Database Search Result Details
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First Name
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Martin
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Last Name
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Falvo
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Decision Date
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3/16/2021
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Docket Number
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2020-1111-DOT
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ALJ
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BTC
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Respondent
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Division of Highways
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Employment Type
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STATE
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Job Title
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TW1EQOP
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Topics
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Dismissed; Termination
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Primary Issues
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Whether Respondent’s decision to terminate Grievant’s employment was arbitrary and capricious.
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Outcome
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Granted/Denied
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Statutes
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W. Va. Code St. R. § 143-1-10.1.a. (2016); W. Va. Code § 6C-2-2(d)
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Related Cases
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Cosner v. Dep’t of Health and Human Resources/William R. Sharpe, Jr. Hospital, 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. 2009-0961-MAPS (Jan. 7, 2009); McCoy v. W. Va. Dep’t of Transp., Docket No. 98-DOH-399 (June 18, 1999); Long v. Kanawha County Bd. of Educ., Docket No. 00-20-308 (Mar. 29, 2001); Brown-Stobbe/Riggs v. Dep’t of Health and Human Resources, Docket No. 06-HHR-313 (Nov. 30, 2006); Stuart v. Div. of Juvenile Serv. Docket No. 2011-0171-MAPS (Sept. 23, 2011)
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Keywords
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Termination; Probationary Employee; Harassment; Discrimination; Arbitrary or Capricious
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Intermediate Court of Appeals
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Circuit Court
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Respondent appealed to Kanawha County Circuit Court 4/28/2021; Judge Bailey, Civil Action No. 21-AA-25; Affirmed 8/25/2022
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Supreme Court
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Synopsis
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Grievant was employed by Respondent as a probationary Transportation Worker 1, Equipment Operator. Grievant and a coworker both alleged harassment against the other. Grievant was terminated from his probationary employment for the alleged misconduct of making a sexual gesture towards the coworker. Respondent did not properly investigate or discipline the coworker for his alleged harassment of Grievant. Respondent’s decision to terminate Grievant’s employment was arbitrary and capricious because Respondent failed to prove that the gesture was sexual in nature and the decision constituted discrimination and/or favoritism due to the failure properly investigate or discipline the alleged harassing coworker. The Grievance Board does not have the authority to award attorney’s fees. Accordingly, the grievance is granted, in part, and denied, in part.
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