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First Name
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Ronald
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Last Name
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Efaw
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Decision Date
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7/23/2024
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Docket Number
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ALJ
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RLR
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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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Transportation Worker 2 Equipment Operator ("TW2")
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Topics
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Termination/Discipline
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Primary Issues
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Whether Respondent can prove that the department acted justly and within the policy provisions of the agency in releasing Grievant from employment.
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Outcome
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DENIED
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Statutes
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W. Va. Code § 6C-2-2(d), W. Va. CODE § 6C-2-5(a), W. Va. CODE § 51-11-4(b)(4), W. Va. CODE § 6C-2-5(b), W. Va. CODE § 29A-5-4(b), Procedural Rules of the W. Va. Public Employees Grievance Bd. 156 C.S.R. 1 § 3 (2018);
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Related Cases
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Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988), Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997), Leichliter v. W. Va. Dep’t of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993), State ex rel. Eads v. Duncil, 196 W. Va. 604, 474 S.E.2d 534 (1996) (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)), 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); Burgess v. Div. of Highways, Docket No. 2019-0576-DOT (Nov. 22, 2019), Adkins v. W. Va. Dep’t of Educ., 210 W. Va. 105, 556 S.E.2d 72 (2001), Griffon v. Div. of Motor Vehicles, Docket No. 2008-1271-DOT (Aug. 17, 2009).
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Keywords
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Performance, operate, equipment, trades, working conditions, impairments, FMLA, medicalaccommodation, arbitrary and capricious, Americans with Disabilities Act,
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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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Grievant was employed by the Division of Highways as a full-time Transportation Worker 2 Equipment Operator. Grievant was assigned to flagging duties. Grievant reported that due to hearing disability, he was not able to distinguish or fully understand calls coming across radios while flagging. Grievant was then given the task of light duty. After being moved to the workshop, Grievant reported hip discomfort due to the long hours of standing on cement and the drive to get to the shop. Grievant was then placed on FMLA, and the Division of Highways’ Americans with Disability Act Committee made requests of Grievant to aid in its accommodation decision. The Committee concluded that Grievant could not perform the essential functions of his job safely and productively with medical accommodation. The record established that the Division of Highway’s actions were justified and within the policy provisions of the agency. Grievant failed to demonstrate that the actions of the Division of Highways were arbitrary and capricious. Grievant failed to prove that he was the victim of discrimination. This grievance is denied.
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