RONALD G. YEATER,
Grievant,
v.
WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES/
MILDRED MITCHELL-BATEMAN HOSPITAL,
Respondent.
DECISION
Ronald G. Yeater (Grievant) was employed by the West Virginia Department of
Health and Human Resources (DHHR) at Mildred Mitchell-Bateman Hospital (MMBH) as
a Psychologist I (Therapist) until his dismissal on July 13, 2000. This grievance was filed
directly at Level IV the next day.
A Level IV hearing was held on December 8, 2000, before the undersigned
Administrative Law Judge, at the Grievance Board's Charleston office. DHHR was
represented by Assistant Attorney General Anthony Eates, II, and Grievant represented
himself. The parties were given until January 9, 2001, to submit proposed findings of factand conclusions of law, both parties did so,
(See footnote 1)
and this grievance became mature for
decision on that date.
(See footnote 2)
The following Findings of Fact pertinent to resolution of this matter
have been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT
1. Grievant was employed by DHHR as a Psychologist I on the Mentally
Ill/Chemically Addicted Team at MMBH.
2. On or about May 1, 2000, Grievant received an e-mail from a former lover,
asking him for help with an alcohol problem. This e-mail contained an attachment: a
partially nude photograph of the sender.
3. MMBH Policy MMBHC035, entitled Use of E-mail and Licensed Proprietary
Software, was not in effect at the time of this incident
4. The photograph shows a frontal view of a standing woman, with her left
breast exposed. It is not pornographic or obscene.
5. Grievant printed the e-mail and attachment.
6. The computer Grievant used was in the admissions area of MMBH, in an
area partially visible to the public.
7. MMBH Admissions Clerk Leigh Hale saw the photograph and was offended.
8. On May 16, 2000, Grievant's supervisor Robert Nida (Nida) met with him, told
him that printing photographs of nude women was not appropriate behavior at MMBH, and
told him to stay out of the admissions area.
9. Grievant's duties include placing a daily census report in the admissions area
every day. Nida did not relieve Grievant of this duty.
10. Someone saw Grievant leaving the Admissions area on May 22, 2000.
11. On August 24, 1998, Grievant received a written reprimand for taking a
broken chair from MMBH.
12. On May 12, 1999, Grievant received a one day suspension without pay for
using inappropriate language with a patient.
(See footnote 3)
13. Grievant was dismissed on July 13, 2000, for insubordination and
inappropriate and non-professional conduct.
DISCUSSION
In disciplinary matters, the employer has the burden of proving the charges by a
preponderance of the evidence.
W. Va. Code § 29-6A-6;
Evans v. Dep't of Health &
Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997),
Miller v. W. Va. Dep't of
Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997);
Broughton v. W.
Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992). A preponderance of the
evidence is defined as “evidence which is of greater weight or more convincing than theevidence which is offered in opposition to it; that is, evidence which as a whole shows that
the fact sought to be proved is more probable than not.”
Black's Law Dictionary (6th ed.
1991);
Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486
(May 17, 1993). Where the evidence equally supports both sides, a party has not met its
burden of proof.
Id.
The administrative rules of the West Virginia Division of Personnel provide that an
employee in the classified service may be dismissed for "cause." 143 CSR § 12.2,
Administrative Rule, W. Va. Div. of Personnel (July 1, 1998). The phrase "good cause" has
been determined by the West Virginia Supreme Court of Appeals to apply to dismissals of
employees whose misconduct was of a "substantial nature, and not trivial or
inconsequential, nor a mere technical violation of statute or official duty without wrongful
intention." Syl. Pt. 2,
Buskirk v. Civil Serv. Comm'n, 175 W. Va. 279, 332 S.E.2d 579
(1985);
Guine v. Civil Serv. Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1,
Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980);
See
Hundley v. W. Va. Div. of Corrections/Mount Olive Correctional Complex, Docket No. 97-
CORR-197A (May 12, 1999).
DHHR dismissed Grievant for insubordination and continued inappropriate and non-
professional conduct, alleging that he was insubordinate when he returned to the
admissions area after having been ordered not to go there, and that he violated MMBH's
e-mail policy by printing a pornographic picture from a hospital computer.
(See footnote 4)
Grievant arguesthat he should not have been dismissed, as he was given conflicting orders by MMBH and
was not made aware of the MMBH e-mail policy under which he was dismissed. Grievant
seeks reinstatement, lost wages, the removal of erroneous and unfair disciplinary records
from his file, and two weeks leave time to recuperate prior to his return to work.
Grievant's dismissal letter stated:
The charge for this dismissal is insubordination and continued
inappropriate and non-professional conduct. The specific
reason for this charge is that in late April or early May of this
year you were observed viewing and printing several copies of
inappropriate (sexual) images from the internet on hospital
owned equipment in the Admissions Unit while on duty. Your
actions were clearly prohibited by Bateman Hospital Policy
MMBHC035, Use of E-mail and Licensed Proprietary Software.
Your interactions with staff in Admissions were clearly
inappropriate. A Bateman staff member informed you that she
found this behavior offensive, yet you did not attempt to cease
your activity. On May 16, 2000, you met with the MICA
program Director to discuss this incident. During that meeting,
you were directed to stay away from the Admissions area. You
ignored that directive and were seen leaving the Admissions
area on May 22, 2000.
Insubordination is 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 may also be found when an employee shows a
willful disregard for the 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). To prove insubordination, an employer must demonstrate that a policy or directive
that applied to the employee was in existence at the time of the violation, and the
employee's failure to comply was sufficiently knowing and intentional to constitute the
defiance of authority inherent in a charge of insubordination.
Conner v. Barbour County Bd.
of Educ., Docket No. 94-01-394 (Jan. 31, 1995). An employer also has the right to expect
subordinate personnel "to not manifest disrespect toward supervisory personnel which
undermines their status, prestige, and authority . . ."
McKinney v. Wyoming County Bd. of
Educ., Docket No. 92-55-112 (Aug. 3, 1992)(citing
In re Burton Mfg. Co., 82 L.A. 1228 (Feb.
2, 1984)).
(See footnote 5)
Insubordination can result in disruption of the workplace such that it amounts to
misconduct of a substantial nature affecting the rights and interests of the public.
Payne
v. W. Va. Dep't of Transp., Docket No. 93-DOH-454 at 11-12 (Apr. 29, 1994). Acts of
insubordination such as failure to obey a lawful order of a superior have been held to
constitute gross misconduct justifying dismissal.
Bone v. W. Va. Dep't of Corrections, 163
W.Va. 253, 255 S.E.2d 919 (1979). There are few defenses to the charge of insubordination. The prudent employee
complies with his employer's directives first, and expresses his disagreement later.
Hundley
v. W. Va. Div. of Corrections, Docket No. 96-CORR-399 (Oct. 27, 1997);
See,
e.g.,
Surber
v. Mingo County Bd. of Educ., Docket No. 96-29-015 (Dec. 30, 1996). Essentially, what an
employer must demonstrate to substantiate insubordination, is that the employee was given
an order, directive, or rule, which did not entail unnecessary physical risk to himself or other
employees, and the employee failed to comply.
Hundley,
supra.
DHHR based its decision to terminate Grievant upon provisions of its Policy
Memorandum 2104 (Policy 2104), entitled Progressive Discipline; DHHR Policy 2108,
(Policy 2108) entitled Employee Conduct; MMBH Policy MMBHC015 (Policy MMBHC015),
entitled Progressive Disciplinary Action, and MMBH Policy MMBHC035, entitled Use of E-
mail and Licensed Proprietary Software.
Policy MMBHC015 provides for progressive discipline ranging from verbal reprimand
through written reprimand, suspension, demotion, and dismissal. It provides that “[i]n most
cases this system begins with a verbal reprimand, followed by a written reprimand,
suspension, and ultimately dismissal. All instances of misconduct shall be investigated. .
. .” Policy 2104 provides “a corrective approach that implements a level of discipline
commensurate with increasingly severe discipline actions for continued unsatisfactory
behavior or performance.” It too provides for progressive discipline ranging from verbal
reprimand through written reprimand, suspension, demotion, and dismissal, and mandates
that an employee be adequately warned of the consequences of his conduct. Policy 2104
requires that an employee “be made aware of expected and acceptable levels ofperformance. . .” and be allowed to tell “his side of the story” before a disciplinary decision
is made.
A preponderance of the credible evidence of record in this grievance convinces the
undersigned that, while DHHR established a charge of insubordination against Grievant,
this is a classic case of under-investigation and over-reaction.
Grievant admits returning to the Admissions area after Nida told him not to.
Although his duties include placing a census report in the admissions area daily, Grievant
should have complied with his employer's directives first, or at least asked for clarification,
and expressed his disagreement later.
Hundley,
supra. Grievant's argument that he was
given contradictory orders by MMBH is noted, along with the fact that MMBH Human
Resource Director Kieth Anne Worden (Worden) credibly testified that this fact might have
made a difference in the decision to fire Grievant, had she known of it. No evidence was
presented to show that Grievant did anything more in the admissions area than file his
report. Although DHHR proved its charge of insubordination against Grievant, it failed to
prove that Grievant's dismissal was appropriate, for the following reasons.
First, the photograph that Grievant printed is not pornographic or obscene. Material
is pornographic when it “is of or pertaining to obscene literature; obscene; licentious.
Material is pornographic or obscene if the average person, applying contemporary
community standards, would find that the work taken as whole appeals to the prurient
interest and if it depicts in a patently offensive way sexual conduct and if the work taken as
a whole lacks serious literary, artistic, political or scientific value.”
Black's Law Dictionary
(5th ed. 1979);
citing Miller v. California, 413 U.S. 15, 24-25, 93 S.Ct. 2607, 2615, 37L.Ed.2d 419 (1973). Prurient means a “shameful or morbid interest in nudity, sex, or
excretion.”
Black's Law Dictionary (5th ed. 1979);
citing Attorney General v. Book Named
“John Cleland's Memoirs of a Woman of Pleasure,” 349 Mass. 69, 206 N.E.2d 403 (1965).
The photograph that Grievant printed does not depict sexual conduct at all, let alone
in a way that would offend contemporary community standards. It does not appeal to the
prurient interest.
Second, MMBH's investigation into this incident was seriously flawed. Grievant's
immediate supervisor, Robert Nida, credibly testified at Level IV that he learned of the
photograph incident from Penny Koontz, who heard of it from Leigh Hale's mother, who
heard of it from Ms. Hale. MMBH Administrator Carol Wellman credibly testified that she
learned of this incident from Worden. Ms. Worden credibly testified that she learned of it
from Jack Clohan, who learned of it from Equal Opportunity Coordinator Donna Montie.
MMBH Director of Quality and Risk Management Patricia Franz credibly testified that she
learned of it during lunch with a former employee of MMBH, Ava Patterson, who had heard
a rumor that a new employee in Admissions had seen the photograph and been made to
feel uncomfortable, and that she had a duty to report this rumor to Equal Opportunity
Coordinator Montie. It thus appears that Wellman learned of this incident from Worden,
who learned of it from Clohan, who learned of it from Montie, who learned of it from Franz,
who learned of it Patterson, from who learned of it from Hale's mother, who learned of it
from Hale. It is noted that Hale never complained to MMBH authorities, or filed a sexual
harassment complaint, about the offending photograph. The record does not even contain the name of the person who saw Grievant leaving
the Admissions area on May 22, 2000. Faced with this collection of rumors, seventh-hand
information, and multiple hearsay, one would think that MMBH officials would have been
particularly careful to get Grievant's side of the story before deciding to dismiss him, as
urged by Policy 2108. However, it is uncontradicted that Grievant was not asked for his
version of events until after the decision to dismiss him had been made.
(See footnote 6)
Third, the specific policy relied upon by MMBH in dismissing Grievant, MMBH Policy
MMBHC035, entitled Use of E-mail and Licensed Proprietary Software, was unknown to
him, so that he was not adequately warned of the consequences of his conduct or made
aware of expected and acceptable levels of performance as required by Policy 2108. Nida
credibly testified that this policy was still being developed at the time of this incident, and
that Grievant would not have been aware of it. This policy appears to have been revised
on June 15, 2000, and is not on a long list of policies that Grievant acknowledges having
reviewed as of July 14, 1997.
Finally, progressive discipline was not followed. Grievant's most serious previous
disciplinary action was a one-day suspension. Policy MMBHC015 and Policy 2108 provide
for increasingly severe discipline ranging from verbal reprimand through written reprimand,
suspension, demotion, and dismissal, with Policy 2104 stating that “[p]rogressive and
constructive disciplinary action will progress, if required, along a continuum from verbalwarning to dismissal, with incremental steps between[.]” MMBH telescoped this list, jumping
straight from the shortest suspension possible to the most severe penalty, dismissal. While
both policies provide for flexibility in selecting the level of discipline to be assigned for a
given offense, they also require that progressive discipline be determined by the severity
of the violation.
The undersigned was not convinced by DHHR and MMBH that Grievant's
insubordination rises to the level of being good cause for his dismissal.
Buskirk,
supra.
Grievant credibly testified that he received the offending e-mail from a former lover who was
seeking help with an alcohol problem, and that her partially nude photograph was an
attachment to it; that the sender asked for help with Alcoholics Anonymous, which had
inappropriately assigned her a male sponsor, and that he had taken the photograph back
to the woman and counseled her on why it was inappropriate.
The undersigned finds it significant that Grievant did not seek out this photograph,
but received it unsolicited from an acquaintance. His offense was more in the nature of
receiving a personal telephone call at work, albeit one that disturbed a co-worker. DHHR
and MMBH presented no evidence to show that any member of the public was offended by
the photograph or even saw it, although they produced evidence tending to prove that a
patient was being admitted to MMBH when Grievant printed the offending photograph. It
is questionable whether Grievant acted with wrongful intention,
Buskirk,
supra, or whether
his misconduct was of a substantial nature affecting the rights and interests of the public.
Payne,
supra. At Level IV, DHHR and MMBH introduced MMBH Policy MMBHC024, entitled
Employee Use of Hospital Owned Equipment, Tools, Supplies and/or Services. This policy
provides generally that employees are not to use MMBH equipment for personal use. It
appears that, by printing the offending photograph, Grievant committed a
de minimus
violation of this policy. However, Grievant was not charged with violating this policy in his
dismissal letter, and DHHR cannot rely it to support Grievant's dismissal.
Grievant bears the burden of demonstrating that the penalty imposed by MMBH,
dismissal, was "clearly excessive or reflects an abuse of the agency['s] discretion or an
inherent disproportion between the offense and the personnel action."
Martin v. W. Va. Fire
Comm'n, Docket No. 89-SFC-145 (Aug. 8, 1989). "When considering whether to mitigate
the punishment, factors to be considered include the employee's work history and personnel
evaluations; whether the penalty is clearly disproportionate to the offense proven; the
penalties employed by the employer against other employees guilty of similar offenses; and
the clarity with which the employee was advised of prohibitions against the conduct
involved."
Phillips v. Summers County Bd. of Educ., Docket No. 93-45-105 (Mar. 31, 1994).
See Austin v. Kanawha County Bd. of Educ., Docket No. 97-20-089 (May 5, 1997).
Mitigation of a penalty is considered on a case by case basis.
McVay v. Wood
County Bd. of Educ., Docket No. 95-54-041 (May 18, 1995). A lesser disciplinary action
may be imposed when mitigating circumstances exist. Mitigating circumstances are
generally defined as conditions which support a reduction in the level of discipline in the
interest of fairness and objectivity, and include consideration of an employee's long service
with a history of otherwise satisfactory work performance.
Pingley v. Div. of Corrections.,Docket No. 95-CORR-252 (July 23, 1996). This Grievance Board has held that “mitigation
of the punishment imposed by an employer is extraordinary relief, and is granted only when
there is a showing that a particular disciplinary measure is so clearly disproportionate to the
employee's offense that it indicates an abuse of discretion. Considerable deference is
afforded the employer's assessment of the seriousness of the employee's conduct and the
prospects for rehabilitation.”
Overbee v. Dep't of Health and Human Resources/Welch
Emergency Hosp., Docket No. 96-HHR-183 (Oct. 3, 1996).
Applying the factors set forth in
Phillips to this grievance, it is concluded that Grievant
had twice before been the subject of low-level disciplinary action by MMBH. The record
does not reflect how MMBH has disciplined other employees for similar offenses. The
penalty employed by MCBE for this offense is disproportionate to the offense proven,
particularly in these circumstances, where Grievant was charged with insubordination for
failing to obey conflicting directives, for disobeying a policy of which he had not been made
aware, for printing an allegedly pornographic photograph that was not, and all following a
shoddy investigation. Dismissal was clearly excessive and reflects an abuse of the
agency['s] discretion and an inherent disproportion between the offense and the personnel
action.
Martin,
supra. The undersigned finds, by a preponderance of the evidence, that
mitigating circumstances exist for Grievant. These circumstances support a reduction in the
excessive penalty assessed against Grievant, in the interest of fairness and objectivity.
Pingley,
supra. Therefore, the only issue remaining to be resolved is what remedy should
be granted.
W. Va. Code § 29-6A-5(b) provides that "[h]earing examiners may provide relief as
is determined fair and equitable in accordance with the provisions of this article, and take
any other action to provide for the effective resolution of grievances not inconsistent with
any rules or regulations of the board or the provisions of this article[.]" In construing the
virtually identical language of
W. Va. Code § 18-29-5, regarding the grievance procedure
for education employees, the West Virginia Supreme Court of Appeals in
Graf v. West
Virginia University, 189 W. Va. 214, 429 S.E.2d 426 (1992), held as follows: “[c]learly the
Legislature intended to give the examiners who hear the grievances the power to fashion
any relief they deem necessary to remedy wrongs done to educational employees by state
agencies.”
Accordingly, and bearing in mind MMBH's progressive discipline policy, Grievant's
dismissal will be reduced to a five day suspension without pay. Consistent with the
foregoing discussion, the following Conclusions of Law are made in this matter.
CONCLUSIONS OF LAW
1. In disciplinary matters, the employer has the burden of proving the charges
by a preponderance of the evidence.
W. Va. Code § 29-6A-6;
Evans v. Dep't of Health &
Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997),
Miller v. W. Va. Dep't of
Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997);
Broughton v. W.
Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992.).
2. Dismissal of an employee in the classified service must be for good cause,
which means misconduct of a "substantial nature, and not trivial or inconsequential, nor a
mere technical violation of statute or official duty without wrongful intention." Syl. Pt. 2,
Buskirk v. Civil Serv. Comm'n, 175 W. Va. 279, 332 S.E.2d 579 (1985);
Guine v. Civil Serv.
Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1985); Syl. Pt. 1,
Oakes v. W. Va. Dep't of
Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980);
Hundley v. W. Va. Div. of
Corrections/Mount Olive Correctional Complex, Docket No. 97-CORR-197A (May 12, 1999).
3. Insubordination is 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 may also be found when an
employee shows a willful disregard for the 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).
4. Material is pornographic when it “is of or pertaining to obscene literature;
obscene; licentious. Material is pornographic or obscene if the average person, applying
contemporary community standards, would find that the work taken as whole appeals to the
prurient interest and if it depicts in a patently offensive way sexual conduct and if the work
taken as a whole lacks serious literary, artistic, political or scientific value.”
Black's Law
Dictionary (5th ed. 1979);
citing Miller v. California, 413 U.S. 15, 24-25, 93 S.Ct. 2607, 2615,
37 L.Ed.2d 419 (1973). Prurient means a “shameful or morbid interest in nudity, sex, or
excretion.”
Black's Law Dictionary (5th ed. 1979);
citing Attorney General v. Book Named
“John Cleland's Memoirs of a Woman of Pleasure,” 349 Mass. 69, 206 N.E.2d 403 (1965).
5. The photograph printed by Grievant was not pornographic or obscene.
6. DHHR and MMBH proved that Grievant was insubordinate. 7. Grievant bears the burden of demonstrating that his dismissal was "clearly
excessive or reflects an abuse of the agency['s] discretion or an inherent disproportion
between the offense and the personnel action."
Martin v. W. Va. Fire Comm'n, Docket No.
89-SFC-145 (Aug. 8, 1989). "When considering whether to mitigate the punishment, factors
to be considered include the employee's work history and personnel evaluations; whether
the penalty is clearly disproportionate to the offense proven; the penalties employed by the
employer against other employees guilty of similar offenses; and the clarity with which the
employee was advised of prohibitions against the conduct involved."
Phillips v. Summers
County Bd. of Educ., Docket No. 93-45-105 (Mar. 31, 1994).
See Austin v. Kanawha County
Bd. of Educ., Docket No. 97-20-089 (May 5, 1997).
8. Mitigation of a penalty is considered on a case by case basis.
McVay v. Wood
County Bd. of Educ., Docket No. 95-54-041 (May 18, 1995). A lesser disciplinary action
may be imposed when mitigating circumstances exist. Mitigating circumstances are
generally defined as conditions which support a reduction in the level of discipline in the
interest of fairness and objectivity, and include consideration of an employee's long service
with a history of otherwise satisfactory work performance.
Pingley v. Div. of Corrections.,
Docket No. 95-CORR-252 (July 23, 1996).
9. This Grievance Board has held that “mitigation of the punishment imposed by
an employer is extraordinary relief, and is granted only when there is a showing that a
particular disciplinary measure is so clearly disproportionate to the employee's offense that
it indicates an abuse of discretion. Considerable deference is afforded the employer's
assessment of the seriousness of the employee's conduct and the prospects forrehabilitation.”
Overbee v. Dep't of Health and Human Resources/Welch Emergency Hosp.,
Docket No. 96-HHR-183 (Oct. 3, 1996).
10. Mitigating circumstances exist for Grievant.
11. The penalty employed by MCBE for Grievant's offense is disproportionate to
the offense proven, particularly in these circumstances, where Grievant was charged with
insubordination for failing to obey conflicting directives, for disobeying a policy of which he
had not been made aware, for printing an allegedly pornographic photograph that was not,
and all following a shoddy investigation. Dismissal was clearly excessive and reflects an
abuse of the agency['s] discretion and an inherent disproportion between the offense and
the personnel action.
Martin,
supra.
12.
W. Va. Code § 29-6A-5(b) provides that "[h]earing examiners may provide
relief as is determined fair and equitable in accordance with the provisions of this article,
and take any other action to provide for the effective resolution of grievances not
inconsistent with any rules or regulations of the board or the provisions of this article[.]"
Graf
v. West Virginia University, 189 W. Va. 214, 429 S.E.2d 426 (1992).
13. In the interest of fairness and objectivity, Grievant's dismissal will be reduced
to a five day suspension without pay.
Accordingly, this grievance is
GRANTED. Grievant's dismissal will be reduced to a
five day suspension without pay, and Grievant will be reinstated to his position with all back
pay, including interest; leave; seniority; and all other benefits to which he would have been
entitled had he not been dismissed. Record of his dismissal shall be removed from his file.
Any party or the West Virginia Division of Personnel may appeal this decision to the
Circuit Court of Kanawha County or to the circuit court of the county in which the grievance
occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision.
W. Va. Code §29-6A-7 (1998). 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. However, the appealing party is required by W. Va. Code § 29A-
5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing
party must also provide the Board with the civil action number so that the record can be
prepared and properly transmitted to the appropriate circuit court.
__________________________________
ANDREW MAIER
Administrative Law Judge
Dated: January 19, 2001
Footnote: 1