Database Search Result Details

First Name Samantha
Last Name Cole
Decision Date 12/3/2020
Docket Number 2020-0823-MAPS
ALJ CHL
Respondent Division of Corrections and Rehabilitation/Bureau of Prisons and Jails
Employment Type STATE
Job Title CO I
Topics Dismissed; Termination
Primary Issues Whether Respondent had good cause to terminate Grievant’s probationary employment.
Outcome Denied
Statutes W. Va. Code St. R. § 143-1-10.1.a. (2016); W. Va. Code § 6C-2-3(g)(2)
Related Cases 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); 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); Hammond v. Div. of Veteran’s Affairs, Docket No. 2009-0161-MAPS (Jan. 7, 2009); Hackman v. Dep’t of Transp., Docket No. 01-DMV-582 (Feb. 20, 2002); McCoy v. W. Va. Dep’t of Transp., Docket No. 98-DOH-399 (June 18, 1999); Nicholson v. W. Va. Dep’t of Health and Human Res., Docket No. 99-HHR-299 (Aug. 31, 1999); Lott v. W. Va. Div. of Juvenile Serv., Docket No. 99-DJS-278 (Dec. 16, 1999); 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); Jones v. W. Va. Dep’t of Health & Human Res., Docket No. 96-HHR-371 (Oct. 30, 1996); Young v. Div. of Natural Res., Docket No. 2009-0540-DOC (Nov. 13, 2009); Clarke v. W. Va. Bd. of Regents, 166 W. Va. 702, 279 S.E.2d 169 (1981); Burchell v. Bd. of Trustees, Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997); Overbee v. Dep't of Health and Human Resources/Welch Emergency Hosp., Docket No. 96-HHR-183 (Oct. 3, 1996); Olsen v. Kanawha County Bd. of Educ., Docket No. 02-20-380 (May 30, 2003), aff’d, Kanawha Cnty. Cir. Ct. Docket No. 03-AA-94 (Jan. 30, 2004), appeal refused, W.Va. Sup. Ct. App. Docket No. 041105 (Sept. 30, 2004); Phillips v. Summers County Bd. of Educ., Docket No. 93-45-105 (Mar. 31, 1994); Cooper v. Raleigh County Bd. of Educ., Docket No. 2014-0028-RalED (Apr. 30, 2014), aff’d, Kanawha Cnty. Cir. Ct. Docket No. 14-AA-54 (Jan. 16, 2015)
Keywords Termination; Probationary Employee; Misconduct; Nazi Salute; Hitler Salute; Arbitrary and Capricious; Mitigation
Intermediate Court of Appeals
Circuit Court
Supreme Court
Synopsis Grievant was employed as a probationary employee by Respondent as a Correctional Officer I. While at the West Virginia Corrections Academy for training, Grievant and her classmates began saluting their training instructor, Sergeant Karrie Byrd, with the Nazi salute while saying “Hail Byrd!” Saluting Sgt. Byrd in that manner became the class’s regular practice and they even did so for a group photograph prior to their graduation. This photograph was later posted to social media which drew nationwide attention and outrage. After it was confirmed that Grievant participated in the Nazi salute in the group photograph, Respondent dismissed her from employment for misconduct and for failing to report such behavior to her superiors. Grievant denies that she engaged in misconduct, asserting ignorance of the meaning of the salute and that she had no intent to make an offensive, hateful gesture. Grievant claimed that the gesture was only meant to be a “token” of respect for their instructor. Respondent proved that Grievant’s participation in the Nazi salute was misconduct justifying her dismissal. Respondent failed to prove that Grievant’s failure to report the class making the Nazi salute violated any DCR policy or regulation. Therefore, this grievance is DENIED.

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