THEODORA PLUMLEY,
                  Grievant,

v.                                                      Docket No. 00-DNR-091

DIVISION OF NATURAL RESOURCES,
                  Respondent.

D E C I S I O N

      Grievant, Theodora Plumley, employed by the Division of Natural Resources (DNR or Respondent) as an Environmental Resources Specialist I, initiated this grievance on October 19, 1999, following the imposition of a five day suspension by Director John B. Rader. Grievant alleged a violation of Division of Personnel Rule 12.3, in that the suspension was without cause, or in the alternative, the discipline was disproportionate to the reasons given for the action. Grievant requested that the suspension be rescinded, that documentation of the action be purged from all appropriate files, back pay with interest, and any other relief to which she was entitled.
      An evidentiary hearing on the merits of the grievance was held in the Grievance Board's Elkins office on August 18, 2000. Grievant represented herself, and DNR was represented by Daynus Jividen, Senior Assistant Attorney General. The matter became mature for decision upon receipt of proposed findings of fact and conclusions of law filed by both parties on September 18, 2000. Consistent with the practice of this Grievance Board, this disciplinary action has been advanced on the docket for an expedited decision.
Discussion
      Grievant has been employed by DNR for approximately ten years, assigned as an Environmental Coordinator in District Three. District Three is composed of Braxton, Clay,Lewis, Pocahontas, Webster, Randolph, and Upshur counties. Grievant's office is located at DNR's office building in French Creek, Upshur County. Grievant's responsibilities include the coordination of various conservation education program areas such as litter control, recycling, youth conservation, and other activities where volunteer services of youth and adults are used. She is required to recruit and orient volunteer leaders, assist groups in forming conservation oriented clubs, make public appearances to promote conservation programs, etc. She is also required to answer correspondence and maintain files regarding program activities, keep statistics regarding needs and progress of the program, and complete periodic reports. Generally, her public responsibilities are performed three days per week, with the remaining two days allocated for paperwork. Grievant works independently, and has no secretarial or clerical assistance at French Creek.
      By letter dated October 4, 1999, John B. Rader, Director of DNR notified Grievant that she was being suspended for five days without pay. That letter provided an extensive review of the reasons for the disciplinary action, and is included here in pertinent part:
      The purpose of this letter is to advise you of my decision to suspend you without pay from your position of Environmental Resources Specialist I for a period of five (5) working days. This decision is based on your insubordinate conduct and inability to meet the expectations of your position in an acceptable manner. The period of suspension will begin on Monday, October 25, 1999, and continue through Friday, October 29, 1999. You are expected to return to your regular work schedule on Monday, November 1, 1999.

      This personnel action is in accordance to Section 12.3 of the West Virginia Division of Personnel's Administrative Rule and provides the required notice. Further, this letter shallserve as your last final warning of more severe disciplinary action, up to and including dismissal, should you fail to adhere to the directives in this letter or fail to meet the expectations of your position after your return from suspension. I realize you have received several final warnings from previous Directors and Administrators; however, I assure you that this is the last final warning you will receive. So there is no misunderstanding, I have reduced to writing my expectations during a 15 calendar day improvement period. Your improvement period will begin on Monday, November 1, 1999, after you return from your five (5) day suspension and end on Monday, November 15, 1999.

      So there is no doubt as to the validity for the need to take such action, let me share with you the following occurrences, which are demonstrative of your failure to meet the agency's work expectations. These occurrences are representative of either your unwillingness or inability to adhere to the directives that have been given to you:
      
      Emily Fleming made an unscheduled visit to your office on Thursday, September 9, 1999. To her dismay, you once again showed a blatant disregard for keeping your office professionally organized, to allow for proper performance of your job duties. It seems that most of the items stored in your office are of a personal nature and work related items, necessary to the performance of your job, are not easily accessible. You are constantly losing important items such as the state issued purchasing card, the state issued long distance credit card, program printouts, receipts, the computer disk containing your weekly report form, list of important volunteer contacts within your district, memos and letters detailing assignments and other important information. You frequently call and disrupt staff members in the Charleston Office, asking questions about information that has been forwarded to you time and time again. When asked if you received or read the information that was sent, your reply is always “Yes, but I cannot find it.” Your lack of maintaining necessary files is taking time away from your ability to serve the public, which is your primary job responsibility. Moreover, when you repeatedly call the Charleston Office, you are also diminishing their work time to serve the public.
      It was observed that you cannot access the necessary equipment needed in your daily work routine without taking time to physically remove items stacked on top of, or in the way of your computer, telephone, and typewriter. As a result, time needed for the actual performance of your job duties, such as typing your reports or making telephone calls to volunteers is reduced.

      Once again, your normal work schedule of visiting your counties and giving programs to volunteer groups, had to be deviated from so that you may accomplish the priority set forth by Emily in a memo dated September 10, 1999. This priority was to properly file, organize, and sort all job related materials. All materials not related to the performance of your job duties were to be disposed of or taken home. As discussed, these items included telephone directories of towns not in your district, bathroom scales, stuffed toys, oversized floral arrangements, large decorative metal tins, extra pictures and wall hangings sitting on the floor, and a fur coat and other wearing apparel hanging on your coat rack. These materials do not help you do your job. This assignment was to take place in your office and you were not permitted to take any work related materials home to accomplish this task. Your office should portray a professional atmosphere and allow you to conduct business with ease. You are not to rely on taking visitors to the conference room for this purpose. You are not to pull necessary materials from the brochure rack located at the building entrance, these materials should be easily accessible in your office. The memo stated the seriousness of this assignment and notified you that Emily Fleming and Diana Haid would arrive on September 27, 1999, to see that it was accomplished.

      It was obvious to Emily and Diana, upon their arrival Monday, September 27, that you had been working on this assignment, but it was also obvious that it was a long way from completion. They witnessed you making two trips to your vehicle, carrying bags of work-related items, with the intent of taking them home to sort. You were told on several occasions not to do this. A visitor cannot walk into your office to conduct business in a minimal amount of time because it is not organized so that your work related material is easily accessible. You had a stack of the most recentcorrespondence beside your desk ready to file but you had not yet filed it. You were given a list of subjects in which to sort your files under several years ago, which also had to be given to you several times since because you keep losing it. You said you purchased non-glare sheet protectors and a special notebook to help you accomplish this task. You made this same statement to Diana Haid, last year on November 19, 1998, during a visit she made to your office. Almost a year later and you still have done nothing about your files.

      You were asked to pull some of your files and the correspondence they contained was several years old. Emily picked a notebook off the floor and it contained your personal canceled checks and hospital receipts. A file was pulled from the file cabinet located in the furnace room and it contained your personal federal income tax information. You state you had no idea what was stored in either of your file cabinets. You had not removed any of the telephone directories of towns not located in your district. The stuffed toys, the oversized floral arrangements, the decorative metal tins, the fur coat, and the stack of pictures were all still in your office. In essence, you removed work related material and left the personal items. When asked where several specific items of work related material was located, you could only find one of those items. When asked to produce your state issued purchasing card, you stated you did not have it, that is [sic] was with your driver's license, in a black satchel, somewhere in your car.

      You told Emily and Diana they were responsible for the state of your office because they had not made more personal visits to you. It is not their role to cause you to perform your daily job functions of filing, sorting and organizing your work related materials. The number of visits from your supervisors does not relieve you from performing your normal job duties.

      Your storage building is in the same situation as your office. You have no idea what is stored there, with the exception of your office display. You were informed not to take any materials from your office to the storage building as there is no room. You were also informed that the same assignment for the office applies to the storage building. All work related materials are to be organized and sorted for easy access. All items of a personal nature are to be disposed of or takenhome. It has become apparent that you have a huge inventory of work related materials; however, you do not know exactly what materials you do have, the amount, or even where certain materials are located. As a result, you receive more inventory from the Charleston Office for specific programs. The Environmental Resources Section takes pride in maximizing their budget dollars for the many programs and materials that are available. Your poor inventory practices, which result in materials being outdated before they are used, are costing tax payers dollars.

      The following summary of occurrences further demonstrate your failure to meet the agency's work expectations:

      *August 10, 1999, Emily Fleming called you for the names of the environmental teachers at Clay and Braxton County High Schools, which you did not know, and did not know if they were enrolled in the Youth Conservation Program.

      *January 22, 1999, your paycheck was docked for several hours of unauthorized leave for refusing to follow the policy of obtaining prior approval before taking annual leave.
      
      *December 16, 1998, you were sent a written reprimand from Diana Haid for abusing the parking privilege set forth at the District Office, reserved for loading and unloading only.
            
      *September 10, 1998, Diana Haid made a visit to your office and you were given the priority of organizing your office in a professional manner so that all work related materials were easily accessible to you. All meetings were to be canceled until this was accomplished. You were further instructed not to take this assignment home.

      *August 14, 1998, you were sent a written reprimand from Emily Fleming for your inappropriate behavior concerning the proper chain of command at the District Office.
      
      *June 3, 1998, you were sent a memo from Emily Fleming for inappropriate behavior concerning the proper chain of command regarding the placement of an additionalAdopt-A-Highway sign and willfully misleading a DOH employee.

      *January 6, 1998, you were sent a memo from Diana Haid requesting the return of the 1997 Capitol Parking Pass as soon as possible. You stated you could not find it so you were assessed a $5 fee, which you did not pay. You returned the wrong pass on March 3, 1998. Subsequently, you found the correct pass and returned it on April 5, 1998.

      I can only conclude that you have been and continue to be unwilling or unable to follow directives as indicated in these referenced occurrences. Further, I wish to emphasize the seriousness of your insubordinate conduct toward Emily Fleming and Diana Haid, and the seriousness of your failure to complete any directives assigned to you by them. It is important that you understand we are at a point where your unwillingness or inability to complete assignments has fallen below the tolerance level. To assist you in meeting these directives, I am establishing a fifteen (15) calendar day improvement period, beginning Monday, November 1, 1999, and ending Monday, November 15, 1999, to bring your incomplete assignment to acceptable standards. To this end, I have reduced to writing my expectations of you in regard to this priority assignment.

1.      You are to complete your priority assignment of filing, organizing, and sorting all job related materials. All materials not related to the performance of you job duties are to be disposed of or taken home.

2.      Your outside meeting, county visits, presentations, conferences, etc., will be held at a minimum until this assignment has been satisfied.
      
3.      You may ask for annual leave approval only in extraordinary emergency situations, until this assignment has been satisfied.

4.      You are to complete this assignment in your work space during normal working hours. You will not be approved to use the conference room. You will not be approved to work over and adjust your time. You are not to take this work home. You will not be approved flex time to complete this assignment when others are not in the office.

5.      You are not to use any bags of any kind for storage of materials.

6.      You are to organize your files so that you may be able to retrieve current materials at a moments notice.

7.      You are to submit a complete inventory and an approximate amount of all materials.

8.      Before your suspension begins, you are to submit to Diana Haid, a list of supplies needed for your display at the Association of Solid Waste Authorities Annual Meeting, October 21, 1999.

      While it is unfortunate that I must take this personnel action, I believe that any other alternative would serve no useful purpose. You have been afforded numerous opportunities to bring your behavior to acceptable standards and have been repeatedly encouraged to ask for assistance from your supervisors. In spite of these efforts, you continue to be either unable or unwilling to meet the expectations of your position, even with close supervision.

      It is my hope that this suspension is sufficient to cause you to understand not only the seriousness of this matter, but also that we can no longer tolerate such substandard behavior. Further, it is my sincere wish that this will cause you to alter your behavior and meet the work expectations that have been previously outlined; however, failure to meet these required standards will result in further disciplinary action, up to and including your dismissal from your position. You have received numerous final warnings from previous administrators. I assure you again that this is your last final warning. Your immediate supervisor remains available to work with you on meeting goals and improving behavior.

            *                  *            *

DNR Exhibit 2.      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. W. Va. Code §29-6A-6; Ramey v. W. Va. Dep't of Health,
Docket No. H-88-005 (Dec. 6, 1988). "The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employer has not met its burden. Id.
      Grievant was charged with insubordination relating to her conduct and failure to satisfactorily complete various requirements, responsibilities, and conditions relating to her employment. It is well established that "[I]nsubordination involves 'willful failure or refusal to obey reasonable orders of a superior entitled to give such order.' [Citations omitted.] In order to establish insubordination, the employer must not only demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, but that the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination." Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995) (Citations omitted.). Where an employee has justifiably misunderstood or misinterpreted a superior's instruction, and has failed to comply with a directive based upon this, the employee has been found lacking the intent necessary to establish insubordination. Wilson v. Marion County Bd. of Educ., Docket No. 98-24-043 (June 23, 1998), citing Conner v. Barbour County Bd. of Educ.,Docket No. 94-01-394 (Jan. 31, 1995), and Ramey v. W. Va. Div. of Veterans Affairs, Docket No. 91-VA-115 (Aug. 2, 1991).
      "'Generally, an employee must obey a supervisor's order and take appropriate action to challenge the validity of the supervisor's order. Employees are expected to respect authority and do not have the unfettered discretion to disobey or ignore clear instructions.' Reynolds v. Kanawha-Charleston Health Department, Docket No. 90-H-128 (Aug. 8, 1990)], citing Meads v. Veterans Admin., 36 M.S.P.R. 574 (1988) [other citations omitted]." Stover v. Mason County Bd. of Educ., Docket No. 94-26-640 (Feb. 23, 1995). While there are exceptions to this rule, such as where the employee reasonably has health and safety concerns (Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995)), "[a]n employee is not justified i[n] disobeying a reasonable order simply because he/she does not agree with it." Id. "An employer has the right to expect subordinate personnel 'to not manifest disrespect toward supervisory personnel which undermines their status, prestige, and authority . . .'. McKinney v. Wyoming County Bd. of Educ., Docket No. 92-55-112 (Aug. 3, 1992) (citing In re Burton Mfg. Co., 82 L.A. 1228 (Feb. 2, 1984))." English v. Div. of Corrections, Docket No. 98-CORR-082 (June 29, 1998).
      DNR established that Grievant has experienced ongoing difficulty in satisfactorily maintaining files, completing paperwork, and functioning in an organized and efficient manner. In March 1995, Grievant was suspended for three working days for insubordination, and placed on a sixty calendar day improvement period. In the letter issued by Maxine Scarbro, Administrator of the Office of Conservation Education and Litter Control, it was noted that housekeeping in Grievant's office continued to needimprovement despite being directed to rectify the situation in July 1994, and February 1993. Ms. Scarbro again directed Grievant to organize her office and maintain a professional, business-like atmosphere.
      Both Diana Haid, State Environmental Coordinator and Grievant's immediate supervisor, and Emily Fleming, Chief of the Environmental Resources Section and Grievant's second level supervisor, testified extensively at the level four hearing. Both described Grievant's office space as nonfunctional, noting that much material was lying about in the orange trash bags used by the Adopt-A-Highway program, that her filing system was not up-to-date or organized in any discernable manner, and that a great deal of the space was consumed by Grievant's personal effects. Ms. Fleming noted that a pathway led through the office, but there was not an empty chair to sit on. The supervisors explained that Grievant's failure to maintain a professional office interfered with her ability to complete her work as she often lost documents and had to have them replaced, or simply could not find what she needed in the disarray.
      Finally, following a visit to Grievant's office on September 9, 1999, Ms. Fleming issued a memorandum notifying Grievant that her schedule would be modified for a two week period, limiting her county visits to two days a week, allowing her the remaining time to clean and organize her office. She advised Grievant that the assignment was “top priority”, and that she was “to rid [her] office of 80% of the materials that are stored there.” The supervisors returned to Grievant's office on September 27, and found that while some progress had been made, Grievant had failed to complete the objective set by Ms. Fleming. Both opined that Grievant is fully capable of organizing and maintaining heroffice in an acceptable manner, and conclude that her failure to do so after the multitude of verbal and written warnings constitutes an unwillingness to observe the chain of command resulting in insubordination.
      Grievant asserts that the claims are trivial and unsubstantial, and certainly were not a willful disobedience which would rise to the level of insubordination. She admits that she has “fallen short” in her filing, but denies that documents were stored in garbage bags. Grievant provided a number of letters attesting to her good character, and asserts that she made a good faith effort to meet the directives of the September 1999 memorandum, but states that she was provided an inadequate amount of time, and that she was hampered by medical problems. She suggests that her supervisors simply do not approve of her because she is “eclectic”, and explained that she now lives in fear that her employment will be terminated. Grievant asserts that the five day suspension was arbitrary and capricious, and unduly harsh to the point of cruelty, given the tremendous financial loss she has experienced as a result.
      The evidence establishes that Grievant was aware of the necessity for organizing and maintaining her office in a professional manner. She had participated in a number of discussions with her supervisors, had received many memoranda, and had even suffered a previous suspension for the very same reason. Yet, when given a directive to correct the situation within a specified time period, Grievant knowingly failed to comply. At hearing, Grievant claimed that she was not given an adequate amount of time to complete the project, and did not agree to two weeks, but said she could finish it in a “few” weeks. If that was the case, Grievant should have notified Ms. Fleming of the error upon receiptof the memorandum, and she did not. Further, six working days to clean a single room office should be more than adequate, even given the condition described by the supervisors.       The undersigned observed that Grievant does function in a somewhat slow manner, but she had not made her supervisors aware of any medical conditions which would hamper her ability to complete the project. At level four she stated that she had experienced a sudden, substantial weight gain, and offered pharmaceutical flyers on diuretics, as well as a document indicating that she suffers from diabetes; however, even at this time, no medical impairment has been proven.
      In addition to contending that the penalty she received was discriminatory, Grievant also asserts that a five day suspension is an unduly harsh punishment. 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, Hosaflook v. West Virginia Division of Corrections, Docket Nos. 98-CORR-446/447 (Jan. 20, 2000), or the penalty is so harsh under the circumstances, its imposition by the employer involves an arbitrary and capricious act. Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999). Lilly v. Dep't of Health & Human Resources, Docket No. 00- HHR-093 (May 8, 2000); See Wilkerson v. Lincoln County Bd. of Educ., Docket No. 99-22-420 (Mar. 27, 2000). Considerable deference is afforded to the employer's determination of the seriousness of the employee's conduct and the prospects forrehabilitation. Overbee v. Dep't of Health & Human Resources, Docket No. 96-HHR-183 (Oct. 3, 1996).
      As previously discussed, Grievant was disciplined for insubordination which had been documented since 1993. Grievant had previously been suspended for three days for failing to organize and maintain a professional office. Although Grievant asserts that the offense was trivial, the testimony of her supervisors establishes that the consequences of her actions were not inconsequential, but caused ongoing disturbances at the Central Office, and required a great deal of their time to manage. Grievant's continued failure to complete a simple directive establishes a willfulness on her part which constitutes insubordination. The penalty imposed in this matter was neither an abuse of discretion nor disproportionate to the offense.
      In addition to the foregoing discussion, the following findings of fact and conclusions of law are appropriate in this matter.

Finding of Fact
      1.      Grievant has been employed by the West Virginia Division of Natural Resources for approximately ten years as an Environmental Coordinator, assigned to District Three, French Creek, Upshur County.
      2.      Grievant was suspended for three days in 1995 for a number of reasons, including her failure to maintain a professional office, which impaired her ability to perform her duties.
      3.      From 1995 through 1999, Grievant continued to receive verbal and written warnings regarding the condition of her office.      4.      In September 1999, Grievant was given a directive to correct the office situation within a two week period. Grievant failed to complete the assignment.
      5.      Grievant was suspended for five days without pay in October 1999.
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.      "[I]nsubordination involves 'willful failure or refusal to obey reasonable orders of a superior entitled to give such order.' [Citations omitted.] In order to establish insubordination, the employer must not only demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, but that the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination." Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995)       
      3.      DNR has proven that Grievant engaged in insubordination.
      4.      An allegation that a particular disciplinary measure is disproportionate to the offense proven or otherwise arbitrary and capricious is an affirmative defense, and the grievant bears the burden of demonstrating that the penalty was clearly excessive or reflects an abuse of agency discretion, or an inherent disproportion between the offense and the personnel action. Thompson v. W. Va. Dep't of Health & Human Serv., Docket No.94-HHR-254 (Jan. 20, 1995).
      5.      Grievant failed to demonstrate that a five day suspension for insubordination was clearly excessive or unduly harsh under the circumstances presented in this grievance.
      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.

DATE: September 26, 2000                  ________________________________
                                                 Sue Keller
                                          Senior Administrative Law Judge