| First Name | March |
| Last Name | Tucker |
| Decision Date | 11/21/2017 |
| Docket Number | 2016-1684-CONS |
| ALJ | CHL |
| Respondent | Department of Health and Human Resources/Bureau for Public Health |
| Employment Type | STATE |
| Job Title | Program Manager 2-Director of EMS Programs |
| Topics | Reprimand; Suspension; Evaluation; Predetermination; Hostile Work Environment; Harassment |
| Primary Issues | Whether Respondent proved by a preponderance of the evidence that that it was justified in reprimanding Grievant, and later suspending him for three days without pay. Whether Grievant proved by a preponderance of the evidence his claims of hostile work environment, prohibited workplace harassment, that his performance evaluation was incorrect and/or arbitrary and capricious, and that the notice of predetermination conference was indicative of harassment and hostile work environment, or otherwise improper. |
| Outcome | Granted/Denied |
| Statutes | W. Va. Code § ST. R. § 156-1-3 (2008), § 6C-2-6 |
| Related Cases | Vest v. Bd. of Educ. of County of Nicholas, 193 W. Va. 222, 225, 227 n. 11 (1995); Ramey v. W. Va. Dep't of Health, Docket No. H-88-005 (Dec. 6, 1988); Howell v. W. Va. Dep't of Health & Human Res., Docket No. 89-DHS-72 (Nov. 29, 1990); Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997); Leichliter v. W. Va. Dep't of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993); Jones v. W. Va. Dep’t of Health & Human Res., Docket No. 96-HHR-371 (Oct. 30, 1996); Pine v. W. Va. Dep’t of Health & Human Res., Docket No. 95-HHR-066 (May 12, 1995); Lanehart v. Logan County Bd. of Educ., Docket No. 95-23-235 (Dec. 29, 1995); Perdue v. Dep’t of Health & Human Res., Docket No. 93-HHR-050 (Feb. 4, 1994); Burchell v. Bd. of Trustees, Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, at 22, (1993); Rogers v. W. Va. Reg’l Jail & Corr. Facility Auth., Docket No. 2009-0685-MAPS (Apr. 23, 2009); Napier v. Stratton, 204 W. Va. 415, 513 S.E.2d 463, 467 (1998); Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995); Corley, et al., v. Workforce W. Va., Docket No. 06-BEP-079 (Nov. 30, 2006); Fairmont Specialty Servs., v. W. Va. Human Rights Comm’n, 206 W. Va. 86, 522 S.E.2d 180 (1999); Kinzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 573 (8th Cir. 1997); Marty v. Dep’t of Admin., Docket No. 02-ADMN-165 (Mar. 31, 2006); Baker v. Bd. of Trustees/W. Va. Univ. at Parkersburg, Docket No. 97-BOT-359 (Apr. 30, 1998); State ex rel. Eads v. Duncil, 196 W. Va. 604, 474 S.E.2d 534 (1996); Bedford County Memorial Hosp. v. Health & Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf & the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996); Trimboli v. Dep’t of Health & Human Res., Docket No. 93-HHR-322 (June 27, 1997); Adkins v. W. Va. Dep't of Educ., 210 W. Va. 105, 556 S.E.2d 72 (2001); Blake v. Kanawha County Bd. of Educ., Docket No. 01-20-470 (Oct. 29, 2001); Bowman v. Dep’t of Health & Human Res., Docket No. 2011-0422-CONS (Mar. 6, 2012); Gibson v. W. Va. Dep’t of Health & Human Res., Docket No. 2009-0700-DHHR (Jan. 19, 2010); Messenger v. W. Va. Dep’t of Health & Human Res., Docket No. 92-HHR-388 (April 7, 1993); Wiley v. Div. of Nat’l Res., Docket No. 97-DNR-397 (Mar. 26, 1998); Kemper v. W. Va. Dep’t of Transp., Docket No. 91-DOH-325 (Mar. 2, 1992); Long v. Kanawha County Bd. of Educ., Docket No. 00-20-308 (Mar. 29, 2001); Brown-Stobbe/Riggs v. Dep’t of Health & Human Res., Docket No. 06-HHR-313 (Nov. 30, 2006); Chafin v. Boone County Health Dep’t, Docket No. 95-BCHD-362R (June 21, 1996); Cosner v. Dep’t of Transp., Docket No. 2008-0633-DOT (Dec. 23, 2008); Stuart v. Div. of Juvenile Serv., Docket No. 2011-0171-MAPS (Sept. 23, 2011) |
| Keywords | Reprimand; Suspension; Predetermination; Discipline; EPA-3; EPA-2; Improvement Plan; EPIR; Arbitrary; Capricious; Hostile Work Environment; Nondiscriminatory Workplace Harassment; Harassment; Customer Service; Performance; Expectations; Policy Memorandum 2123; DOP P-6; Noncompliance; Improvement; Attendance; Rating; Criticism; Progressive Discipline; Evaluation; Attorney’s Fees |
| Intermediate Court of Appeals | |
| Circuit Court | |
| Supreme Court | |
| Synopsis | Grievant filed four separate grievances against Respondent challenging various actions taken against him. These grievances were eventually consolidated and heard together as one grievance at level three. Grievant challenged a written reprimand he was issued in October 2015, a three-day suspension without pay issued in May 2016, an employee performance evaluation issued in October 2016, and the issuance of a notice of predetermination conference issued in November 2016. In each of these grievances, Grievant challenged the action taken and asserted claims of hostile work environment and harassment in violation of DHHR and Division of Personnel policies. Respondent denied Grievant’s claims of harassment and hostile work environment, and argued that it properly followed DHHR’s progressive discipline policy to address Grievant’s performance issues, and that the written reprimand and suspension were proper. Respondent also argued that the evaluation at issue was correct, as was the issuance of the notice of predetermination conference. Grievant proved his claims of hostile work environment and harassment by a preponderance of the evidence. Respondent failed to prove most of the charges listed in the written reprimand and suspension letter, and failed to prove that these disciplinary actions were justified. Grievant proved that the employee performance evaluation issued in October 2016 was incorrect, and that his supervisor abused her discretion when evaluating him. Grievant proved the notice of predetermination conference was indicative of harassment and the hostile work environment created. As Grievant did not pursue any other claims regarding this notice at level three, any such claims previously raised are deemed abandoned. Therefore, the grievance is GRANTED IN PART and DENIED IN PART. |