DIXIE L. LANDIS,

      Grievant,

v.                                                      Docket No. 00-HHR-173

DEPARTMENT OF HEALTH
& HUMAN RESOURCES/
WILLIAM R. SHARPE, JR.,
HOSPITAL,

      Respondent.

DECISION

      Dixie Landis (“Grievant”) initiated this grievance on January 21, 2000, alleging “harassment to me by Janice Woofter N.M. on my unit C-2.” She seeks as relief “to have disciplinary action removed from my personnel and administrative records.” The grievance was denied at level one on January 27, 2000, and at level two on February 22, 2000. A level three hearing was held on May 5, 2000, and the grievance was denied at that level in a written decision dated May 12, 2000. Grievant appealed to level four on May 19, 2000. A hearing was conducted before the undersigned administrative law judge in the Grievance Board's office in Elkins, West Virginia, on August 2, 2000. Grievant represented herself, and Respondent was represented by counsel, Anthony Eates. The parties elected not to file post-hearing arguments, so this grievance became mature for consideration at the conclusion of the level four hearing.
      The following findings of fact are made from a preponderance of the evidence of record.

Findings of Fact
      1.      Grievant is employed by the Department of Health and Human Resources (“DHHR”) at William R. Sharpe Hospital (“Sharpe Hospital”) as a Health Services Worker.
      2.      Janice Woofter is employed by Sharpe Hospital as the Nurse Manager of Unit C-2 and is Grievant's immediate supervisor.
      3.      On January 18, 2000, Ms. Woofter issued a memorandum to Grievant memorializing a verbal counseling session regarding Grievant's alleged “time abuse.” The memorandum stated, in part, as follows:


            The dates are:      #1.      7/1/99 Thursday
                              #2.      8/14/99 Saturday
                              #3.      9/4/99 Saturday
                              #4.      10/31/99 Sunday
                              #5.      12/14/99 Tuesday
                              #6.      12/22 & 12/23/99 Wednesday/Thursday
                              #7.      1/4/00 Emergency vacation/Tuesday

      4.      Ms. Woofter also stated in the memorandum that she did have a doctor's statement regarding Grievant's absences on December 22 and 23, 1999, so those were considered verified sick leave days.
      5.      On January 20, 2000, Grievant provided Ms. Woofter with an excuse from her physician for the five unverified sick leave days. The excuse stated “Please excuse[Grievant] 7-1-99, 8-14-99, 9-4-99, 10-31-99, 12-14-99,” and contained no further explanation.
      6.      After being informed that the doctor's excuse described above was insufficient to verify her sick leave on those days, Grievant provided an additional excuse from the same physician, dated February 24, 2000, which contained the same language, but with the added statement “for illness.”
      7.       Sharpe Hospital and DHHR officials refused to accept either of the excuses Grievant submitted for the five sick days, because they provided no explanation of Grievant's illness and had obviously been issued “after-the-fact.”

Discussion

      At the level three hearing in this matter, Grievant sought to prove that she had been subjected to harassment from Ms. Woofter, because she had received three disciplinary actions since April of 1999. However, two of those disciplinary actions had already been addressed in a prior grievance, so it was determined at level three that those actions could not be relitigated. Accordingly, the only disciplinary action at issue in this grievance is the verbal counseling Grievant received for alleged leave abuse.
      The West Virginia Division of Personnel (“DOP”), which administers regulations concerning the employment of all classified state employees, has adopted the following provisions regarding sick leave:


* * * *


DOP Administrative Rule (7/98).

      Sharpe Hospital has adopted an “Absence Control Policy,” which is somewhat more restrictive than DOP's rule, and states, in pertinent part:


      *      Six (6) occasions in any 6-month period establishes a pattern

      *      First occasion after a pattern is established _ verbal counseling

      *      Next occasion _ written warning

      *      Next occasion _ 3-day suspension

      *      Next occasion _ 10-day suspension

      *      Next occasion _ dismissal

      Grievant contends that she provided excuses for these absences, so the verbal counseling was unjustified. She also believes that she has been subjected to harassment, which is defined by W. Va. Code § 29-6A-2(l) 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), the 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). The circumstances presented here simply do not constitute harassment. The verbal counseling given to Grievant was a single act, and does not display a “pattern of conduct.” Therefore, Grievant has not proven harassment.
      However, it is quite obvious that DHHR has improperly applied Sharpe Hospital's Absence Control Policy. In the memorandum recording the verbal counseling session, Ms. Woofter admitted that two of the absences, on December 22 and 23, were verified by a valid physician's excuse. Moreover, there is no mention in the absence control policy that an absence for emergency vacation leave is to be counted as one of the six occasions of unverified sick leave usage which may constitute a pattern of abuse. Although it is understandable that Grievant's superiors did not accept a “blanket” doctor's excuse, without explanation, for five of her absences, the fact remains that Grievant only had five unverified sick leave days within a six-month period, which does not constitute a “pattern” under the policy. The remaining absences were verified sick leave and emergency vacation, which are not to be counted against her.
      Accordingly, the undersigned finds that, because the verbal counseling was given in contradiction of the Absence Control Policy, all record of it should be removed from Respondent's files. It was ordered by the level three grievance evaluator that the memorandum be maintained only in Ms. Woofter's administrative file. However, the undersigned finds that, because the memorandum was issued as a record of the verbalcounseling, a step in the progressive disciplinary process, it should be completely destroyed. Grievant's unverified sick leave days had not yet reached the level of a pattern, so no discipline was justified in this case, and the verbal counseling cannot be used against her pursuant to the progressive disciplinary process outlined in the Absence Control Policy.
      Consistent with the foregoing, the following conclusions of law are made.

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.      In order to establish harassment in violation of W. Va. Code § 29-6A-2(l), the 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).
      3.      Grievant has not established that she has been subjected to harassment in violation of W. Va. Code § 29-6A-2(l).
      4.      The verbal counseling given to Grievant for sick leave abuse was issued in contravention of the provisions of Respondent's Absence Control Policy.
      Accordingly, this grievance is GRANTED, and Respondent is directed to eradicate all record of the verbal counseling session from its files as discussed in this Decision.
      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:      August 30, 2000                  ___________________________________
                                          DENISE M. SPATAFORE
                                          Administrative Law Judge