H. GINGER MOORE,
Grievant,
v. Docket Nos. 99-HHR-382/451
DEPARTMENT OF HEALTH AND HUMAN
RESOURCES/BUREAU OF CHILDREN
AND FAMILIES,
Respondent.
D E C I S I O N
Grievant, H. Ginger Moore, filed four grievances against her employer, the
Department of Health and Human Resources/Bureau of Children and Families ("HHR"),
which were advanced to Level IV of the grievance procedure, and have been assigned the
two docket numbers referred to in the case style. Three of the grievances contested
disciplinary actions: a written reprimand, a 10 day suspension, and a 30 day suspension.
Included in the grievance over the 10 day suspension is a leave time issue. The fourth
grievance is related to a person, who is not an employee of HHR, failing to submit a report
of suspected abuse in writing, after orally making the report. Although the grievances were
received at Level IV in the fall of 1999, Grievant asked that a hearing not be set until after
the first of the year, because she had a new job, and did not have any leave time. The
parties then engaged in settlement discussions which were not successful. A Level IV
hearing on these grievances was held on August 15, 2000. Grievant represented herself
and HHR was represented by B. Allen Campbell, Esquire. These grievances became
mature for decision on October 5, 2000, upon receipt of the last of the parties' written
arguments.
The 10 day suspension was grieved on July 7, 1999. Level I was waived, and the
grievance was denied at Level II on July 13, 1999. A Level III hearing was held on
October 6 and 7, 1999, and a Level III decision denying the grievance was issued on
October 14, 1999. Grievant appealed to Level IV on October 19, 1999.
The written reprimand was received by Grievant after the 10 day suspension, on
July 15, 1999, and was grieved on July 28, 1999. Grievant's supervisor responded at
Level I on August 4, 1999, that she was without authority to grant the relief requested.
Grievant appealed to Level II, where a decision denying the grievance was issued on
August 17, 1999. Grievant appealed to Level III on August 18, 1999. A Level III hearing
was held on October 15, 1999. The record does not reflect when the Level III decision was
issued, or what the result was. Grievant appealed this grievance to Level IV on October
30, 1999.
The 30 day suspension was grieved on September 10, 1999, with Grievant filing this
grievance at Level IV, as is allowed by
W. Va. Code §29-6A-4(e). Grievant sought to have
the suspension rescinded, back pay, restoration of sick and annual leave which she would
have earned during the suspension period, attorney fees, monetary damages, payment of
witness fees, and that disciplinary action be taken against Michelle Branam for disclosure
about employee matters (i.e. conduct), and Susan Layne, Supervisor for inappropriate,
unprofessional conduct and placing a client as well as worker 'at risk' because of her
relationship with the
reporter - Violating WV Code of Ethics and discriminatory practices
while relating to clients, their families, workers, other agencies, facilities and professionals
- Abuse of authority.
Grievant stated at the Level IV hearing that she was seeking as relief back pay for
48 days, 3 hours and 40 minutes, restoration of vacation days and holidays, compensation
for her time in attending the Level III and Level IV hearings, compensation for her
preparation time for the grievances at the rate of four hours per grievance, and expensesfor copying and postage. Grievant is no longer an employee of HHR, having resigned on
October 15, 1999, prior to completion of the 30 day suspension, nonetheless, she believes
she is entitled to back pay for the entire 30 day period.
The fourth grievance was filed on August 2, 1999. Grievant's supervisor responded
at Level I on August 9, 1999, that the grievance was untimely, and that she had no
authority to grant the relief sought. Grievant appealed to Level II, and a decision denying
the grievance as untimely, as well as on its merits, was issued on August 17, 1999. The
grievance was dismissed as untimely filed at Level III, and was advanced by Grievant to
Level IV on October 30, 1999. It reads as follows:
§ 9-6-11 Reporting procedures . . . . shall be followed by a written report
within forty-eight hours.
§ 9-6-14 Failure to report; penalty. Any person subject to the mandatory
reporting provisions of this article who knowingly fails to make any report
required herein . . . . is guilty of a misdemeanor and upon conviction thereof
shall be fined not more than one hundred dollars or imprisioned [sic] in the
county jail . . ..
Relief Sought: Reporter . . . (mandatory reporter) failed to provide APS
investigator with written report required on 5-7-99 therefore appropriate legal
action by the Department is requested by Grievant as reporter was informed,
i.e. to enforce § 9-6-14. Failure to report, penalty. Licensure Board for
nurses to be notified as well. Employer, Strategic Home Health be informed.
HHR asked that this fourth grievance be dismissed as untimely filed, and also
because Grievant had no standing to pursue this grievance as she was not harmed, and
the relief sought was not available from the Grievance Board. Grievant stated at Level IV
that she agreed the Grievance Board cannot require HHR to take the action requested.
The following Findings of Fact are made based upon the record developed at
Levels III and IV.
Findings of Fact
1. Grievant was employed by HHR as a Protective Service Worker. She had
been an employee since June 29,1998. 2. Susie Layne supervised Grievant. Ms. Layne was on sick leave from May
3 through 23, 1999. Gina Watson acted as the unit supervisor in her absence. When Ms.
Layne returned to work on May 24, 1999, she met with Ms. Watson so she could bring her
up to date on what had occurred in her absence. Ms. Watson reported that the employees
in the unit were complaining about Grievant's attitude.
3. Grievant attended GroupWise training on the morning of May 25, 1999. The
instructors were employees of another state agency, IS&C. Grievant was rude and
disruptive during the training, and at one point loudly stated the training was not worth a
damn and she was not learning a thing, got up, and left the training session. Michele
Brannon, a Protective Service Worker Trainee, called Ms. Layne and reported this to her.
4. When Grievant returned from training around lunchtime, Ms. Layne called
her into her office. Ms. Layne administered a verbal reprimand to Grievant for being rude
to a mandatory reporter
(See footnote 1)
, being rude and hostile toward her co-workers, and cursing at the
instructor during the training that morning. Ms. Layne then asked Grievant why she had
refused to take the after hours beeper, and told her refusal to take it was insubordination.
Grievant responded that she could not help it if Ms. Layne could not keep her damn
schedule straight. When Ms. Layne told Grievant she was being unprofessional, Grievant
responded stating that she did not give a fuck what Ms. Layne thought. Ms. Layne stood
up, as did Grievant. Ms. Layne told Grievant to get out of her office before she lost her
temper, and Grievant responded, you don't think I can lose my temper. Ms. Layne again
told her to get out of her office. Ms. Layne did not tell Grievant to get out of the building,
nor did she give her permission to take compensatory time for the afternoon.
5. Grievant left Ms. Layne's office, gathered her personal belongings as though
she were not going to return, signed herself out of the office on compensatory time, andleft. Supervisory approval is necessary before an employee can take compensatory time
off. Grievant did not ask permission to take compensatory time.
6. By letter dated May 26, 1999, Grievant asked Troy Posey, Community
Service Manager, in writing, for leave with pay until an official investigation had been
conducted into Ms. Layne's conduct on May 25, 1999, and the situation resolved. Mr.
Posey received this letter on May 27. The letter related Grievant's account of the meeting
on May 25, and accused Ms. Layne of creating a hostile work environment. It further
accused Ms. Layne of showing bias toward agencies, other facilities, and workers, of trying
to dig up dirt on employees, of relating information to workers about her personal life
which Grievant felt was best left at home, asking employees to lie for her,
unprofessionally referring to Grievant as a bad ass, and saying she would leave the toilet
seat up for Grievant. The letter disclosed very personal information about Ms. Layne
which Ms. Layne had asked Grievant not to disclose to anyone. The letter then related an
incident where Grievant fed a quarter into a parking meter and Ms. Layne asked her to
falsify travel documents to get reimbursement by letting the employee who was driving
claim he had paid the quarter, and then letting him reimburse her, or adding the quarter
to her own mileage on a travel reimbursement request. Grievant asked Ms. Layne to put
in writing that she had told her to report the quarter in this way, and suggested that she
find out what the proper procedure was.
(See footnote 2)
Grievant sent a copy of this letter to Jane
McCallister, Coordinator at HHR, Ms. Layne, Governor Cecil Underwood, the Attorney
General, Congressman Bob Wise, Senator Jay Rockerfellow, Senator Robert C. Byrd,and Carolyn Phillips, Temporary Staff Assistant, whom Grievant mentioned in the letter.
Mr. Posey did not respond to the request for leave.
7. On May 28, 1999, Grievant was notified by letter that she had been placed
on unauthorized leave status from 12:50 p.m. to 4:30 p.m. on May 25, 1999; a period of
3 hours and 40 minutes; and that this amount of time would be deducted from her pay,
because she had signed herself out as being on compensatory time without permission.
8. Grievant called the office, said she was sick, and requested sick leave on
May 26, 27, and 28, 1999. May 31, 1999, was a state holiday. Grievant did not report to
work on June 1, 2, 3, and 4, 1999, and did not call in to request sick leave for that period.
Grievant called Mr. Posey on June 4, 1999, to schedule a meeting with him on June 7,
1999, but she did not tell him she was ill that day. Grievant took annual leave, which had
been approved earlier, from June 7 through 11, 1999. Grievant did not submit a doctor's
excuse within two days of her return to work. She was aware that a doctor's excuse must
be provided within two days of returning to work when an employee has taken more than
three consecutive days of sick leave.
9. On May 28, 1999, Donna, Mr. Posey's secretary, called Grievant at home to
see if she could meet her somewhere to get the beeper she had taken home with her on
May 25, 1999, or if Grievant could bring it in. Grievant brought the beeper to the office on
May 28, which took her one hour.
10. On June 3, 1999, Grievant attended a court proceeding for an hour and a
half as a subpoenaed witness. She did not call the office to tell anyone that she would be
attending the proceeding.
11. Grievant met with Mr. Posey on June 7, 1999, upon her return to work. He
did not ask her for a doctor's excuse, and he told her May 26 through June 4 would be
counted as sick leave unless something changed. She did not ask Mr. Posey if she
needed to provide a doctor's excuse. 12. Grievant's pay was docked for May 26, 27, 28, and 31 (a holiday)
(See footnote 3)
, and June
1, 2, 3, and 4,1999, as unauthorized leave, because of her failure to provide a doctor's
excuse upon her return to work; except she was paid for one hour on May 28 for returning
the beeper, and the time she spent in court and traveling to the court, on June 2, 1999.
13. Grievant provided a physician's statement to HHR after a Level II grievance
conference on July 8,1999. The statement is dated July 8, 1999, and states Grievant was
under Dr. Aala Adi's care from May 26 through June 4, 1999, and could return to work on
June 7, 1999. The nature of the illness is not provided in the section of the form for this
information.
14. Grievant saw Dr. Adi only on June 1, 1999. He informed her on that date that
she would have to find another primary care physician, and referred her elsewhere. He
did not provide any treatment to her.
15. By letter dated July 1, 1999, Grievant was suspended for 10 days without
pay, from July 12 through 25, 1999, for insubordination, unprofessional conduct, and
failure to observe the established procedure for reporting absences. Specifically, the letter
states the charges involved her insubordinate behavior toward her supervisor in the May
25, 1999 meeting with Ms. Layne, leaving the office on May 25, 1999, without supervisory
approval, failing to report off work on June 1, 2, 3, and 4, 1999, and her behavior at the
GroupWise training on May 25, 1999.
(See footnote 4)
16. Grievant was suspended for 30 days for insubordination, unprofessional
conduct, and failure to observe established policies and procedures, by letter dated
September 2, 1999. The suspension began on September 13, 1999, and she was to
report back to work on October 26, 1999. Respondent presented no evidence in support
of the 30 day suspension.
17. Grievant resigned her employment with HHR effective October 15, 1999,
after serving 24 days of the 30 day suspension.
18. On May 5, 1999, a mandatory reporter made a report to HHR of suspected
abuse. Grievant was aware on May 7, 1999, that this mandatory reporter had not
submitted a written report to HHR, as she told this person to do so. When the mandatory
reporter told Grievant she was not aware she had to file a written report, Grievant
responded, well, now you know, and gave her the fax number.
19. Sometime near the end of July, Grievant attended training where she learned
that it was a misdemeanor for a mandatory reporter not to provide a written report of abuse
or neglect within 48 hours of an oral report. She then filed grievance number four on
August 2, 1999, demanding that HHR take action against the mandatory reporter who had
not submitted a written report of abuse or neglect in May 1999. HHR raised a timeliness
defense to this grievance at Level I of the grievance procedure.
Discussion
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, DocketNo. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the
employer has not met its burden.
Id.
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.).
"'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).
This Grievance Board has previously noted that insubordination 'encompasses
more than an explicit order and subsequent refusal to carry it out.'
Sexton v. MarshallUniv., Docket No. BOR2-88-029-4 (May 25, 1988),
citing Weber v. Buncombe County Bd.
of Educ., 266 S.E.2d 42 (N.C. 1980). Thus, this Board has found that uttering abusive
language to a supervisor may constitute insubordination.
Payne v. W. Va. Dep't of
Transp., Docket No. 93-DOH-454 (Apr. 29, 1994).
See Burton Mfg. Co. v. Boilermakers
Local 590, 82 Lab. Arb. (BNA) 1228 (1994) (Holley, Arb.).
Casto v. W. Va. Dep't of Educ.,
Docket No. 00-DOE-143 (Aug. 29, 2000).
Each of the grievances will be addressed separately.
Grievance Number One - the 10 Day Suspension and the Leave Time Issue.
Grievant was suspended for 10 days without pay for insubordination, unprofessional
conduct, and failure to observe the established procedure for reporting absences. The
suspension period was from July 12, 1999, through July 25, 1999. The suspension letter
dated July 1, 1999, states that Grievant's supervisor, Susan Layne, met with Grievant on
May 25, 1999, to administer a verbal reprimand. While Ms. Layne was discussing
Grievant's insubordination, Grievant became angry, stood up, and stated that she worked
but other staff did not. The letter continues:
Ms. Layne then told you that you were being insubordinate and she reported
you replied, I don't give a fuck what you think. Ms. Layne then asked you
to leave her office.
2. At approximately 12:50 P.M. on that same date, Ms. Layne observed that
you had left the premises without notice to her and without her approval,
having signed out that you were utilizing accrued compensatory time.
3. Further, after leaving the office on May 25 without notice to or approval
from your supervisor, you failed to return to work and remained absent
through June 7, 1999. On May 26, 1999, you called in and left a message
on your supervisor's voice mail and told her you were absent due to illness
that day and would be absent due to illness on the next day, May 27, as well.
On May 27, 1999, you again called and left a voice mail message of your
illness that day. On May 28, you again called in to report your absence due
to illness, however, since your supervisor was absent, you left a voice mail
message on her phone according to a procedure she had established for
absence reporting when she was not in the office.
Although you continued to be absent through June 7, 1999, you failed to
report your continuing absence to your supervisor according to the
established procedure for absence reporting. Such failure to report yourcontinuing absence and request and receive approval for appropriate
accrued leave, constitutes insubordination and demonstrates an
unwillingness, rather than an inability to adhere to what I believe are
reasonable expectations. According to Section 15.6 of the Division of
Personnel's Administrative Rule, your pay will be docked for this period of
unauthorized absence commencing with the holiday on May 31, 1999,
through June 4, 1999. Even though you may have accrued compensatory
time, the use of such, as any other paid leave, requires advance supervisory
approval, WV Division of Personnel Administrative Rule, Section 15.6. Your
pay will be docked for a total of sixty-four (64) hours in the pay period
commencing with July 16, 1999. These 64 hours will be paid at the
May/June rate in the amount of $561.12.
(See footnote 5)
4. May 26, 1999 - On this date, Mr. Dan Phillips, Technical Training
Coordinator, informed Mr. Posey that he had received an E-Mail from Mary
Clay, Technical Training, IS&C, Department of Administration, regarding
concerns about your behavior during software training at the Training Lab
in Kanawha City on May 2[5], 1999, prompting Mr. Phillips to telephone Ms.
Clay to get the details about her concerns. According to Ms. Clay, among
other disruptive behaviors you had publicly expressed during the training
session, I'm not learning a damn thing after which you exited the room to
smoke, without gaining the instructor's permission.
Because of your reported disruptive and unprofessional behavior during this
training session, Mr. Phillips has eliminated you from participation in any
future non-programmatic training. Additionally, Mr. Phillips apologized for
your behavior to Ms. Clay and Marilyn Padon, Trainer, of IS&C on behalf of
the Department.
The wilful and intentional acts you have demonstrated, particularly your use
of profane and abusive language during a meeting with your immediate
supervisor and during training provided by IS&C will not be tolerated or
condoned. The State and its agencies have reason to expect employees to
observe a standard of conduct which will not reflect discredit on the
employee's ability or integrity or create suspicion with reference to the
employee's capability in discharging duties and responsibilities. I believe
the nature of your misconduct is sufficient to cause me to conclude that you
did not meet a reasonable standard of conduct as an employee of the
Department of Health and Human Resources, thus warranting your
suspension for ten working days.
. . .
Although your pay will be docked for the previously discussed unauthorized
absences, you will, however, be paid for the following specific periods during
this unauthorized leave:
.5 hours for beeper duty on Tuesday, May 25, 1999 (when you
left the office without authorization, you took the office beeper
with you). You received one hot line call which you indicated
amounted to thirty (30) minutes;
1.0 hour for returning the beeper on Friday, May 28, 1999;
1.5 hours on Thursday, June 3, 1999 - court appearance as a
result of receiving a subpoena.
1 hour and 10 minutes for your travel time for court
appearance on June 3, 1999.
Ms. Layne testified she returned to work on May 24, 1999, after having been off
work since May 3. Gina Watson, who had acted as supervisor in her absence, briefed her
on events upon her return. One of the items about which she was briefed was Grievant's
behavior during her absence in being rude to her co-workers, and her attitude. Ms.
Watson had previously called Ms. Layne at home on May 18, to tell her that an employee
of an outside agency had asked that she call her about Grievant. On May 25, 1999, Ms.
Layne received a telephone call from Michelle Brannon, a Protective Service Worker
Trainee, telling her that during training that morning, Grievant had cursed at the instructor,
and that Grievant and Kevin Loy, a co-worker, had exchanged words.
As soon as Grievant returned to the office from training Ms. Layne called her into
her office. Ms. Layne testified she asked Grievant what was going on, and then proceeded
to tell her she had received reports that she was rude to an employee of an outside
agency, and told her what the person had said, and handed her the file. Ms. Layne then
told Grievant her co-workers had complained that she had been rude and hostile towards
them in Ms. Layne's absence, and that she had received a report that Grievant had cursed
at the instructor that morning in training. She stated she instructed Grievant to call the
employee of the outside agency and the instructor and apologize to both of them. She
also told Grievant she should consider this to be a verbal reprimand. Ms. Layne then asked Grievant why she would not take the after hours beeper. She
stated Grievant responded that she had traded with Gina Watson a few weeks earlier.
When Ms. Layne told Grievant she was to take the beeper anyway and her refusal to do
so was insubordination, Grievant responded that she could not help it if Ms. Layne could
not keep her damn schedule straight. Ms. Layne stated she told Grievant she was being
unprofessional, to which Grievant responded, she did not give a, what I thought.
(See footnote 6)
Ms.
Layne stated she stood up at that point because Grievant was cursing at her, and Grievant
also stood. She testified Grievant leaned across the desk towards her and Ms. Layne then
pointed to the door and told Grievant to leave her office before she lost her temper. Ms.
Layne testified Grievant responded, you don't think I can lose my temper, and Ms. Layne
told her to leave her office now. She stated Grievant leaned toward her, flipped a post-it
note toward her own nose, said, gladly, and left. Ms. Layne stated she felt threatened
by Grievant.
Grievant stated Ms. Layne called her into her office when Grievant returned from
training, put her on beeper duty, accused her of many things that were untrue, threatened
her, and screamed at her. Grievant testified Ms. Layne had asked her why she had not
opened a case for Adult Protective Services involving a report of suspected abuse or
neglect of an elderly woman. She told Ms. Layne she would need to review the case. She
stated Ms. Layne said she had it and slapped the file down on the desk. Grievant stated
she stood up and said, do you mind if I see that, and picked up the file and read it.
Grievant testified that Ms. Layne told her the mandatory reporter in this case was a good
friend of hers, and she could not believe Grievant would be rude to that person.
(See footnote 7)
Grievantdid not believe she was rude to this person. She explained that she had told this person
she needed to send in a copy of her written report within 48 hours, and when she said she
didn't know that, Grievant said, well now you know, and gave her the fax number.
(See footnote 8)
Grievant's May 26, 1999 letter to Mr. Posey states that Ms. Layne, all red in the
face, glaring at me as if ready to strike, and in a threatening loud tone, stated,
'[a]pparently, you haven't seen my temper yet,' and acknowledges that Grievant
responded to her supervisor, no, apparently you haven't seen mine either and I am not
afraid of you. This letter states that prior to this exchange, Grievant had politely
reminded Ms. Layne that she had switched beeper duty with Ms. Watson, and they were
understaffed, she told Ms. Layne she must be having schedule conflicts, that she did not
see the need to apologize to anyone, but would do so after reviewing the case, asked for
the phone number of the trainer, and then asked if she needed to know about or do
[anything] since there has been conflict with schedules. The letter states Ms. Layne
responded to this by practically jumping out of her chair in a 'provoking manner' with
her fists clinched at her side. Given this description of Ms. Layne's reaction, it is difficult
to believe that Grievant had been polite to this point. The letter then states Ms. Layne told
Grievant she wanted her to do two things: call the mandatory reporter and call the trainer
and apologize. Grievant responded to this by telling her supervisor she would do so after
she reviewed the case.
Grievant's testimony was that Ms. Layne, told her on May 25, 1999, I want you out
of the Department. However, in Level III Grievant's Exhibit 3, entitled Response to LevelII Decision by Ginger Moore, Grievant, Grievant wrote that Ms. Layne had screamed at
her, leave here now and get out. Grievant stated she believed she was to leave the
building. Grievant wrote in her May 26, 1999 letter to Mr. Posey that Ms. Layne told her
to leave here now and get out, and then told her to [g]et out of my office! That letter
also states that Grievant responded to this stating, gladly.
As Grievant's testimony differs from Ms. Layne's on what occurred in Ms. Layne's
office on May 25, 1999, it is necessary to make a credibility determination. In assessing
the credibility of witnesses, some factors to be considered are the witness's: 1) demeanor;
2) opportunity or capacity to perceive and communicate; 3) reputation for honesty; (4)
attitude toward the action; and 5) admission of untruthfulness. Harold J. Asher and
William C. Jackson. Representing the Agency before the United States Merit Systems
Protection Board 152-153 (1984). Additionally, the Administrative Law Judge should
consider: 1) the presence or absence of bias, interest, or motive; 2) the consistency of
prior statements; (3) the existence or nonexistence of any fact testified to by the witness;
and 4) the plausibility of the witness's information.
Id;
Rosenau v. Tucker County Bd. of
Educ., Docket No. 99-47-192 (Nov. 1, 1999);
Jarvis v. W. Va. Dep't of Health and Human
Serv., Docket No. 97-HHR-318 (July 22, 1999);
Burchell v. Bd. of Trustees, Marshall Univ.,
Docket No. 97-BOT-011 (Aug. 29, 1997).
In evaluating the credibility of Grievant and Ms. Layne, it is useful to consider
Grievant's behavior in the GroupWise training on the morning of May 25, 1999,
immediately prior to Grievant reporting to Ms. Layne's office. Several employees testified
Grievant was unnecessarily rude to the instructor during the training, and had stated she
was not learning a damn thing and abruptly left the training. Michelle Brannon testified
Grievant told the instructor she could not follow her, that she did not think the instructor's
teaching methods were good, and she was not learning anything. She stated Grievant
then left the room. When Grievant returned to the training, the instructor assigned anotherinstructor to sit in the back with Grievant to assist her. Ms. Brannon testified she continued
to hear Grievant make statements that she was not following the instruction, she did not
understand, and criticizing the instructor. She testified that the rest of the group was
having problems also, and questions were being asked, but Grievant's tone was a little
harsh. She stated the instructor was trying to be as accommodating as possible. Ms.
Brannon was embarrassed by Grievant's behavior, and, in fact, apologized to the instructor
for Grievant's behavior.
Jack Robertson, Protective Service Worker, testified Grievant told the instructor she
was going too fast, and asked how she was ever going to get it if the instructor kept
jumping from one subject to another. He felt the instructor was going slowly, and seemed
to be doing a good job. He testified employees other than Grievant were asking the
instructor questions, and asking her to go over things again. However, he felt Grievant
was almost attacking the instructor, being overly critical of her, unfair to her, rude and
disrespectful. He found Grievant's behavior unprofessional and was embarrassed that
someone from his unit would act in this manner.
Grievant admitted she had stated during the training that the training was not worth
a damn, and she was not learning anything. Grievant's written statements, submitted as
Level III exhibits indicate that the computer she was using in the training session either
was not working properly, or did not have the correct program file loaded so Grievant could
follow along. Apparently, Grievant believed the frustration she experienced because of
this should excuse her inappropriate behavior.
Other testimony was offered regarding Grievant's behavior during May of 1999,
which, while not relevant to the suspension, demonstrates a pattern of inappropriate
behavior by Grievant. Ms. Layne's testimony relating the events of her meeting with
Grievant seems more plausible than Grievant's, given Grievant's behavior at the training
immediately before she met with her supervisor, and Grievant's own account of Ms.Layne's reaction to what Grievant described as her polite manner. However, even
Grievant's account of what transpired in her May 25 meeting with Ms. Layne reveals
insubordinate behavior. The undersigned finds Ms. Layne's version of what occurred at
the May 25 meeting to be more credible than Grievant's.
The undersigned further concludes that Grievant's supervisor did not tell her to
leave the building, and Grievant left without permission. Grievant's correspondence
immediately after this event quotes what she was told, and it does not show that Grievant
was directed to leave the building, as she later stated in her testimony. It is clear that Ms.
Layne told Grievant to get out of Ms. Layne's office. She did not tell her to leave the
building. If Grievant truly believed her supervisor was telling her to get out of the building,
when did she think she would be allowed to return? She left because she was angry.
Grievant suggested that Ms. Layne's testimony was not credible, pointing to her
testimony about the May beeper schedule placed into evidence as Respondent's Level III
Exhibit 11. She compared this to her own Level III Exhibit 24. Although the two
documents are clearly different, after comparing the two, and examining the scanty
testimony offered regarding the two exhibits, the undersigned is unable to draw any
conclusions from the documents.
Respondent has proven that Grievant's behavior in the GroupWise training was
unprofessional and rude; Grievant's behavior toward her supervisor during the meeting on
May 25, 1999, was extremely inappropriate, and constitutes insubordination, even if
Grievant's version of the meeting is accepted; and Grievant left the building on May 25,
1999, using compensatory time without supervisory approval, which was also
insubordination.
As to the time Grievant was charged with unauthorized leave, the parties agree that
Grievant reported off work as being sick on May 26, 27, and 28, 1999. The parties also
agree that Grievant did not call the office on June 2, 3, or 4, 1999, to report that she wouldnot be coming to work. Grievant testified she called the office on June 1, 1999, and left
a voice mail that she was sick that day. She later testified, however, that she could not be
certain she had done so, and Ms. Layne testified Grievant had not called in on June 1.
The undersigned concludes that Grievant did not call in on June 1, 1999.
Grievant's Level III Exhibit 31, entitled Adult Services Organizational Guidelines,
states that an employee who is going to be absent from work must have the prior approval
of the supervisor. This means that you are to contact the Supervisor no later than 8:45
a.m., or you will be considered on 'unapproved leave'. It provides that it is acceptable to
leave a message on the supervisor's voice mail. Grievant was aware of this requirement
and chose not to comply with it when she failed to call her supervisor to report that she
would not be at work on June 1, 2, 3, and 4, 1999, and was insubordinate in failing to
follow her supervisor's directive to report to her that she would not be at work.
As to Grievant's claim that May 26 through June 4, 1999, should not have been
charged as unauthorized leave, the Division of Personnel's Administrative Rule 15.6,
Unauthorized Leave, provides:
When an employee is absent from work without authorization for sick or
annual leave, the appointing authority shall dock the employee's pay in the
next pay period for an equal amount of time paid during which no work was
performed.
As Grievant did not call to report off work on June 1, 2, 3, or 4, 1999, she did not have
authorization to be absent from work, and her pay had to be docked for these days
pursuant to this rule. Grievant stated she was not aware she needed to call in on June 2,
3, and 4, because she had asked for leave with pay in her letter to Mr. Posey of May 27,
until he had investigated her allegations. Grievant did not indicate Mr. Posey, or anyone
else, had approved her request for leave with pay. Her statement that she did not know
she had to call in on June 2, 3, and 4, because she had asked for leave with pay in the
May 27th letter is not logical. If she truly believed she did not have to call in once she had
requested leave, why did she call in on May 28? Further, she was never told that herrequest for leave had been approved. The prudent employee would have checked with
Mr. Posey to see whether her leave had been approved.
When Grievant returned to work, she did not submit a doctor's excuse for the seven
days she failed to report to work. The Division of Personnel's Administrative Rule 15.1(g)
provides:
2. Within two days of return to work, an employee shall furnish a
prescribed physician's statement form from the attending
physician/practitioner for all consecutive days of sick leave granted beyond
three working days. The physician's statement form shall specify the period
of incapacity and state that the employee was unable to perform his or her
job or that the employee's absence was due to reasons provided in
Paragraph 15.4.(f)6. of this rule for a member of the employee's immediate
family.
3. In the absence of a prescribed physician's statement form, the
entire absence shall be charged to unauthorized leave as provided in
Subsection 15.6. of these Rules, and the employee's pay shall be docked
the following pay period of absence. The appointing authority shall notify the
employee in writing that his or her pay is being docked.
Grievant argued she was never off work for three consecutive days, because she
brought the beeper in on May 28, and was paid for one hour that day, and she attended
a court proceeding on June 3, and was paid for two hours and forty minutes that day.
No one ever asked Grievant to submit a doctor's excuse. As soon as she was told
she was being charged with unauthorized leave, Grievant got a doctor to write an excuse
for her. It is clear, however, that the doctor's excuse is a complete fabrication, and
Grievant knew this to be the case. While it states Grievant was under Dr. Adi's care from
May 26 through June 4, 1999, and was released to return to work on June 7, 1999,
Grievant testified that Dr. Adi saw her only on June 1, 1999, provided no treatment to her,
and referred her elsewhere. Further, Grievant stated in Grievant's Level III Exhibit 10, a
letter to Thomas Gunnoe, Regional Director, that her Primary Care Physician refused to
treat her on June 1. Grievant's willingness to submit a doctor's excuse to her employer
and into evidence which she knew to be false, does not bolster her credibility. Grievant
also stated in the letter that she went to the Health Department on June 3, 1999, and wastold her blood sugar was high, and to watch it. Grievant testified that she was sick during
this period.
The Division of Personnel's Administrative Rule 15.4(f) states that sick leave shall
be granted for illness or injury which incapacitates the employee from performing her
duties. The undersigned concludes that Grievant was not so sick that she could not report
to work for seven days. She had no problem bringing the beeper in on May 28, and she
had no problem attending a court proceeding on June 3. While Grievant stated she was
under subpoena to appear at the court proceeding, if she were so sick she could not report
to work, how could she attend a court proceeding? She did not call HHR's attorney to ask
to be excused from the subpoena. In her May 27, 1999 letter to Mr. Posey, Grievant asked
for leave with pay pending an investigation into Ms. Layne's conduct. When she received
no response to this request, she just decided she would not report to work. HHR acted
appropriately in charging Grievant with unauthorized leave for the period from May 26
through June 4, 1999.
Grievant concluded that the reason she was suspended for 10 days, given a written
reprimand, and then suspended for 30 days, was because she had found a report made
by a good friend of Ms. Layne's was not substantiated; that is, she found no abuse or
neglect. The mandatory reporter Grievant asserts is a good friend of Ms. Layne's, had
called in a report of abuse or neglect on or about May 5, 1999. Ms. Watson assigned
Grievant to investigate the report. The mandatory reporter did not submit a written report,
and was not told by the person taking the call that she needed to do so. According to
Grievant, Ms. Watson told her that the mandatory reporter was a good friend of Ms.
Layne's. Although Ms. Watson was called to testify at Level III, neither party asked her
whether she had told Grievant this. On May 6, 1999, Grievant investigated the claim and
found no abuse or neglect. On May 7, 1999, Grievant contacted the mandatory reporter
to tell her she had not found any abuse or neglect. According to Grievant, the mandatoryreporter was not happy with Grievant's conclusions, and told her she was a good friend
of Ms. Layne's. Grievant at that time told the mandatory reporter that she was required to
submit a written report to HHR within 48 hours of her oral report. The mandatory reporter
told her she was not aware of this. Grievant stated she gave the mandatory reporter the
fax number for the office, and stated, well, now you know. It is this latter statement which
Ms. Layne referred to in telling Grievant she had been rude to a mandatory reporter.
On May 18, 1999, the mandatory reporter called the office to complain about
Grievant. Ms. Watson called Ms. Layne at her home to report this, and Ms. Layne
attempted to contact the mandatory reporter, without success, but left a telephone number
so the mandatory reporter could call her. The mandatory reporter spoke to Ms. Layne at
home, complaining that Grievant was rude to her.
Although Ms. Layne testified repeatedly that the mandatory reporter was only a
professional acquaintance of hers, and that this is what she had told Grievant, Grievant
insisted that the mandatory reporter was in fact a good friend of Ms. Layne's, because Ms.
Watson, Ms. Layne, and the mandatory reporter had all told her this. More than one
witness, including Ms. Layne testified repeatedly that Grievant had done a fine job with
her investigation of this case, and Grievant herself testified at the Level III hearing on
October 6, 1999, at page 44, that Ms. Layne trusted me about my case work, she
chastised me for being rude to her friend. Ms. Layne had approved Grievant's findings
on this case.
The undersigned finds no evidence to support a finding that Ms. Layne and the
mandatory reporter were good friends, regardless of what Grievant believes she was told.
If Ms. Watson told Grievant the mandatory reporter was good friends with Ms. Layne, she
was wrong. The mandatory reporter did not testify in this proceeding. However, even if
Ms. Layne were good friends with the mandatory reporter, there is no evidence that Ms.
Layne caused Grievant to be suspended for 10 days, receive a written reprimand, and besuspended for another 30 days simply because Grievant found the report to be
unsubstantiated. Grievant was suspended for insubordination, and the evidence supports
that the charges of insubordination were well founded.
Grievance Number Two - the Written Reprimand.
Grievant was given a written reprimand on July 15, 1999, for contacting a family in
July about a case which was closed on May 7, 1999, by Grievant. This is the same case
reported by the mandatory reporter alleged to be Ms. Layne's good friend. As Grievant
is no longer an employee of HHR, this grievance is moot and will not be addressed.
However, it will be noted that Grievant admitted in Level III Grievant's Exhibit 7 that she
had telephoned a member of the client's family on July 9, 1999.
Grievance Number Three - the 30 Day Suspension.
Grievant was suspended for 30 days without pay for insubordination, unprofessional
conduct, and failure to observe established policies and procedures. While the September
2, 1999 suspension letter lists the specific events alleged to have occurred which
constituted the misconduct, as HHR chose not to present any evidence in support of the
charges, it is not necessary to provide the details of the suspension. Accordingly, HHR
has not met its burden of proof on this grievance.
Grievant argued she was entitled to back pay for the entire 30 day period, even
though she voluntarily resigned her employment effective October 15, 1999. Grievant did
not argue she was forced to resign. Grievant has provided no legal theory under which
she would be entitled to back pay for a period during which she was not an employee. The
State of West Virginia cannot pay someone a salary who is not an employee.
Grievance Number Four - the Mandatory Reporter.
As noted previously HHR asserted the fourth grievance should be dismissed as
untimely filed. The burden of proof is on the respondent asserting that a grievance was
not timely filed to prove this affirmative defense by a preponderance of the evidence.
Haleand Brown v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996). If the
respondent meets this burden, the grievant may then attempt to demonstrate that she
should be excused from filing within the statutory timelines.
Kessler v. W. Va. Dep't of
Transp., Docket No. 96-DOH-445 (July 29, 1997). HHR timely raised the timeliness
defense at Level I.
W. Va. Code § 29-6A-3.
As to when a grievance must be filed,
W. Va. Code § 29-6A-3(a) provides, in
pertinent part:
A grievance must be filed within the times specified in section four of this
article . . . Provided, That the specified time limits shall be extended
whenever a grievant is not working because of accident, sickness, death in
the immediate family or other cause necessitating the grievant to take
personal leave from his or her employment.
A grievance must be filed within 10 days following the occurrence of the event upon which
the grievance is based.
W. Va. Code § 29-6A-4(a) provides, in pertinent part:
Within ten days following the occurrence of the event upon which the
grievance is based, or within ten days of the date on which the event
became known to the grievant, or within ten days of the most recent
occurrence of a continuing practice giving rise to a grievance, the grievant
or the designated representative, or both, may file a written grievance with
the immediate supervisor of the grievant. . . ..
Only working days are counted in determining when the 10 day time period runs for filing
a grievance. Holidays are not counted.
W. Va. Code § 29-6A-2(c).
The time period for filing a grievance ordinarily begins to run when the employee
is unequivocally notified of the decision being challenged.
Harvey,
supra;
Kessler,
supra.
See Rose v. Raleigh County Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566 (1997);
Naylor
v. W. Va. Human Rights Comm'n, 180 W. Va. 634, 378 S.E.2d 843 (1989). Grievant knew
on May 7, 1999, that a mandatory reporter had not put her report in writing, as Grievant
told her she was required to do so. Her grievance involving the failure of this mandatory
reporter to put this report in writing was filed on August 2, 1999, clearly more than 10 days
after the event. Grievant argued she filed her grievance as soon as she became aware that the
failure of a mandatory reporter to put the report in writing was a misdemeanor, and she
learned this at a training session in late July 1999.
Spahr v. Preston County Board of Education, 182 W. Va. 726, 391 S.E.2d 739
(1990), discussed the discovery rule of
W. Va. Code § 18-29-4. Syllabus Point 1 states,
"the time in which to invoke the grievance procedure does not begin to run until the
grievant knows of the facts giving rise to the grievance." The same discovery rule found
in the education grievance procedure is also found in the grievance procedure for state
employees at
Code § 29-6A-4. In this case, Grievant was aware of the facts giving rise
to the grievance on May 7, 1999. What she learned in July of 1999 was that a statute
existed which made the failure to submit a written report a misdemeanor. "'[A]s a general
rule, ignorance of the law . . . will not suffice to keep to keep a claim alive.'
Reeves v.
Wood County Bd. of Educ., Docket No. 91-54-337 (Dec. 30, 1991). '[T]he date a Grievant
finds out an event or continuing practice was
illegal is not the date for determining whether
his grievance is timely filed. Instead, if he knows of the event or practice, he must file
within fifteen days of the event or occurrence of the practice.'
Harris v. Lincoln County Bd.
of Educ., Docket No. 89-22-49 (Mar. 23, 1989)(emphasis in original).
Buck v. Wood
County Bd. of Educ., Docket No. 96-54-325 (Feb. 28, 1997). This grievance is dismissed
as untimely filed. In addition, whether an employer should report someone who is not even
one of its employees to the proper authorities is simply not grievable.
W. Va. Code § 29-
6A-2(i).
Other Relief Sought.
Grievant sought compensation for attending the Level III and Level IV hearings.
She will receive back pay for the days she attended the Level III hearings, as this was
during the 30 day suspension. She is not entitled to compensation for attending hearings
on days when she was no longer an employee of the state.
W. Va. Code § 29-6A-3(p) provides as follows:
The grievant or the employee selected by a grievant to represent him in the
processing of a grievance through this procedure, or both, shall be granted
necessary time off during working hours for the grievance procedure without
loss of pay and without charge to annual or compensatory leave credits. In
addition to actual time spent in grievance conferences and hearings, the
grievant or the employee representative, or both, shall be granted time off
during working hours, not to exceed four hours per grievance, for the
preparation of such grievance without loss of pay and without charge to
annual or compensatory leave credits. However, it shall be understood by
all parties that the first responsibility of any state employee is the work
assigned by the appointing authority to the employee. Grievance
preparation and representation activities by an employee shall not seriously
affect the overall productivity of the employee.
The purpose of this statute is to provide employees with time during working hours to
prepare for and attend grievance conferences and hearings. At times, grievance hearings
continue past regular working hours. This statute does not authorize additional
compensation to employees for the time they spend in grievance hearings beyond the
regular work day; nor does it authorize non-employees to be so compensated.
Grievant sought reimbursement of expenses for copying and postage.
W. Va. Code
§ 29-6A-3(l), provides with regard to copying documents for the hearing, [t]he grievant
shall have access to the employer's equipment for purposes of preparing grievance
documents subject to the reasonable rules of the employer governing the use of such
equipment. The statute does not address postage in any way. Grievant did not
demonstrate that she was denied access to her employer's equipment while she was still
an employee. She was still an employee at the time of the Level III hearings. She
presented no exhibits at Level IV, and did not demonstrate she incurred any copying costs.
Even had she demonstrated she incurred such costs, this statute does not authorize
reimbursement of any sort for these expenses at Level IV.
W. Va. Code §29-6A-7, however, states:
Both employer and employee shall at all times act in good faith and make
every possible effort to resolve disputes at the lowest level of the grievance
procedure. The hearing examiner may make a determination of bad faith
and in extreme instances allocate the cost of the hearing to the party found
to be acting in bad faith. Such allocation of costs shall be based on the
relative ability of the party to pay such costs.
The parties presented no evidence regarding their efforts to resolve this dispute which
demonstrate HHR acted in bad faith. Accordingly, costs cannot be awarded under this
statutory provision either.
The following Conclusions of Law support the Decision reached.
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.
Ramey v. W. Va. Dep't
of Health, Docket No. H-88-005 (Dec. 6, 1988).
2. 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). 3. "'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).
4. This Grievance Board has previously noted that insubordination
'encompasses more than an explicit order and subsequent refusal to carry it out.'
Sexton
v. Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988),
citing Weber v. Buncombe
County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980). Thus, this Board has found that uttering
abusive language to a supervisor may constitute insubordination.
Payne v. W. Va. Dep't
of Transp., Docket No. 93-DOH-454 (Apr. 29, 1994).
See Burton Mfg. Co. v. Boilermakers
Local 590, 82 Lab. Arb. (BNA) 1228 (1994) (Holley, Arb.).
Casto v. W. Va. Dep't of Educ.,
Docket No. 00-DOE-143 (Aug. 29, 2000).
5. Grievant was insubordinate toward her supervisor during the meeting with
her on May 25, 1999, she acted in an inappropriate and insubordinate manner during a
training session on May 25, 1999, she was insubordinate in leaving the office withoutapproval on May 25, 1999, and she was insubordinate when she failed to call in to report
off work or to report to work on June 1, 2, 3, and 4, 1999.
6. As Grievant is no longer an employee of HHR, the written reprimand
grievance is moot, as no meaningful relief can be granted.
7. Respondent did not prove the charges for which Grievant was suspended for
30 days.
8. In nondisciplinary matters, the grievant has the burden of proving her
grievance by a preponderance of the evidence.
Tucci v. W. Va. Dep't of Transp./Div. of
Highways, Docket No. 94-DOH-592 (Feb. 28, 1995).
9. Grievant did not demonstrate that it was improper for HHR to charge her with
unauthorized leave on May 25, 26, 27, 28, and June 1, 2, 3, and 4, 1999.
10. A grievance must be filed within 10 days following the occurrence of the
event upon which the grievance is based.
W. Va. Code § 29-6A-4(a). Grievant did not
timely file her grievance relating to the failure of a mandatory reporter to submit a written
report, and did not provide a valid excuse to her failure to timely file the grievance.
Accordingly, the grievance over the 10 day suspension and leave time is DENIED.
The grievance over the written reprimand is DISMISSED AS MOOT.
The grievance over the 30 day suspension is GRANTED, and HHR is ORDERED
to pay Grievant back pay for 24 days, plus interest at the statutory rate.
The grievance over the mandatory reporter is DISMISSED AS UNTIMELY FILED.
Any party or the Division of Personnel may appeal this Decision to the circuit court
of the county in which the grievance arose, or the Circuit Court of Kanawha County. 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 Grievance Board with the civil action number so that the record can be
prepared and transmitted to the circuit court.
____________________________
BRENDA L. GOULD
Administrative Law Judge
Date: November 9, 2000
Footnote: 1