| First Name | Derek |
| Last Name | Thompson |
| Decision Date | 4/29/2019 |
| Docket Number | 2019-0390-CONS |
| ALJ | CHL |
| Respondent | Department of Environmental Protection |
| Employment Type | STATE |
| Job Title | OA III |
| Topics | Termination; Dismissal; Suspension |
| Primary Issues | Whether Respondent proved by a preponderance of the evidence that Grievant engaged in misconduct justifying suspension and that it had good cause to dismiss Grievant from employment. |
| Outcome | Denied |
| Statutes | W.Va. Code St. R. § 156-1-3 (2018); W. Va. Code St. R. § 143-1-12.2.a. (2016); W.Va. Code St. R. § 143-1-14.4.f. (2016); W.Va. Code St. R. § 143-1-14.4.f.1 (2016); W.Va. Code St. R. § 143-1-14.4.f.5 (2016); W.Va. Code St. R. § 143-1-14.4.f.6. (2016); W.Va. Code St. R. § 143-1-14.6 (2016); 29 U.S.C. § 2601(a)(4); 29 U.S.C. § 2601(b)(2); 29 U.S.C. § 2615(a)(1) |
| 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); Oakes v. W. Va. Dep't of Finance and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980); Guine v. Civil Serv. Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1965); Sloan v. Dep't of Health & Human Res., 215 W. Va. 657, 600 S.E.2d 554 (2004); Drown v. W. Va. Civil Serv. Comm'n, 180 W. Va. 143, 145, 375 S.E.2d 775, 777 (1988); Jones v. W. Va. Dept. of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); Stamper v. W. Va. Dept. of Health & Human Resources, Docket No. 95-HHR-144 (Mar. 20, 1996); Womack v. Dept. of Admin., Docket No. 93-ADMN-430 (Mar. 30, 1994); Perdue v. Dept. of Health & Human Resources, Docket No. 93-HHR-050 (Feb. 4, 1994); Aglinsky v. Bd. of Trustees, Docket No. 97-BOT-256 (Oct. 27, 1997), aff’d, Monongalia Cnty. Cir. Ct. Docket No. 97-C-AP-96 (Dec. 7, 1999), appeal refused, W.Va. Sup Ct. App. Docket No. 001096 (July 6, 2000); Mahmoud v. Dep’t of Health & Human Res., Docket No. 2014-0303-DHHR (Mar. 20, 2017), aff’d, Kan Cnty. Cir. Ct. Docket No. 17-AA-32 (Mar. 5, 2018); State ex rel. Eads v. Duncil, 196 W. Va. 604, 474 S.E.2d 534 (1996); Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996).” Trimboli v. Dep’t of Health and Human Res., Docket No. 93-HHR-322 (June 27, 1997), aff’d Mercer Cnty. Cir. Ct. Docket No. 97-CV-374-K (Oct. 16, 1998); In re Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996).’” Syl. Pt. 1, Adkins v. W. Va. Dep't of Educ., 210 W. Va. 105, 556 S.E.2d 72 (2001) (per curiam); Blake v. Kanawha County Bd. of Educ., Docket No. 01-20-470 (Oct. 29, 2001), aff’d Kanawha Cnty. Cir. Ct. Docket No. 01-AA-161 (July 2, 2002), appeal refused, W.Va. Sup. Ct. App. Docket No. 022387 (Apr. 10, 2003); Syl. Pt. 1, Waite v. Civil Serv. Comm'n, 161 W. Va. 154, 241 S.E.2d 164 (1977), overruled in part on other grounds by W. Va. Dep't of Educ. v. McGraw, 239 W. Va. 192, 201, 800 S.E.2d 230, 239 (2017); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 [84 L. Ed. 2d 494, 105 S. Ct. 1487] (1985); Syl. Pt. 3, Fraley v. Civil Service Commission, 177 W.Va. 729, 356 S.E.2d 483 (1987) |
| Keywords | Termination; Dismiss; Suspension; Attendance; Absenteeism; Absent; Sick; Unauthorized Leave; Sick Leave; Annual Leave; Family Medical Leave Act; FMLA; Due Process; Arbitrary and Capricious; Predetermination; Performance Improvement Plan; PIP; Excuse; Accrual; Docked; Texted-In; Unreliable; Hardship; Written Reprimand |
| Intermediate Court of Appeals | |
| Circuit Court | |
| Supreme Court | |
| Synopsis | Grievant was employed by Respondent as an Office Assistant 3 in its Office of Special Reclamation (OSR). Respondent asserts that Grievant was frequently absent from work which resulted in his use of unauthorized leave. Respondent argues that his frequent absences and unauthorized leave only increased despite its attempts to help correct this problem. Respondent suspended Grievant from employment in July 2018, and later dismissed him in August 2018 for his unacceptable attendance and unauthorized leave use. Grievant denies Respondent’s claims and asserts that as he had doctor’s slips for many of these absences, such should not have been counted against him when calculating his absence rate or for disciplinary action. Grievant also argues that many of his absences should have been covered by the Family and Medical Leave Act (FMLA) and that Respondent failed to inform him of such. Lastly, Grievant claims that Respondent violated his due process rights by failing to provide him with a predetermination conference before dismissing him, and that his dismissal was improper as it was not issued in writing. Respondent proved its claims by a preponderance of the evidence, and that the disciplinary actions taken were proper and justified. Grievant failed to prove his claims by a preponderance of the evidence. Therefore, this grievance is DENIED. |