On Thursday, October 7, 1999, Ronald Anderson, Community Services Manager, held a discussion with you regarding the nature of your misconduct. Mr. Anderson shared with you that disciplinary action in the form of a suspension was being considered. You responded to him that this was the first and only time that you had ever done anything wrong and that your performance had always been above average and that you had gone above what was expected of an employee through your participation on the Region I Corrective Action Panel. You further indicated that you did not deny the allegations of misconduct. After reviewing your response and the circumstances, I have decided that this suspension is warranted.

      The specific reasons for your suspension relates to your wanton and willful destruction of Food Stamp client, C.B.'s income change verification and your failure to properly update the client's Food Stamp record.

      On Wednesday, September 29, 1999, while looking for a scrap of paper on your desk in order to leave you a note, your supervisor, Michelle Batiste, noticed, torn up in your trash can, copies of two pay stubs dated September 10, 1999 and September 24, 1999, plus a signed letter dated September 8, 1999 from the client's employer relative to a change in the client's work hours effective September 5, 1999. Your supervisor recognized that she had just handed these verifications and letter to your earlier on that day. Upon questioning you about what she found in your trash can, you told her that you already had this information. When you were asked where you had it, you stated that it was in the case record and that you had taken care of it. Your supervisor then produced the case record and showed you that you did not, in fact, file the information nor did you update the case record. The record shows that the last time you had seen the client was on August 9, 1999 when you processed a Food Stamp redetermination using pay statements dated July 16, 1999 andJuly 30, 1999. The record indicates that you did not make any change on the case nor did you update the client file based upon the information received on September 29, 1999. You made the statement that “everyone back there does it”, “or they throw the stuff on the floor without making the change and file it”. When you were further asked to whom you were referring, you declined to make further comment.

      Your actions are in violation of Common Chapter 900, Preserving the Integrity of Original Documents (copy attached); DHHR Policy Memorandum 2108, Employee Conduct (copy attached), which states that the employer expects professional behavior from its employees and that the employee is to provide services to eligible individuals in protecting the basic health and welfare of its citizens; and West Virginia Income Maintenance Manual Chapter 1.2D (copy attached) which clearly defines the responsibility of the worker to ensure that client information is appropriately handled and that case recordings are made to fully document the client's situation.

      During your tenure with the Department of Health and Human Resources, your supervisor has placed a great deal of trust in you by appointing you to the Region I Corrective Action Panel. You were subsequently appointed to the State Corrective Action Panel. Your actions have greatly diminished this trust and has resulted in your being removed from this Panel. Your failure to abide by the Department's policies have the potential to result in Food Stamp clients receiving incorrect benefits which can result in fiscal sanctions against the Department by the federal government. Your actions tear down the ability of the Department to develop trust between the worker and client in the consistent application of policy and trust between the public and the Department to expend tax dollars correctly.
      I believe the nature of your misconduct is sufficient to conclude that you did not meet a reasonable standard of conduct, thus warranting your suspension. Any further infractions, whether they are the same as the present circumstances or different, may result in more severe disciplinary action.

      The State of West Virginia and its agencies have reason to expect their employees to observe a standard of conduct which will not reflect discredit on the abilities and integrity of their employees, or create suspicion with reference to theiremployee's capability in discharging their duties and responsibilities. I believe the nature of your misconduct is sufficient to cause me to conclude that you did not meet a reasonable standard of conduct as an employee of the West Virginia Department of Health and Human Resources, thus warranting this suspension.

      Ron Anderson, Community Services Manager and Grievant's second level supervisor, and Mr. Palma testified at level two that they conferred with DHHR Director of Human Resources Mike McCabe, to determine what action to take regarding this incident. Mr. McCabe also testified at level two that this was the first incident involving the destruction of public documents he had reviewed. They first consulted DHHR Policy 2104, Guide to Progressive Discipline, for guidance and found that “like penalties shall be imposed for like offenses.” Considering the potential fiscal sanctions which could have been imposed on the agency if the information had not been properly processed, and the potential criminal penalties Grievant could have faced, the DHHR administrators consulted with a Division of Personnel specialist, and concluded that a three day suspension was appropriate. Mr. McCabe stated that Grievant's good work record was considered as a mitigating factor in making the decision.
      Grievant elected not to testify at level three or level four, pursuant to W. Va. Code §29-6A-6(e).   (See footnote 2)  However, in her October 17, 1999, letter to Mr. Palma, Grievant admits to the action, but asserts that she had evaluated the information and knew that there was no change in the client's food stamp benefit and “without thinking” threw the document away. She argues that she is a good employee, and because this was a first offense, the levelof discipline should have been an oral or written reprimand to be consistent with the DHHR progressive discipline policy.      
      Because Grievant does not deny the charge, only her claims that the Progressive Discipline Policy was not properly followed, and that the penalty should have been mitigated, remain to be discussed. DHHR Policy 2104, “Guide to Progressive Discipline” provides a corrective approach in changing employee behavior through increasingly severe levels of discipline imposed for unsatisfactory behavior or performance. Both the frequency and the weight of the offense is considered when imposing discipline. Thus, a verbal reprimand or warning is sufficient for an act of misconduct which is not serious or repetitious in nature, while a suspension may be issued for a first offense of a more serious nature. Although Grievant relies upon the fact that the client incurred no harm to support her claim that the destruction of the documents was not a serious matter, it was, as noted in the suspension letter, in violation of DHHR policies which address employee conduct, the processing of client information, and the preservation of original documents. Perhaps even more serious, Section 950 of DHHR's Common Chapter “Preserving the Integrity of Original Documents”, provides the following:
[f]ailure to take proper action to preserve the integrity of the Department of Human Services documents is considered a misdemeanor under West Virginia Code, §61-5-22, and upon conviction, a person may be confined to jail for one year, and fined up to one thousand dollars. That person will also forfeit his right to hold 'any office of honor, trust or profit in this State'.   (See footnote 3) 
      Respondent has proven that Grievant destroyed official documents, an action which could have resulted in penalties to the agency, as well as criminal charges for Grievant. Considering the nature, and the potential consequences, of the action, it cannot be determined that the suspension was an improper level of discipline for a first offense under DHHR Policy 2104.
      An 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. Jones v. W. Va. Dept. of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); Thompson v. W. Va. Dept. of Health & Human Serv., Docket No. 94-HHR- 254 (Jan. 20, 1995).
      Because this was a first instance in which discipline was imposed for the destruction of documents, there are no other cases available for comparison. Further, Grievant's fifteen month employment record, while considered by DHHR administrators, is not of sufficient duration to be entitled to great weight. At best, Grievant's action might be characterized as negligent. While a three day suspension is a significant measure of discipline, the evidence indicates that consideration was given to the nature of the actionand the potential harm which could have occurred. Under these circumstances, it cannot be determined that Grievant proved the suspension was clearly excessive or an abusive of agency discretion.   (See footnote 4) 
      In addition to the foregoing findings of fact and discussion, it is appropriate to make the following formal conclusions of law.

Date: January 29, 2001 _______________________________________
                   Sue Keller
       Senior Administrative Law Judge

If any clerk of a court, or other public officer, fraudulently makea false entry, or erase, alter or destroy any record in his keeping and belonging to his office, or shall wilfully secrete any such record from any person having the right to inspect the same, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year and be fined not exceeding one thousand dollars; and, in addition thereto, he shall forfeit his office and be forever incapable of holding any office of honor, trust or profit in this State.

      At level four, Grievant attempted to allege that some wrongdoing had been committed by Ms. Batiste, and submitted documentation from a former employee who had made complaints about the supervisor. The record does not indicate that Ms. Batiste committed a violation of any rule, regulation, or policy, and Mr. Anderson testified that it might be entirely appropriate for her to “go through” an employee's wastebasket.