Database Search Result Details

First Name Patty
Last Name Shirk
Decision Date 11/14/2018
Docket Number 2018-0938-CONS
ALJ CHL
Respondent Division of Highways
Employment Type STATE
Job Title Supervisor 1
Topics Functional Demotion; Reprisal
Primary Issues Whether Grievant has proved by a preponderance of the evidence that Respondent functionally demoted her and engaged in acts of reprisal against her.
Outcome Granted
Statutes W. Va. Code St. R. § 156-1-3 (2018); W. Va. Code St. R. § 143-1-11.4 (2012); W. Va. Code § 6C-2-2(o); W. Va. Code § 6C-2-3(h)
Related Cases Leichliter v. Dep't of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993), aff’d, Pleasants Cnty. Cir. Ct. Civil Action No. 93-APC-1 (Dec. 2, 1994); Dudley v. Bur. of Senior Serv., Docket No. 01-BSS-092 (July 16, 2001); Gillispie v. Dep’t of Corrections, [Docket No.] 89-CORR-105 (Aug. 29, 1989); Morris v. Workforce W. Va., Docket No. 2012-0943-CONS (Aug. 20, 2013); Koblinsky v. Putnam County Health Dep’t., Docket No. 2011-1772-CONS (Oct. 23, 2012), aff’d, Kanawha Cnty. Cir. Ct., Docket No. 12-AA-131 (July 24, 2013); Watson v. Dep’t of Health & Human Res./Mildred Mitchell-Bateman Hosp., Docket No. 2009-0558-DHHR (Dec. 31, 2009); Lilly v. Dep’t of Transp./Div. of Highways, Docket No. 07-DOH-387 (June 30, 2008); Lamp v. Div. of Juvenile Serv., Docket No. 2015-0076-MAPS (Mar. 30, 2017); Cook v. Div. of Natural Res., Docket No. 2009-0875-DOC (Jan. 22, 2010); Conner v. Barbour County Bd. of Educ., Docket No. 93-01-154 (Apr. 8, 1994); Poore v. W. Va. Dep’t of Health & Human Res./Bur. for Children and Families, Docket No. 2010-0448-DHHR (Feb. 11, 2011); Frank’s Shoe Store v. W. Va. Human Rights Comm’n, 179 W. Va. 53, 365 S.E.2d 251 (1986); Warner v. Dep’t of Health & Human Res., Docket No. 2012-0986-DHHR (Oct. 21, 2013); Mace v. Pizza Hut, Inc., 180 W.Va. 469, 377 S.E.2d 461, 464 (1988); Shepherdstown Volunteer Fire Department v. State ex rel. W. Va. Human Rights Comm’n, 172 W.Va. 627, 309 S.E.2d 342 (1983).W. Va. Dep't of Nat. Res. v. Myers, 191 W. Va. 72, 76, 443 S.E.2d 229, 233 (1994); Shirk v. Div. of Highways, Docket No. 2017-2494-CONS (Feb. 20, 2018)
Keywords Functional; Demotion; Reprisal; Retaliation; Retaliatory; FMLA; Intermittent; Reassignment; Absences; Attendance; Interview; Performance; Supervisory; Disciplinary; Presumption; Accommodation.
Intermediate Court of Appeals
Circuit Court Respondent appealed Kanawha County Circuit Court 1/7/19 CA #19-AA-4 (Kaufman); Reversed, 4/16/19
Supreme Court
Synopsis Grievant was employed by Respondent as a Supervisor 1. Respondent approved Grievant for intermittent leave pursuant to Family Medical Leave Act (FMLA). Thereafter, Grievant’s immediate supervisor took issue with her absences and imposed disciplinary action and Grievant grieved the same. While that grievance was pending, Grievant was denied an interview for a posted position, and she again grieved. Soon thereafter, Grievant’s supervisor recommended to Human Resources that Grievant received a disciplinary demotion which would demote her to an Office Assistant III position. Grievant filed a grievance regarding that action as well. Human Resources did not approve the disciplinary demotion, but approved a “temporary reassignment of duties” for Grievant that resulted in her duties being those of an office assistant/receptionist. Grievant’s pay and classification title were not changed. Grievant asserts claims of reprisal and functional demotion. Respondent denies all of Grievant’s claims. Grievant proved by a preponderance of the evidence that Respondent engaged in acts of reprisal against her for her participation in the grievance process and for utilizing FMLA leave, and that Respondent functionally demoted her. Therefore, this grievance is GRANTED.

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