JOHN RIDENHOUR,

                  Grievant,

      v.

DOCKET NO. 99-DJS-267

WEST VIRGINIA DEPARTMENT OF MILITARY
AFFAIRS & PUBLIC SAFETY/DIVISION OF
JUVENILE SERVICES,

                  Respondent.

D E C I S I O N

      Grievant, John Ridenhour, filed this grievance on June 28, 1999, protesting his dismissal from the West Virginia Department of Military Affairs & Public Safety/Division of Juvenile Services (“DJS”), effective June 17, 1999. A level four hearing was held in the Grievance Board's Charleston, West Virginia, office on September 8, and November 1, 1999. This case became mature for decision on December 20, 1999, the deadline for the parties' proposed findings of fact and conclusions of law. DJS was represented by C. Scott McKinney, Esq., Assistant Attorney General, and Grievant was represented by Walt Auvil, Esq., Pyles & Auvil.   (See footnote 1) 

BACKGROUND

      Grievant first became employed at the North Central Regional Juvenile Detention Center (“NCRJDC” or “Center”) in or about 1995. Prior to becoming Director of the NCRJDC, Grievant was a Youth Service Worker. Grievant was promoted to Director of the Center in or about August 1998. While still a Youth Service Worker, Grievant met Stephanie Miller, a volunteer college intern at the Center, in April or May 1998. As a Youth Service Worker, Grievant had no supervisory authority over Ms. Miller. Grievant and Ms. Miller became romantically involved and remained involved until approximately June or July 1998. Grievant broke off the relationship with Ms. Miller at that time, because once he became Director, he would be her supervisor. At the time of their romantic involvement, Grievant was separated from his wife. Grievant and his wife eventually got back together, and his wife was aware of his relationship with Ms. Miller.
      On May 5, 1999, Timothy D. Melton, Deputy Director of Juvenile Services, received a phone call from Harold Connor, a Juvenile Detention Officer I at NCRJDC. Mr. Connor complained to Mr. Melton about unfair scheduling, shift stacking, and favoritism by the Director of the facility toward select staff members, which created a hostile working environment. R. Ex. 1, Statement of Harold Connor   (See footnote 2)  ; G. Ex. X.
      Mr. Connor alleged Grievant stacked shifts by putting too many people on one shift and not enough on the rest of the shifts to effectively run the Center. He explained thefavoritism as the Director having certain favorite employees who were granted privileges in scheduling, which other staff members were not. Mr. Connor also alleged Grievant was having an affair with Ms. Miller, that several incidents had occurred at the facility regarding Ms. Miller, Grievant, and Grievant's wife which had not been reported, and that this situation created a hostile working environment at the facility. Specifically, Mr. Connor said that Ms. Miller had been arrested by the Wood County Sheriff's Department on state property, that Grievant's wife came to the Center and “chased [Ms. Miller] around the parking lot in view of the residents”, and that Ms. Miller attempted suicide at the end of April 1999, and Grievant and his wife transported her to the hospital. Mr. Connor never went to Grievant about his concerns, but went directly to Grievant's superior, Mr. Melton. R. Ex. 1, Statement of Harold Connor; G. Ex. X.
      Mr. Melton immediately left Charleston and went to the NCRJDC in Parkersburg to assess the situation. When he arrived, he took the schedules and the log books from the Center to his hotel room to review. Grievant met Mr. Melton in his hotel room, and they discussed the allegations which Mr. Connor had made against him. Mr. Melton asked him why these incidents which allegedly took place on Center grounds had not been reported by Grievant. Grievant responded he was aware Ms. Miller had been arrested, but it was before she was an employee of the Center, and she was not in uniform. He denied his wife “chased” Ms. Miller around the Center parking lot, stating she and Ms. Miller met in a church parking lot “up the road” from the Center. Finally, Grievant stated he and his wife had helped Ms. Miller when she attempted suicide, but that it was off state property, was a personal matter, and he did not think it needed to be reported. After talking with Grievantabout the allegations, Mr. Melton informed him there would be a fact-finding investigation into the complaints made by Mr. Connor.
      The next day, May 6, 1999, Mr. Melton went to the Center and began working on a new schedule. The new schedule was developed, and Mr. Melton informed the staff there would be an investigation into the allegations made against Grievant, and that he, Mr. Melton, would not be involved in the investigation. G. Ex. X. On May 11, 1999, Ms. Miller, Grievant, and Mr. Melton discussed the allegations against her, and he informed her there would be an investigation. On May 12, 1999, Mr. Melton met with Manfred Holland, Director of DJS, Dallas Staples, Investigator, and DeeAnn Groves, Human Resources Director, and explained the need for a formal fact-finding investigation into the allegations raised at NCRJDC. On May 13, 1999, the investigation began and staff members reported to the Parkersburg Holiday Inn to be interviewed by Mr. Staples and Ms. Groves. Mr. Melton filled in at the Center as needed, and transported officers to and from the Center for interviews.
      On May 17, 1999, Mr. Melton issued a fifteen (15) day suspension letter to Grievant, pending the outcome of the investigation. Mr. Melton informed Grievant he was to have no contact with employees at NCRJDC, and that he could not come to the Center or discuss the investigation with any employee of DJS. G. Ex. L. Ms. Miller was also suspended for fifteen (15) days, pending the outcome of the investigation.
      On June 17, 1999, Manfred Holland issued Grievant a dismissal letter based upon the investigation conducted by Mr. Staples and Ms. Groves. G. Ex. M. The dismissal letter is reproduced as follows:
















G. Ex. M.
      To summarize, Grievant was dismissed for several violations of DJS Policy Number 4.01: Employee Standards of Conduct and Performance. Policy 4.01 delineates three classes of offenses, with Class A being the least severe, Class B including acts and behavior which are more severe in nature, and Class C, including acts and behavior of such a serious nature that a first occurrence should normally warrant an extended suspension or removal. R. Ex. 2. Grievant was charged with three separate Class C(23) offenses for “breach of facility security or failure to report any breach or possible breach of facility security.” R. Ex. 2. These charges are:
      (a)       (b)
R. Ex. 2.   (See footnote 3) 

      Grievant was also charged with violation of Policy 6.01, Sexual Harassment and Other Discrimination, based on his relationship with Ms. Miller, the hostile work environment that relationship engendered at the Center, as well as several other actions either personally or of others which Grievant condoned towards female members of the Center. Section 6.01 provides that employees found to have engaged in “discrimination on the basis of . . . sex (including sexual harassment) shall be counseled and shall be disciplined for a Class B or C offense, depending on the specific facts and circumstances surrounding the incident.” R. Ex. 2.       Finally, Grievant was charged with engaging in favoritism with regard to scheduling, work assignments, and tolerating excessive tardiness or absences. These alleged acts of favoritism generally, but not always, were directed at Ms. Miller.
      Each of the allegations addressed in the dismissal will be discussed separately below.
      A.


      DJS' evidence establishes that local law enforcement authorities came to NCRJDC twice seeking Ms. Miller on bad check charges. The first time this occurred, in January 1999, Ms. Miller was an intern with DJS, not in uniform, and not yet employed by DJS. Ms. Miller explained to Grievant that she was going through a divorce and her husband had withdrawn all of her money from her checking account unbeknownst to her, and that, as a result, she had written checks on an empty account.
       At the time of the January, 1999, incident, Ms. Miller's paperwork had been submitted for permanent employment with DJS. Grievant testified he telephoned Mr. Melton at the central office immediately and informed him that Ms. Miller had been picked up at the Center by the police. Mr. Melton testified he was not aware the arrest had taken place at the Center. However, he testified that fact would not have changed his mind about hiring her. In any event, Mr. Melton told Grievant he was not concerned with a bad check charge, and that if she paid the checks, not to worry about it, and go ahead with herpaperwork. Mr. Melton did not tell Grievant to fill out an incident report regarding Ms. Miller's arrest, and Grievant did not fill out an incident report. LIV Melton Test.
      Mr. Melton testified it is a concern when police come to the facility looking for a staff person, and that police cannot come in and take an officer off the floor without permission from the Director. It is a safety and security concern that a replacement be found for the officer before he or she is taken off the floor. As noted above, Ms. Miller was not an officer or an employee of DJS at the time of her arrest.
      Investigator Staples also testified that having sheriff's department deputies come to the NCRJDC seeking Ms. Miller on bad check charges was a security concern and that “the failure to report police officers looking to arrest a juvenile detention officer [was] a possible breach of facility security.”
      The second time the police came to the Center looking for Ms. Miller was in the Spring of 1999. At that time, she was on a medical leave of absence. JDO Stephen Blosser testified he met the police at the door, informed them Ms. Miller was not there, and they left. He did not recall whether he told Grievant of this incident or not. LIV Blosser Test. Grievant testified he was unaware in the Spring of 1999 that police had again come looking for Ms. Miller. However, around that time a newspaper article mentioned a Stephanie Miller as having outstanding criminal charges. Grievant directed Gary Vincent, his Office Assistant, to contact the sheriff's department to determine if this was the same Stephanie Miller that worked at the Center. Mr. Vincent was told that Ms. Miller had arecord of “false pretenses”, and that she had satisfied the charges against her. LIV Grievant Test.; LIV Vincent Test.
      It is true Grievant did not complete an incident report on Ms. Miller's arrest in January 1999, when she was an intern. It is not true that he did not “report” the incident. Mr. Melton testified Grievant reported to him about the arrest, if not immediately when it happened, soon thereafter, and before she was hired permanently by DJS. Mr. Melton testified her arrest was not of concern to him, and he gave Grievant the go-ahead to process her paperwork for hiring. Mr. Melton did not tell Grievant to fill out an incident report on the matter.
      Grievant did not report or fill out an incident report on the police visit in the Spring of 1999 because he did not know about it. Mr. Blosser testified he was not sure whether he told Grievant the police had come looking for Ms. Miller or not. Considering Mr. Blosser's ability to recall most other matters in infinite detail, and his more than ample documentation, it is more probable than not that he did not tell Grievant the police had come looking for Ms. Miller. See, R. Ex. 1, Statement of Stephen Blosser.
      Mr. Holland characterizes Grievant's conduct in not reporting these incidents an attempt to “intentionally hide information” from DJS. This charge has not been proven. Clearly, there was no attempt by Grievant to hide these incidents. In January 1999, he contacted Mr. Melton shortly, if not immediately, after the police had taken Ms. Miller from the Center, and sought his advice before proceeding to hire her permanently. With respect to the second incident, the evidence establishes Grievant did not even know the police hadcome looking for Ms. Miller. As far as Grievant directing Mr. Vincent to call the police about the newspaper reference to Ms. Miller, it is plausible that once he was informed by the police that she had satisfied the bad check charges, he did not feel it was necessary to report this to Mr. Melton. Mr. Melton had already told him once that Ms. Miller's bad check charges did not concern him. DJS has failed to prove Grievant deliberately did not report Ms. Miller's arrest to the central office in an attempt to hide that information.
      B.
      In December 1998, Grievant's wife came to the Center and spoke with Grievant in the Center parking lot. Later, she drove up the road from the Center to a church parking lot, and waited for Ms. Miller to leave work. When Ms. Miller left work, she turned the opposite way from the church, and Mrs. Ridenhour pulled out of the church parking lot and followed her. They later had a conversation on the side of the road.
      DJS alleges this incident occurred in the Center parking lot, and in full view of the residents of the Center. The evidence does not support DJS' theory. The only employee who actually saw Mrs. Ridenhour and Ms. Miller together was Iasia Griffith, and she swore in her statement to Mr. Staples that the incident occurred in a church parking lot up the road from NCRJDC. R. Ex. 1, Statement of Iasia Griffith. Ms. Griffith stated she was coming into the NCRJDC parking lot as Ms. Miller was leaving. She noticed Mrs. Ridenhour sitting in her car up the road in the church parking lot, and when Ms. Miller exited the NCRJDC, Mrs. Ridenhour followed her.       Ms. Miller and Mrs. Ridenhour testified their meeting was the result of a misunderstanding. Mrs. Ridenhour had called the facility earlier and asked to speak to Grievant. Ms. Miller answered the phone, and instead of putting it on hold, she hung up on Mrs. Ridenhour. Mrs. Ridenhour testified she visited the Center that day, and she and Grievant were seen talking in the Center parking lot. After she left, she decided to wait in the church parking lot for Ms. Miller to ask her why she had hung up on her. She expected Ms. Miller to turn right out of the NCRJDC driveway, which would take her past the church, but she turned left instead, which prompted Mrs. Ridenhour to follow her. Ms. Miller stopped further along the road, and they had a discussion, after which they went their separate ways. There is no evidence that this discussion was threatening in any manner.
      Mr. Blosser, JDO Lisa Grimes, and JDO Tomas Worstell stated some residents had observed this meeting between Ms. Miller and Mrs. Ridenhour out of their windows, and were gossiping about it. None of the residents gave statements or were called to testify, and neither Mr. Blosser, Ms. Grimes, nor Mr. Worstell actually witnessed the meeting between Ms. Miller and Mrs. Ridenhour. R. Ex. 1, Statements of Stephen Blosser, Lisa Grimes, Tomas Worstell.
      This December, 1998 interaction between Ms. Miller and Mrs. Ridenhour occurred off the NCRJDC grounds, was non-threatening, and did not involve Grievant. DJS alleges this confrontation constituted a breach or possible breach of security, which Grievant failed to report, thus constituting a Class C Offense under Policy 4.01. Neither Mr. Staples nor Mr. Melton elaborated as to how this meeting between Mrs. Ridenhour and Ms. Millerposed a breach or possible breach of security of the Center. DJS has failed to establish how this incident possibly constituted a breach or possible breach of security at NCRJDC, or why Grievant should have been expected to report this incident to his superiors. DJS has failed to prove by a preponderance of the evidence this charge against Grievant.
      C.
      In May, 1999, Ms. Miller attempted suicide. This attempt occurred in Ms. Miller's car, and off the grounds of NCRJDC. Grievant and his wife were contacted by Ms. Miller's mother, who was concerned for her safety, and they found her in her car. They transported her to the hospital for treatment.
      Within a week of this occurrence, Grievant informed Mr. Melton of Ms. Miller's attempted suicide. Mr. Melton criticized Grievant for not informing him sooner, and for his failure to complete an incident report. LIV Melton Test. At Mr. Melton's direction, Grievant completed an incident report. LIV Melton Test.; LIV Grievant Test.
      Mr. Staples characterized someone who attempts suicide as a “weak link” whose mere presence in the facility could cause “the whole security scheme” to break down. LIV Staples Test. DJS has established how having a mentally unstable JDO employed at the facility could result in a breakdown of security, as well as be an unwelcome role model for the troubled youth who are housed there.
      Grievant testified he did not report the incident immediately after it happened, because he was unsure of how to handle such a sensitive matter. Within the week, Mr.Melton was at the Center, and Grievant told him about Ms. Miller's attempted suicide. Mr. Melton told him to fill out an incident report, and he did.
      DJS has failed to prove Grievant violated Policy No. 4.01 by not reporting Ms. Miller's attempted suicide immediately after it occurred. There is nothing in Policy 4.01 that designates some limited period of time for reporting incidents, after which an employee can be disciplined. Grievant did report the incident a week later, and acknowledged his mistake in not reporting it sooner. Further, Ms. Miller did not return to work during that week following her attempted suicide, so any potential threat to the facility, staff or residents from Ms. Miller was nonexistent. The undersigned concludes Grievant did report Ms. Miller's attempted suicide within a reasonable period of time to his superior, Mr. Melton, and DJS has failed to prove this charge against Grievant.
       D.             1.       DJS charged Grievant with engaging in favoritism with respect to scheduling, that day shift was overstaffed and night shifts were short on staff. Specifically, Grievant allegedly stacked the schedule to favor Ms. Miller and JDO Harlan Lott. DJS did not identify what definition of “favoritism” it was relying on in making these charges. However, W. Va. Code § 29-6A-2(h) defines “favoritism” as “unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees.” Generally, it is an employee bringing the charge of favoritism against his or her employer with regard to another employee's treatment. In this case, it is the employer,DJS, bringing the charge of favoritism against its employee. While the test for proving favoritism under Code § 29-6A-2(h) remains essentially the same regardless of who the complainant is, it has been tailored below to reflect that it is the employer, not the employee, bringing the charge. In order to establish a prima facie showing of favoritism, DJS must establish the following:




Blake v. W. Va. Dept. of Transp., Docket No. 97-DOH-416 (May 1, 1998). See McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). If DJS establishes a prima facie case of favoritism, the Grievant may rebut this showing by articulating a legitimate reason for his actions. However, DJS can still prevail if it can demonstrate that the reason proffered by Grievant was mere pretext. See Burdine, supra; Frank's Shoe Store, supra; Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
      DJS has failed to establish a prima facie case of favoritism against Grievant. Mr. Connor brought the scheduling issue to Mr. Melton's attention, claiming shifts were stacked and some shifts were understaffed. When Mr. Melton arrived at the Center to look into thescheduling allegations, he found some shifts were understaffed and some were overstaffed. He affirmed the day shift was weighted. He created a three-shift rotating scheduling with equal number of employees, and told Grievant he would do the schedule and “take that monkey off his back.” LIV Melton Test. Mr. Melton never testified he found any evidence of favoritism in the schedule, nor did he testify that Ms. Miller and Mr. Lott were being given favorable treatment with regard to the scheduling.
      Grievant testified that when he became Director, about 14 of the 17 employees at the Center came to him to request they remain on the shifts to which they were currently assigned. He utilized the same schedule that had been in place under the old Director, Mr. Mitchell, and did not change anything. Everyone who made a request for a shift got what they wanted. LIV Ridenhour Test.
      The above statements summarize the totality of evidence presented regarding the scheduling allegations against Grievant. Based on this evidence, the undersigned cannot find that DJS has made a prima facie case, let alone proven by a preponderance of the evidence, that Grievant engaged in favoritism in maintaining a schedule that had been in effect before he was the Director.
            2.       DJS alleges Grievant engaged in favoritism toward Ms. Miller by allowing her to work in the office, failing to discipline her for being late and missing work, and failing to report she was arrested at the Center. This last allegation has been found unproven and will not be discussed again.      Ms. Miller had been an intern at the Center and had served in a temporary capacity before being hired permanently. When a JDO I position opened up in December or January 1999, Grievant first offered the position to Sherri Muleix, the cook at the Center. She turned down the position, and Grievant next offered it to Ms. Miller. Grievant testified when Ms. Miller first began working as a JDO, she was a good employee. However, she was going through a divorce at the time of her employment at the Center, and it affected her work. He testified he was unaware at first that she was missing a lot of work, because she was working on the floor, and the supervisors did not inform him of her absences. He admitted Ms. Miller spent a large amount of time in his office discussing her problems with him.
      Sometime at the beginning of 1999, Officer Gary Vincent was scheduled to transfer from his position of Office Assistant at the Center. He began training another officer, Dodie Turner, to fill that spot, or at least help out until someone was hired. Mr. Vincent testified Ms. Turner did not work out and “just quit coming” to be trained. Thereafter, Grievant conducted interviews for the position, and selected one of the two applicants for the position. She later informed him she did not want the job. Finally, Grievant asked Mr. Melton if he could offer the position to Ms. Miller, and Mr. Melton told him to go ahead. Grievant offered her the Office Assistant position, and she accepted. Ms. Miller worked in the Office Assistant position for only a short time before going on medical leave of absence. She did not return to work until mid-March.      Grievant had previously disciplined Ms. Miller for tardiness and missing work, in the form of verbal and written reprimands. G. Ex. D. When she agreed to fill the Office Assistant position, he counseled her again that she needed to come to work on time. LIV Grievant Test.; LIV Vincent Test.
      While Ms. Miller was on medical leave, Grievant repeatedly told her she needed to submit proper documentation, and she finally turned it in.
      Also during this time, Grievant was proceeding with his plan to terminate Ms. Miller at the end of her 90-day probationary period. He had asked Mr. Vincent to call the Personnel office to find out what the procedure was for terminating a probationary employee. LIV Grievant Test.; LIV Vincent Test. Grievant testified Mr. Melton was aware that he was planning on terminating Ms. Miller at the end of her probationary period.
      DJS has failed to show Grievant demonstrated any favoritism towards Ms. Miller. First, he initially offered the JDO position to Sherri Muleix, before offering it to Ms. Miller. He had previously given Ms. Miller written reprimands for tardiness and missing work, and had verbally counseled her about those deficiencies. He offered the Office Assistant position to two other individuals before offering it to Ms. Miller. Finally, he was in the process of terminating her probationary employment when the investigation into the allegations against him commenced.
      Grievant admits Ms. Miller spent a lot of time in his office behind closed doors. He testified they talked about her personal problems, and other things, and that they were friends. This alone does not support a charge that Grievant was engaging in favoritismtowards Ms. Miller to the detriment of any other employee. Grievant was Ms. Miller's superior. If she had problems she needed to discuss, it was part of his responsibility to hear her out. Other employees may speculate and conjecture what went on between Grievant and Ms. Miller in his office, but there is no evidence to suggest it was anything other than conversation. Employees complained that she left them short-staffed, but again, there is no evidence that this was intentional on Grievant's part. Thus, DJS has failed to prove the charge of favoritism against Grievant.
      E.             1.       The dismissal letter charges Grievant with having an extra-marital affair with a “subordinate officer”, Stephanie Miller. Although DJS maintains it was not concerned with the affair itself, but rather the effect the affair had on the Center, it went to great lengths to establish the affair existed, and continued, throughout Grievant's tenure as Director. DJS' stated concern was that Grievant, by engaging in an affair with a subordinate officer, opened up the Center and State of West Virginia to a sexual harassment lawsuit by Ms. Miller.
      DJS has failed to prove Grievant engaged in a sexual relationship with a subordinate officer. Both Grievant and Ms. Miller admit having a romantic relationship while she was an intern at the facility, and while Grievant was a Youth Service Worker. Grievant did not have any supervisory authority over Ms. Miller at that time. Grievant and Ms. Miller testified the relationship was severed when Grievant was named Director of theCenter, as he then would have supervisory authority over her. DJS has presented no evidence that the affair continued past that point, other than the speculation of employees at the Center.
      Most of the employees who gave statements during the fact-finding investigation assumed Grievant and Ms. Miller were having an affair, because they spent a lot of time together in his office. For example, Harold Connor stated Grievant was “apparently” having an affair with Miller. R. Ex. 1, Statement of Harold Connor. Tomas Worstell stated he had no first hand knowledge of an affair between Grievant and Ms. Miller. R. Ex. 1, Statement of Tomas Worstell. Sherri Muleix stated Grievant and Ms. Miller had used her as a “mediator” when they were involved, and “as far as I know it continues”, but did not actually state she knew this, or that Grievant or Ms. Miller told her it continued. R. Ex. 1, Statement of Sherri Muleix. Joetta Hall stated Grievant told her he had a relationship with Ms. Miller prior to her becoming employed at the Center. R. Ex. 1, Statement of Joetta Hall. Gary Vincent stated he never saw any evidence of a “love type” relationship between Grievant and Ms. Miller. R. Ex. 1, Statement of Gary Vincent. Stephen Blosser stated Grievant had admitted having an affair with Ms. Miller when she was an intern. R. Ex. 1, Statement of Stephen Blosser.   (See footnote 4)        None of these employees witnessed anything which would serve to prove by a preponderance of the evidence that Grievant and Ms. Miller continued their romantic involvement while he was Director of the facility and she a subordinate employee. DJS has failed to support this allegation.
            3.       DJS also alleges Grievant created a hostile environment at the Center due to his relationship with Ms. Miller, in violation of its Sexual Harassment policy. DJS Policy 4.01, Section 6.01 regarding sexual harassment does not define sexual harassment, but merely states that employees who engage in it shall be disciplined. However, DJS submitted the West Virginia Division of Personnel's (“DOP”) definition of sexual harassment, including hostile environment, which is defined as:

DJS Ex. 3.
      Grievant attended training on sexual harassment provided by DJS and DOP, wherein he received information describing “hostile environment” as behavior which “can be verbal, non-verbal, or physical. The key is the term 'unwelcome.' If an employee finds the behaviors objectionable or offensive they may constitute sexual harassment.” DJS Ex. 3.       One of the incidents presented by DJS to show Grievant was responsible for a hostile environment involved JDO Lisa Grimes and JDO Harlan Lott. Briefly, Ms. Grimes alleged Mr. Lott had told her to give a “sugar-tit” to a resident who was complaining. Ms. Grimes took this as a reference to her body, and was offended. She told another co- worker, Mr. Blosser, about the statement, and told him she was upset. The merits of this incident are more fully discussed in Lott v. W. Va. Dept. of Public Safety, Docket No. 99- DJS-278 (Dec. 16, 1999). Important to this case, however, is the fact that Ms. Grimes never told Grievant about the statement, or that she was upset. LIV Grimes Test. Ms. Grimes testified she did not tell Grievant because he would have laughed at her. Regardless of the reason, Grievant cannot be charged with condoning sexual harassment in this instance because he never knew about it.
      Mr. Blosser complained there was a great deal of “sex talk”, dirty jokes, horseplay, and other behaviors in the Center which he deemed unprofessional. He told Grievant when he became Director that this type of behavior bothered him. Shortly after Grievant became Director, he issued a memorandum to all staff at the Center that any conduct of a sexual nature would not be tolerated within the Center.
      Despite Mr. Blosser's objection to this type of behavior, he admitted he may have been counseled by Grievant for touching a female co-worker on the buttocks, and for biting another co-worker on the breast. Mr. Blosser characterized these incidents as just joking around.       Another situation which DJS alleges caused a hostile environment were loud arguments heard by staff members and residents between Grievant and Ms. Miller. Mr. Vincent testified he heard Ms. Miller yelling in Grievant's office once, but did not hear Grievant yelling. Mr. Vincent also testified Ms. Miller told him she was supposed to take medication for her violent behavior. Mr. Worstell testified Ms. Miller made people uncomfortable by her reactions and emotions. He heard Grievant and Ms. Miller arguing in the office. Ms. Grimes testified Ms. Miller made her uncomfortable. Grievant admitted he had arguments with Ms. Miller about work. In one instance in particular, he yelled at her over the phone because she failed to report for work.
      The next incident creating a hostile environment involved an applicant for the Office Assistant position who was “extremely overweight.” LIV Vincent Test. Ms. Grimes testified she heard Grievant making disparaging remarks about the woman's weight, which made her uncomfortable. R. Ex. 1, Statement of Lisa Grimes; LIV Grimes Test. Mr. Vincent, who participated in the interview of the applicant with Grievant, testified he never heard Grievant make any remarks about the woman. Mr. Vincent testified he and Grievant discussed the need to be careful during the interview in asking the applicant if she would be comfortable in the work surroundings. He testified the office space where she would be working was extremely small and cramped.
      Shortly after Ms. Grimes began working at the Center, Grievant and Mr. Lott played a practical joke on her by putting shaving cream on the telephone receiver. She stated she was upset about this incident. R. Ex. 1, Statement of Lisa Grimes.      Ms. Grimes testified at level four that she had sex one time with Grievant, and that she felt pressured into it in order to be hired as a permanent employee at the Center. Mr. Blosser testified he observed Grievant attempting to “seduce” Ms. Grimes, and it made him mad and uncomfortable, because he had seen what happened to Ms. Miller. LIV Blosser Test. Ms. Grimes did not report this incident to anyone at the Center, and in fact, did not report it to Mr. Staples in any one of her three meetings with him during the investigation into Grievant's conduct. It was not until her level four testimony that Ms. Grimes made this statement. Grievant denies having sex with Ms. Grimes. While this incident, if true, could serve to establish sexual harassment on the part of Grievant, it was not a part of Grievant's dismissal letter, and was never reported to anyone in authority at DJS. Furthermore, it completely contradicts Ms. Grimes' statement to Mr. Staples that, at no time during her training under Grievant, did he make her feel uncomfortable. R. Ex. 1, Statement of Lisa Grimes. Thus, the undersigned chooses to give very little weight to Ms. Grimes' testimony in this regard.
      Finally, the instances involving Mrs. Ridenhour and Ms. Miller, Ms. Miller's attempted suicide, and the police coming to the Center for Ms. Miller, were also presented as evidence of a hostile environment at the Center.
      Frankly, other than those involving Ms. Grimes, none of the above incidents have anything to do with a hostile environment as defined by the sexual harassment policy. DJS has confused a hostile work environment under the sexual harassment policy with just plain poor morale at the Center. As noted above, DJS has failed to prove Grievant treatedMs. Miller in a preferential manner at the Center to the detriment of other employees. Furthermore, it seems Ms. Miller was the problem in the majority of the complaints, not Grievant. Apparently, Ms. Miller had a volatile temper and erratic mood swings and outbursts which made her co-workers uncomfortable around her. The employees speculated Grievant never did anything to discipline Ms. Miller, and tolerated her behavior and work habits, but this, too has been demonstrated to be untrue.
      Despite all of these “problems” at the Center under Mr. Ridenhour's leadership, it is very important to note that Mr. Melton testified he had no complaints about Mr. Ridenhour's work performance, and had never disciplined Mr. Ridenhour. In fact, up until his suspension, Mr. Ridenhour's personnel file was blemish-free.
      Basically, we have some employees who resented and/or did not like Ms. Miller, and did not believe Grievant was doing anything to fix the situation with her, because they believed he was still engaged in an on-going affair with her. None of this has been proven, and thus, we are left with a group of disgruntled workers, one of which has a history of confrontation with management in general, and Mr. Ridenhour, in particular, from the days when he was a Youth Service Worker. See R. Ex. 1, Statement of Stephen Blosser.
      It is helpful to compare this case with another involving a claim of hostile work environment by employees against a director stemming from a relationship with a female subordinate, to see that Grievant did not create a hostile work environment. In Wilson v. W. Va. Dept. of Transp., Docket No. 96-DOH-019 (May 16, 1996), the grievant was demoted and transferred from his position of Transportation Realty Manager of theDepartment of Highways' District Seven Office, for allowing a personal relationship with a subordinate employee to create an adverse work environment in the unit to the extent that he was unable to effectively manage the unit. Although there was no policy prohibiting office relationships, the potential problems with having a relationship with a subordinate had been discussed with the grievant. The ALJ found in that case that the grievant had lost his objectivity as a result of his personal relationship, and had become unable to effectively manage the District Seven office. All but one of the grievant's subordinates had filed complaints against him, alleging a hostile work environment. As stated in Wilson,

      DOH did not object to his relationship with the subordinate, but rather, was concerned that grievant would lose his objectivity in dealing with others in his office. DOH succeeded in proving the grievant had lost his objectivity with regard to the female subordinate with whom he was having a romantic relationship.
      In this case, DJS has not proven Grievant lost his objectivity with regard to Ms. Miller, in relation to other workers at the Center. In fact, it has been shown that Grievant disciplined her, both verbally and in writing, for her tardiness and absences, and was in theprocess of terminating her probationary employment when the investigation was commenced against him. The undersigned does not doubt that some of the employees at the Center felt they could not talk to Grievant about Ms. Miller, because he had had a romantic relationship with her, and some believe they were still involved. However, no concrete evidence has been produced to support this feeling. Only Mr. Blosser testified that Grievant would get defensive when discussing Ms. Miller, but gave no specific examples of how or when this occurred.
      The undersigned is not blind, however, to the fact there are serious morale problems at the Center, and that DJS has every right to try to correct that situation. However, as there have been no disciplinary actions against Grievant, and indeed, no complaints by Mr. Melton, his superior, prior to this incident, it cannot be concluded that DJS gave Grievant any opportunity as Director to try to correct these problems.
FINDINGS OF FACT

      1.      Local law enforcement officials came to the Center in January 1999 to arrest Stephanie Miller on bad check charges. Ms. Miller was not an employee of DJS at the time, and was not in uniform.
      2.      Grievant reported to his superior, Mr. Timothy Melton, that local law enforcement officials came to the Center to arrest Stephanie Miller in January 1999.
      3.      Local law enforcement officials came to the Center in the Spring of 1999 looking for Ms. Miller again. JDO Stephen Blosser met the officers at the door of theCenter, and told them Ms. Miller was not there. The officers left, and Mr. Blosser did not inform Grievant that they had come looking for Ms. Miller.
      4.      Grievant did not know local law enforcement officials had come to the Center again in the Spring of 1999 looking for Ms. Miller, who was on a medical leave of absence, and thus, did not report the visit to Mr. Melton.
      5.      Mrs. Ridenhour parked in a church parking lot near the Center, waiting for Ms. Miller to leave work. She followed Ms. Miller away from the Center, and they spoke on the side of the road.
      6.      Grievant did not report this incident to Mr. Melton.
      7.      Ms. Miller attempted suicide in May 1999. Grievant and his wife were called by Ms. Miller's mother, and they found her and transported her to hospital for treatment. This incident occurred off the Center premises, and during the evening hours when Grievant was not on duty.
      8.      Grievant reported Ms. Miller's attempted suicide to Mr. Melton within a week of its occurrence, and completed an incident report at Mr. Melton's directive.
      9.      Grievant and Ms. Miller had a romantic relationship while Grievant was a Youth Service Worker and she an intern at the Center. When Grievant became Director of the Center, he severed his relationship with Ms. Miller.
      10.      When Grievant became Director, he utilized the same schedule that had been in place under the old Director.      11.      Grievant did not give Ms. Miller any preferential treatment during the course of her employment at the Center. Grievant gave her written and verbal reprimands over tardiness and absences, and continued to counsel her about her work performance throughout her career.
      12.      Grievant offered the JDO position to Ms. Sherri Wolford Mulneix before offering it to Ms. Miller. He offered the Office Assistant position to two other individuals before offering it to Ms. Miller.
      13.      Grievant was in the process of terminating Ms. Miller's probationary employment at the time the investigation into allegations against him commenced.
      14.      Grievant did not create a hostile work environment due to his relationship with Ms. Miller.
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. E.g., Davis v. Dept. of Motor Vehicles, Docket No. 89- DMV-569 (Jan. 20, 1990). State employees, such as Grievant, who are in the classified service   (See footnote 5)  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 orinconsequential matters, or mere technical violations of statute or official duty without wrongful intention.” Syl. Pt. 1, Oakes v. W. Va. Dept. of Fin. 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. Dept. of Motor Vehicles, Docket No. 89-DMV-569 (Jan. 22, 1990); Section 12.02, Administrative Rule, W. Va. Div. of Personnel (Aug. 3, 1993).
      2.      W. Va. Code § 29-6A-29(h) defines “favoritism” as “unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees.”
      3.      The West Virginia Division of Personnel defines “hostile environment” under its Sexual Harassment Policy, as “conduct which has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating or offensive working environment.”
      4.      DJS has failed to prove Grievant violated Policy 4.01 by failing to report that law enforcement officials came to the Center to arrest Ms. Miller, that Ms. Miller and Mrs. Ridenhour had a confrontation at the Center, and that Ms. Miller attempted to commit suicide.
      4.      DJS has failed to prove by a preponderance of the evidence that Grievant engaged in favoritism with regard to scheduling, absences, tardiness, or work assignments, with respect to Ms. Miller or any other officer.      5.      DJS has failed to prove that Grievant created a hostile work environment as that is defined in the West Virginia Division of Personnel's Sexual Harassment Policy.
      Accordingly, this grievance is GRANTED and DJS is hereby ORDERED to reinstate Grievant to his position as Director of NCRJDC with all back pay, benefits, and interest, to which he is entitled.

      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.

                                           __________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: January 20, 2000

ADDENDUM A

SUMMARY OF EVIDENCE

DJS' Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 - Ex. 7 -
Grievant's Exhibits

Ex. A -

Ex. B - Ex. C - Ex. D - Ex. E - Ex. F - Ex. G - Ex. H - Ex. I - Ex. J - Ex. K - Ex. L - Ex. M - Ex. N - Ex. P - Ex. Q - Ex. R - Ex. S - Ex. T - Ex. U - Ex. V - Ex. W - Ex. X - Ex. Y - Ex. Z - Ex. AA - Ex. BB - Ex. CC -
Testimony

      DJS presented the testimony of Dallas Staples, Lisa Grimes, Stephen Blosser, Timothy Melton, and Gary Vincent. Grievant testified in his own behalf, and presented the testimony of Sherri Muleix, Harlan Lott, and Jennifer Ridenhour.


Footnote: 1
       A Summary of Evidence is attached as Addendum A.
Footnote: 2
       R. Ex. 1 contains statements of several employees at NCRJDC taken during the investigation into charges against Grievant. The statements will be identified separately when referenced in this decision.
Footnote: 3
       DJS is governed by the provisions of W. Va. Code § 49-5E-1, et seq. Code Section 49-53-5(b) states that, “[a]ll persons employed at a juvenile detention or corrections facility shall be employed at a salary and with benefits consistent with the approved plan of compensation of the division of personnel, created under section five [§ 29-6-5], article six, chapter twenty-nine of this code; all such employees shall also be covered by the policies and procedures of the education and state employees grievance board, created under section five [§ 29-6A-5], article six-a, chapter twenty-nine of this code and the classified-exempt service protection policies of the division of personnel.
      While neither party raised the issue of Grievant's employment status, it appears from this statute that Grievant is a classified-exempt, at-will employee. The standard for dismissal of a classified-exempt, at-will employee is much less stringent than that for classified employees. Nevertheless, there is nothing which prevents an agency from affording its classified-exempt, at-will employees the same benefits and protections as its classified employees, and this appears to be the case here.

Footnote: 4
       Grievant's counsel objected to the admission of statements taken during the investigation of Grievant by employees who were not called to testify at the level four hearing. The undersigned admitted the statements into evidence with the caveat that, for those employees not called to testify, their statements would be given little weight in the analysis of the facts in this case. The employees who gave statements, but did not testify, are: Harold Connor, Roger LeMasters, Iasia Griffiths, Joetta Hall, and Becky LynnHendrickson.
Footnote: 5
            “Classified service” is defined by W. Va. Code § 29-6-2(g) as “an employee whose job satisfies the definition for 'class' and 'classify' and who is covered under the civil service system[.]”
Footnote: 6
       This exhibit was erroneously marked as DJS Ex. 6 during the level four hearing.