SHERRY KUHL,
Grievant,
v. Docket No. 99-HHR-372
DEPARTMENT OF HEALTH
AND HUMAN RESOURCES,
Respondent.
DECISION
Sherry Kuhl (Grievant) challenges the termination of her employment by the West
Virginia Department of Health and Human Resources (DHHR) as a Social Service
Worker III on August 30, 1999. She seeks reinstatement with back pay. This grievance
was filed directly at level four on September 8, 1999. A hearing was held in the Grievance
Board's office in Morgantown, West Virginia, on November 10, 1999, and January 18,
2000. Grievant was represented by Kevin Church, AFSCME West Virginia, and
Respondent was represented by counsel, Dennise Smith. This matter became mature for
consideration upon receipt of the parties' fact/law proposals on March 6, 2000.
The following findings of fact are made from a preponderance of the credible
evidence of record.
Findings of Fact
1. Grievant has been employed as a Social Service Worker III, or a
homefinder, in the Region III Homefinding Unit of DHHR since April of 1996.
2. The job of a homefinder is to investigate potential foster parents to findsuitable homes for placement of children who have come within the custody of DHHR.
Homefinders gather information regarding prospective foster parents and conduct a home
study, which consists of interviews with the applicants and their references and visits to
the prospective foster home. The homefinder prepares a report giving an account of the
family's background, the results of the investigation, and recommendations regarding the
placement of children in the home. Final approval of the home is the decision of the
homefinding supervisor, based largely upon the recommendation of the homefinder.
3. The majority of the children who come into the custody of DHHR have been
placed there pursuant to court orders removing them from their own homes because of
abuse and/or neglect.
4. DHHR's Social Services Manual, Chapter 13000A, contains policies and
procedures regarding foster care and adoption for children in the custody of DHHR.
5. Chapter 13000A and
W. Va. Code § 49-2B-8 require that a criminal records
check be performed for every individual who applies to be a foster parent, along with any
other adults who reside in the prospective foster home. It is part of the homefinder's
responsibilities to have each applicant complete a DPS-39A form, known as a CIB, which
is referred to the state police's Criminal Identification Bureau for review of criminal records.
6. If the CIB check reveals any criminal convictions, the home cannot be
approved for foster care without a waiver from the regional homefinding supervisor.
Individuals convicted for murder, manslaughter, rape, assault, abuse, or incest cannot be
approved. Also, a person with a conviction for any offense against a child is not to be
approved. Chapter 13000A, pp. 73-75 (Respondent's Exhibit 1). 7. Applicants must attend a foster parent training session, provided by DHHR,
prior to approval for placement of children. The CIB form is normally given to the
applicants at this training session.
8. In late 1996, Grievant was assigned the P case
(See footnote 1)
for purposes of completing
a home study for foster care.
9. Mr. and Mrs. P completed an application for consideration as foster parents,
which was signed by Mr. P on February 1, 1997, and by Mrs. P on March 1, 1997. The
information provided by them on the application indicated that Mr. P had been convicted
of grand larceny and breaking and entering. No further details were provided.
10. Grievant completed a home study on the P family, which was not dated. The
home study made no reference to the CIB, nor did it state whether either Mr. or Mrs. P had
any criminal convictions. Grievant recommended the P family for approval as foster
parents.
11. The P home was approved for foster care on May 20, 1997. At some time
prior to that date, Grievant entered information into the FACTS computer system used by
DHHR, which indicated that the CIB had been completed and had come back clear with
no criminal convictions for anyone in the home. The FACTS system is used by all
employees of DHHR, and a clear--no convictions statement would lead other workers to
assume that the home was approved for placement of foster children.
12. A CIB was not completed on the P family prior to their approval as fosterparents.
13. A performance audit was completed on DHHR by the legislative auditor's
office on September 13, 1998. The findings of that evaluation included a conclusion that
CIBs and other important information had not been obtained in many cases where homes
were approved for foster care.
14. In response to the performance audit report, DHHR directed all homefinders
to go through their case files to insure that all required information had been obtained on
foster homes.
15. By letter dated December 7, 1998, Grievant informed Mr. and Mrs. P that
information was missing from their file, including a CIB for Mr. P. This correspondence
was prompted by Grievant's review of her case files after the performance audit.
16. The CIB on Mr. P was completed on February 10, 1999. It showed
convictions for petit larceny, grand larceny, breaking and entering, and contributing to the
delinquency of a minor. The contributing charge had been pled down from sexual
assault.
17. On February 23, 1999, Grievant placed the P home on hold status in the
FACTS system, which would prevent any placement of children in the home.
18. Grievant did not inform her supervisor of Mr. P's convictions after the CIB
was returned.
19. In response to a complaint from a member of the public, on July 16, 1999,
Grievant's supervisors began an investigation into the P family's approval for foster care.
Grievant informed the homefinding supervisor, Kelley Weber, that Mr. P's convictions hadbeen discussed with and explained by the family. Resp. Ex. 7. When Ms. Weber
questioned Grievant regarding why the P case was listed as on hold status in FACTS,
Grievant said she was waiting for medical information from Mr. and Mrs. P.
20. Foster children had been placed in the P home for brief periods on three
occasions in 1998.
21. Upon discovering that Mr. P had the criminal record described above, Ms.
Weber closed the home, meaning the P home would no longer be eligible for placement
of children.
22. On August 24, 1999, Ms. Weber and David Barb, Regional Program
Manager, met with Grievant regarding the P case. Grievant's explanation for approving
the home without the completion of the CIB was that homes were routinely approved
without all of the information, and that she had not been trained to obtain the CIB prior to
approval of a home for foster care. Grievant also stated that she simply made a mistake
when she entered the information in the FACTS system which indicated the CIB had been
completed on the P family and returned with no convictions. Resp. Ex. 10.
23. By letter dated August 30, 1999, Grievant was notified that her employment
with DHHR was being terminated for approving the P home for placement of foster children
without a completed CIB and for placing false and misleading information in FACTS
indicating that the CIB had been returned with no convictions.
24. Grievant testified that she would not have recommended Mr. and Mrs. P as
foster parents if she had known about Mr. P's convictions. She also stated that Mr. P's
convictions made him unsuitable for foster parenting, pursuant to DHHR's policy. 25. Prior to her approval of the P foster home, Grievant knew that she could not
recommend approval of any prospective foster parent with a criminal record, without first
seeking a waiver from her supervisors.
Discussion
In disciplinary proceedings involving state employees,
W. Va. Code § 29-6A-6
places the burden of proof on the employer, and the standard of proof is by a
preponderance of the evidence.
Davis v. Dep't of Motor Vehicles, Docket No. 89-DMV-569
(Jan. 20, 1990). State employees, such as Grievant, who are in the classified service
can
only be dismissed for "cause", meaning "misconduct of a substantial nature directly
affecting the rights and interest of the public, rather than upon trivial or inconsequential
matters, or mere technical violations of statute or official duty without wrongful intention."
Syl. Pt. 1,
Oakes v. W. Va. Dept. of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151
(1980);
Guine v. Civil Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1965);
W. Va.
Code § 29-6A-6;
Logan v. Regional Jail Auth., Docket No. 94-RJA-225 (Nov. 29, 1994);
Davis v. W. Va. Dep't of Motor Vehicles, Docket No. 89-DMV-569 (Jan. 22, 1990); Section
12.02, Administrative Rule, W. Va. Div. of Personnel (Aug. 3, 1993).
Respondent contends that Grievant engaged in gross misconduct by recommending
the P home for approval in spite of Mr. P's criminal convictions and by falsifying the
information in the FACTS system, leading other DHHR employees to believe that the
family's CIB had been returned and was clear of convictions. DHHR alleges that Grievant
knew of Mr. P's criminal record even prior to issuing her home study report, because the
application completed in March of 1997 mentioned at least some of his convictions. Nevertheless, Grievant recommended the home for approval and provided false and
misleading information regarding the family's criminal records to her superiors, which led
to placement of foster children in the home of a convicted felon.
Grievant alleges that she did not engage in any misconduct intentionally. She
stated that she merely made a mistake when she entered the incorrect information
regarding the P family's CIB check in FACTS, and she could not explain why this occurred.
Further, she argues that, as revealed by the performance audit in 1998, many homes had
been approved for foster care without a CIB, and employees involved in approving those
homes were not terminated. Grievant also contends that, at the time the P family was
going through the home study and approval process, she had not been trained as to the
order for doing things. She claims that things were done backwards at that time, and
applications and CIBs were often submitted after a family had been approved for foster
care. For all of these reasons, Grievant believes that, although her mistake was serious,
she should have received a lesser punishment than termination.
There are some discrepancies between Grievant's testimony and that of her
supervisors, requiring that some credibility determinations be made. 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
Services, Docket No. 97-HHR-318 (July 22, 1999);
Burchell v. Bd. of Trustees, Marshall
Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).
As to Grievant's training, she testified that, at the time she reviewed the P family for
foster parent approval, she was working under the supervision of Larry Kincaid, former
Region III Homefinding Supervisor. Grievant stated that Mr. Kincaid gave her little to no
training on the homefinding process, and he never explained the order for conducting a
review, i.e., application, training, home study, then report with recommendations.
However, both Mr. Kincaid and Judy See, who replaced Mr. Kincaid, testified that Mr.
Kincaid was
not Grievant's supervisor during the time the P case was assigned to her.
Mrs. See testified that
she was Grievant's supervisor during this time, and she had trained
Grievant regarding proper procedures, which would require that an application be
completed before a family attends training or a home study is conducted. Mrs. See stated
that she was unaware of things being done backwards as Grievant testified. Grievant
herself testified that Mrs. See was a thorough and attentive supervisor.
Grievant's own testimony refutes her allegation she should be at least partially
excused for her mistake, because things were routinely done backwards. While Grievant
stated that she knew, even in 1997, that convicted felons could not be approved for foster
parenting, she also stated that CIBs were routinely done
after children were placed in the
homes. If convicted felons cannot be approved for foster care, then how, or why, coulda home be approved without a CIB? This alone demonstrates that Grievant was aware of
the importance of the CIB in the foster home approval process. Grievant testified that Mr.
P's criminal record showed he was of unsuitable character to be a foster parent.
Therefore, if pertinent information regarding character, such as criminal background, is not
obtained prior to approval of a foster home, how is a homefinder to make an intelligent
recommendation? Grievant's contention that she had not been properly trained does not
excuse her recommendation of approval of an unsuitable family, especially in light of her
admission that she understood the importance of criminal background information prior to
approval of a foster home.
Grievant has also attempted to place at least some of the blame for her mistake
on her superiors. However, as all of Grievant's past supervisors testified, the regional
homefinding supervisor is not in the same office as the homefinders, including Grievant.
Therefore, the only information available to the supervisor is the home study report
prepared by the homefinder, along with the information in the FACTS system. In this case,
Grievant's home study did not mention the CIB or Mr. P's criminal convictions, and the
FACTS screen showed that the CIB was returned with no convictions. Therefore,
Grievant's supervisor at that time, Mrs. See, cannot be held responsible for the approval
of a convicted felon for foster care.
Grievant testified that she did not even realize the CIB had not been performed on
the P family until she reviewed all of her files after the 1998 performance audit, at which
time all homefinders were directed to inspect their files for all required information. She
contends that, as evidenced by the performance audit report, many homes were approvedwithout a CIB, and employees were not terminated. Grievant points to one particular
situation mentioned in the legislative auditor's report, wherein a homefinder in Region IV
recommended an individual with a drug conviction for foster care, relying upon a CIB
completed by the individual's employer, which indicated no convictions. That homefinder
received only a reprimand, and the individual did ultimately receive approval from the
homefinder's supervisor. Therefore, Grievant believes she has been subject to
discrimination.
W. Va. Code § 29-6A-2(d) defines discrimination, for purposes of the grievance
procedure, as any differences in the treatment of employees unless such differences are
related to the actual job responsibilities of the employees or agreed to in writing by the
employees. A grievant alleging discrimination must establish a
prima facie case by
demonstrating:
(a) that he is similarly situated in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his employer in a
manner that the other employee(s) has/have not, in a significant particular;
and,
(c) that such differences were unrelated to actual job responsibilities of
the grievant and/or the other employee(s), and were not agreed to by the
grievant in writing.
Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989). Once a
prima facie case has been established, a presumption exists, which the employer may
rebut by demonstrating a "legitimate, nondiscriminatory reason" for its action. A grievant
may still prevail by establishing that the rationale given by the employer is "mere pretext".
Id.
Respondent contends that the Region IV situation is different from Grievant's in at
least three respects. First, discipline within DHHR is administered on a regional basis, so
Grievant's supervisors were not responsible for determining the appropriate discipline for
the individual in Region IV. Second, Grievant did not rely upon a CIB from another
agency, but never completed one in the first place. DHHR's witnesses testified that it is
permissible to rely upon a CIB performed by another agency, and for a homefinder to do
so is not contrary to policy. Finally, and most importantly, not only did Grievant fail to
obtain a CIB, but she entered false and misleading information in the FACTS system to the
effect that a clear CIB had been returned. Whether this was an intentional act or a horribly
egregious error, it distinguishes Grievant's situation from that of the other homefinder. For
these reasons, Grievant has failed to establish that she is similarly situated to that
homefinder, and she has not made a
prima facie case of discrimination.
Grievant also argues that DHHR has subjected her to discrimination, because many
other homes were approved without CIBs, as found in the auditor's report. However, every
witness in this case--including three of Grievant's supervisors, the regional director for
Region III, and the region program manager--testified that, to their knowledge, these cases
involved specific situations: (1) another child in the home reached the age of 18 and the
CIB had not yet been done; (2) a court-ordered placement in a relative's home had been
done on an emergency basis, and the CIB had not yet been completed; or (3) a CIB from
another agency had been relied upon, which is permitted by Chapter 13000A. The
auditor's report does not conflict with this testimony, because it does not go into detailregarding the reasons for the absence of CIBs in some case files. Grievant has cited no
specific situation where a DHHR homefinder was responsible for obtaining a CIB,
approved the home of a convicted felon for foster care placement, and entered false
information in the FACTS system. Therefore, Grievant has provided insufficient evidence
to establish discrimination.
Grievant's statements and actions on several points make her testimony less
credible than that of the other witnesses in this case. As discussed above, she attempted
to blame Mr. Kincaid for her mistake due to his alleged failure to train her. However, the
credible testimony from Mr. Kincaid and Mrs. See establishes that Mrs. See was Grievant's
supervisor at the time the P case was in the approval process, and she trained Grievant
regarding correct procedures. Furthermore, Grievant has been unable to explain how she
failed to notice that the application submitted by Mr. and Mrs. P, dated March of 1997,
showed a criminal record for Mr. P. Grievant testified that the application was probably not
in the file when she was processing the P case, but this allegation is not supported by any
other evidence. Similarly, there is no evidentiary support for Grievant's allegation that
homefinders routinely approved homes for foster care without obtaining a CIB first. As
discussed above, it is simply nonsensical that approval would be routinely recommended
without a CIB, which is crucial to determining the suitability of potential parents.
Grievant has also maintained since the investigation of this matter began that she
simply made a mistake when she entered the information into the FACTS system stating
that the CIB had been returned and was clear. However, it is very difficult to believe one
could simply enter this information erroneously. DHHR introduced several samplescreens from the FACTS system, which demonstrated that, in order to enter the clear--
no convictions choice under CIB, one would have to scroll down through several other
options to enter it. Therefore, Grievant intentionally selected the clear option, which
could not have been a mistake, when she had no information in front of her to show that
the CIB had even been returned at that time.
Finally, Grievant has provided no explanation as to why she did not notify the
homefinding supervisor, Kelley Weber at that time, when she did obtain the completed CIB
on Mr. P in early 1999. Nearly seven months later, when the matter was brought to the
attention of DHHR management, Grievant at first told Ms. Weber the file was on hold
status due to incomplete medical information, but later admitted that a CIB had not been
performed on Mr. P. Grievant's explanation for this is that, when Ms. Weber initially
contacted her regarding the matter, she was at home and did not have the file in front of
her. However, this does not explain why Grievant kept the file on hold status for
approximately seven months without notifying her supervisor, as per Policy 13000A
procedures, with which Grievant testified she was familiar. Moreover, evidence introduced
by DHHR in the form of email correspondence between Grievant and Ms. Weber shows
that, when she was questioned about this situation in July of 1999, Grievant attempted to
downplay the P family situation. She stated that the contributing to the delinquency of
a minor conviction, which had been pled down from sexual assault, occurred when Mr. P
bought alcohol for a fifteen year old girl, whom he later married. This correspondence
seems contrary to Grievant's testimony at the level four hearing, where she admitted that
Mr. P's record made him of unsuitable character for foster parenting. Grievant also argues DHHR violated its internal policy on progressive discipline as
set forth in DHHR Policy Memorandum 2104. It is undisputed that, prior to this occurrence,
Grievant had an unblemished work record with DHHR, and this was her first disciplinary
offense. However, prior decisions by this Grievance Board have noted that Policy
Memorandum 2104 constitutes a permissive, discretionary policy that does not create a
mandatory duty to follow a progressive disciplinary approach.
Ferrell v. W. Va. Dep't of
Health & Human Resources, Docket No. 97-HHR-526 (Apr. 30, 1998);
Artrip v. W. Va.
Dep't of Health and Human Serv., Docket No. 94-HHR-146 (Sept. 13, 1994). While
progressive discipline is encouraged when employees commit infractions of agency rules,
serious infractions do not necessitate use of this approach.
Ferrell,
supra;
Thompson v.
W. Va. Dep't of Health and Human Resources, Docket No. 94-HHR-254 (Jan. 20, 1995).
Grievant similarly asserts that the penalty of dismissal was too severe for what she
has characterized as a mistake. She contends that she did not intentionally conceal Mr.
P's criminal record, so she should receive some lesser punishment for her conduct. An
allegation that a particular disciplinary measure is disproportionate to the offense proven
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.
Hunt v. W. Va. Bureau of
Employment Programs, Docket No. 97-BEP-412 (Dec. 31, 1997);
Miller v. W. Va. Dep't of
Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997).
Accord,
Jones v.
W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996);
Thompson v. W. Va. Dep't of Health & Human Services, Docket No. 94-HHR-254 (Jan. 20,
1995).
See Martin v. W. Va. State Fire Comm'n, Docket No. 89-SFC-145 (Aug. 8, 1989);
Schmidt v. W. Va. Dep't of Highways, Docket No. DOH-88-063 (Mar. 31, 1989).
Generally, an agency's action is arbitrary and capricious if the agency did not rely
on the factors that were intended to be considered, entirely ignored important aspects of
the problem, explained its decision in a manner contrary to evidence before it, or reached
a decision that is so implausible that it cannot be ascribed to a difference of view.
Shull
v. Dep't of Health & Human Resources, Docket No. 97-HHR-417 (Jan. 26, 1998);
Sheppard v. W. Va. Dep't of Health & Human Resources, Docket Nos. 97-HHR-186/187
(Dec. 29, 1997).
See generally Bowman Transp., Inc. v. Arkansas-Best Freight System,
Inc., 419 U.S. 285 (1974). Moreover, the arbitrary and capricious standard of review does
not permit an administrative law judge to simply substitute her judgment for that of the
employer.
See Bedford County Memorial Hosp. v. Health & Human Serv., 769 F.2d 1017
(4th Cir. 1985);
Staton v. Wyoming County Bd. of Educ., 184 W. Va. 369, 400 S.E.2d 613
(1990).
Considering the totality of the circumstances presented in this case, the
undersigned cannot find that termination of employment was too harsh a penalty for
Grievant's conduct. Because of her mistake, abused or neglected children were placed
in the home of an unsuitable family for foster care, and could very well have been
subjected to further abuse by Mr. and Mrs. P. Grievant has demonstrated by her actions
and her attempts to conceal them that she should not be entrusted with the critical role of
deciding whether or not families should be recommended for foster care. DHHR has
proven by a preponderance of the evidence that Grievant engaged in gross misconduct,
and termination was appropriate. Consistent with the foregoing findings and discussion, the following conclusions of
law are appropriate.
Conclusions of Law
1. In disciplinary proceedings involving state employees,
W. Va. Code §
29-6A-6 places the burden of proof on the employer, and the standard of proof is by a
preponderance of the evidence.
Davis v. Dep't of Motor Vehicles, Docket No. 89-DMV-569
(Jan. 20, 1990).
2. State employees, such as Grievant, who are in the classified service
can only
be dismissed for "cause", meaning "misconduct of a substantial nature directly affecting
the rights and interest of the public, rather than upon trivial or inconsequential matters, or
mere technical violations of statute or official duty without wrongful intention." Syl. Pt. 1,
Oakes v. W. Va. Dept. of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980);
Guine v. Civil Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1965);
W. Va. Code §
29-6A-6;
Logan v. Regional Jail Auth., Docket No. 94-RJA-225 (Nov. 29, 1994);
Davis v.
W. Va. Dep't. of Motor Vehicles, Docket No. 89-DMV-569 (Jan. 22, 1990); Section 12.02,
Administrative Rule, W. Va. Div. of Personnel (Aug. 3, 1993).
3. A grievant alleging discrimination must establish a
prima facie case by
demonstrating:
(a) that he is similarly situated in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his employer in a
manner that the other employee(s) has/have not, in a significant particular;
and,
(c) that such differences were unrelated to actual job responsibilities of
the grievant and/or the other employee(s), and were not agreed to by the
grievant in writing.
Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989). Once a
prima facie case has been established, a presumption exists, which the employer may
rebut by demonstrating a "legitimate, nondiscriminatory reason" for its action. A grievant
may still prevail by establishing that the rationale given by the employer is "mere pretext".
Id.
4. Grievant did not establish that she was similarly situated to other employees
who were not terminated, so she has failed to establish a
prima facie case of
discrimination.
5. While progressive discipline is encouraged when employees commit
infractions of agency rules, serious infractions do not necessitate use of progressive
discipline under DHHR's policies.
Ferrell v. W. Va. Dep't of Health & Human Resources,
Docket No. 97-HHR-526 (Apr. 30, 1998)
;
Thompson v. W. Va. Dep't of Health and Human
Resources, Docket No. 94-HHR-254 (Jan. 20, 1995).
6. An allegation that a particular disciplinary measure is disproportionate to the
offense proven 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.
Hunt v. W. Va. Bureau of Employment Programs, Docket No. 97-BEP-412 (Dec. 31, 1997);
Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30,1997).
Accord,
Jones v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-
371 (Oct. 30, 1996);
Thompson v. W. Va. Dep't of Health & Human Services, Docket No.
94-HHR-254 (Jan. 20, 1995).
See Martin v. W. Va. State Fire Comm'n, Docket No. 89-
SFC-145 (Aug. 8, 1989);
Schmidt v. W. Va. Dep't of Highways, Docket No. DOH-88-063
(Mar. 31, 1989).
7. Respondent has proven by a preponderance of the evidence that Grievant's
actions constituted gross misconduct, and termination of her employment was appropriate.
8. Grievant has not proven that termination was a disproportionate punishment
for her conduct in this case.
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: March 17, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1