Database Search Result Details
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First Name
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Edward
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Last Name
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Smarr, et al.
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Decision Date
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9/23/2020
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Docket Number
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2020-1488-CONS
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ALJ
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JSF
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Respondent
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Division of Corrections and Rehabilitation/Bureau of Prisons and Jails
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Employment Type
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STATE
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Job Title
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Correctional Officer
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Topics
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Dismissal; Termination
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Primary Issues
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Whether Respondent had good cause to terminate Grievants’ probationary employment.
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Outcome
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Denied
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Statutes
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W. Va. Code St. R. § 143-1-12.3.b. (2016)
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Related Cases
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Bonnell v. Dep't of Corr., Docket No. 89-CORR-163 (Mar. 8, 1990); Cosner v. Dep’t of Health and Human Res., Docket No. 08-HHR-008 (Dec. 30, 2008); Livingston v. Dep't of Health and Human Res., Docket No. 2008-0770-DHHR (Mar. 21, 2008); Hammond v. Div. of Veteran’s Affairs, Docket No. 2009-0161-MAPS (Jan. 7, 2009); McCoy v. W. Va. Dep’t of Transp., Docket No. 98-DOH-399 (June 18, 1999); Alderman v. Pocahontas County Board of Education, 223 W. Va. 431, 675 S.E.2d 907 (2009); Thackston v. Concord University, Docket No. 2016-1068-CU (March 22, 2017); Connick v. Myers, 461 U.S. 138, 147-48, 103 S. Ct. 1684, 1690, 75 L. Ed. 2d 708 (1983); Martin v. W. Va. Fire Comm'n, Docket No. 89-SFC-145 (Aug. 8, 1989)
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Keywords
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Termination; Probationary Employees; Investigation; Nazi Salute; Misconduct; Discrimination; Arbitrary and Capricious
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Intermediate Court of Appeals
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Circuit Court
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Supreme Court
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Synopsis
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Grievants were employed on a probationary basis as Correctional Officers and sent to the Corrections Academy for training. After seeing a photo of the graduating cadets performing a Nazi style salute, Respondent ordered an investigation. When the investigation substantiated Grievants’ participation in and failure to report the salute, Respondent terminated Grievants for misconduct. Grievants assert they performed a Roman rather than a Nazi salute, were simply following orders under the peril of dismissal if disobeyed, and were not properly trained to report misconduct. While Grievants lacked hateful intent in performing the salute, Respondent proved that participating in the salute was misconduct. Accordingly, this grievance is DENIED.
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