Grievant,
v. DOCKET NO. 94-RS-270
DIVISION OF REHABILITATION SERVICES,
Respondent.
Grievant, Stuart McAllister, filed this grievance at Level IV
on July 11, 1994, protesting his dismissal from Respondent,
Division of Rehabilitation Services, and requesting reinstatement,
backpay plus interest, all references removed from his file, and to
be made whole in every way. A hearing was held at Level IV on
October 24 and 25, 1994, and the parties submitted proposed
findings of fact and conclusions of law on or about November 14,
1994. The following findings of fact are derived from the
evidence, testimony and briefs submitted by the parties.
2. Initiate timely and appropriate case actions.
3. Plan for and make appropriate use of leave.
4.
Grievant was unequivocally informed that he would be dismissed
if he did not make marked improvement toward resolving his
performance problems during the sixty (60) day evaluation period.
R Ex. 10.
26. While Grievant was off on suspension, his caseload was
worked by other DES', and 70 of his cases were cleared. Grievant
was given credit for actions taken on those cases, and was provideda list of actions taken on his cases upon his return. R Exs. 15,
21. Grievant's caseload was in good shape upon his return from
suspension.
27. Grievant's caseload was reduced to 100 cases upon his
return from suspension.
(See footnote 1)
28. Grievant's production report for the 1st quarter of 1994
showed that Grievant cleared 101 cases, 70 of which were cleared in
February, 1994. As noted above, part of the production in February
was done by others while Grievant was suspended. Ms. Bess
indicated that many of these cases had just been sitting in
Grievant's area with no action taken on them, but were in a
position to have a decision made and cleared. Grievant only
cleared 17 cases without significant assistance.
29. From February through June, 1994, Grievant continued to
take excessive and unauthorized leave. R Ex. 15.
30. Grievant's production declined after the 1st quarter of
1994 and Grievant thereafter only averaged 4.9 cases per week.
31. Grievant's evaluation period was extended for an
additional 30 days and he was given until the end of April, 1994,
to improve his performance.
32. Grievant's performance was evaluated at the end of the
post-suspension period and was found to be unsatisfactory in the
four areas listed in his suspension letter.
33. Ann Bess, Tom Davis, Victor Clark and Jane Johnstone met
to discuss Grievant's performance and unanimously agreed to
recommend Grievant's termination.
34. On June 29, 1994, Grievant was notified by letter from
Director John Panza that he was being terminated effective July 15,
1994 for unsatisfactory performance and failing to meet the four
work expectations outlined in the letter of suspension and plan of
remediation.
In cases dealing with disciplinary matters, the burden of
proof rests with the employer to prove the charges by a
preponderance of the evidence. Schmidt v. W.Va. Dept. of Highways,
Docket No. DOH-88-063 (March 31, 1989). Based upon the foregoing
findings of fact and testimony presented at the Level IV hearing,
the undersigned finds that the employer has met its burden of
proving that Grievant failed to satisfactorily meet the performance
standards set forth in his suspension letter of February 2, 1994
within the time frame set for remediation. Indeed, Grievant does
not deny that he did not meet the performance standards expected of
him or that he took excessive and sometimes unauthorized leave
time. Rather, Grievant raises several affirmative defenses to
explain why he did not meet the expected performance standards.
When a Grievant raises an affirmative defense, it is his
burden to establish the validity of that defense by a preponderance
of the evidence. Young v. W. Va. Dept. of HHR, Docket No. 90-HHR-541 (Mar. 29, 1991).
Grievant alleges that the 10-case per week standard is
unreasonable, arbitrary and capricious, can only be met by working
overtime, and does not take into consideration legitimate uses of
leave which would affect his ability to meet such a standard. The
only evidence Grievant presented on this issue was testimony that
it was difficult to produce 10 cases per week.
Lee Dadisman, a DES for 10 years, testified that he has
received warning letters in the past regarding production and has
been on improvement plans. He has attempted to do what the
improvement plans call for and takes suggested actions on cases
immediately, if at all possible. Mr. Dadisman also testified that
many of the DES' who consistently make production standards work
overtime.
James D. Kirk, a DES for 10 years, also testified that he has
failed to make the 10-case standard in the past and received a
performance memorandum. Mr. Kirk requested his caseload be lowered
to 100, which was granted, and he testified that he has continually
shown improvement since that time. Mr. Kirk does not work overtime
and got more cases out this last January and February than in the
previous two months.
David Deyerle, a DES for 3 years, received a performance
memorandum from Ann Bess in January or February, 1994. Mr. Deyerle
was suspended because of his performance in June 1994. Mr. Deyerle
had his caseload reduced following his suspension and has shown
significant improvement since then. He averaged clearance of 11.5
cases a week for the last quarter and worked some overtime to gethis production up. Additionally, he testified that his attendance
improved during the last quarter.
While Grievant's witnesses' testimony indicates that they have
not consistently met the production standards and required
assistance to improve, this does not prove Grievant's assertion
that the standard is unreasonable or arbitrary and capricious. All
of the witnesses' testified that, after disciplinary action, they
improved production significantly and reached the acceptable
performance standards. In fact, Grievant testified that when he
realized that his superiors were serious about his performance and
could fire him, he managed to clear 12 and 13 cases a week during
the last weeks of December, 1993. Grievant's witnesses and his own
testimony indicate that the agency was committed to its employees
in whom it had invested considerable time and effort, and was
reluctant to take disciplinary action until it was satisfied it had
provided all the support and assistance it could.
Jane Johnstone, the DDS Director, explained how the 10-case
per week standard was developed in relation to the budget and
expectations set by SSA as reflected by national and regional
standards. For Fiscal Year 1992, the average weekly productivity
per full-time examiner for West Virginia was 9.8, compared with
Virginia's average production of 13.6 cases per week,
Pennsylvania's average of 12.7, the District of Columbia and
Maryland average of 10 cases per week, and Delaware's average of
8.5. The averages overall increased from a regional average of
11.9 in FY 1992 to a regional average of 12.7 in FY 1993. R Ex. 2.
Therefore, while Grievant clearly established that he could or
would not meet the 10 case per week standard, he has not
established that that average is unreasonable or arbitrary and
capricious in relation to the regional averages, nor has he
established that it is an impossible standard to meet, as he and
others managed to satisfy production when sufficiently motivated.
Grievant also claims that he has been treated differently than
others in the division by his dismissal. Grievant's disparate
treatment claim apparently rests on the fact that he was dismissed
when no one else was. However, Grievant failed to produce any
evidence of any other employee who's performance was as
unsatisfactory as his that did not receive some sort of
disciplinary action. Testimony shows that only one other employee
at DDS has ever been terminated, and only two, including Grievant,
have been suspended because of unsatisfactory performance. The
other suspended employee, Mr. Deyerle, showed significant
improvement following his suspension and has been retained.
Grievant did not and was dismissed.
Grievant also offers illness and injury, both individual and
of family, as excuses for the excessive amount of leave taken and
the consequent effect on his production. There is no evidence that
Grievant requested a medical leave of absence or informed his
employer that he or his family suffered from illnesses or injury.
There is evidence that Grievant took excessive leave, both annual
and sick, left work without telling anyone, and sometimes just did
not report for work without any excuse. Grievant was well aware ofthe production standards expected of all DES' and it was his
responsibility to make sure that he met those standards, or made
his employer fully aware of circumstances which would prevent him
from doing so.
Finally, Grievant offers as evidence an article discovered in
his personnel file sometime in March, 1994, to substantiate claims
of depression and frustration which contributed to his declining
productivity during the last quarter. The article from the
Charleston Gazette profiled the typical "office killer". Ann Bess
testified that several employees had come to her with concerns and
fears about Grievant's behavior. Ms. Bess saw the article in the
paper and forwarded it to Jane Johnstone with a note concerning the
fears expressed by Grievant's co-workers. R Ex. 13. Although Ms.
Bess denies that the article was ever meant to be placed in
Grievant's personnel file, or that she herself had any fear of
Grievant, it nonetheless ended up there and Grievant discovered it
while pursuing a grievance over his suspension.
Grievant testified that finding this article in his official
personnel file, and realizing what his supervisor and co-workers
thought of him, caused him to become stressed, depressed and
anxious, for which he sought medical help on March 23, 1994. G.
Ex. 8.
(See footnote 2) While the undersigned certainly sympathizes with Grievant
over this unfortunate discovery, the evidence does not support his
contention that he was so depressed that he could notsatisfactorily perform his job. The production reports offered
into evidence by Grievant (G. Ex. 1) show that for the weeks ending
March 18 and 24, about the time he discovered the article, Grievant
cleared 9 cases each week. Then, following a slump in production,
Grievant again cleared 10 and 9 cases for the weeks ending April 21
and April 28, respectively. Then, once again, Grievant's
production declined to an average below 5 cases per week.
Thus, it is clear that, while Grievant may have indeed been
despondent about the article and his co-worker's views, he was
perfectly capable of meeting, and did meet, his production from
time to time. Grievant testified that once he discovered the
article, he could not work in that environment anymore. Thus,
Grievant's decision not to work had less to do with his ability to
meet the production standards than with his overall attitude about
his job and his employer.
Therefore, based upon the foregoing findings of fact and
discussion, the undersigned finds that Grievant has failed to meet
his burden of proof, and it is appropriate to make the following
conclusions of law.
1. In a discipline-based grievance, the employer has the
burden of proof and must prove its charges against the grievant by
a preponderance of the evidence. Schmidt v. W. Va. Dept. of
Highways, Docket No. 88-DOH-063 (Mar. 31, 1989).
2. Grievant was progressively disciplined for his work
performance with many verbal and written warnings as well as asuspension and was notified that continued unsatisfactory
performance could result in dismissal.
3. Respondent has proven by a preponderance of the evidence
that Grievant was dismissed for good cause when he failed to
satisfactorily meet the four work expectations outlined in his
letter of suspension within the time frame set for improvement.
4. When a defense is raised by a grievant, it is his burden
to establish the validity of that defense by a preponderance of the
evidence. Young v. W. Va. Dept. of HHR, Docket No. 90-HHR-541
(Mar. 29, 1991).
5. Grievant has failed to establish any affirmative defense
to the charges of unsatisfactory performance.
Accordingly, this grievance is DENIED.
Any party or the West Virginia Division of Personnel may
appeal this decision 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.
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. Any appealing party must
advise this office of the intent to appeal and provide the civil
action number so that the record can be prepared and transmitted to
the appropriate court.
___________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: January 25, 1995