to the rights of the parties to that proceeding and, as to those same parties, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. Black's Law Dictionary 678 (Abridged 5th ed. 1983).
Footnote: 11
      Although Grievant participated in the grievance process on at least two occasions, including a grievance against Deputy Warden Phares shortly before this dismissal action was initiated, Grievant did not argue that his dismissal constituted retaliation prohibited by W. Va. Code § 29-6A-2(p). In any event, the legal analysis and result would be the same.
Footnote: 12
      A prima facie case generally refers to a set of facts which, if not rebutted or contradicted by other evidence, would be sufficient to support a ruling in favor of the party establishing such facts. See Black's Law Dictionary 1353 (4th ed. 1968).