Database Search Result Details
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First Name
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Crystal
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Last Name
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Kendall, et al.
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Decision Date
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5/19/2020
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Docket Number
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2019-1336-CONS
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ALJ
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WBM
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Respondent
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Department of Health and Human Resources/Bureau for Children and Families
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Employment Type
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STATE
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Job Title
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Various
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Topics
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Suspension
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Primary Issues
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Whether Grievants proved that Respondent violated their constitutionally guaranteed due process rights to continued employment by suspending them without an opportunity to be heard while an unreasonably long investigation was conducted.
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Outcome
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Granted/Denied
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Statutes
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W. Va. Code § 6B-2-5; W. Va. Code R. 143-1-12.3.b; W. Va. Code § 29-6-19; W. Va. Code § 5-3-1
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Related Cases
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Lewis v. Kanawha County Bd. of Educ., Docket No. 97-20-554 (May 27, 1998); Lowry v. W. Va. Dep’t of Educ., Docket No. 96-DOE-130 (Dec. 26, 1996); Pridemore v. Dep’t of Health & Human Res., Docket No. 95-HHR-561 (Sept. 30, 1996); Slack v. Kanawha County Housing, 188 W. Va. 144, 423 S.E.2d 547 (1992); Preece v. Public Serv. Comm’n, Docket No. 94-PSC-246 (Apr. 25, 1997); Stover v. W. Va. Div. of Corr., No.12-0434 (W. Va. Sup. Ct., May 17, 2013); Corley v. Dep’t of Health & Human Res., Docket No. 2019-0532-DHHR (May 7, 2019); Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971)
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Keywords
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Suspension; Investigation; Constructive Discharge; Remedies; Unreasonable Working Conditions; Resignation; Gross Misconduct; Due Process; Arbitrary and Capricious
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Intermediate Court of Appeals
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Circuit Court
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Grievant Joyce Underwood appealed to Kanawha County Circuit Court 6/18/2020; Judge Bailey; Civil Action No. 20-AA-60; Affirmed in part, Reversed in part, 03/30/2022
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Supreme Court
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Synopsis
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Grievants were suspended without pay pending an investigation based upon a specific complaint received by Respondent. The investigation has gone on for a year without resolution. While the investigation was ongoing, Grievant Kendall would not participate in an interview scheduled by the Respondent’s Office of Inspector General. Respondent dismissed Grievant Kendall for gross misconduct by forfeiting her job pursuant to W. Va. Code § 29-6-19 when she did not participate in an interview to be conducted by an Office of the Inspector General investigator. Also, during the course of the investigation, Grievant Underwood retired after exhausting all of her accrued annual leave days. Respondent argues that her grievance is now moot as a result of her retirement.
Grievants argue that the indefinite suspension of their right employment pending an investigation violates their due process rights by terminating their property interest in their continuing employment. Respondent argues that the Division of Personnel Administrative Rule specifically allows for an “indefinite” suspension of an employee without pay pending an investigation.
Grievant Underwood’s grievance is not moot because she has an available remedy concerning her accrued annual leave should her employment be restored. Grievant Underwood did not prove that she was subjected to constructive discharge when she chose to retire during the course of the suspension. Respondent did not prove that Grievant Kendall was guilty of gross misconduct because W. Va. Code § 29-6-19 does not apply to the facts in this matter. Grievants proved that the length of the investigation was unreasonable and violated their due process rights.
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