v. Docket Nos. 96-MCHD-223/448
MONONGALIA COUNTY HEALTH DEPARTMENT
Grievant, Steven A. Thompson, employed by the Monongalia Count Health Department
(MCHD), as a custodian, filed a level one grievance on April 29, 1996, in which he complained that
MCHD had implemented a reduction in force and reduced his salary on April 8, 1996, in violation
of Division of Personnel (Personnel) Rule 11.04 and W. Va. Code §29-6-10, in that the pay plan did
not receive prior approval from Personnel and was a continuing practice of noncompliance with
“Civil Service law since at least December 1992.” He asserted that his time in service and
exemplary employment record would support the same wages he previously earned as a Maintenance
Mechanic, and the creation of the position of custodian was unnecessary in that their job descriptions
are interchangeable. Grievant further alleged the salary adjustment was punitive and retaliatory in
response to his “whistle blower” activities. Numerous other acts of Respondent's noncompliance
with Personnel Regulations and State law were also cited.
The grievance was denied at level one based upon a finding that the claim had not been filed
in a timely manner. Notwithstanding this ruling, Director of Administration James Strosnider
addressed Grievant's claims and determined they were without merit. Following denials at levels
two and three based upon the timeliness issue, the matter was advanced to level four on June 13,
1996. (Docket No. 96-MCHD-223).
On October 22, 1996, Grievant filed a second complaint appealing the termination of his
employment, effective October 11, 1996. (Docket No. 96-MCHD-448). He asserted that the actionwas “without cause as an act of reprisal in a continuing practice of reprisals.” The grievances were
consolidated for hearing on December 16, 1996. Neither party chose
to submit proposed findings and conclusions.
Docket No. 96-MCHD-223
Grievant stated numerous issues in this grievance. Although many of the specific
complaints are unartfully worded, and never clearly expressed or explained, Grievant does
assert that the reduction in force, and his subsequent reassignment, were improper because
Respondent failed to file a proposed plan with, and receive approval from, Personnel for
the changes. His other allegations include that Respondent failed to comply, in an ongoing
fashion, with Division of Personnel Regulations and State law regarding the state merit
system's employee salary schedule, that former Executive Director Jack Sturms was
unqualified to hold the position, and should have been fired for moral turpitude and
noncompliance with the July 1994, legislative salary increase, that current director Sally
Taylor awarded salary increases in excess of 10% to favored employees in September 1994,
and that the pay dates were changed in July 1995. At the level four hearing MCHD made a Motion to Dismiss the issues raised in
Docket No. 96-MCHD-223, based on timeliness. Specifically, Respondent asserts, Grievant
was advised of the reassignment on April 1, 1996, but did not file a grievance until April 29,
1996. Grievant responded that the grievance was timely filed on April 29, based upon his
receipt of additional information on April 16, or the date his new duties became effective,
April 12, 1996.
W.Va. Code §29-6A-4(e) states that a grievance must be filed at level one “[w]ithin
ten days following the occurrence of the event upon which the grievance is based, or within
ten days of the date on which the event became known to the grievant, or within ten days
of the most recent occurrence of a continuing practice giving rise to a grievance.” “Days”
is defined by W.Va. Code §29-6A-2(c) as “working days exclusive of Saturday, Sunday or
official holidays.”
The grievable event in this matter is notification of the reassignment, not the effective
date of the change, or the date Grievant received additional information. Although
Grievant may have been verbally notified of the change in position on April 1, 1996, the first
documentation of notification was dated April 3. Unquestionably, he was aware of the
events by April 5, as evidenced by his signature on the returned letter, indicating his
acceptance of the custodial position. Even if the ten day period is determined to begin
on April 5, when Grievant acknowledged and accepted the reassignment, he did not file this
complaint in a timely fashion. The remaining issues are also not timely, one instance
involving a salary adjustment having occurred as early as 1989, predating Grievant's
employment. The time has passed for consideration of the 1994 salary increase, Mr.Sturms's employment and the change in pay dates in 1995. In consideration of the
foregoing, the Motion to Dismiss grievance Docket No. 96-MCHD-223 is GRANTED.
(See footnote 1)
Docket No. 96-MCHD-448
The burden of proof rests with the employer in disciplinary matters. W.Va. Code
§29-6A-6. In support of the decision to terminate Grievant's employment, MCHD
presented the following evidence. In September 1995, Maintenance Supervisor Jerry
Johnson suspended Grievant for six days based upon five charges:
1) Insubordination in not utilizing the chain of command for
communication (second offense in two months), counseled by
Jim Strosnider after first violation in August.
2) Willful, unauthorized use of Department keys in accessing
and entering locked employee offices after work hours.
3) Willful, unauthorized use of Department copier to reproduce
personal letters.
4) Loitering after work hours on Department property to be
disruptive.
5) Violating the interoffice mail policy by not clearly identifying
sender and date on a communication to employees.
These charges arose from a three page, single spaced letter which Grievant authored
relating concerns on behalf of himself and all MCHD employees regarding compensation
and classification practices and management in general. Grievant reproduced approximately
500 copies of the letter on Respondent's photocopy machine, using Respondent's paper,
and then posted or placed it in various work areas, departmental mailboxes, and on desks
in unlocked offices. He used his office pass key to open locked offices to deliver the letter.
After a review of the matter by the MCHD Board of Directors, charges one and four
were deleted from the letter and the suspension reduced to three days. Grievant appealed
the suspension; however, the disciplinary action was upheld at level four. See Thompson v.
Monongalia County Health Dept., Docket No. 95-MCHD-578 (June 14, 1996). (Thompson
I).
By memorandum dated January 17, 1996, Mr. Johnson issued a written warning to
Grievant based on the following two incidents:
1. On Friday afternoon, January 12, 1996, you were operating
the Gravely brushing snow and slush from the Building #1
upper parking lot. During the process Sally Taylor's car was
thoroughly covered with slush and dirt, even inside the doors,
while several other cars in the same area were not affected in
this same manner. No contact was made with her concerning
the incident or any effort made to correct the situation. You
were instructed in the future to show respect for the property
of all employees, to use care when operating equipment around
parked cars, and if an incident occurs to report it immediately.
2. On Tuesday afternoon, January 16, 1996, at approximately
3:00 PM, you were seen conducting a personal interview with
WDTV Channel 5 in front of Building #1. You did not
request annual leave for this purpose and had not reportedback to work from your earlier meeting that afternoon. Neither
had you notified your supervisor of your absence. You noted
that you were aware of the need to request annual leave to
conduct any kind of personal business during work hours. You
have been reminded of this policy as recently as last month.
You were instructed in the future, that you must follow
Department policy regarding such matters.
(See footnote 2)
Mr. Johnson continued to advise Grievant that further violations would result in progressive
discipline, up to and including discharge.
Sometime in mid-March, 1996, Grievant left the following voice mail message for the
employees at MCHD:
Friends, this is Steve the maintenance man. What I have in
mind is a proposal to grassroots organize to, uh, maintain our
family medical benefits at least until June 30. It was proved at
the staff meeting the other night that WIC and School Health
are budgeted from an outside source. That money cannot be
touched. That is our salary benefit budget package cannot be
touched. Home Health proved that they are self sufficient.
Dental proved that they are self sufficient. That's at least four
divisions. We need to stick together on this. What they're
going to ask you to do next week, Wednesday, Thursday,
something like that, I forget what the memo says, but they want
you to come over and sign your family medical benefits away.
You are willfully signing your medical benefits away for your
family if you do this. Do not fill that form out under any
circumstances. If you do nothing you still have family coverage.
Now they may try and take it out of your pay in which case we
will all file grievances on misappropriation and withholding of
contracted salary benefits. The benefits that we were told that
we would have when we took this job. And I will be sending
this message around to everybody that I can think of that has
kids in this agency and I want you to talk to everybody in thisagency that you know that has kids or family members on this
insurance. Do not fill those forms out under any circumstances.
We will file grievances on the term misappropriation of our
budgeted and contracted salary benefits. Uh, if you have any
questions I will be back from vacation on the 1st of April. Now
unfortunately I'm not going to be here next week to fight them
on this, but I guarantee you that they cannot do this. And we
will fight them. We must stick together. I'm going to have a
couple people that will be our contact people for a lawyer. And
the lawyer has agreed to try and help us out.
Dr. Taylor responded to this message via memorandum to all MCHD employees on
March 27, 1996. On March 28, Dr. Taylor advised Grievant specifically that in reference
to his voice mail, she was unaware of any misappropriation, but considered the matter
serious. She directed that he report to her any “knowledge of any act, transaction, or claim
of misappropriation that you consider illegal or fraudulent, or any act of misappropriation
made by anyone, including myself” by Wednesday, April 3, 1996. Dr. Taylor further advised
Grievant that he should utilize the office voice mail system only for authorized and/or
directory purposes. Grievant was warned that failure to comply with the memorandum
would lead to consideration of disciplinary action for insubordination, divisive conduct, and
causing disruption in the workplace.
During a meeting on April 1, Grievant requested clarification of the March 28
memorandum, claiming not to understand what was wanted. After an explanation, Grievant
stated that he had no proof of misappropriation. On April 3, Grievant filed a written
response stating that his voice mail message was simply an “invitation for collective
bargaining though participation in the grievance procedure.” He also opined that employeesare free to associate, communicate, and consider grievances with full due process protection
and with no retaliation or reprisal.
By certified letter dated April 18, 1996, Dr. Taylor issued Grievant a written
reprimand in which she recounted the above-recited events and advised Grievant that while
she agreed to his right to file a grievance, that right did not grant immunity from
responsibility for his conduct nor did it absolve him from the inappropriate and
unauthorized use of the agency's voice mail system for divisive purposes. Dr. Taylor opined
that Grievant's actions were calculated to damage employer/employee relations, and that the
message was not only misleading, implying misappropriation when he had no proof, but was
also insincere as demonstrated by the fact that Grievant completed the insurance forms after
urging other employees to the contrary. She concluded that Grievant did not exhibit a
reasonable standard of conduct, warranting the reprimand, and warned that he would be
dismissed upon “the very next occurrence of such misconduct.”
On September 4, 1996, the lead headline in the West Virginia University student
newspaper, The Daily Athenaeum, was “[a]llegations aimed at Mon Health Dept.” The
story reported that Grievant “said he is worried about the health of county residents and
about illegal actions being taken by department administration.” More specifically, he cited
his concerns that MCHD had created its own merit system, changed employees' pay dates,
withdrawn family health benefits, implemented a reduction in force and given raises, all
illegally. He advised that the reduction in force had been completed without the submission
of a budget amendment to the state for approval, and stated his belief that the reductionwas promoted in retaliation for a petition signed by 46 full-time employees requesting that
Personnel order MCHD comply with civil service laws.
As a result of this event, Dr. Taylor notified Grievant by letter dated September 26,
1996, that “[t]he Department cannot continue to suffer the damage to the public interest
caused by your reckless behavior. For this reason, your are being given this opportunity to
provide proof of the truthfulness of your allegations so we can address such if they exist.
Should you fail to do so, I will have reasonable cause to believe you have willfully defamed
this agency and its employees which shall be grounds for your dismissal.” This
documentation was to be provided by 4:30 p.m., October 11, 1996. No evidence was
produced and Grievant's employment was terminated, effective that date.
(See footnote 3)
Grievant's response to the foregoing was haphazard at best. Primarily, he relied upon
his right to protected speech. He did explain that he was on compensatory leave time when
he spoke to the WDTV reporter in January 1996; however, he offered no proof of that
statement. Grievant stated at level four that he did not provide Dr. Taylor with the
information which she requested in the September 26, 1996, letter because he did not
believe that she was the proper authority to whom he should address his concerns, in that
she was the basis of those concerns. He stated that he did not believe she would be fair,
impartial, or reasonable, and that he was under the impression that the matters would be
addressed before the Grievance Board. He indicated that he had hoped to obtain the prooffor his allegations through the massive subpoena requests which he had filed at level four.
He concluded that his dismissal was based on protected speech, that he was genuinely
concerned that the agency would impair its ability to receive funding by “monkeying
around”, that his reports to the press were true, and that MCHD had shown no “clear and
present danger”. Although Grievant appears earnest in his concern, he produced no proof
of his allegations at level four.
Personnel Regulation 12.02 provides that the “appointing authority, fifteen (15)
calendar days after notice in writing to an employee stating specific reasons therefor, may
dismiss any employee for cause. . . .” MCHD has established that Grievant engaged in
ongoing actions which were disruptive to other employees and potentially harmful to the
agency. These actions constitute cause for dismissal. Grievant's concerns regarding his right
to free speech do not differ from those raised in Thompson I, and the holdings made in that
decision to deny those claims are incorporated herein.
In addition to the foregoing narration it is appropriate to make the following formal
findings of fact and conclusions of law.
1. Grievant was first employed by the Monongalia County Health Department in
1990 as a Building Maintenance Mechanic. Grievant's employment appears to have been
satisfactory and uneventful until 1995.
2. In September 1995, MCHD imposed a six day suspension on Grievant after he
used office equipment and supplies to produce five hundred copies of a three page letter in which he aired his views regarding MCHD's compensation and classification practices,
and then used his pass key to distribute the letter in locked offices. This suspension was
later reduced to three days by MCHD's Board of Directors.
3. Grievant received a written warning in January 1996 after he conducted a
television interview during work time regarding the changing of the pay period and after he
had covered MCHD Director Sally Taylor's car during snow removal.
4. In April 1996, Dr. Taylor issued Grievant a written reprimand following his use
of office voice mail to encourage employees to not accept the changes to be made in their
insurance coverage.
5. On September 4, 1996, the West Virginia University student newspaper printed
a story in which Grievant made several serious allegations regarding the administration of
MCHD.
6. Grievant was directed to produce proof of these allegations by no later than
October 11, 1996. Failure to produce was to result in the termination of his employment.
7. Grievant failed to produce the evidence and the termination was finalized.
1. Respondent, Monongalia County Health Department has established cause for
the termination of Grievant's employment by a preponderance of the evidence. See Div.
of Personnel Regulation, Section 12.02.
2. Grievant's written and spoken personal comments and criticisms of his employer's
compensation and classification practices, unsupported by any evidence, did not address amatter of public concern and were not protected under the First Amendment to the United
States Constitution. Thompson v. Monongalia County Health Dept., Docket No.95-MCHD-
578 (June 14, 1996).
3. Grievant failed to establish sufficient mitigating circumstances or any other reason
which would warrant a lesser punishment than that imposed.
Accordingly, the grievance is DENIED.
Any party may appeal this decision to the circuit court of the county in which the
grievance occurred, 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.
DATE: January 31, 1997 _______________________________________
SUE KELLER
Senior Administrative Law Judge