R Ex 6 (allegations numbered to facilitate discussion).
In disciplinary matters,
W. Va. Code § 29-6A-6 places the burden of proof on the
employer.
(See footnote 2)
Broughton v. W. Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31,
1992). More particularly, the employer has the burden of proving each element of a
disciplinary action by a preponderance of the evidence.
Morrison v. W. Va. Bureau of
Commerce, Docket No. 97-DOL-490 (Jan. 15, 1998). A preponderance of the evidence
is generally recognized as evidence of greater weight, or which is more convincing than
the evidence which is offered in opposition to it.
Miller v. W. Va. Dep't of Health & Human
Resources, Docket No. 96-HHR-501 (Sept. 30, 1997);
Petry v. Kanawha County Bd. of
Educ., Docket No. 96-20-380 (Mar. 18, 1997). Certain of the factual allegations contained in the charges which resulted in this
dismissal are disputed by Grievant. In situations where the existence or nonexistence of
certain material facts hinges on witness credibility, detailed findings of fact and explicit
credibility determinations are required.
Jones v. W. Va. Dep't of Health & Human
Resources, Docket No. 96-HHR-371 (Oct. 30, 1996);
Pine v. W. Va. Dep't of Health &
Human Resources, Docket No. 95-HHR-066 (May 12, 1995).
See Harper v. Dep't of the
Navy, 33 M.S.P.R. 490 (1987). Some factors to consider in assessing the credibility of a
witness include the witness' demeanor, opportunity or capacity to perceive and
communicate, reputation for honesty, attitude toward the action, and admission of
untruthfulness. Additionally, the trier of fact should consider the presence or absence of
bias, interest, or motive, the consistency of prior statements, the existence or nonexistence
of any fact testified to by the witness, and the plausibility of the witness' information.
See
Perdue v. Dep't of Health & Human Resources, Docket No. 93-HHR-050 (Feb. 4, 1994).
See generally, Harold J. Asher and William C. Jackson,
Representing the Agency before
the United States Merit Systems Protection Board 152-53 (1984). Accordingly, the
evidence presented by the parties on matters in dispute will be discussed in some detail.
Ms. Robertson suspended Grievant for unsatisfactory job performance.
(See footnote 3)
Established failure to perform assigned duties at a reasonably proficient level, for reasonsthat are within the employee's control, may warrant discipline of a state employee.
Deyerle
v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 95-RS-034 & 96-RS-197 (Nov. 21,
1997).
See Dadisman v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 98-RS-023/040
(Mar. 25, 1999). The suspension letter describes four incidents where Grievant failed to
properly perform his assigned duties. The first incident involves failure to deliver
documents to the Treasurer's Office on time. The second incident concerns failure to use
a briefcase to transport documents. The third incident pertains to Grievant's failure to
properly log out his whereabouts on a sign-in sheet. The fourth incident relates to a failure
to shred certain documents.
Grievant is employed as WVCPRB's only Mail Runner. When Grievant is not
working, or is occupied by other duties, another employee, James W. Hyde II, fills in to
perform various Mail Runner duties ordinarily performed by Grievant. As a Mail Runner,
one of Grievant's primary duties involves delivering mail and documents among
WVCPRB's various offices, as well as to and from other state agencies.
On certain days, Grievant is given documents to deliver to the Treasurer's Office in
another portion of the Capitol Complex. These documents are necessary to accomplish
a wire transfer of WVCPRB's cash into an investment account where it will begin drawing
interest, thereby generating revenue for the retirement fund. These documents are always
accompanied by a cover sheet with a notice in large print which reminds the Mail Runner
that these items must be in the Treasurer's Office no later than 9:30 A.M. that same
morning. This deadline is based on an arrangement between WVCPRB and theTreasurer's Office to facilitate processing of the required paperwork in that office in time
to meet an external deadline for completing the wire transfer.
At 10:25 A.M. on February 4, 2000, Lori Cottrill, WVCPRB's Accountant, received
a call from the Treasurer's Office advising that the investment documents for that day's
transfer, amounting to $580,000,
(See footnote 4)
had not yet been received. Ms. Cottrill had placed the
documents on Grievant's desk earlier that morning, before he arrived for work at 8:30 A.M.
After receiving this call, Ms. Cottrill notified Ms. Robertson, and Ms. Robertson went
looking for Grievant to ascertain why the documents had not been delivered by 9:30.
Grievant admitted he did not deliver the documents until approximately 10:30 A.M.,
contending he was busy processing incoming mail, and lost track of time. R Ex 9. In fact,
Grievant admitted under cross-examination that he did not leave the office until after 10:00
A.M. Grievant knew he was supposed to deliver the documents by 9:30 A.M., but testified
that this deadline interferes with my work.
A preponderance of the evidence indicates that this was not the first time Grievant
failed to deliver investment documents on schedule. Indeed, Grievant testified that he
ordinarily does not leave the office to deliver the documents until 9:30 A.M., despite the
instructions he has received, because he knows that the real deadline is 10:00 A.M.
Grievant's unilateral interpretation of his work priorities does not excuse his failure todeliver the documents in a timely fashion. Therefore, WVCPRB established that Grievant
failed to deliver certain documents to the Treasurer's Office in accordance with his
established schedule.
It is undisputed that one of the Mail Runner's duties is to transport mail between
WVCPRB's various offices in and around the Capitol Complex in Charleston, West Virginia.
After a package of checks destined for deposit was found in the street in December 1999,
Ms. Robertson purchased a briefcase for use by Grievant, or his backup, and gave the
briefcase to Grievant on December 30, 1999. Ms. Robertson instructed Grievant to use
the briefcase to carry all documents anytime he left the WVCPRB office to deliver items to
another location.
In early January 2000, Myra Woolwine, WVCPRB's Loan Manager, reported to Ms.
Robertson that Grievant was observed delivering mail to WVCPRB's office on Quarrier
Street, and he was not using a briefcase. Ms. Robertson again spoke with Grievant and
reminded him that he was expected to use the briefcase to transport documents, to insure
that no more checks were dropped in the street. Subsequent to that meeting, Ms.
Woolwine again advised Ms. Robertson that Grievant was delivering mail to her office
building without using a briefcase. Ms. Robertson met with Grievant again on the 12th of
January, to discuss why he was not carrying the briefcase.
In his testimony at Level IV, Grievant acknowledged that he had initially failed to
transport documents in the briefcase as instructed, complaining that he did not see any
reason to use the briefcase. Although Grievant asserted that he had some difficulty
getting used to carrying the briefcase, it is apparent that Grievant initially disagreed withthe briefcase requirement, and resisted Ms. Robertson's authority to determine the
methods and means by which he performs his assigned duties. Grievant recalled one
occasion when he took a batch of documents out of the office in the briefcase, and then
left the briefcase in his vehicle while carrying the documents in his hands into the Loan
Office where Ms. Woolwine worked.
Grievant appeared to operate on the erroneous assumption that if Ms. Robertson
could not prove beyond a reasonable doubt that he was the person who dropped the
checks in the street in December 1999, she could not require him to carry the briefcase.
The directive to carry interoffice mail in the briefcase was a perfectly appropriate directive
for Ms. Robertson to give Grievant, without regard to who dropped the checks. On January
13, 2000, Grievant finally began complying with the directive to carry the briefcase when
delivering documents to WVCPRB's Quarrier Street office. However, WVCPRB
established that he did not comply with instructions from Ms. Robertson to transport
documents in the briefcase until that date.
One of Grievant's duties includes shredding documents which contain personal
information, such as salary history and social security numbers. On February 2, 2000, Ms.
Robertson gave Grievant a large pile of documents to shred. Ms. Robertson told
Grievant to do what you can everyday until you get this caught up. Shortly thereafter,
Grievant became argumentative with Mr. Hyde, telling him that he, not Grievant, should
shred the documents. Ms. Robertson overheard a portion of this conversation, and asked
Grievant if there was a problem. Grievant indicated that he knew what he was supposedto do, and he would take care of it. Later that same day, Ms. Robertson found virtually
all of the documents in a recycling bin, and none of them had been shredded.
Grievant's testimony on this issue was confusing, although he conceded that he did
not consider shredding to be one of his priorities. He was vague and equivocal as to
when he was first assigned shredding as a part of his job. He first indicated that he was
not told about this requirement until Ms. Robertson noted this on his annual performance
evaluation. Then, he recalled that Ms. Robertson might have sent him an E-mail on this
subject earlier.
Grievant also noted that he reacted to Ms. Robertson's instructions the way he did
because I knew that particular job was Jim Hyde's, and down through time there are many
jobs that he just lets go, and the next thing I know, Terasa gives it to me. Grievant
testified that he felt dumped on. At one point, Grievant alleged that Mr. Hyde, Grievant's
former supervisor, Jane Pinhale, and Jim Sims, WVCPRB's former Executive Director,
have been conspiring against him since 1991. Grievant's testimony regarding the facts
and circumstances surrounding this incident was too evasive and contradictory to be
credited. The undersigned finds that a preponderance of the credible evidence of record
indicates that Grievant did not make a good faith effort to pursue the shredding
assignment, after assuring Ms. Robertson he would take care of it.
Grievant further suggests that various medical problems, including a back injury,
prevent him from bending and leaning over for any extended period of time, actions which
he claims are necessary in order to shred documents using the equipment provided by
WVCPRB. Ms. Robertson credibly testified that, although Grievant mentioned some of hisailments from time to time, at no time prior to this incident did he report that he could not
do the work assigned because of a physical limitation. Moreover, he did not request an
accommodation for a medical condition, or provide medical documentation to support such
a request. Even the documentation Grievant submitted after the fact is extremely general,
and does not indicate a restriction that precludes performing these duties.
(See footnote 5)
Ms. Robertson has also experienced difficulty getting Grievant to consistently
remember to log out on a sign-in/out sheet when he leaves the office. On October 28,
1999, Ms. Robertson went to Grievant's desk to ask him to make a trip to the Auditor's
Office to pick up some checks. Grievant was not at his desk, and the sign-in/out log was
not located where it was supposed to be hanging. Ms. Robertson spent approximately an
hour and one-half looking for Grievant, without success. She previously sent an E-mail
message to Grievant at 10:33 A.M. that day, asking him to pick up those checks. By 4:30
P.M. on October 28, Grievant had not picked up the checks.
Mr. Hyde is also required to complete a sign-in/out log each day. He admitted that
he was forgetful about signing in upon return to the office from running an errand. He also
acknowledged that he had been verbally counseled about properly completing the log, and
he had been requested to improve his use of time on his annual evaluation. Mr. Hyde
believed that this criticism was related to his failure to record his return in the sign-in/outlog on occasion. He has never been formally reprimanded or otherwise disciplined for
failure to sign in or out properly.
On October 3, 1997, Grievant was given a final warning letter for several work-
related shortcomings, including failing to properly sign in and out of the office, failing to
make his mail runs on schedule, spending excessive time engaged in conversation at other
employee's work stations, appearing to sleep while on duty, and failure to control his
emotions by being unduly loud and argumentative. R Ex 3. Grievant wrote a rebuttal to
this letter, but did not otherwise contest the action at that time. G Ex G.
Ordinarily, the propriety of a prior disciplinary action, properly documented in the
employee's record and which the employee had an opportunity to challenge, is not an
appropriate matter for consideration in a grievance involving a subsequent disciplinary
action.
Hosaflook v. W. Va. Div. of Corrections, Docket Nos. 98-CORR-446/447 (Jan. 20,
2000);
Williams v. Kanawha County Bd. of Educ., Docket No. 98-20-321 (Oct. 20, 1999);
Aglinsky v. Bd. of Trustees, Docket No. 97-BOT-256 (Oct. 27, 1997);
Jones. v. W. Va.
Dep't of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996);
Nicholson
v. Logan County Bd. of Educ., Docket No. 95-23-129 (Oct. 18, 1995). Thus, WVCPRB
may properly consider that previous written warning Grievant was issued in determining
the appropriate penalty for the four instances of ineffective duty performance which gave
rise to this disciplinary action.
This prior disciplinary action may also be relied upon by the employer to establish
that Grievant was on notice of the importance of signing in and out properly. Much like his
testimony on other issues, Grievant's explanation regarding the sign-in/out sheet onOctober 28 was contradictory and equivocal. A preponderance of the evidence indicates
that Grievant did not leave the log in its normal location on the date in question, and Ms.
Robertson did not find the log when she was looking for Grievant. Therefore, although this
is a somewhat technical violation, WVCPRB established that Grievant did not maintain the
log as he had been directed.
Grievant claims he was subjected to harassment in violation of
W. Va. Code § 29-
6A-2(l), which defines "harassment" as "repeated or continual disturbance, irritation or
annoyance of an employee which would be contrary to the demeanor expected by law,
policy and profession." In order to establish harassment in violation of
W. Va. Code § 29-
6A-2(l), Grievant must show a pattern of conduct, rather than a single improper act.
See
Hall v. W. Va. Dep't of Transp., Docket No. 96-DOH-433 (Sept. 12, 1997);
Phares v.
W. Va. Dep't of Public Safety, Docket No. 91-CORR-275 (Dec. 31, 1991).
See also
Thompson v. Bd. of Trustees, Docket No. 96-BOT-097 (Dec. 31, 1996). In the context of
contesting a disciplinary action, allegations of harassment by the employee's supervisor
constitutes an affirmative defense, and Grievant has the burden of establishing his
allegations on this issue by a preponderance of the evidence.
Reynolds v. W. Va. Dep't
of Admin., Docket No. 99-ADMN-049 (Sept. 1, 1999).
See W. Va. Code § 29-6A-6;
Johnson v. Dep't of Health & Human Resources, Docket No. 98-HHR-302 (Mar. 18, 1999).
Ms. Robertson credibly explained that Grievant will perform his duties satisfactorily
for a period of time after he is confronted with a shortcoming. Then, his performance will
lapse, and he reverts to less than satisfactory compliance in performing his assigned
duties. Accordingly, Ms. Robertson readily acknowledges that she finds it necessary to talkwith Grievant about some aspect of his job performance almost every week. When such
a pattern of conduct exists, it is inevitable that Grievant perceives that he is being
harassed, particularly if prior supervisors did not hold Grievant to a consistently high
standard of performance. However, it is a supervisor's duty to assure that an employee
is properly performing the duties their employer has hired them to do. Although this may
be annoying to Grievant, and undoubtedly increases the stress he encounters in
performing duties that are not inherently complex or demanding, it does not constitute
harassment prohibited by
W. Va. Code § 29-6A-2(l).
See Board v. W. Va. Dep't of Health
& Human Resources, Docket No. 99-HHR-329D (Sept. 24, 1999);
Reynolds,
supra.
Therefore, none of the prior disciplinary actions issued to Grievant, nor any of the incidents
which led to this action alleging ineffective performance of assigned duties, involve
harassment prohibited by the grievance procedure statute.
Grievant suffers from a number of medical ailments, including fibromyalgia,
degenerative osteoarthritis, major depression, irregular heartbeat, migraine headaches,
chronic fatigue, and chronic pain. Grievant's supervisors were generally aware of most of
these conditions, although Grievant has not requested an accommodation based upon any
particular medical condition or disability. Indeed, none of the diagnoses Grievant claims,
either singularly or cumulatively, would explain Grievant's substandard performance as
alleged in this suspension. None of these medical conditions prevents Grievant from using
a briefcase to carry important documents for his employer. Likewise, none of these
conditions prevents him from delivering important documents to their proper recipients in
a timely manner, or from signing in and out when leaving the office to run an errand. Priorto this incident, Grievant had not documented any medical condition that would exempt him
from shredding documents. Finally, a preponderance of the evidence indicates that the
present disciplinary action was based on Grievant's substandard job performance, and was
not motivated by Grievant's medical conditions.
Grievant also asserts that a 21-day suspension is an unduly harsh punishment for
the offenses charged. 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).
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
for rehabilitation.
Lilly v. W. Va. Dep't of Health & Human Resources, Docket No. 00-HHR-
093 (May 8, 2000);
Overbee v. Dep't of Health & Human Resources, Docket No. 96-HHR-
183 (Oct. 3, 1996).
Aside from the written final warning issued to Grievant in 1997, WVCPRB did not
rely upon any other disciplinary actions in selecting a 21-day suspension as the penalty for
Grievant's substandard performance. In over 20 years of employment, Grievant has
generally received satisfactory evaluations, and has even been awarded performance-based merit raises, the most recent in 1991. G Ex J. However, on his most recent
performance evaluation, rendered by Ms. Robertson in November 1999, Grievant was
rated as needs improvement in 9 of 23 performance factors. Grievant was rated as
meets expectations in the remaining categories. R Ex 5. In 1997, Ms. Robertson rated
Grievant as needs improvement in 3 of the 4 performance categories rated. Even as far
back as 1992, when Grievant was rated fair to satisfactory in all but 1 category,
Grievant's supervisor, Jane Pinhale, noted you need to be more productive. R Ex 8.
Moreover, Ms. Pinhale rated Grievant unsatisfactory in the category of cooperation. R
Ex 8. Thus, although Grievant's performance did not generate other disciplinary actions,
there was ample notice from more than one supervisor that Grievant needed to improve
his work performance.
It is unfortunate that Grievant has suffered a lengthy suspension as his first serious
disciplinary action. However, Grievant's failure to deliver investment documents on time,
and his deliberate refusal to carry documents as instructed in a briefcase, represent more
than simple oversight or neglect in the performance of his duties. In addition, the failure
to shred documents as directed, given his prior conversations contending that the work
should be done by a co-worker, borders on insubordination. The failure to properly
maintain the sign-in/out sheet may have involved simple oversight, but Grievant had
previously been warned to comply with this requirement. Although reasonable people
might differ over whether a 21-day suspension is an unduly harsh penalty for the offenses
proven, given the fact that Grievant had previously received a written final warning
regarding other incidents of substandard performance, and had been counseled to improvehis performance on his annual performance evaluations, the undersigned Administrative
Law Judge is unable to conclude that WVCPRB abused its discretion in selecting the
penalty in question.
In addition to the foregoing discussion, the following findings of fact and conclusions
of law are appropriate in this matter.
FINDINGS OF FACT
1. Grievant is employed by the West Virginia Consolidated Public Retirement
Board (WVCPRB) as a Mail Runner. Grievant has been employed by WVCPRB for
approximately 24 years.
2. Terasa Robertson is employed by WVCPRB as its Contribution Manager, and
serves as Grievant's immediate supervisor.
3. On October 3, 1997, Ms. Robertson issued a written final warning to
Grievant regarding various work-related derelictions, including failure to sign in and out of
the office, and failing to make his scheduled mail runs on time. R Ex 3. Grievant wrote a
rebuttal to this document, but did not file a grievance to challenge the allegations made
therein.
4. Grievant suffers from fibromyalgia, degenerative osteoarthritis, major
depression, irregular heartbeat, migraine headaches, chronic fatigue, and chronic pain.
Grievant takes a variety of prescription medications for these conditions. Grievant did not
provide medical documentation to WVCPRB, or request an accommodation for his medical
conditions until after this suspension was served. 5. Grievant has generally received satisfactory evaluations during his tenure
with WVCPRB, but as recently as November 1999 he was rated as needs improvement
in 9 of 23 rated categories on his annual performance evaluation.
6. On February 4, 2000, Grievant failed to deliver an investment document to
the Treasurer's Office until after 10:30 A.M., despite explicit instructions to deliver such
documents not later than 9:30 A.M.
7. On various occasions between January 3 and January 12, 2000, Grievant
failed to carry documents being transported between WVCPRB offices and other state
government offices in an employer-provided briefcase, as instructed by Ms. Robertson.
8. On February 2, 2000, Grievant failed to make a good-faith effort to shred
documents containing personal information, as instructed by his immediate supervisor,
because Grievant was upset that this assignment had been given to him instead of a co-
worker.
9. On October 28, 1999, Grievant failed to properly maintain his sign-in/out log
in the manner directed by his immediate supervisor.
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 Serv., 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. Suspension of a civil service employee must be for good cause. See Oakes
v. W. Va. Dep't of Fin. & Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980).
3. A state employee may be disciplined for failure to perform assigned duties
in a reasonably proficient manner, provided the reasons for such failure are within the
employee's control. Deyerle v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 95-RS-034
& 96-RS-197 (Nov. 21, 1997). See Dadisman v. W. Va. Div. of Rehabilitation Serv.,
Docket Nos. 98-RS-023/040 (Mar. 25, 1999).
4. The employer established by a preponderance of the evidence that
Grievant's performance failed to meet established standards by failing to use an employer-
provided briefcase to transport documents as instructed by his immediate supervisor,
failing to deliver a time-sensitive document to the Treasurer's Office, failing to comply with
instructions to shred documents, and failing to properly maintain a sign-in/out log so that
his supervisor and co-workers could determine his whereabouts when away from his work
area running assigned errands.
5. Harassment is defined as repeated or continual disturbance, irritation, or
annoyance of an employee which would be contrary to the demeanor expected by law,
policy and profession. W. Va. Code § 29-6A-2(l).
6. Grievant failed to establish that WVCPRB, through his supervisors, engaged
in any form of harassment prohibited by W. Va. Code § 29-6A-2(l). See Board v. W. Va.
Dep't of Health & Human Resources, Docket No. 99-HHR-329D (Sept. 24, 1999);
Reynolds v. W. Va. Dep't of Admin., Docket No. 99-ADMN-049 (Sept. 1, 1999). 7. 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. Lilly v. W. Va. Dep't of Health & Human Resources, Docket No.
00-HHR-093 (May 8, 2000); Thompson v. W. Va. Dep't of Health & Human Serv., Docket
No. 94-HHR-254 (Jan. 20, 1995).
8. Given the severity of Grievant's substandard performance, and that Grievant
had been given a written final warning in October 1997 regarding substandard
performance, and had been rated needs improvement in 9 categories on his most recent
performance evaluation in November 1999, a 21-day suspension for substandard work
performance was not an excessive penalty.
Accordingly, this grievance is DENIED.
Any party, or the West Virginia Division of Personnel, may appeal this decision to
the Circuit Court of Kanawha County, or to the "circuit court of the county in which the
grievance occurred." Any such appeal must be filed within thirty (30) days of receipt of this
decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State
Employees Grievance Board nor any of its Administrative Law Judges is a party to such
appeal and should not be so named. However, the appealing party is required by W. Va.
Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The
appealing party must also provide the Board with the civil action number so that the record
can be prepared and properly transmitted to the appropriate circuit court.
LEWIS G. BREWER
ADMINISTRATIVE LAW JUDGE
Dated: June 15, 2000
Footnote: 1