YVONNE M. STAMPER, .
v. . Docket No. 95-HHR-144
WEST VIRGINIA DEPARTMENT OF HEALTH .
AND HUMAN RESOURCES, OFFICE OF .
WORK AND TRAINING .
D E C I S I O N
Yvonne M. Stamper (Grievant) initiated a grievance on November
12, 1993, challenging a five-day suspension that she received for
various incidents of alleged insubordination.
(See footnote 1)
This matter was
pursued to Level III where evidentiary hearings were conducted on
March 31 and May 5, 1994. The Grievance Evaluator at Level III
determined that the Department of Health and Human Resources (DHHR
or Respondent) failed to sustain one of the charges against
Grievant and reduced the penalty to a three-day suspension.
Grievant timely appealed to Level IV where evidentiary hearings
were conducted in this Board's Charleston office on August 17 andSeptember 19, 1995.
(See footnote 2)
This case became mature for decision on
October 10, 1995.
Several factual matters necessary to resolve this grievance
are in controversy. Ultimately, the outcome in this matter hinges
upon determinations of witness credibility and appropriate
inferences that may be drawn from pertinent facts. The reasons for
Grievant's suspension are set forth in considerable detail in a
November 4, 1993, letter from Sharon Paterno, Director of the
Office of Work and Training. Pertinent portions are quoted below:
This is to inform you of my decision to suspend you
without pay for a period of five (5) working days from
your position as an Employment Service Supervisor with
the Department of Health and Human Resources. . . . This
action is being taken in accordance with the Division of
Personnel Administrative Rule, Section 12.03, and
represents an eight (8) day notice of suspension. The
reason for this personnel action is your insubordination
and the resultant incurred expense to the State.
* * *
So you may discern, in retrospect, the seriousness
of your infractions and in order to emphasize your
faltering performance so you may take remedial action, I
offer the following chronology of events which led to
By memorandum dated January 7, 1993, to Region II
Work and Training Supervisors from Wayne F. Riley,
Regional Administrator, supervisors were instructed to
bring any "bare bones" equipment purchase requests with
them to a January 19, 1993 meeting. At this meeting you
submitted your equipment needs for 1993. You requested:
"1) repair of an Epson 286 E printer; 2) calculators -
electric, heavy duty; and 3) BIC micro metal ink pens -
6 dozen @ 7.25 per box." No action was taken on either
your or other supervisors' requests at this meeting. On
January 20, 1993, Mr. Riley communicated by memo to all
Regional [sic] II Work & Training Supervisors information
he had received from the Central Office that "..all
equipment purchases and/or equipment repairs are suspend
ed until further notice."
Although you were aware, as previously demonstrated
by Mr. Riley's January 20, 1993 memo, that equipment
repairs were not authorized, you submitted a repair order
to Computerland on May 19, 1993. Computerland Work Order
1830012 contains the following statement which you signed
on May 19, 1993:
The service and repairs indicated above
including parts are hereby authorized and the
estimated cost is acceptable to the under
signed. It is understood that the price will
not exceed the estimate without my approval.
An express mechanic's lien is hereby acknowl
edged on the above described equipment to
secure the amount of repairs thereto.
The repair was completed and signed by Kevin Smith,
Computer Technician at Computerland on May 26, 1993.
* * *
Another example of your insubordination occurred in
late July 1993. You asked Mr. Riley if he would autho
rize the purchase of a particular type of pen for your
unit. He informed you that he would not authorize
ordering a particular pen for your unit unless it was
commonly ordered for other units within the Kanawha
County offices. You, however, informed Carolyn Bills,Financial Clerk, that Mr. Riley had approved your request
for these pens. Ms. Bills approached Mr. Riley to
confirm his approval; however, he informed her that he
had not approved your request and directed her not to
order the pens.
Finally, I remind you that on April 7, 1993, you
received a reprimand for your unprofessional behavior
during the relocation of the Kanawha County Office.
During the relocation you were informed by Mr. Riley that
the Work and Training Unit would be located with the
Quality Control Unit on Bullitt Street. You were also
informed that only the bare essentials were to be moved
during the relocation. Mr. Riley later discovered,
however, that you had moved everything out of the office
except the desks and terminals, and you informed the
Quality Control Staff that they would not be located with
the Work and Training Staff.
DHHR Ex 10 at L III.
(See footnote 3)
Grievant denied any wrongdoing in regard to the three alleged
incidents of insubordination, testifying in her own behalf at
Levels III and IV. Grievant has been employed by DHHR for 23
years, serving as a supervisor for the last 13 years. She
presently supervises the Work and Training Unit in Kanawha County
which assists welfare clients in becoming gainfully employed,
assessing their employment and training needs and providing
appropriate services to overcome barriers impeding their employ
Grievant generally contends that this disciplinary action
related back to her 1986 proposal to automate her unit's operation
through a grant. At that time, Ms. Paterno rejected Grievant'sproposal as being "without merit." Subsequently, her proposal was
approved for $28,000 by the Private Industry Council (PIC) of
Kanawha County after she and her immediate supervisor at the time,
Frederick Boothe, by-passed Ms. Paterno. See G Ex B. Later,
after the computer equipment became the property of DHHR, Ms.
Paterno told Grievant that funds were not available to make
necessary repairs. Again, Grievant succeeded in obtaining the
necessary funds from PIC. After Ms. Paterno became her second-
level supervisor in a reorganization, Grievant's performance
ratings began declining, although Grievant believes her performance
remained the same. See G Ex C. Likewise, Grievant was no longer
selected to represent the agency in various outside activities.
Because the events alleged to constitute insubordination are
largely unrelated, the testimony and evidence regarding each will
be discussed separately. For simplicity in following this
discussion, the three allegations will be designated as the "excess
furniture," "pen purchase" and "printer repair" incidents, with the
excess furniture matter being discussed first.
Wayne Riley, currently retired, was previously employed as the
Regional Administrator for Work and Training in DHHR Region II. In
that capacity, he was Grievant's immediate supervisor. He recalled
that on March 15, 1993, heavy snow partially collapsed the roof of
the Washington Street office where Grievant's unit was located. On
March 17, 1993, Mr. Riley met with various employees on his staff,
including Grievant. It was determined that Grievant's unit wouldmove to another DHHR office on Bullitt Street in Charleston, and
share space there for an indefinite period.
Due to limited space in the temporary location, supervisors
were instructed to move only the "bare essentials" to Bullitt
Street. Clients were instructed via the media not to come in for
scheduled appointments. Only "emergency" services were to be
provided until the unit moved back to its original location. Mr.
Riley told Grievant that she could bring a special typewriter and
"viewer" for a legally blind staff member, but not to move file
cabinets, desks or chairs. "Essential" materials were to be moved
in packing cartons or cardboard boxes. Mr. Riley described
"essential" to include work in progress which was in an employee's
work basket, but not the case files stored in the filing cabinets.
In addition, it was noted that the engineers had declared the
regular office area unsafe to enter.
Despite these instructions, Mr. Riley later found that
Grievant had moved 15 chairs, 6 tables, 10 file cabinets, and 2
large double-door storage cabinets to the Bullitt Street office.
In Mr. Riley's judgment, all of these items were excessive for
performing "emergency" services. Based upon this incident, he
verbally reprimanded Grievant on April 7, 1993.
(See footnote 4)
Grievant described her working relationship with Mr. Riley as
"very good" before March 1993 when the collapsed roof forced her
unit to move to a temporary location on Bullitt Street. Grievant
recalled that the roof had "buckled" from the heavy snow, dropping
approximately three feet in one corner of the office. She was
instructed to move out of that location "as rapidly as possible."
Grievant related that she was told to bring "only the barest
equipment necessary to do the job." Grievant explained that she
told Mr. Riley and Ms. Paterno that their case files were essential
to make payments to clients. According to Grievant, Ms. Paterno
verbally authorized bringing the case files. Ms. Paterno recalled
telling Grievant she could bring needed materials, but specifically
warned against moving file cabinets full of case files. L III HT,
May 5, 1994, at 56.
Although Grievant was instructed to use cardboard boxes to
move any necessary files, she claimed that such boxes were not
available. Donna Price, Kanawha County Operations Supervisor,
testified that only the "basic necessities" were to be moved to
Bullitt Street and that boxes were normally available to accommo
date that task. However, she could not recall if Grievant asked
her for file boxes to move her files.
Grievant elected to move the active case files in their file
cabinets rather than leave the files behind. Grievant furtherexplained that she brought three small tables to accommodate
computer terminals that needed access to the only available
electrical outlet. With regard to other office equipment, Grievant
explained that Operations was tasked with providing the necessary
tables and chairs for the Bullitt Street site. Operations used
temporary employees from Manpower to assist in this activity.
These employees brought several items, including various tables, to
the Bullitt Street site without any direction from Grievant. See
G Ex 1 at L III.
On January 7, 1993, Mr. Riley sent a memo to his staff asking
them to submit a "bare bones" equipment request. DHHR Ex 6 at L
III. On January 19, 1993, Grievant attended a staff meeting and
submitted her "essential" equipment needs to include repair or
purchase of an Epson 286E printer at a cost of $475 and 6 dozen Bic
micro metal ink pens at a cost of $7.25 per box. DHHR Ex 7 at L
III. Mr. Riley noted that the $475 cost to repair or replace the
printer was the same as quoted on an estimate Grievant obtained
from Computerland on January 15, 1993. See DHHR Ex 2 at L III.
During the staff meeting, Mr. Riley told his staff that he would
let them know which requests were approved.
The following day, Mr. Riley received a memo from his
supervisor, Sharon Paterno, advising that all equipment purchases
and repairs were to be suspended until further notice. Mr. Riley
disseminated this directive to his subordinate supervisors in a
memo dated January 20, 1993. DHHR Ex 8 at L III. However, on May20, 1993, Donna Price, Kanawha County Operations Supervisor, sent
a memo to Daisy Clark, Regional Administrator, forwarding a request
from Grievant to repair a printer at a cost of $475.09. DHHR Ex 3
at L III. This was submitted the day after Grievant had taken the
printer back to Computerland. The request was denied.
Mr. Riley became aware of the unauthorized repair of a printer
when Grievant called him on May 26, 1993, telling him a terrible
mistake had been made. Grievant said she had taken a printer to
Computerland for an estimate and it had been repaired in error.
Mr. Riley did not recall if he authorized Grievant to contact
Computerland to see if the work could be undone.
According to Grievant, Donna Price, the Operations Supervisor
in the Kanawha County Office, asked her to print some signs. She
told Ms. Price that the printer that could make signs needed
repairs, but such repairs had previously been rejected. Ms. Price
told her to resubmit the request, as it was near the end of the
fiscal year and money might then be available. Grievant had
previously received approval from Daisy Clark, Regional Administra
tor, to get a computer repaired. Grievant took both the computer
and printer to Computerland. Steve McCloud, the network adminis
trator in Grievant's unit, assisted Grievant in loading the
computer and printer in her car.
(See footnote 5)
Mr. McCloud testified at Level
III that it was his understanding that Grievant was simply taking
the printer in for a new estimate since he could not locate theprevious estimate. He was told by Grievant that Ms. Clark needed
an estimate to process a request for repair.
Grievant testified that she asked Mr. Smith to repair the
computer and do an estimate on the printer. Mr. Smith told her
that he recognized the printer and he had an estimate on file. He
agreed to "fax" the original estimate to her when he found it. She
then signed for the equipment before leaving the store without
reading the form. According to Grievant, she believed she was
simply signing a receipt for DHHR's equipment, rather than
authorizing repairs. Grievant previously testified at Level III
that she called Mr. Smith a few days before she brought the items
in, but they only discussed repairing the computer. The printer
was not even mentioned in that discussion. L III HT, May 5, 1994,
After Mr. Smith located the original repair estimate, he
called Grievant. She obtained the number for the facsimile
machine, called Mr. Smith with the number, received the "fax" from
Mr. Smith, and sent it to Operations, requesting approval for the
repair in accordance with her conversation with Ms. Price. See
DHHR Ex 3 at L III.
Several days later, an employee informed Grievant about a call
from Computerland advising that the computer and printer had been
repaired and were ready to be picked up. Grievant stated that she
became "extremely upset" at that point, and went to see Ms. Price
to determine if approval to repair the printer had been obtained.
Ms. Price recalled that Grievant asked her if the request had beenapproved by Ms. Clark, telling her that Computerland had gone ahead
and fixed the printer. L III HT, Mar. 31, 1994, at 27.
At that time, Ms. Price contacted Ms. Clark, who denied the
expenditure request. At this point, Grievant returned to her
office and called Mr. Riley, advising him as to what had tran
spired. She told Mr. Riley that she would have Computerland "undo"
the repair. He told her not to do that, but to put her explanation
of what took place in writing and submit it to him.
Kevin Smith, a service technician with Computerland in South
Charleston, West Virginia, testified that Grievant brought in an
Epson printer for repair on May 19, 1993. See G Ex E. He recalled
that another DHHR employee (Wilson Hudson) brought the same printer
in for a repair estimate on December 29, 1992.
(See footnote 6)
See R Ex 1 at L
III. Mr. Smith recalled Grievant calling him approximately two
weeks before May 19, telling him she was bringing the printer back
to be repaired. L III HT, Mar. 31, 1994, at 4. Mr. Smith further
recalled telling Grievant that the cost of repairing the printer
would exceed the printer's value. He related that Grievant told
him it was easier to get a piece of equipment repaired than to
purchase a new item.
When Grievant brought the printer to Computerland, she again
specifically asked that the printer be repaired. Grievant also
requested a copy of the original work order from December 1992, andhe agreed to send it to her by facsimile machine as soon as he
located it. This was accomplished either that same day or the
As previously noted, Grievant submitted a written request for
Bic micro metal pens in January 1993. Grievant subsequently spoke
to Mr. Riley on May 3, 1993, renewing her request for these
particular pens. Responsibility for placing supply orders for
Grievant's unit was delegated to Carolyn Bills, the Financial
Supervisor for the Kanawha County office. Mr. Riley spoke with Ms.
Bills about the particular pen Grievant was requesting. Ms. Bills
told him that the pen Grievant wanted was more expensive than the
pens she was ordering for the office. Accordingly, Mr. Riley
advised Grievant that day, or the following day, that he would not
approve the pens because they were not being used in the Kanawha
County office. This same determination was repeated to Grievant in
subsequent conversations on June 6, July 22, and August 2, 1993.
Describing his dealings with Grievant on this matter, Mr.
Riley noted that "no was not an acceptable answer." He recalled
that Grievant even called his secretary and asked her to order the
pens, indicating that she had obtained his approval. This led to
a query from Ms. Bills, and Mr. Riley blocked the purchase.
Grievant testified that she obtained approval in 1991 for the
Bic Micro Metal pens from the Regional Administrator who preceded
Mr. Riley, Joanne Porterfield, despite protestation from Ms. Bills
that they were "way too expensive." Grievant contends that thepens are a "standard revolving fund item." She explained that she
had been told by supervisors from other counties that they could be
obtained through her "financial clerk." However, Grievant's
financial clerk, Carolyn Bills, told her that these pens were too
expensive. Ms. Bills told her to go through Work and Training to
get the pens approved.
Thelma Thompson, an Office Assistant who worked under Ms.
Bills' supervision ordering supplies, was called as a witness by
Grievant. Ms. Thompson indicated that the pens Grievant wanted to
order were not a standard item that she routinely ordered in 1993,
although they were available in her catalog as a "revolving fund
item." Frank McCartney, an HHR employee working with the Office of
Quality Control, testified at Level III that, during a meeting when
ordering supplies was discussed, Grievant told him the pens she
wanted were available to others, but not to the Kanawha County
staff. L III HT, May 5, 1994, at 11.
Grievant also called Mr. Riley's secretary, Vicky Wood, who
was handling special equipment requests for Region II. Ms. Wood
told her that she did not approve "revolving fund" items, such as
Bic micro metal pens, and referred Grievant back to Ms. Bills.
Grievant stated that she did not pursue the matter at that time.
Ms. Wood testified at Level IV, describing her conversation with
Grievant in much the same manner. She explained that the Bic pens
Grievant wanted had been ordered for Grievant using funds that were
available at the regional level when Ms. Porterfield was the
Administrator, approximately two years earlier. According to Ms.Wood, Grievant did not indicate that she had already spoken to Ms.
Bills before calling her about the pens.
When Grievant later spoke to Mr. Riley about ordering the
pens, he asked her if the pens were a "commonly used item" in the
Kanawha County office. Grievant testified that she told him she
did not think so, but Mr. Riley agreed to check on the matter with
Ms. Bills. Without hearing from Mr. Riley, Grievant again went to
Ms. Bills and told her she had talked with Mr. Riley about the pens
and that she wanted to order the pens, indicating that she thought
Mr. Riley would support her request. Ms. Bills told her that Mr.
Riley had told her not to order the pens for Grievant unless she
was ordering them for everyone in the office. Grievant later
called Mr. Riley to ask him what he told Ms. Bills. He provided
Grievant substantially the same explanation as Ms. Bills, and
Grievant did not pursue the matter after that.
Carolyn Bills, the Financial Supervisor for the Kanawha County
DHHR Office in 1993, also testified at Level IV. Among her various
duties, Ms. Bills was responsible for ordering supplies for the
office. She recalled that when Grievant approached her about
ordering the Bic pens, she told Grievant that pen was not being
ordered for anyone else in the Kanawha County office. She further
stated that Grievant told her that Mr. Riley had said to go aheadand order the pens.
(See footnote 7)
According to Ms. Bills, Grievant indicated
that "Riley told her, just order the pens."
Under W. Va. Code
§ 29-6A-6, the burden of proof in disciplin
ary matters falls on the employer. Brown v. W. Va. Dept. of
Commerce, Labor & Envtl. Resources
, Docket No. 92-T&P-473 (Apr. 8,
1993); Broughton v. W. Va. Div. of Highways
, Docket No. 92-DOH-325
(Dec. 31, 1992). Consequently, the testimony and other evidence
from the Level III and IV hearings must be carefully examined to
determine if DHHR established sufficient facts to prove the charges
alleged. Moreover, where the existence or nonexistence of certain
contested facts hinges on witness credibility, it is necessary to
make explicit credibility determinations and detailed findings of
fact. Pine v. W. Va. Dept. of Health & Human Resources
, Docket No.
95-HHR-066 (May 12, 1995). See Harper v. Dept. of the Navy
M.S.P.R. 490 (1987).
Grievant was alleged to have been insubordinate. Generally,
insubordination involves the "willful failure or refusal to obey
reasonable orders of a superior entitled to give such order."
Riddle v. Bd. of Directors, So. W. Va. Community College
No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of Educ.
Docket No. 26-89-004 (May 1, 1989). However, this Grievance Board
has also recognized that insubordination "encompasses more than anexplicit order and subsequent refusal to carry it out. It may also
involve a flagrant or willful disregard for implied directions of
an employer." Sexton v. Marshall Univ.
, Docket No. BOR2-88-029-4
(May 25, 1988), citing Weber v. Buncombe County Bd. of Educ.
S.E.2d 42 (N.C. 1980). In Sexton
, the Administrative Law Judge
noted that insubordination had been shown through an employee's
"blatant disregard for the authority" of his second-level supervi
Applying the foregoing standards to the allegation that
Grievant moved excessive furniture and equipment to the temporary
worksite on Bullitt Street, the evidence is clear that Mr. Riley
and Ms. Paterno communicated reasonably clear guidance regarding
the type and amount of equipment and files which should be moved
from the damaged office to the temporary Bullitt Street location.
Grievant correctly notes that the situation which resulted from the
partial roof collapse created an emergency situation, requiring her
to make decisions on how best to carry on with essential work.
Indeed, making these kinds of decisions would be expected of an
employee in a supervisory role, such as Grievant.
However, Grievant was instructed in no uncertain terms that
she should not bring her case files in their filing cabinets. The
undersigned Administrative Law Judge is persuaded that Grievant
simply disagreed with her supervisors as to what was "essential"
for her clients, and elected to move whatever equipment she decided
would allow her to conduct most transactions for current clients at
the temporary location. The supply cabinets, for example, wereclearly excessive to the unit's needs as routine supplies were
provided through the unit already operating at that location.
Had Grievant's superiors asked her to do her best to maintain
business as usual at the temporary location, Grievant's actions
would have merited commendation. However, given the clear
instructions to limit services provided and to bring only the
equipment necessary to support those activities, Grievant's conduct
manifests the requisite defiance of authority involved in the
offense of insubordination. See Sexton
. Mr. Riley's
decision to issue a verbal reprimand to Grievant was not unrea
sonable in these circumstances.
In assessing the available evidence regarding the printer
incident, it is noted that Grievant's action in physically taking
the printer back to Computerland is more consistent with seeking
repair of the item than getting an estimate, as that simply
involved locating the proper document in the files. This observa
tion is amplified by Grievant's testimony that Mr. Smith recognized
the printer and agreed to send her a "fax" copy of the original
estimate. At that point, there was no reason to leave the printer
at Computerland, except for repair. The evidence also suggests
that Grievant's conversation with Ms. Price led her to assume that
approval to repair the printer would be forthcoming, since Ms.
Price had an interest in getting the computer repaired and funds
are sometimes available at the end of the fiscal year. However,
Mr. Riley's memo of January 20, 1993, banning all equipmentpurchases or repairs, was still in effect, and Ms. Price had no
real or apparent authority to authorize such an expenditure.
Obviously, Grievant's credibility is at issue because she
contradicts the sworn testimony of multiple witnesses. In that
regard, the undersigned observed the demeanor of Mr. Riley and Mr.
Smith during their testimony and found them to be sincere and
straightforward. Other than some understandable confusion over
dates, Mr. Riley's testimony was consistent. Mr. Smith's testimony
at Level IV was consistent with his testimony at Level III and his
earlier written statement. Contrary to Grievant's contentions, no
bias, prejudice or motive to fabricate was observed nor seriously
suggested by any credible evidence.
Considering all the circumstances, including Mr. Smith's
explicit and credible testimony that Grievant asked him to repair
both the printer and computer, Grievant's version does not survive
scrutiny. Knowing that the same piece of equipment had previously
been taken to Computerland for an estimate, common sense would
suggest that obtaining a "second estimate" would be the basis for
explicit conversation and written memorialization, rather than
relying on an implicit understanding. While it is plausible that
a misunderstanding could arise over whether a piece of equipment is
brought in for repair or an estimate, Mr. Smith's specific
recollection of an earlier phone conversation with Grievant further
negates the likelihood of a simple misunderstanding. In this
situation, someone has to be lying. Grievant is the person who
consistently remembers events differently from the other witnessesinvolved in critical conversations. Collectively, these factors
corroborate Mr. Smith's recollection of events surrounding this
matter, leading the undersigned to find that Grievant left the
printer for repair without obtaining prior authorization to spend
DHHR funds for that purpose.
The remaining charge involving the pens hinges upon the
credibility of Carolyn Bills. Ms. Bills' testimony was completely
candid, and she made no effort to shade her testimony toward either
party. There was no demonstrated prejudice against Grievant.
Thus, her statement that Grievant told her that Mr. Riley had said
to "just order the pens" is accepted as a credible recounting of
their conversation. Grievant was aware that although the pens she
wanted were a "revolving fund item" and were in use by DHHR
employees in other counties, they were not routinely ordered for
the staff in Kanawha County. After Mr. Riley told Grievant that he
would approve the pens, provided they were a common item ordered
for all Kanawha County employees, Grievant's actions in misrepre
senting his position to Ms. Bills represents a disregard for
authority falling within the scope of insubordination. See Grueser
v. W. Va. State Bd. of Rehabilitation
, Docket No. 95-RS-084 (June
29, 1995); Sexton
A three-day suspension for the charges proven falls within the
range of penalties for such misconduct authorized by DHHR's
regulation dealing with "progressive discipline." G Ex A. Given
the seriousness of the offenses and Grievant's level of responsi
bility as a supervisor, a three-day suspension does not appear torepresent an arbitrary and capricious penalty. See Martin v.
W. Va. State Fire Comm'n
, 89-SFC-145 (Aug. 8, 1989); Schmidt v.
W. Va. Dept. of Highways
, Docket No. DOH-88-063 (March 31, 1989).
In addition to the foregoing discussion, the following
findings of fact and conclusions of law are made in this matter.
FINDINGS OF FACT
1. Grievant is employed by the Respondent Department of
Health and Human Resources as an Employment Service Supervisor in
the Office of Work and Training.
2. Grievant has over 23 years of satisfactory employment with
DHHR, the last 13 of which have been in a supervisory capacity.
3. Grievant supervises DHHR's Work and Training Unit in its
Kanawha County office, located on Washington Street in Charleston,
4. At all pertinent times, Grievant's immediate supervisor
was Wayne Riley, Regional Administrator for Work and Training in
DHHR Region II. During the same time, Mr. Riley's supervisor (and
Grievant's second-level supervisor) was Sharon Paterno, Director of
DHHR's Office of Work and Training.
5. On March 15, 1993, the Kanawha County office became
temporarily uninhabitable when heavy snow partially collapsed the
6. On March 17, 1993, Grievant attended a meeting with Mr.
Riley and Ms. Paterno where plans were discussed to move Grievant's
unit, along with other DHHR operations, to a shared location inanother DHHR office located on Bullitt Street in Charleston, West
Virginia, on a temporary basis.
7. During the course of the March 17 meeting referenced in
Finding of Fact Number 6, Mr. Riley or Ms. Paterno, or both,
instructed Grievant to move only the "bare essentials" necessary
for "emergency services" from the old location to the new location.
Grievant was advised that cardboard boxes would be available to
move necessary case files, but filing cabinets were not to be
8. Grievant was unable to locate sufficient cardboard boxes
to transport the client case files which she deemed essential for
her unit, and elected to transport virtually all open files in 8
filing cabinets. In addition, 2 large double-door storage cabinets
for supplies were moved to the Bullitt Street location. See G Ex
1 at L III.
9. On April 7, 1993, Mr. Riley issued a verbal reprimand to
Grievant for moving excessive office furnishings to the Bullitt
10. On January 15, 1993, Computerland in South Charleston
rendered an estimate to repair an Epson printer that belonged to
Grievant's unit. DHHR Ex 2 at L III.
11. Consistent with the estimate from Computerland, Grievant
submitted a "bare bones" equipment request to Mr. Riley on January
19, 1993, seeking $475 to repair an Epson printer. DHHR Ex 7 at L
III. 12. On January 20, 1993, Mr. Riley informed his staff,
including Grievant, that all equipment purchases and repairs were
suspended until further notice. See DHHR Ex 8 at L III.
13. Sometime in May 1993, Donna Price, Operations Supervisor
for the Kanawha County office, asked Grievant's assistance in
printing some signs. Grievant explained that the only printer
capable of making signs needed repair, and such repair had
previously been disapproved. Ms. Price suggested to Grievant that
funds might be available as it was closer to the end of the fiscal
year, and she could resubmit the request through her to Daisy
Clark, Regional Administrator.
14. On May 19, 1993, Grievant took the Epson printer which
had been the subject of the January 1993 estimate to Computerland
in South Charleston. She spoke with Kevin Smith, a repair
technician who had prepared the earlier repair estimate. Grievant
authorized repair of the printer both verbally and in writing.
Grievant asked Mr. Smith to send her a facsimile copy of the
previous repair estimate, leaving the printer to be repaired.
15. On May 20, 1993, Grievant submitted a copy of the earlier
estimate, obtained by facsimile transmission from Mr. Smith, to
Donna Price, seeking approval of the repair. DHHR Ex 3 at L III.
16. On May 27, 1993, Grievant received word that the printer
repairs had been completed by Computerland. Grievant contacted Ms.
Price, who spoke with Ms. Clark, and determined that the repairs
were not approved. 17. Included in the January 19, 1993, equipment request
described in Finding of Fact Number 11, was a request from Grievant
for 6 dozen Bic micro metal ink pens at a cost of $7.25 per box.
DHHR Ex 7 at L III.
18. The same pens described in Finding of Fact Number 17 had
previously been purchased for Grievant's unit in 1991, using funds
from the Regional Level.
19. Grievant spoke with Mr. Riley in May 1993, renewing her
request for the pens. Mr. Riley indicated that he would discuss
the pens with Carolyn Bills, the Financial Supervisor for the
Kanawha County office, and approve ordering the pens, if they were
commonly used in the Kanawha County office.
20. Grievant thereafter went to Ms. Bills, representing that
Mr. Riley had told her to order the pens. Mr. Riley conferred with
Ms. Bills, determined that the pens were not being regularly
ordered in Kanawha County, and denied Grievant's request.
CONCLUSIONS OF LAW
1. In disciplinary matters, the burden of proof is upon the
employer and the employer must meet that burden by proving the
charges against an employee by a preponderance of the evidence.
W. Va. Code § 29-6A-6; Brown v. W. Va. Dept. of Commerce, Labor &
Envtl. Resources, Docket No. 92-T&P-473 (Apr. 8, 1993).
2. Insubordination involves the "willful failure or refusal
to obey reasonable orders of a superior entitled to give such
order." Riddle v. Bd. of Directors, So. W. Va. Community College,Docket No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of
Educ., Docket No. 26-89-004 (May 1, 1989). Insubordination also
"encompasses more than an explicit order and subsequent refusal to
carry it out. It may also involve a flagrant or willful disregard
for implied directions of an employer." Sexton v. Marshall Univ.,
Docket No. BOR2-88-029-4 (May 25, 1988), citing Weber v. Buncombe
County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980).
3. Respondent proved by a preponderance of the evidence that
Grievant engaged in insubordinate conduct in March 1993 by moving
excessive office furniture from the Washington Street office to a
temporary location on Bullitt Street, contrary to explicit
instructions from her supervisors.
4. Mr. Riley's issuance of a verbal reprimand to Grievant on
April 7, 1993, for the conduct described in Conclusion of Law
Number 3 was not an excessive or inappropriate punishment.
5. Respondent proved by a preponderance of the evidence that
Grievant engaged in insubordinate conduct on May 19, 1993, by
taking a printer to Computerland to be repaired without obtaining
prior authorization to expend DHHR funds for such purpose.
6. Respondent proved by a preponderance of the evidence that
Grievant was insubordinate by representing to Carolyn Bills,
Financial Supervisor for Kanawha County, that her supervisor, Wayne
Riley, had authorized purchase of a particular ink pen, then
knowing that Mr. Riley had not approved the purchase and was
unlikely to do so. See Grueser v. W. Va. State Bd. of Rehabilita
tion, Docket No. 95-RS-084 (June 29, 1995); Sexton, supra. 7. Having proven that Grievant engaged in two acts of
insubordination as stated in Conclusions of Law Number 5 and 6, and
given that Grievant had properly been verbally reprimanded for an
earlier insubordinate act, the three-day suspension ultimately
imposed on Grievant for these offenses was not an arbitrary and
capricious penalty. See Martin v. W. Va. State Fire Comm'n, 89-
SFC-145 (Aug. 8, 1989); Schmidt v. W. Va. Dept. of Highways, Docket
No. DOH-88-063 (March 31, 1989). Moreover, a three-day suspension
falls within the range of penalties authorized by DHHR's policy on
progressive discipline. See G Ex A.
Accordingly, this Grievance is DENIED.
Any party 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.
LEWIS G. BREWER
Administrative Law Judge
Dated: March 20, 1996
Grievant also submitted a grievance on February 15, 1994,
alleging that her immediate supervisor had unfairly placed a
document questioning her credibility in her administrative file.
This grievance was consolidated with the earlier grievance at Level
III but withdrawn at Level IV, as the challenged document had been
removed from Grievant's file after one year.
Prior to the Level IV hearing, DHHR filed a Motion to
Dismiss this grievance based upon the theory that Grievant had
accepted the Level III decision by cashing her employer's check for
two days' back pay, thus waiving her right to appeal to Level IV.
DHHR renewed this motion at the hearing. W. Va. Code
4(d)(1) provides, in pertinent part:
If the grievant is not satisfied with the action
taken by the chief administrator or his designee [at
Level III], within five days of the written decision the
grievant may request . . . that the grievance be submit
ted to a hearing examiner . . . [at Level IV]. (emphasis
Nothing in this provision, nor anywhere else in the grievance
procedure for state employees, W. Va. Code
§§ 29-6A-1, et seq
supports DHHR's position. Likewise, DHHR failed to cite to any
decisions of this Grievance Board or any court of record which has
adopted this theory. Accordingly, the interlocutory ruling denying
DHHR's Motion to Dismiss at the Level IV hearing is affirmed.
The underlined portion of the charges were not sustained by
the Level III Hearing Examiner and Grievant's penalty was reduced
to a three-day suspension. This particular charge was not further
considered at Level IV.
Ordinarily, a prior disciplinary action may not be contested
in a grievance involving a subsequent action. See Nicholson v.
Logan County Bd. of Educ
., Docket No. 95-23-129 (Oct. 18, 1995);
Womack v. Dept. of Admin
., Docket No. 93-ADMN-430 (Mar. 30, 1994).
However, it is apparent that DHHR accepted this issue as part of
Grievant's complaint and the Grievance Evaluator at Level III made
explicit findings of fact relating to this incident. Hence, DHHR
made no objection to this issue at Level IV. Accordingly, themerits of this earlier reprimand will be addressed as it does not
involve a new issue. See W. Va. Dept. of Health & Human Resources
, 189 W. Va. 357, 432 S.E.2d 27 (1993).
Although Mr. McCloud has primary responsibility for the
computer systems, he does not drive. Therefore, someone other than
Mr. McCloud has to transport the equipment to be repaired.
Mr. Hudson testified at Level III, recalling his conversa
tion with Mr. Smith in December 1992. It was mutually agreed that
Computerland would complete a repair estimate on the printer at
Ms. Bills noted that, technically, Ms. Clark, the Regional
Administrator for Operations, had final authority to approve or
disapprove items that were not regularly purchased for the Kanawha