DEANA GOFF STANLEY,
                  Grievant,

v.                                                      Docket No. 00-BOT-153

BOARD OF TRUSTEES/WEST VIRGINIA UNIVERSITY,
                  Respondent.

D E C I S I O N

      Grievant, Deana Goff Stanley, employed by the Board of Trustees as a Food Service Worker at West Virginia University (Respondent), filed a level one grievance on March 30, 2000, in which she stated, “[o]n March 16, 2000, I received a letter of warning from Kathy Curtain illegally charging me with insubordination and resulting in a 5-day unpaid suspension. Violation of WVU Disciplinary Procedure.” For relief, Grievant requested the letter, and all other records relating to the suspension, be removed from her file, back pay and benefits.
      The grievance was denied at levels one and two. Grievant elected to bypass consideration at level three, as is permitted by W. Va. Code §18-29-4(c), and advanced her claim to level four on May 4, 2000. An evidentiary hearing was conducted at the Grievance Board's Morgantown office on June 21, 2000, at which time Grievant was represented by Mary Linn of WVEA, and Respondent was represented by Assistant Attorney General Samuel R. Spatafore. The grievance became mature for decision upon the receipt of the parties proposed findings of fact and conclusions of law on or before July 17, 2000.
      The following findings of fact are derived from the record in its entirety, including the level two transcript and exhibits, as well as the testimony and exhibits offered at level four.
Findings of Fact
      1.       Grievant has been employed by Respondent as a Food Service Assistant I for six years, and was assigned to Stalnaker Residence Hall at all times pertinent to this grievance.
      2.      On August 27, 1999, Grievant was issued a letter of counseling as a result of leaving her assigned work area unclean at the end of her shift. Grievant was advised that if her job performance did not reflect immediate improvement, she would face further disciplinary action.
      3.      In November 1999, Janet Dalton, Food Service Lead Worker and Grievant's supervisor, issued a second letter of counseling referencing an incident on November 19, 1999, when Grievant had to be located 25-30 minutes after leaving for a 15 minute break. Even after Ms. Dalton requested that she return to work, Grievant did not return immediately. Ms. Dalton noted that Grievant sometimes exhibited a lack of respect toward authority, as evidenced by her failure to follow instructions immediately or presenting a poor attitude when she did not like what she was told. Grievant was advised that if the problems were not corrected immediately further disciplinary action would follow.
      4.      On January 24, 2000, Grievant was issued a first letter of warning for insubordination and inappropriate attitude. Specifically, Grievant was cited with raising her voice and arguing with her supervisor on two occasions within two working days.
      5.      A second letter of warning and a five day suspension without pay were imposed on March 16, 2000, following an incident on March 14, when Grievant proceeded to leave work prior to completing her duties, and responded inappropriately to Ms. Dalton when she was told to finish her work.
Discussion
      In disciplinary matters, the employer bears the burden of proving the charges by a preponderance of the evidence. W. Va. Code §18-29-6; Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994); Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989). A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991), Leichliter v. W. Va. Dept. of Health and Human Res., Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
       Respondent notes that since August 27, 1999, Grievant has been issued two letters of counseling, and a letter of warning regarding her insubordination and inappropriate attitude. Thus, Respondent argues that the five day suspension was the next step in progressive discipline when Grievant attempted to leave work prior to completing her duties, and exhibiting disrespect to her supervisor on March 14, 2000. Grievant asserts that the suspension was illegal, and denies that she was insubordinate because she did not refuse to do what was asked of her, but twice attempted to comply with her supervisor's request, and did complete the assignment to the best of her ability. She further notes that one regular employee and several student employees were absent that day, causing difficulty for everyone in completing the work that evening. Under these circumstances, Grievant argues that a five day suspension is an unduly harsh penalty.
      The Classified Employees' Handbook provides that “[t]he employee's immediate supervisor will outline standards of performance and conduct for each employee.” If an employee does not observe these standards, a progressive disciplinary procedure is begunin an attempt to correct the deficiency. First, the employee's “supervisor will counsel him/her to try to resolve the problem. If counseling is not effective, the employee may receive a series of warning letters, then a period of suspension and, finally, if the conduct does not improve, dismissal.”
      Section 10.2.1 of the Handbook provides that “[a] supervisor may recommend suspension without pay for a period varying from one to fifteen days, depending on the gravity of the offense and the employee's previous record. Suspension may be applied in cases of first serious offenses or repeated minor ones when, in the supervisor's judgment, proper conduct can be attained without resorting to dismissal.”
      West Virginia University “Discipline Policy” (WVU-HR-9), restates the Handbook provisions regarding the use of progressive discipline and provides that gross misconduct, including insubordination and/or disobedience, may result in any level of discipline, up to and including immediate dismissal, at the supervisor's discretion.
      Insubordination involves the "willful failure or refusal to obey reasonable orders of a superior entitled to give such order." Riddle v. Bd. of Directors/So. W. Va. Community College, Docket No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). This Grievance Board has previously recognized that insubordination "encompasses more than an explicit order and subsequent refusal to carry it out. It may also involve a flagrant or willful disregard for implied directions of an employer." 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)). In order to establish insubordination, an employer must demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, and the employee's failure tocomply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination. Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995).
      "Essentially, an employer can meet its burden [of proof] by showing that the person giving the order had the authority to do so, and that the order did not require the employee to act illegally or place himself or co-workers at unnecessary risk." Surber v. Mingo County Bd. of Educ., Docket No. 96-29-15 (Dec. 12, 1996). See Hundley v. W. Va. Div. of Corr. Docket No. 96-CORR-399 (Oct. 27, 1997); Stover v. Mason County Bd. of Educ., Docket No. 95-26-078 (Sept. 25, 1995). An employee's belief that management's decisions are incorrect, absent a threat to the employee's health or safety, does not confer upon him the right to ignore or disregard the order, rule, or directive. Lilly v. Fayette County Bd. of Educ., Docket No. 97-10-084 (Feb. 11, 1998 ). See Parker v. W. Va. Dep't of Health and Human Resources, Docket No. 97-HHR-042B (Sept. 30, 1997). See generally, Meckley v. Kanawha County Bd. of Educ., 181 W. Va. 657, 383 S.E.2d 839 (1989) (per curiam). "Few defenses are available to the employee who disobeys a lawful directive; the prudent employee complies first[,] and expresses his disagreement later." Hundley, supra: See Maxey v. W. Va. Dep't of Human Resources, Docket No. 93-HHR-424 (Feb. 28, 1995). "Generally, an employee must obey a supervisor's order and then take appropriate action to challenge the validity of the supervisor's order." Reynolds v. Kanawha Charleston Health Dep't, Docket No. 90-H-128 (Aug. 8, 1990). "An employee may not disregard a direct order of a superior based upon the belief that the order is unreasonable." McKinney v. Wyoming County Bd. of Educ., Docket No. 92-55-112 (Aug. 3, 1992),.      Additionally, an employer has the right to expect subordinate personnel "to not manifest disrespect toward supervisory personnel which undermines their status, prestige, and authority . . . ." McKinney, supra. Finally, an employee's job is to perform the duties of his position, not to convert his job into a continuing confrontation with management. Casto v. W. Va. Dep't of Educ., Docket No. 00-DOE-143 (Aug. 28, 2000); See Nagel v. DHHS, 707 F.2d 1384 (10th Cir. 1983).
      Grievant denies that she engaged in insubordination because she did not willfully or intentionally fail to comply with the directive of a superior. Specifically, Grievant recalls that Ms. Dalton asked that she clean the tables, vacuum the floor, and fill the napkin holders. Grievant asserts that she cleaned all the tables with the exception of one which was still being used by two students, that she vacuumed the entire floor, and glancing at the napkin holders, opined they did not need refilled. However, at level two, Grievant's testimony was that after Ms. Dalton asked her to return and complete the duties she proceeded to vacuum “over the spots that was still dirty”, while other employees cleaned the table last used and placed additional napkins in the holders. Grievant denied making any statement to Ms. Dalton when asked to return, but recalled that she simply made a statement to the effect that “it just looks like I'm not going to get out of here till eight (8:00) o'clock.”
      Although Grievant apparently did not see anything wrong with her performance, in light of the prior counselings and warnings she has received, it is surprising that she would not be more cautious to insure that she did not "manifest disrespect toward supervisory personnel which [would] undermine their status, prestige, and authority . . . ." McKinney, supra. Because Ms. Dalton did not clearly understand what Grievant had to say, it isreasonable that she would perceive the response as negative. Further, Grievant's own testimony indicates that she knew the work was not completed. When Grievant failed to check all the napkin holders, and to clean after the departure of two late diners, she willfully and intentionally did not complete the duties assigned to her by Ms. Dalton, and acted in an insubordinate manner. Grievant correctly claims that a five day suspension is harsh in that it creates a serious financial penalty; however, in light of Grievant's prior disciplinary record, it is the purpose of the more advanced levels of progressive discipline to impress upon her the serious nature of her actions and to impress upon her that any future incidents might well result in dismissal.
      In addition to the foregoing findings of fact and discussion, it is app ropriate to make the following formal conclusions of law.
Conclusions of Law
      1.      In disciplinary matters, the employer bears the burden of proving the charges by a preponderance of the evidence. W. Va. Code §18-29-6; Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994); Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989).
      2.      Insubordination involves the "willful failure or refusal to obey reasonable orders of a superior entitled to give such order." Riddle v. Bd. of Directors/So. W. Va. Community College, Docket No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). Additionally, 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).      3.      Respondent has proven by a preponderance of the evidence that Grievant acted in an insubordinate manner when she knowingly and willfully failed to complete the task given by her supervisor.
      Accordingly, the grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Monongalia County and such appeal must be filed within thirty (30) days of receipt of this decision. W.Va. Code §18-29-7. 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: August 31, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE