JOSEPH SHEBA,
Grievant,
v. Docket No. 00-CORR-005
WEST VIRGINIA DIVISION OF
CORRECTIONS/NORTHERN
REGIONAL JAIL AND CORRECTIONAL
FACILITY,
Respondent.
DECISION
Joseph Sheba (Grievant) challenges the termination of his employment as a
probationary Correctional Counselor II by the West Virginia Division of Corrections
(DOC). This grievance was filed directly at level four on December 30, 1999. Although
probationary employees are not entitled to the expedited grievance process, DOC did not
object to this matter being considered at level four, bypassing the lower levels.
Accordingly, after several continuances granted for good cause shown, a level four hearing
was held in the Grievance Board's office in Wheeling, West Virginia, on May 10, 2000.
Grievant was represented by Clark Patterson, a layperson, and DOC was represented by
counsel, Leslie K. Tyree. This matter became mature for consideration upon receipt of
Grievant's written argument on May 30, 2000.
(See footnote 1)
The following findings of fact are made from a preponderance of the evidence.
Findings of Fact
1. Grievant began probationary employment with DOC as a CorrectionalCounselor II at the Northern Regional Jail and Correctional Facility (NRJ) on July 1, 1999.
2. Grievant called off sick on August 23, 1999, September 9, 1999, October 15,
1999, November 7, 1999, and December 3, 1999. On three of these occasions, sick leave
was taken on either the day immediately before or the day immediately after Grievant's
regular day off.
3. Warden Evelyn Seifert held a conference with Grievant in October of 1999.
She advised him that he would have to attend the correctional academy to obtain
permanent employment at NRJ.
(See footnote 2)
Also during that meeting, Warden Seifert discussed
Grievant's absenteeism with him.
4. Grievant was verbally advised several times by Warden Seifert and other
supervisors that his attendance was not satisfactory.
5. On November 22, 1999, Grievant departed from work twenty minutes early
without permission.
6. On November 23, 1999, Grievant departed from work one hour early without
permission.
7. On November 24, 1999, Grievant altered his work schedule without
permission from his supervisor. Instead of working his scheduled shift from 12:00 p.m. to
8:00 p.m., Grievant worked from 10:00 a.m. until 4:00 p.m, using sick leave for the
remaining two hours of his eight-hour shift. November 24, 1999, was the day before
Thanksgiving.
8. Grievant received one performance evaluation on September 2, 1999. Thisevaluation did not assign a rating to Grievant's performance or discuss any deficiencies in
his work.
9. On December 17, 1999, Warden Seifert held a conference with Grievant,
advising him that disciplinary action was being considered for his abuse of sick leave.
Grievant stated that he wanted to stay, and he didn't realize you were so fussy about
attendance.
10. On December 21, 1999, Warden Seifert held another conference with
Grievant regarding his alterations of his work schedule without permission. Grievant stated
that he had received approval from his supervisor, Leonard Wellman. When Warden
Seifert consulted Mr. Wellman regarding Grievant's allegations, Mr. Wellman did not recall
approving Grievant's schedule changes.
11. By letter dated December 22, 1999, Warden Seifert advised Grievant that he
was being dismissed from his position for abuse of sick leave and deviation from regularly
scheduled working hours. The dismissal became effective on January 5, 2000, extending
Grievant's probationary period by five days.
(See footnote 3)
Discussion
When a probationary employee is terminated on grounds of incompetency or
unsatisfactory performance, rather than misconduct, the termination is not disciplinary, and
the employer carries no burden of proof in a grievance proceeding. The employee has the
burden of establishing by a preponderance of the evidence that his services weresatisfactory.
Bonnell v. W. Va. Div. of Corrections, Docket No. 89-CORR-163 (Mar. 8,
1990).
See Bowman v. W. Va. Educ. Broadcasting Auth., Docket No. 96-EBA-464 (July
3, 1997);
Walker v. W. Va. Public Serv. Comm'n, Docket No. 91-PSC-422 (Mar. 11, 1992);
See also,
Simmons v. Bureau of Employment Programs, Docket No. 97-BEP-531 (Nov.
25, 1998). A dismissal for abuse of leave and attendance problems is a termination for
unsatisfactory performance and is not disciplinary in nature.
See Giberson v. W. Va. Div.
of Corrections, Docket No. 98-CORR-002 (May 29, 1998).
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. Dep't of Health & Human
Resources, 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.
Grievant has done little to challenge the allegations against him, and, thus, he has
failed to meet his burden of proof. If Grievant had established that his services were
satisfactory, then the agency's decision would be deemed arbitrary and capricious.
Generally, an action is considered arbitrary and capricious if the agency did not rely on
criteria intended to be considered, explained or reached the decision in a manner contrary
to the evidence before it, or reached a decision that was so implausible that it cannot be
ascribed to a difference of opinion.
See Bedford County Memorial Hosp. v. Health and
Human Serv., 769 F.2d 1017 (4th Cir. 1985);
Yokum v. W. Va. Schools for the Deaf and
the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996). While a searching inquiry into the facts
is required to determine if an action was arbitrary and capricious, the scope of review isnarrow, and an administrative law judge may not simply substitute her judgment for that
of the employer.
See generally,
Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276,
283 (1982).
Grievant's only defense to the charges against him is that he did not receive the
performance evaluations to which he was entitled, pursuant to NRJ's Operational
Procedure 1.33, which states that, during the probationary period, employees are to be
evaluated every two months. It is undisputed in this case that Grievant was only evaluated
on one occasion. However, Warden Seifert testified that Grievant was advised on several
occasions that his attendance was unsatisfactory, an allegation which Grievant has
introduced no evidence to refute. One of the purposes of the evaluations is to advise
employees of deficiencies in their performance. It is undisputed that Grievant was well-
advised of his attendance problems, despite NRJ's failure to provide him with further
evaluations. In any case, absent any other evidence that Respondent's allegations against
Grievant are untrue, NRJ's failure to provide further evaluations does not entitle Grievant
to permanent employment.
As a classified state employee, Grievant's termination is governed by the provisions
of the Division of Personnel's Administrative Rule (7/98). Section 10.05 of the Rule states:
If at any time during the probationary period, the appointing authority
determines that the services of the employee are unsatisfactory, the
appointing authority may dismiss the employee in accordance with Section
12.2 of this rule. If the appointing authority gives the fifteen calendar days
notice on or before the last day of the probationary period, but less than
fifteen calendar days in advance of that date, the probationary period shall
be extended fifteen days from the date of the notice and the employee shall
not attain permanent status. This extension shall not apply to employees
serving a twelve month probationary period.
Further, Section 12.2 of the Rule addresses all dismissals, stating as follows:
Fifteen (15) calendar days after notice in writing to an employee stating
specific reasons, the appointing authority may dismiss any employee for
cause. The appointing authority shall allow the employee a reasonable time
to reply to the dismissal in writing, or upon request to appear personally and
reply to the appointing authority or his or her designee. The appointing
authority shall file the reasons for dismissal and the reply, if any, with the
Director of Personnel. Fifteen days notice is not required for employees in
certain cases when the public interests are best served by withholding the
notice or when the cause of dismissal is gross misconduct. An appointing
authority may dismiss an employee after oral notice, confirmed in writing,
when the dismissed employee's action(s) constitute a threat to the safety or
welfare of persons or property.
Grievant has failed to explain or justify his absences from work, nor has he provided
any explanation as to why he altered his work schedule without permission. Grievant
called no witnesses, such as coworkers or Mr. Wellman, who could have explained or
refuted the allegations of unsatisfactory performance. NRJ's Operational Procedure 1.29-8
defines sick leave abuse to occur when:
[U]nsupported sick leave hours are equal to or greater than 5% of the time
available for work in a given period of time, normally six months or greater
in duration, and 50% of those absences occur immediately before or after
holidays, paydays, weekends, or periods of annual leave.
Grievant's five absences in as many months, three of them being in conjunction with
weekends or regular days off, easily constitutes a pattern of leave abuse under NRJ's
policy.
Grievant has failed to prove by a preponderance of the evidence that his services
were satisfactory, nor has he shown that his dismissal was arbitrary and capricious.
Consistent with the foregoing findings and discussion, the following conclusions of law are
made.
Conclusions of Law
1. Where a probationary employee is terminated on grounds of unsatisfactoryperformance, rather than misconduct, the termination is not disciplinary, and the burden
of proof is upon the employee to establish that his services were satisfactory.
Bonnell v.
W. Va. Dep't of Corrections, Docket No. 89-CORR-163 (Mar. 8, 1990).
2. Grievant has failed to prove, by a preponderance of the evidence, that his
performance was satisfactory, and that he should not have been dismissed.
Bowman v.
W. Va. Educ. Broadcasting Auth., Docket No. 96-EBA-464 (July 3, 1997);
Smith v. W. Va.
Div. of Labor, Docket No. 93-LABOR-347 (Oct. 29, 1993);
Walker v. W. Va. Public Serv.
Comm'n, Docket No. 91-PSC-422 (Mar. 11, 1992);
Bonnell,
supra.
3. Grievant failed to prove DOC violated any statute, policy, rule, or regulation
in dismissing him from employment, or that DOC acted arbitrarily and capriciously in
terminating Grievant's probationary employment.
Goard v. W. Va. Div. of Corrections,
Docket No. 95-CORR-068 (Mar. 20, 1995).
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, and such appeal must be filed within thirty (30) days of receipt of this Decision.
W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State Employees
Grievance Board nor any of its administrative law judges is a party to such appeal and
should not be so named. However, the appealing party is required by W. Va. Code § 29A-
5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing
party must also provide the Board with the civil action number so that the record can be
prepared and properly transmitted to the appropriate circuit court.
Date: June 21, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1