| First Name | Patricia |
| Last Name | Varner |
| Decision Date | 4/22/2024 |
| Docket Number | 2024-0390-DHS |
| ALJ | WHW |
| Respondent | Department of Homeland Security/Division of Corrections and Rehabilitation |
| Employment Type | STATE |
| Job Title | Corrections Counselor II |
| Topics | Disciplinary; Discrimination |
| Primary Issues | Whether Respondent was justified in suspending Grievant for 40 hours without pay for insubordination. |
| Outcome | Granted |
| Statutes | W.VA. CODE ST. R. § 156-1-3 (2018); |
| 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); Butts v. Higher Educ. Interim Governing Bd., 212 W. Va. 209, 212, 569 S.E.2d 456, 459 (2002) (per curiam); Sexton v. Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988), aff’d, Sexton v. Marshall Univ., 182 W. Va. 294, 387 S.E.2d 529 (1989); Graham v. Wetzel County Bd. of Educ., Docket No. 2013-0014-WetED (Feb. 15, 2013), aff’d, Graham v. Bd. of Educ. of Wetzel Cty., No. 13-0975, (W. Va. Sup. Ct., Apr. 28, 2014) (memorandum decision); Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995), aff’d, Kanawha Cnty. Cir. Ct. Docket No. 95-AA-66 (May 1, 1996), appeal refused, W.Va. Sup. Ct. App. (Nov. 19, 1996); 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 | Suspension without pay |
| Intermediate Court of Appeals | |
| Circuit Court | |
| Supreme Court | |
| Synopsis | Grievant challenges Respondent’s decision to suspend her for 40-hours without pay for two alleged acts of insubordination for propping a door open without permission and allowing an inmate to participate in an inmate count. Grievant argued she did not allow an inmate to participate in an inmate count and claims her suspension for 40-hours is excessive for propping a door open. Respondent argues Grievant’s actions established blatant and flagrant insubordination and warranted her suspension. Respondent failed to prove that Grievant failed to obey a lawful directive as Respondent admitted that Grievant did in fact check the inmate’s cell as directed for purposes of conducting an inmate count. Respondent has also failed to prove by a preponderance of the evidence that the disciplinary action taken was justified as Superintendent Ames stated he would have only given Grievant a verbal reprimand for allowing a door to be propped open. Accordingly, the grievance is GRANTED. |