TAMIKA JOPLIN,

                  Grievant,

      v.

DOCKET NO. 00-RJA-073

WEST VIRGINIA REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY,


                  Respondent.

D E C I S I O N


      Grievant, Tamika Joplin, a former at-will and pleasure employee, filed this grievance against her employer, the West Virginia Regional Jail and Correctional Facility Authority (“RJA”) on February 24, 2000, protesting her suspension and dismissal from employment by letter dated February 10, 2000. A level four hearing was scheduled for April 24, 2000, at which time RJA filed a Motion to Dismiss on the ground that Grievant failed to state a cognizable claim. Grievant requested a continuance in order to file an amended statement of grievance. Over RJA's objection, Grievant's request was granted, and Grievant filed an amended statement on May 11, 2000, and an amended statement on May 17, 2000, alleging discrimination under W. Va. Code § 29-6A-2(b). A level four hearing was conducted on May 26, 2000, in the Grievance Board's Charleston, West Virginia, office. RJA again moved for dismissal, but Grievant was granted the opportunity to present evidence in an attempt to establish a valid defense to her termination. This matter becamemature on June 26, 2000, the deadline for the parties' submission of proposed findings of fact and conclusions of law. Grievant was represented by Susan J. Van Zant, Esq., and RJA was represented by Chad Cardinal, Esq.
SUMMARY OF EVIDENCE

Exhibits

None.

Testimony

      Grievant testified in her own behalf, and presented the testimony of Ron Casto. RJA presented no testimony.

MOTION TO DISMISS

      RJA moved to dismiss this grievance on the grounds that Grievant was an at-will employee, and as such, could be terminated for any reason. All RJA employees are classified exempt, and as such serve at the will and pleasure of the Executive Director. Roach v. W. Va. Regional Jail and Correctional Facility Auth., 198 W. Va. 694, 482 S.E. 2d 679 (1996); Williams v. Brown, 190 W. Va. 202, 437 S.E. 2d 775 (1993); Shriver v. W. Va. Regional Jail and Correctional Facility Auth., Docket No. 98-RJA-359 (Mar. 29, 1999); Ramos v. W. Va. Regional Jail and Correctional Facility Auth., Docket No. 98-RJA-363 (Jan. 29, 1999); Logan v. W. Va. Regional Jail and Correctional Facility Auth., Docket No. 94-RJA-225 (Nov. 29,1994); Thompson v. W. Va. Regional Jail and Correctional Facility Auth., Docket No. 94-RJA-139 (July 22, 1994).
      An at-will employee may be dismissed from employment for a good reason, a bad reason, or no reason at all. Roach, supra. The West Virginia Supreme Court hasrecognized that an at-will public employee can be terminated for any reason which does not violate “substantial public policy.” Williams, supra; Harless v. First National Bank in Fairmont, 162 W. Va. 116, 246 S.E.2d 270 (1982); Roach, supra; Wilhelm v. Dep't of Tax and Revenue, Docket No. 94-L-038 (Sept. 30, 1994); Ramos, supra; Shriver, supra.
      It is undisputed that in the instant grievance, Grievant was an at-will public employee serving at the will and pleasure of the Executive Director of RJA. Grievant claims that she has been discriminated against by RJA in violation of W. Va. Code § 29-6A-2(b), alleging she was in a similar position to other RJA employees; she was treated differently to her detriment; and she did not agree to such differences.
      It is well-settled law “an at-will employee can not challenge his dismissal on the grounds of discrimination under W. Va. Code § 29-6A-2(b) by attempting to show other employees who engaged in substantially similar situations were not disciplined or were not disciplined so severely as he.” Logan, supra. However, Grievant attempted to show at level four that she had been discriminated against because of her race, black. If proven, such a claim would certainly rise to the level of “substantial public policy.”
      Grievant alleged several white individuals who had committed violations of policy and procedure were not disciplined as harshly as she. Nevertheless, Grievant admitted upon examination by her counsel, that she was not sure if her race had anything to do with the way she had been treated. Moreover, Grievant admitted she had no personal knowledge of the actions of any of these employees, nor the disciplinary actions taken by RJA regarding these employees. The only incident where Grievant had direct knowledge of a violation involved an employee who lost his temper after Grievant locked him into asally port area.   (See footnote 1)  Grievant admitted she had no personal knowledge of any disciplinary action taken by RJA against this employee.

FINDINGS OF FACT

      1.      Grievant, a black female, was employed by RJA as a Correctional Officer II at its Southwestern Regional Jail.
      2.      Grievant was dismissed from her employment by letter dated February 10, 2000, for, among other things, passing a verbal message from an inmate to a co-worker, without advising her supervisor.
CONCLUSION OF LAW

      1.      An at-will employee can not challenge his dismissal on the grounds of discrimination under W. Va. Code § 29-6A-2(b) by attempting to show other employees who engaged in substantially similar situations were not disciplined or were not disciplined so severely as he. Wilhelm v. Dep't of Tax and Revenue, Docket No. 94-L- 038 (Sept. 30, 1994); Logan v. W. Va. Regional Jail and Correctional Facility Authority, Docket No. 94-RJA-225 (Nov. 29, 1994).
      2.      Grievant has failed to establish she was discriminated against becaue of her race. At best, Grievant alleges discrimination under W. Va. Code § 29-6A-2(b), a claim which is not actionable by an at-will and pleasure employee. Wilhelm v. Dep't of Tax and Revenue, Docket No. 94-L-038 (Sept. 30, 1994); Logan v. W. Va. Regional Jail and Correctional Facility Authority, Docket No. 94-RJA-225 (Nov. 29, 1994).      Accordingly, this grievance is DENIED.
      Any party 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.

                                           ___________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: July 11, 2000


Footnote: 1
       Sally Port areas are interlocking gate systems used throughout regional jails. They consist of a small hallway secured by two electronically controlled locking doors.