LONNIE MYERS,
Grievant,
v.
DOCKET NO. 00-VA-266
WEST VIRGINIA DIVISION OF VETERANS
AFFAIRS/BARBOURSVILLE VETERANS HOME,
Respondent.
D E C I S I O N
Grievant, Lonnie Myers, filed this grievance directly at level four on August 11, 2000,
challenging his dismissal for cause from his position of employment as a Licensed Practical
Nurse (LPN) with the Barboursville Veterans Home (Veterans Home) by the West
Virginia Division of Veterans Affairs (VA). He seeks to have his dismissal reduced to a
reprimand as well as reinstatement to his position and compensation for lost wages and
benefits.
On November 1, 2000, this matter came on for a level four hearing at the Grievance
Board's Charleston, West Virginia, office. This matter became mature for decision on
December 4, 2000, the deadline for the parties' proposed findings of fact and conclusions
of law. The VA was represented by Robert Williams, Esq., Assistant Attorney General, and
the Grievant was represented by Mr. Steve Rutledge, AFSCME/WVSEU, and Ms. Patricia
Ramey, an LPN at the Veterans Home.
SUMMARY OF EVIDENCE
VA's Exhibits
Ex. 1 -
VA policy, incident reports, and documentation regarding July 21, 2000
incident.
Ex. 2 -
July 25, 2000 note of verbal disciplinary conference from Harriet Howell to
Kelly Hite.
Ex. 3 -
Pharmacy Section Medication Policy and Procedures.
Ex. 4 -
June 22, 2000 memorandum from Harriet Howell to Nursing Staff re:
controlled drugs.
Ex. 5 -
Minutes of Nursing Department staff meetings and sign-in sheets.
Ex. 6 -
Complaint to West Virginia State Board of Examiners for Licensed Practical
Nurses re: Lonnie Myers.
Ex. 7 -
October 12, 2000 letter from Lanette L. Anderson, West Virginia State Board
of Examiners for Licensed Practical Nurses to Director of Nursing re: Lonnie
Myers with Consent Agreement dated October 11, 2000.
Ex. 8 -
March 18, 2000 and March 29, 2000 incident reports by Harriet Howell.
Ex. 9 -
June 23, 2000 incident report by Pat Ramey; June 24, 2000 incident report
by Lonnie Myers.
Ex. 10 -
July 4, 2000 incident report by Lonnie Myers.
Ex. 11 -
July 4, 2000 incident report by Lonnie Myers.
Ex. 12 -
July 27, 2000 and July 28, 2000 incident reports by Sue Bishop.
Ex. 13 -
August 3, 2000 memorandum from Kelly Hite to Harriet Howell.
Ex. 14 -
June 23 and July 3, 2000 notes by Harriet Howell.
Ex. 15 -
July 27, 2000 dismissal letter from Charles L. Draper, Administrator, to
Lonnie Myers.
Grievant's Exhibits
Ex. 1 -
Undated memorandum from Pat Ramey to Harriet Howell.
Ex. 2 -
September 8, 1999 note of verbal disciplinary conference from Harriet Howell
to Louise McMullen.
Ex. 3 -
Ex. 4 -
Watson Laboratories, Inc. data sheet on Hydrocodone Bitartrate and APAP
Tablets, USP.
Ex. 5 -
Photographs of medication room.
Testimony
VA presented the testimony of Harriet Howell, Kelly Hite, Charles Draper, and Sue
Bishop. Grievant presented the testimony of Joyce McCormick and Pat Ramey.
(See footnote 1)
FINDINGS OF FACT
The material facts in this grievance are not in dispute, and are set forth in the
following findings.
1. Grievant was employed as an LPN at the Veterans Home in Barboursville,
West Virginia, for approximately two years prior to his dismissal.
2. Grievant underwent an orientation process that involved, in part, a review of
the Medication Policy and Procedures of the Veterans Home, including but not limited to,
the controlled drug provisions of the Pharmacy Section of the same. VA Ex. 3.
3. Throughout the term of his employment, Grievant received continuing
professional training from the VA. VA Ex. 5.
4. On July 21, 2000, a series of events occurred which resulted in Grievant's
termination.
5. On July 21, 2000, Grievant was scheduled to work the 7:00 a.m. to 3:00 p.m.
shift. Pursuant to the Medication Policy and Procedures of the VA, all controlled drugs are
to be counted at every shift change by the off-going and on-coming nurses.
6. On the morning of July 21, 2000, Grievant, who was the on-coming nurse,
informed Kelly Hite, the off-going nurse, that he did not have time to conduct the controlleddrug count, and suggested it did not need to be done. Ms. Hite acquiesced to Grievant's
request, and no controlled drug count was performed during the shift change.
7. Ms. Hite received a verbal reprimand for her part in this violation of
procedures. VA Ex. 2.
8. Later on during his shift on July 21, 2000, Grievant committed a medication
error by administering two separate doses of alprazolam, which had been prescribed to
one resident, to a different resident who had been prescribed and was supposed to receive
clonazepam. Consequently, the Medication Administration Records (MARs) for these two
medications were also improperly annotated.
9. The medications in question are controlled drugs, and were stored in
separate vials which identified the contents, dosages, and the residents for whom they
were prescribed.
10. This medication error was identified during the routine controlled drug count
at the end of Grievant's shift. Accordingly, Grievant was required to meet with Harriet
Howell, the Director of Nursing, and completed an incident report prior to departing on July
21, 2000.
11. Also during his shift on July 21, 2000, Grievant committed a second
medication error by administering two separate doses of hydrocodone/acetaminophen 7.5
mg/750 mg, which had been prescribed to one resident, to a different resident who had
been prescribed and was supposed to receive hydrocodone/acetaminophen 5.0 mg/500
mg. Consequently, the MARs for these two medications were also improperly annotated. 12. The medications in question are also controlled drugs, and were stored in
separate vials which identified the contents, dosages, and residents for whom they were
prescribed.
13. This medication error was identified during the routine controlled drug count
at the end of Grievant's shift; however, this error was not immediately brought to the
nursing director's attention. Accordingly, Grievant did not complete an incident report until
July 24, 2000.
14. When the second medication error relating to hydrocodone was discovered
by Sue Bishop, the on-coming nurse, she brought it to Grievant's attention. In response,
Grievant removed two pills from the hydrocodone/acetaminophen 5.0 mg/500 mg vial
belonging to one resident and placed them in the hydrocodone/acetaminophen 7.5 mg/750
mg vial belonging to another resident. Grievant then returned both vials to Ms. Bishop and
told her that the count was now correct. Ms. Bishop inquired whether Grievant had taken
pills from one vial and placed them in the other vial to make the controlled drug count right.
Grievant confirmed that he had.
15. In an incident report dated July 24, 2000, Grievant admits to having taken
pills from one vial and placing them in another vial to make the controlled drug count right.
16. As a result of Grievant's actions in attempting to correct the controlled drug
count on July 21, 2000, the MARs for the hydrocodone prescriptions in question were not
immediately amended.
17. On or about July 26, 2000, the VA filed a complaint against Grievant with the
LPN Board, citing as grounds the events of July 21, 2000. 18. On July 27, 2000, Grievant was notified, both verbally and in writing, that
effective August 11, 2000, he was dismissed for cause from his position of employment as
an LPN with the VA. Pursuant to the notice of dismissal, Grievant was required to
immediately vacate the workplace, but was compensated for the fifteen-day notice period
pursuant to 143 C.S.R. 12.2(b). Grievant was also advised of his right to respond to the
allegations underlying his dismissal, but declined to do so.
19. On August 11, 2000, Grievant filed this grievance with the Grievance Board.
20. On October 11, 2000, and in response to the complaint filed by the VA with
the LPN Board, Grievant waived his right to a formal hearing before the LPN Board, and
voluntarily entered into a Consent Agreement. The Consent Agreement constitutes a
formal reprimand of Grievant by the LPN Board, and imposes certain requirements and
conditions on his practice of practical nursing, although it does not impose any restrictions
on his ability to practice practical nursing. VA Ex. 7.
DISCUSSION
In disciplinary matters, the burden of proof rests with the employer to prove the
charges against an employee by a preponderance of the evidence.
W. Va. Code § 29-6A-
6;
Evans v. W. Va. Dep't of Health & Human Resources, Docket No. 97-HHR-280 (Nov.
12, 1997);
Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501
(Sept. 30, 1997). 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 moreprobable than not. Black's Law Dictionary (6th ed. 1991);
Leichliter v. W. Va. Dep't of
Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993).
The administrative rules of the West Virginia Division of Personnel provide that an
employee in the classified service may be dismissed for cause. 143 C.S.R. § 12.2,
Administrative Rule, W. Va. Div. of Personnel (July 1, 1998). The phrase good cause has
been determined by the West Virginia Supreme Court of Appeals to apply to dismissals of
employees whose conduct was of a substantial nature, and not trivial or inconsequential,
nor a mere technical violation of statute or official duty without wrongful intention. Syl. Pt.
2,
Buskirk v. Civil Service Comm'n, 175 W. Va. 279, 332 S.E.2d 579 (1985);
Guine v. Civil
Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1,
Oakes v. W. Va. Dep't
of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980);
See Hundley v. W. Va.
Div. of Corrections, Docket No. 97-CORR-197A (May 12, 1999).
It is not the label the employer attaches to the conduct of the employee that is
determinative. The critical inquiry is whether the conduct of the employee that formed the
basis for the dismissal is such that, if proven by the evidence, warrants dismissal. Any
other rule would elevate form over substance.
Davis v. W. Va. Dep't of Motor Vehicles,
Docket No. 89-DMV-569 (Jan. 22, 1990).
The VA contends that Grievant's conduct in failing to conduct the controlled drug
count at the start of his shift on July 21, 2000, constituted a knowing and willful violation
of the Medication Policy and Procedures of the Veterans Home; however, that violation
was only ancillary to the underlying conduct for which Grievant was dismissed. Grievant's conduct in administering two separate doses of alprazolam to a resident
who had been prescribed and was supposed to receive clonazepam constitutes a
medication error pursuant to the Medication Policy and Procedures of the Veterans Home;
however, these errors were also only ancillary to the underlying conduct for which Grievant
was dismissed.
Grievant's conduct in administering two separate doses of hyrdrocodone 7.5 mg/750
mg to a resident who had been prescribed and was supposed to receive hydrocodone 5.0
mg/500 mg constitutes a medication error pursuant to the Medication Policy and
Procedures of the VA; however, these errors were only ancillary to the underlying conduct
for which Grievant was dismissed.
Rather, the VA alleges it was Grievant's conduct in removing two pills from the
hydrocodone/acetaminophen 5.0 mg/500 mg vial belonging to one resident, and placing
them in the hydrocodone/acetaminophen 7.5 mg/750 mg vial belonging to a different
resident, for purposes of correcting the controlled drug count, which constituted a knowing
and willful violation of the Medication Policy and Procedures of the Veterans Home, and
constituted professional misconduct warranting dismissal.
The VA alleges this conduct constituted a threat to the safety and welfare of the
persons or property of the residents of the Veterans Home, and that it has proven by a
preponderance of the evidence that Grievant engaged in conduct of a substantial nature
affecting the rights and interests of the public which warranted his dismissal.
Grievant does not deny he engaged in any of the conduct charged by the VA.
Rather, Grievant contends he made an honest mistake, his discipline was disproportionateto his offense, and he has been discriminated against by the VA through his dismissal.
Grievant also argues that, since the West Virginia Board of Examiners for Licensed
Practical Nurses did not recommend termination, or suspend his LPN license, it was
arbitrary and capricious for VA to terminate his employment.
Any allegation that a particular disciplinary measure is disproportionate to the
offense proven or otherwise arbitrary and capricious is an affirmative defense, and
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. Ancillary to Grievant's claim that his punishment was
disproportionate to his offense is his claim of discrimination, for which he also bears the
burden of proof.
Elliot v. W. Va. Dep't of Military Affairs, Docket No. 98-DJS-199 (Dec. 7,
1998);
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 and Human Resources, Docket No. 94-
HHR-254 (Jan. 20, 1995).
W. Va. Code § 29-6A-2(d) defines discrimination 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. In order to
establish a claim of discrimination, an employee must establish a
prima facie case of
discrimination by a preponderance of the evidence. In order to meet this burden, the
Grievant must show:
(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.
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18,
1996);
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24,
1996). Once the grievant establishes a
prima facie case of discrimination, the burden
shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the
employment decision.
Smith,
supra;
see Tex. Dep't of Community Affairs v. Burdine, 450
U.S. 248 (1981).
Grievant has compared himself to other LPNs who have committed medication
errors, but were not dismissed. The witnesses testified it was not uncommon for the
controlled drug count to be off, and for medication errors to occur when dispensing
medications. Kelly Hite testified she received a verbal reprimand for not counting drugs
with Grievant the morning of July 21, 2000. Joyce McCormick, a Health Service Worker,
testified to several incidents involving medication errors, including one by Ms. Howell, the
Director of Nursing. While incident reports were filled out for the majority of the noted
medication errors, and Ms. Hite received a verbal reprimand, the testimony demonstrated
that the LPNs are not generally disciplined for most of the medication errors. Therefore,
with regard to common medication errors, Grievant has established a
prima facie case of
discrimination with regard to his dismissal. However, Grievant was not terminated for a common medication error. Grievant
was terminated for attempting to cover up that medication error, and in the process, setting
up a future medication error. Mr. Charles Draper, Administrator of the Veterans Home,
testified he became extremely angry and upset when he learned of Grievant's conduct on
July 21, 2000. He testified the Veterans Home had just come off an 8-month
investigation of suspected narcotics abuse, and he was sensitive to the issues surrounding
controlled drugs. Mr. Draper testified he did not consult with anyone before deciding to
terminate Grievant from employment, because he believed Grievant attempted to cover-up
a previous narcotics error, and he had no tolerance for mishandling narcotics. The key
factor in his decision to terminate Grievant was not a medication error, per se, but
Grievant's attempt to cover it up by taking pills out of one vial and putting them into another
vial.
Grievant has failed to identify any other LPN who attempted to cover-up a
medication error. Thus, Grievant has failed to make a
prima facie case of discrimination
with regard to the discipline he received from Mr. Draper as a result of his attempted cover-
up.
Grievant also claims that VA's dismissal of him was arbitrary and capricious, first,
because Mr. Draper did not consult with anyone before deciding to terminate Grievant's
employment, and second, because the LPN Board did not recommend Grievant be
termination, or that he lose his LPN license.
"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 mannercontrary 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)."
Trimboli v. Dep't of Health
and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious
actions have been found to be closely related to ones that are unreasonable.
State ex rel.
Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as
arbitrary and capricious when "it is unreasonable, without consideration, and in disregard
of facts and circumstances of the case."
Eads,
supra (citing
Arlington Hosp. v. Schweiker,
547 F. Supp. 670 (E.D. Va. 1982)). " While a searching inquiry into the facts is required to
determine if an action was arbitrary and capricious, the scope of review is narrow, and an
administrative law judge may not simply substitute her judgment for that of [the agency].
See generally,
Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va.
1982)."
Trimboli,
supra.
While it is true that Mr. Draper acted alone in deciding the terminate Grievant, there
is no evidence that he did not consider all of the facts and circumstances surrounding the
incidents of July 21, 2000. In fact, Mr. Draper was highly sensitive at that time of any
incidents involving controlled drugs because of a previous investigation into the facility.
There is nothing which prohibits Mr. Draper, as the Administrator of the VA, from deciding
to terminate an employee, as long as it is for cause, and as long as he offers the
employee an opportunity to discuss the charges against him. The action taken by the LPN Board in connection with the complaint filed against
Grievant by the VA is not dispositive of the issue of whether the VA's dismissal of Grievant
was appropriate. Grievant presented no evidence to show that the VA is in any way
dependent upon a recommendation from the LPN Board with regard to its employment
decisions, or that the standard of review of the LPN Board is the same as that of the VA
in cases of employee misconduct.
Grievant had no history of disciplinary action by the VA for the two years he was
employed prior to the incidents giving rise to his dismissal. By all accounts, it appears
Grievant was a satisfactory employee until the incidents giving rise to his dismissal.
Nevertheless, the undersigned is not convinced that dismissal was too severe a discipline
for Grievant's conduct on July 21, 2000.
Grievant presented the testimony of Sue Bishop, the LPN who was present when
Grievant took the two pills out of one resident's vial and put them into another resident's
vial in order to correct the controlled drug count. Ms. Bishop testified she believed Grievant
thought the bottles contained the exact same medications and dosages, and that he was
just correcting the earlier mistake. Unfortunately, Ms. Bishop's belief is equivalent to her
lay opinion, which is not evidence sufficient to prove Grievant's defense of honest
mistake. Whether Grievant believed the two medications were the same is really
irrelevant. The medications, dosages, and names of residents were clearly marked on
each prescription vial. Even Grievant's representative, Pat Ramey, testified that Grievant
received ample training and ought to have known to check the vials before transferring pills
out of one vial and putting them into another. In any event, the undersigned agrees withthe VA that what Grievant was attempting to do was cover-up the fact that he had made
yet another medication error on July 21, 2000, and in the process was setting up yet
another medication error to occur the next time the medications were dispensed to the two
residents. This was inexcusable, and the VA did not abuse its discretion when it decided
to terminate Grievant's employment for this infraction.
CONCLUSIONS OF LAW
1. In disciplinary matters, the burden of proof rests with the employer to prove
the charges against an employee by a preponderance of the evidence.
W. Va. Code § 29-
6A-6;
Evans v. W. Va. Dep't of Health & Human Resources, Docket No. 97-HHR-280 (Nov.
12, 1997);
Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501
(Sept. 30, 1997).
2. The administrative rules of the West Virginia Division of Personnel provide
that an employee in the classified service may be dismissed for cause. 143 C.S.R. §
12.2, Administrative Rule, W. Va. Div. of Personnel (July 1, 1998). The phrase good
cause has been determined by the West Virginia Supreme Court of Appeals to apply to
dismissals of employees whose conduct was of a substantial nature, and not trivial or
inconsequential, nor a mere technical violation of statute or official duty without wrongful
intention. Syl. Pt. 2,
Buskirk v. Civil Service Comm'n, 175 W. Va. 279, 332 S.E.2d 579
(1985);
Guine v. Civil Service Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt.
1,
Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980);
See Hundley v. W. Va. Div. of Corrections, Docket No. 97-CORR-197A (May 12, 1999). 3.
W. Va. Code § 29-6A-2(d) defines discrimination 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.
4. In order to establish a claim of discrimination, an employee must establish
a
prima facie case of discrimination by a preponderance of the evidence. In order to meet
this burden, the Grievant must show:
(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.
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18,
1996);
Hendricks v. W. Va. Dept. of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24,
1996).
5. Once the grievant establishes a
prima facie case of discrimination, the
burden shifts to the employer to demonstrate a legitimate, non-discriminatory reason for
the employment decision.
Smith,
supra;
see Tex. Dept. of Community Affairs v. Burdine,
450 U.S. 248 (1981).
6. Grievant established a
prima facie case of discrimination with regard to other
LPNS who committed common medication errors, but were not dismissed.
7. Grievant failed to establish a
prima facie case of discrimination with regard
the charge of willful and intentional cover-up of a medication error. 8. "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)."
Trimboli v. Dep't of
Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997).
9. Arbitrary and capricious actions have been found to be closely related to
ones that are unreasonable.
State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534
(1996). An action is recognized as arbitrary and capricious when "it is unreasonable,
without consideration, and in disregard of facts and circumstances of the case."
Eads,
supra (citing
Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)).
10. " While a searching inquiry into the facts is required to determine if an action
was arbitrary and capricious, the scope of review is narrow, and an administrative law
judge may not simply substitute her judgment for that of [the agency].
See generally,
Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)."
Trimboli,
supra.
11. Grievant has failed to establish that VA's decision to terminate him for
misconduct stemming from the events of July 21, 2000, was arbitrary or capricious.
12. The undersigned may mitigate the discipline imposed if the penalty assessed
is clearly excessive or clearly disproportionate to the offense. Factors to be considered in
this analysis include the employee's past disciplinary record, the clarity of notice to theemployee of the rule violated, whether the employee was warned about the conduct, and
mitigating circumstances.
Knuckles/Burdette v. W. Va. State College, Docket No. 99-BOD-
123/131 (Sept. 28, 1999);
Jarvis v. W. Va. Dep't of Health and Human Resources, Docket
No. 97-HHR-318 (July 22, 1999);
Stewart v. W. Va. Alcohol Beverage Control Comm'n,
Docket No. 91-ABCC-137 (Sept. 19, 1991). After a careful review of the facts and
circumstances surrounding the events of July 21, 2000, the undersigned finds no reason
to mitigate Grievant's dismissal from the VA.
Accordingly, this grievance is DENIED.
Any party or the West Virginia Division of Personnel may appeal this decision to the
Circuit Court of Kanawha County or to the circuit court of the county in which the grievance
occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision.
W. Va. Code §29-6A-7 (1998). Neither the West Virginia Education and State Employees
Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and
should not be so named. However, the appealing party is required by W. Va. Code § 29A-
5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing
party must also provide the Board with the civil action number so that the record can be
prepared and properly transmitted to the appropriate circuit court.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: December 14, 2000
Footnote: 1