____________________

1Grievant filed directly to level four via the expedited
grievance procedure set forth in W.Va. Code 29-6A-4(e) for
cases involving dismissal and long-term suspension. A hearing
set for October 31, 1994 was reset for November 9, 1994 at the
parties' request. Grievant, who appeared pro se at the hearing,
filed post-hearing arguments (letter form) on December 14, and
BEP's counsel filed fact/law proposals on December 19, 1994.
Some background information is necessary. Grievant was
employed in January 1992 to serve in BEP's Division of Employ
ment Security, Unemployment Insurance Section (UIS) as an Office
Assistant II (OA2). The September 20, 1994, termination letter
enumerated four specific "reasons" for Grievant's dismissal: 1)
that Grievant had been "reminded" in late 1992 or early 1993 of
BEP's policy that workers should not process friends' or rela
tives' claims and advised that further infractions could result
in disciplinary action; 2) that in August 1994 Grievant's
supervisor discovered Grievant had processed several more forms
submitted by an ex-husband and a brother-in-law; 3) Grievant
admitted in writing that she processed the claims in question;
and 4) Grievant's excuse that her acts were not intentional was
"unacceptable," especially since Grievant repeated the violation
"after a previous verbal warning" had been issued by her super
visor.
At the level four hearing, BEP presented the testimony of
Betty Devol, presently a deputy in UIS' Parkersburg office. Ms.
Devol stated that she receives claim forms after they have been
processed by staff and enters the claims for payment to claim
ants who have qualified for benefits. At that point, BEP
introduced a document, purported to be a copy of "Section
1100.B" from BEP's Claims Manual. A highlighted portion of
Section 1100.B, entitled "General Interviewing Principles,"
states: "NOTE: An employee of the Department of Employment
Security must not take, process, or adjudicate a claim of a
relative(s), close friend(s), or any other person(s) who might
create a conflict of interest." BEP Exhibit 1.
Ms. Devol agreed with BEP's counsel that Grievant "was
involved in the processing of claims." T.10. Ms. Devol related
that in late 1992 or early 1993 she noticed a claim form which
had been placed on her desk by Grievant and realized that it was
Grievant's ex-husband's claim form. She stated that she took
the form to her supervisor, Mary Jane Holliday. She testified
that she was present when Ms. Holliday "went to [Grievant] and
told her that she could not process the claim form of the
individual, her ex-husband, and gave it back to her at that time
and we went on with it." T.11. This is the only testimony,
save Grievant's, which described the official reaction to this
event.
Ms. Devol further testified that in August 1994, she was
reviewing some low earnings forms and noticed handwriting on one
that was similar to Grievant's. She said she discussed this
with Ms. Holliday and that they learned the form was a claim of
Grievant's brother-in-law. She agreed with counsel that after
the discovery, an investigation of Grievant ensued. T.13-14.
Finally, Ms. Devol agreed with BEP's counsel that all of
the Parkersburg office staff had access to the office's two
official claims manuals, that all employees were "instructed of
the policy" that prohibited any processing of a relative's or
close friend's claim, and that Grievant was required to attend
Friday staff meetings in which policy changes were discussed.
T.13-14.
During cross-examination, Ms. Devol could not recall
Grievant's version of an event in early 1993 when Grievant had
taken a claim form submitted by her ex-husband to Ms. Devol and
Ms. Holliday and had joked about her having to reject it because
it had not been filled out properly. Ms. Devol did agree with
Grievant that neither she nor Ms. Holliday had ever brought
BEP's claims manual to Grievant's attention. T.18,20.
BEP next presented "J.D." Smith, who identified himself as
a BEP "investigator with special investigations." He testified
that he was asked to conduct an investigation of Grievant on
August 19, 1994. He said he subsequently took a statement from
Grievant. At the request of BEP's counsel, Mr. Smith read some
passages contained in the statement into the record. Grievant's
"statement," apparently handwritten on the form by Mr. Smith,
states in pertinent part:
I recall being told by Mary Jane Holliday that I
wasn't supposed to process claims submitted by rela
tives or close friends or words to that effect. This
occurred when I processed a claim belonging to my
ex-husband, [K.M.].
Since then, I have processed claims submitted by
ex-husband [K.M.] and brother-in-law, [K.G.]. The
claims for [K.G.] were Low Earnings Reports. I didn't
do this intentionally.

The bottom of the form contains the typewritten words, "THE
ABOVE STATEMENT HAS BEEN MADE BY ME AND I AGREE WITH IT IN ITS
ENTIRETY." Beneath that are lines and spaces for "Claimant's
Signature and Date," in which Grievant's undated signature
appears (the word "Claimant" has been struck) and "Interviewer's
Signature and Date," in which Mr. Smith's signature and date
(August 31, 1994) appear. BEP Exhibit 2.2 Mr. Smith stated
that Grievant signed the document in his presence. T.22.
Mr. Smith also testified that in the course of his investi
gation he retrieved and reviewed some claim forms processed and
initialed by Grievant which belonged to Grievant's ex-husband
and brother-in-law. Two types of forms were involved, a "Contin
uing Claim" form or "WVUC-B-89" and an "Initial Claim/Low Earn
ings Report" claim form, known as a "WVUC-B-11." Three of the
documents were continuing claim forms of Grievant's ex-husband
which had been submitted on or about August 16, 1993, December
27, 1993, and March 12, 1994, and five of them were low earnings
forms of Grievant's brother-in-law which had been submitted on
or about April 18 and 25, 1994, and May 2, 9 and 30, 1994. BEP
Exhibit 3.
Gerard Everett was BEP's only other witness. Mr. Everett,
an Assistant Director of Field Operations, agreed with BEP's
counsel that an employee's violation of "Policy 1100.B" was
"considered a very serious matter with the Department." He also
agreed that such violations in the past had resulted in dis
charges of employees. T.33. During cross-examination, Grievant
asked Mr. Everett about disciplinary actions for a Policy 1100.B

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2It is noted that the first and last paragraphs of the text
of this document have been omitted because they relate to either
irrelevant items or matters other than that which prompted the
dismissal letter. Also, inasmuch as there is no need to
identify Grievant's ex-husband or brother-in-law by name, only
their initials have been used.
offense and about what type of reprimand should take place prior
to a dismissal. Mr. Everett responded:
In the course of those types of situations, the
manager always warns the employee that this is not to
be done and that in order to protect the integrity of
the program, if it occurs again we recommend dismiss
al.

T.34.
Grievant testified on her own behalf. According to her, at
the time she was hired in January 1992 to perform clerical
tasks, BEP's office was already staffed with personnel whose
primary duty was to process unemployment compensation claims.
These ten employees all possess their own copy of a claims
manual. At some point in late 1992 when the claims workload
became heavy, probably November 1992, Grievant was directed to
process claim forms. After that initial period, the claims
processing duties continued, especially on certain days, usually
Mondays and Tuesdays. In all, Grievant eventually spent forty
percent of her work time on claim reviews, usually six hours on
Monday and Tuesday and two hours on Wednesday through Friday.
Grievant never worked directly with claimants. Rather, the
two types of forms she reviewed either arrived in the mail or
had been placed by claimants in an office "drop box." She
stated she received no training at all with regard to BEP
policy, and was never given a claims manual such as that held by
each of the ten staff workers employed to process claims. Her
training consisted of being shown merely the mechanics of claims
review. With respect to the continuing claim form, she first
date-stamped the document and then checked the various areas on
the form to make sure the claimant had filled in the required
information and had signed and dated the form in the designated
spot. After she completed the review, Grievant initialed the
form. On the low earnings form, Grievant had to date stamp the
document and check the social security number in the computer
for accuracy. None of the claims processing work Grievant was
required to perform had any impact upon the claimants' eligibil
ity for benefits.
Grievant related that shortly after she had begun the
claims review work, she noticed a claim form with her ex-hus
band's name which had to be rejected (and not initialed and
advanced for payment) because it had not been filled out proper
ly. She said she had been amused because the form was a "re
ject" and that she took it to Ms. Holliday. According to
Grievant, at that time Ms. Holliday merely told her that it was
not a good idea to work on forms submitted by a relative or
friend because of possible later court action. Grievant claimed
that she always rushed to complete the claims processing work so
that she could keep up with her regular duties and that she
never noticed K.G.'s or K.M.'s names on later forms.
Grievant essentially related that her supervisor, Ms.
Holliday, who retired after Grievant's termination, had given
her both incomplete and mixed messages about processing claims
of friends and/or family. She said Ms. Holliday never informed
her, let alone reminded her, that BEP had a policy about the
matter. She also stated that Ms. Holliday had processed her
(Grievant's) ex-husband's claims, despite the fact that
Holliday's immediate family and he were very close friends.
In its level four fact/law proposals, BEP specifically
cites the relevant portion of Section 1100.B and then proposes
the following conclusion of law:
The Policy and Procedures Manual [PPM] of the West
Virginia Bureau of Employment Programs provides in
Section 6400.20, Subsection (D) that an employee may
be dismissed for misconduct which is of a serious
nature reflecting on the integrity of the Bureau. The
policy violated by the Grievant, viz., the processing
of claims of close friends, seriously affects the
routine business of the Bureau and reflects upon the
integrity of the system. Therefore, the Commissioner
had no alternative but to terminate an individual for
repeatedly violating this policy.

In Grievant's post-hearing submission (letter form), she
basically reiterated the points she made during hearing. She
claimed she failed to notice claim forms belonging to her
ex-husband and her brother-in-law "due to lack of training,
heavy workload and pressure to process unemployment claims
quickly to ensure fast payment." She also urged that she was
not an interviewer and had never been trained as an interviewer
(interviewing principles being the subject Section 1100.B) nor
had she ever been given a copy of BEP's claims manual.
Grievant also maintains that she had never received any
oral or written reprimands. She argues that BEP's "Policy and
Procedures Manual" only permits dismissal or demotion without
previous disciplinary action in cases of "flagrant misconduct"
including gross misconduct, insubordination and other such
serious offenses. She claims she has not engaged in
insubordination or any of the other serious offenses described
in the policy (Section 6400.20.D) during the course of her
employment.
The dismissal of a classified employee in West Virginia
must be for good cause. This means "misconduct of a substantial
nature directly affecting the rights and interests of the
public, rather than upon trivial or inconsequential matters or
mere technical violations of statute or official duty without
wrongful intention." Syl. Pt. 2, Buskirk v. Civil Service
Comm'n, 332 S.E.2d 579, 581 (W.Va. 1985); Oakes v. W.Va. Dept.
of Finance and Admin., 264 S.E.2d 151 (W.Va. 1980); Guine v.
Civil Service Comm'n, 141 S.E.2d 364 (W.Va. 1965).
The evidence conclusively shows that on nine separate
occasions over the course of Grievant's employment she performed
a review (for accuracy) of claim forms submitted by her ex-hus
band and her brother-in-law, a practice prohibited by BEP's
policy. In light of that evidence, Grievant does not deny that
she reviewed and initialed the forms. However, Grievant raises
issues about whether she was guilty of insubordination and
whether the alleged and admitted conduct in question constitutes
"good cause" for her dismissal. The evidence in this case will
not support a conclusion that Grievant's misconduct warrants
dismissal.
BEP's case regarding Grievant's dismissal fails for several
reasons. The Grievance Board has essentially defined insubordi
nation as the willful failure or refusal to obey an order or
directive given by a person authorized to give such orders. See
Ramey v. W.Va. Div'n of Veterans Affairs, Docket No. 91-VA-115
(Aug. 2, 1991); Noland v. W.Va. Dept. of Health, Docket No.
90-H-119 (Dec. 20, 1990); Gill v. W.Va. Dept. of Commerce,
Docket No. COMM-88-031 (Aug. 8, 1988). This definition has been
modified to include the willful failure or refusal to obey a
known policy directive. Grooms v. Raleigh County Bd. of Educ.,
Docket No. 91-41-482 (Apr. 30, 1991).
The evidence in this case shows that, while Grievant may
have worked in either a sloppy or inattentive manner as she
rushed through the claim forms, Grievant's acts of neglecting to
identify and ignore claims she was not supposed to process were
not acts of willful disobedience. Grievant was never advised as
to the existance of Section 1100.B, nor was she ever apprised of
the consequenses of a violation of the regulation. In other
words, while Grievant failed to heed a written policy on a few
occasions, those acts did not rise to the level of insubordina
tion. At the most, Grievant is guilty of incompetence in
processing claims.
In that vein, it must also be noted that Grievant was not
hired to perform any work relating to claims processing.
Rather, it is undisputed that Grievant had been told when hired
as an OA2 that she was supposed to type, file, answer the
telephone and perform other clerical tasks in UIS' Parkersburg
office. The record also supports that Grievant had never been
formally or adequately trained to process unemployment compensa
tion claims. It is possible that BEP was requiring Grievant to
perform duties that were not listed on her OA2 classification
specification or even on an in-house job description. Other
wise, BEP surely would have submitted evidence that processing
claims was a proper task for Grievant to perform.3
Moreover, the evidence shows that Grievant had never been
sufficiently informed, through formal training as a claims
processor or by any other means, that an infraction of Section
1100.B could result in discipline, let alone result in a dis
missal. See, Ms. Devol's testimony at T.11. Under all of the
circumstances, BEP simply imposed too harsh a penalty for
Grievant's infractions. In fact, PPM's Section 6400.20.C states
that, instead of implementing progressive discipline for various
types of employee offenses, a thirty calendar day suspension
"may be considered as the first disciplinary step if the employ
ee is guilty of serious offenses, such as. . .failure to comply
with regulations." In this case, Grievant's neglecting to
ignore claim forms she was not supposed to review falls under
this type of offense.
As was held in Noland v. W.Va. Dept. of Health, Docket No.
90-H-119 (Dec. 20, 1990), "It is well settled that 'An adminis
trative body must abide by the remedies and procedures it
properly establishes to conduct its affairs.' Syl. Pt. 1,
Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977)."

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3Given that Grievant's job classification is not that of a
claims processor, and given the fact that Grievant was not hired
or trained to process claim forms, it would seem that BEP bears
some responsibility when assigning claims to Grievant to exclude
those documents which she is not supposed to process.
Therefore, consistent with BEP's disciplinary policy, the proper
penalty for Grievant would be a thirty-day suspension.
In addition to the foregoing, the following formal findings
of fact and conclusions of law are made.
Findings of Fact
1. Grievant, classified as an Office Assistant II, was
told when hired that her duties consisted of typing, answering
the telephone and performing related clerical tasks.
2. Grievant was eventually directed to help with claims
processing. Her review consisted of determining whether the
claim forms had been properly filled out by the claimants and
had no bearing on whether the claimants were eligible for
benefits.
3. Grievant received no formal training as a claims
processor, nor was she ever given an office claims manual or any
other written directives or policies as were the office's
regular claims processors.
4. At one point, Grievant's supervisor told her in a
casual fashion that she should not process forms submitted by
her ex-husband because of possible later court actions.
5. Subsequent to her supervisor's admonishment, Grievant
inadvertently processed some claim forms belonging to her
ex-husband and some belonging to a brother-in-law.
6. Grievant was never given any prior warning as to the
seriousness of the offense or that dismissal could result.
7. After an investigation and at the time Grievant
willingly signed a statement admitting that she had processed
the claims in question, she was not informed that dismissal was
being considered as punishment for her acts.
Conclusions of Law
1. BEP conclusively proved that Grievant processed some
claims of a friend or relative, a practice prohibited by BEP's
policy.
2. BEP failed to prove that Grievant's infractions rose
to the level of willful insubordination. See Ramey v. W.Va.
Div'n of Veterans Affairs, Docket No. 91-VA-115 (Aug. 2, 1991);
Grooms v. Raleigh County Bd. of Educ., Docket No. 91-41-482
(Apr. 30, 1991); Gill v. W.Va. Dept. of Commerce, Docket No.
COMM-88-031 (Aug. 8, 1988).
3. BEP failed to comply with its disciplinary policy
which provides for the suspension of an employee who has not
followed regulations by discharging Grievant from employment for
the offense of not following regulations.
4. In West Virginia, the dismissal of a classified
employee must be for good cause, which means "misconduct of a
substantial nature directly affecting the rights and interests
of the public, rather than upon trivial or inconsequential
matters or mere technical violations of statute or official duty
without wrongful intention." Syl. Pt. 2, Buskirk v. Civil
Service Comm'n, 332 S.E.2d 579, 581 (W.Va. 1985).
5. Under the circumstances, BEP failed to establish good
cause for Grievant's dismissal in this case.
6. The thirty day suspension of an employee who has not
followed regulations, as outlined in BEP's disciplinary policy,
is the proper penalty in this case. See Powell v. Brown, 160
W.Va. 723, 238 S.E.2d 220 (1977); Noland v. W.Va. Dept. of
Health, Docket No. 90-H-119 (Dec. 20, 1990).

Accordingly, this grievance is GRANTED, and Grievant must
be reinstated with back pay, less a set-off for a justified
thirty-day suspension.

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 appeal and
provide the civil action number so that the record can be
prepared and transmitted to the appropriate court.

____________________________
NEDRA KOVAL
Administrative Law Judge

Date: January 31, 1995