John C. Yoder
Harpers Ferry, West Virginia
Attorney for the Appellant
Chad M. Cardinal
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUDGE RECHT sitting by temporary assignment.
1. " 'A final order of the hearing examiner for the West Virginia Educational
Employees Grievance Board, made pursuant to W.Va. Code, 18-29-1, et seq. (1985), and
based upon findings of fact, should not be reversed unless clearly wrong.' Syllabus Point
1, Randolph County Bd. of Ed. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989)." Syl.
Pt. 1, West Virginia Dep't of Health and Human Resources v. Blankenship, 189 W.Va.
342, 431 S.E.2d 681 (1993).
2. "Seriously wrongful conduct by a civil service employee can lead to dismissal
even if it is not a technical violation of any statute. The test is not whether the conduct
breaks a specific law, but rather whether it is potentially damaging to the rights and
interests of the public." Syl. Pt. 5, Mangum v. Lambert, 183 W. Va. 184, 394 S.E.2d 879
3. "The rule that an employer has an absolute right to discharge an at will
employee must be tempered by the principle that where the employer's motivation for the
discharge is to contravene some substantial public policy princip[le], then the employer
may be liable to the employee for damages occasioned by this discharge." Syllabus,
Harless v. First Nat'l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978).
4. "'"In an action to redress an unlawful retaliatory discharge under the West
Virginia Human Rights Act, W.Va. Code, 5-11-1, et seq., as amended, the burden is upon
the complainant to prove by a preponderance of the evidence (1) that the complainant
engaged in protected activity, (2) that complainant's employer was aware of the protected
activities, (3) that complainant was subsequently discharged and (absent other evidence
tending to establish a retaliatory motivation), (4) that complainant's discharge followed
his or her protected activities within such period of time that the court can infer
retaliatory motivation." Syl. pt. 4, Frank's Shoe Store v. West Virginia Human Rights
Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986).' Syl. pt. 1, Brammer v. Human
Rights Commission, 183 W.Va. 108, 394 S.E.2d 340 (1990)." Syl. Pt. 10, Hanlon v.
Chambers, 195 W. Va. 99, 464 S.E.2d 741 (1995).
5. "'In a retaliatory discharge action, where the plaintiff claims that he or she was discharged for exercising his or her constitutional right(s), the burden is initially upon the plaintiff to show that the exercise of his or her constitutional right(s) was a substantial or a motivating factor for the discharge. The plaintiff need not show that the exercise of the constitutional right(s) was the only precipitating factor for the discharge. The employer may defeat the claim by showing that the employee would have been discharged even in the absence of the protected conduct.' Syllabus point 3, McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987)." Syl. Pt. 9, Mace v. Charleston Area Medical Center Found., 188 W.Va. 57, 422 S.E.2d 624 (1992).
This is an appealSee footnote 1 by Edward R. Roach (hereinafter "the Appellant") from a
February 10, 1995, order of the Circuit Court of Berkeley County affirming a decision of
a hearing examiner for the West Virginia Education and State Employees Grievance
Board (hereinafter "the Board") regarding the Appellant's termination of employment
with the Regional Jail Authority (hereinafter "the Appellee" or "the employer"). The
Appellant contends that his employment was improperly terminated and that his due
process rights were violated. We find that the record supports the findings and
conclusion below and that the Appellant's due process rights were not infringed.
We therefore affirm.
The Appellant was hired by the Appellee as a Correctional Officer II for the
Eastern Regional Jail on March 16, 1989, and he successfully served the standard probational one year, becoming a permanent employee on April 1, 1990. On March 10,
1992, the Appellant, while performing a routine perimeter check, allegedly observed a
female inmate using the toilet in her cell by looking through her window.See footnote 2 This inmate
immediately contacted the control tower to report the incident, and Officer Glen Pyles
arrived at the cell five to ten minutes later to respond to the inmate's request for
assistance. Officer Pyles testified that the Appellant appeared outside the window again
while Officer Pyles was in the cell with the inmate. Both Officer Pyles and the inmate
testified that they saw the Appellant's face and saw him wave.
On March 11, 1992, the Appellant allegedly breached security in the Central
Control Room by permitting doors to remain unlocked for a short period of time after
receiving his dinner from the cook. The Central Control Room contains computer panels
operating all interior and exterior doors and is protected by three locking steel doors and a
series of hallways designed to prevent unauthorized access. While responsible for the
security of this area, the Appellant allegedly allowed all three doors to remain unlocked.
On March 13, 1992, the Appellant was informed by letter that he was being placed
on administrative suspension pending the investigation of these two incidents.See footnote 3 On
March 15, 1992, Billy B. Burke, the Executive Director for the Appellee, received a letter
from the Appellant outlining his objections to the charges. The Appellant also provided a
written incident report and was personally interviewed by the Appellee's Chief of
Operations on March 20, 1992. During that interview, the Appellant explained the
incidents and was advised of the grievance procedure and provided with the grievance
forms. On March 24, 1992, he filed a grievance challenging the suspension.
Upon completion of the investigation of the alleged incidents, the Appellee
concluded that the evidence supported a finding that the Appellant had inappropriately
observed the female inmate and was responsible for the security breach of March 11,
1992, and that such misconduct justified dismissal. By letter dated April 3, 1992, the
Appellant was informed that his employment would be terminated on April 24, 1992.
The letter reviewed the Appellant's prior employment historySee footnote 4 and indicated that
inconsistencies in the Appellant's statements raised serious questions of honesty and
On April 13, 1992, the Appellant filed another grievance with the Board
challenging the discharge and alleging that the discharge was effected in retaliation for
the filing of the grievance regarding the suspension. The Board conducted a grievance
hearing, and twenty-one witnesses were questioned. The Appellant also filed complaints
in the United States District Court for the Northern District of West Virginia and the
Circuit Court of Berkeley County alleging wrongful discharge.
On October 8, 1993, the hearing examiner denied the Appellant's grievance and
found that the Appellee had proven the Appellant's gross misconduct in failing to
properly secure the Central Control Room, thus creating a vulnerable area to inmate
penetration. The hearing examiner further found that the Appellant inappropriately
observed a female inmate through an outside window. With regard to the retaliation
claim, the hearing examiner found that the Appellant had been advised that he would be
suspended pending the investigation of allegations of misconduct, and the dismissal was
predicated upon the results of that investigation, rather than upon any retaliatory
motivation. The hearing examiner also found that the Appellant was an at-will employee
subject to termination at any time.
Following a September 2, 1994, hearing on the appeal to the lower court, the lower
court found that the hearing examiner's findings were consistent with the evidence and
affirmed. The Appellant now appeals to this Court.
In syllabus point one of West Virginia Department of Health and Human
Resources v. Blankenship, 189 W.Va. 342, 431 S.E.2d 681 (1993), we explained that
"'[a] final order of the hearing examiner for the West Virginia Educational Employees
Grievance Board, made pursuant to W.Va. Code, 18-29-1, et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong.' Syllabus Point 1,
Randolph County Bd. of Ed. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989)." 189
W.Va. at 343, 431 S.E.2d at 682; accord Watts v. West Virginia Dept. of Health and
Human Resources, 195 W.Va. 430, 465 S.E.2d 887 (1995); Ohio County Bd. of Educ. v.
Hopkins, 193 W.Va. 600, 457 S.E.2d 537 (1995); Parham v. Raleigh County Bd. of
Educ., 192 W.Va. 540, 453 S.E.2d 374 (1994).
West Virginia Code § 29-6A-7 (1992) provides the standard of review for
appealing a decision of the West Virginia Education and State Employees Grievance
Board hearing examiner to a circuit court and explains that a decision may be reversed if
(1) was contrary to law or a lawfully adopted rule, regulation or written policy of the employer,
(2) exceeded the hearing examiner's statutory authority,
(3) was the result of fraud or deceit,
(4) was clearly wrong in view of the reliable, probative and substantial evidence on the whole record, or
(5) was arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
In Martin v. Randolph County Board of Education, 195 W.Va. 297, 465 S.E.2d
399 (1995), we addressed the standard of review utilized by this Court in appeals of the
nature encountered in the present case. In Martin, we explained that appeals from the
West Virginia Educational Employees Grievance Board are reviewed by this Court under
West Virginia Code § 18-29-7 (1985), and that "[w]e review de novo the conclusions of law and application of law to the facts." 195 W.Va. at ----, 465 S.E.2d at 406. See also
Watts v. West Virginia Dept. of Health and Human Resources/Division of Human
Resources, 195 W. Va. 430, 465 S.E.2d 887 (1995); Board of Educ. v. Wirt, 192 W.Va.
568, 453 S.E.2d 402 (1994).
The factual allegations underlying the Appellant's termination are not in
substantial dispute; having reviewed those on a clearly wrong standard, we find that the
evidence fully supports the factual findings of the hearing examiner and the lower court.
The Appellant's primary challenges are to the manner through which he was terminated,
the notice he received, and the motivation for the termination. The Appellant contends
that the allegations of misconduct did not justify dismissal, that he was fired in retaliation
for filing a grievance, and that the hearing examiner improperly placed the burden of
showing retaliation on the Appellant after he had already established a prima facie case of
A public employee's due process rights are founded upon the extent to which that
employee has a property or liberty interest in his employment protected by Article III,
Section 10, of the West Virginia Constitution and the Fourteenth Amendment to the
United States Constitution. If there is a property right, the employee must be accorded due process in the termination proceeding. If there is no property right, the employer
may refuse to renew the employment, without the requirement of a hearing or any
specified reason for dismissal. State ex rel. Tuck v. Cole, 182 W.Va. 178, 179-80, 386
S.E.2d 835, 836-37 (1989).
The powers and duties of the Appellee in the present case, as enumerated in West
Virginia Code § 31-20-27(a) and (b) (1996), specify that "[a]ll correctional officers
employed under this subsection shall also be covered by . . . the classified exempt service
protection policies of the Division of Personnel." (emphasis supplied). Thus, the
employment status of the Appellant is legislatively delineated as a state "classified
exempt" employee. Employees holding positions statutorily exempt from coverage under
the classified service, such as the Appellant, are deemed "at-will" employees for purposes
of resolving the employer/employee relationship. See Parker v. West Virginia Health
Care Cost Review Authority, Docket No. 91-HHR-400 (June 30, 1992). As we
summarized in Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995),
"[a]s a general rule, West Virginia law provides that the doctrine of employment-at-will
allows an employer to discharge an employee for good reason, no reason, or bad reason
without incurring liability unless the firing is otherwise illegal under state or federal law."
Id. at ___, 459 S.E.2d at 340.
In Oakes v. West Virginia Department of Finance and Administration, 164 W. Va. 384, 264 S.E.2d 151 (1980), we discussed the employment status and protection for
classified state employees. In syllabus point one of that opinion, we explained that state
employees who are in classified service, as now defined in West Virginia Code § 29-6-
2(h) (1996), can be dismissed only for "good cause," meaning "misconduct of a
substantial nature directly affecting the rights and interest of the public, rather than upon
trivial or any consequential matters, or mere technical violations of statute or official duty
without wrongful intention." 164 W. Va. at 384, 264 S.E.2d at 151. As we recognized in
Buskirk v. Civil Service Comm'n of West Virginia, 175 W. Va. 279, 332 S.E.2d 579
(1985), "[a] classified civil service employee has a sufficient interest in his continued
uninterrupted employment to warrant the application of due process procedural
safeguards to protect against the arbitrary discharge of such employee under Article 3,
Section 10 of our constitution." 175 W. Va. at 283, 332 S.E.2d at 583. The protections
afforded to classified public employees, however, simply do not apply to the Appellant in
his position as a classified exempt employee, and his arguments regarding the absence of
due process must be evaluated accordingly.
We note somewhat parenthetically that even where an employee is determined to have a property or liberty interest in his employment, the extent of due process required, as explained in syllabus point four of State ex rel. McLendon v. Morton, 162 W.Va. 431, 249 S.E.2d 919 (1978), is determined as follows:
"The extent of due process protection affordable for a property interest requires consideration of three distinct factors: first, the private interests that will be affected by the official action; second, the risk of an erroneous deprivation of a property interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Syllabus Point 5, Waite v. Civil Service Commission,  W.Va. , 241 S.E.2d 164 (1977).
See also Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Supreme
Court addressed the requirements of due process where the employee has a property
interest in continued employment and concluded that "some opportunity for the employee
to present his side of the case is recurringly of obvious value in reaching an accurate
decision. Dismissals for cause will often involve factual disputes." 470 U.S. at 543.
Finding that due process required a pre-termination hearing in Loudermill, the Supreme
Court explained that the hearing need not be "a full adversarial evidentiary hearing," but
"[i]t should be an initial check against mistaken decisions--essentially, a determination of
whether there are reasonable grounds to believe that the charges against the employee are
true and support the proposed action." 470 U.S. at 545-46. "[O]ral or written notice of
the charges against him, an explanation of the employer's evidence, and an opportunity to
present his side of the story" is essential. 470 U.S. at 546. See Board of Educ. v. Wirt,
192 W. Va. 568, 575, 453 S.E.2d 402, 409 (1994).
The Appellant maintains that his due process rights were violated by the
Appellee's failure to provide him with adequate notice and hearing prior to and
subsequent to the dismissal. Reasoning that the Appellant's due process rights were
limited by his status as a classified exempt employee, the hearing examiner concluded
that the Appellant received more extensive due process protection than his position
required. In City of Huntington v. Black, 187 W. Va. 675, 421 S.E.2d 58 (1992), we
addressed the due process rights of an employee where specific legislative language
required that termination be supported by good cause. In the syllabus, we explained the
West Virginia Code § 8-14A-3 (1990), by its express provisions, does not require that an internal hearing be conducted prior to discharge, suspension, or reduction in rank or pay if the punitive action has already been taken. Principles of due process, however, dictate that a police officer subject to civil service protection must be afforded a predisciplinary proceeding prior to discharge, suspension, or reduction in rank or pay notwithstanding the provisions of West Virginia Code § 8-14A-3 unless exigent circumstances preclude such a predisciplinary hearing.
Although the parties in Black did not raise the issue of the type predeprivation hearing
required, we explained that "[i]n general, 'something less' than a full evidentiary hearing
is sufficient prior to adverse administrative action." 187 W. Va. at 680, 421 S.E.2d at 63
(quoting Eldridge, 424 U.S. at 343.)
The Appellant in the present case was provided written notice of the charges, he
responded to these charges by letter and telephone communication with the Executive Director, he filed a written incident report, and he presented his position to the Chief of
Operations. He was thereafter informed, by written correspondence, of the decision to
terminate his employment with specific explanation of the reasons for dismissal. He was
also given fifteen days to present any additional reasons why the discharge should not
become effective. In syllabus points two and three of Snyder v. Civil Service
Commission, 160 W.Va. 762, 238 S.E.2d 842 (1977), we set forth guidelines for the type
of notice required for a classified civil service employee. In syllabus point two of
Snyder, we explained that "[t]he sufficiency of a notice of dismissal to a classified civil
service employee depends on whether the employee was informed with reasonable
certainty and precision of the cause of his removal." In syllabus point three, we
continued: "A notice of dismissal to a classified civil service employee will generally be
adequate if it sets out sufficient facts of the alleged misconduct so that its details are
known with some particularity."
We affirm the conclusion of the lower court that the protections afforded to this at-
will employee were sufficient and indeed beyond that required for a classified exempt
employee, and we affirm the decision of the lower court in this regard.
The Appellant also maintains that because there were no particular regulations addressing the precise types of misdeeds allegedly occurring, he could not be fired for the
commission of such misdeeds. Indeed, the regulations governing the Appellant's
employment do not contain a section specifically stating that a correctional officer is not
permitted to look in a cell window at a female inmate. Nor do the regulations specifically
state that a correctional officer will be disciplined for failure to secure a door to the
central control room.See footnote 5 However, the hearing examiner and the lower court found that the
Appellant's actions constituted gross misconduct for which he could be disciplined
regardless of the existence of any particular regulation specifically addressing the precise
activity. As we explained in syllabus point five of Mangum v. Lambert, 183 W. Va. 184,
394 S.E.2d 879 (1990) "[S]eriously wrongful conduct by a civil service employee can
lead to dismissal even if it is not a technical violation of any statute. The test is not
whether the conduct breaks a specific law, but rather whether it is potentially damaging to
the rights and interests of the public." See Drown v. West Virginia Civil Serv. Comm'n,
180 W.Va. 143, 375 S.E.2d 775 (1988); Thurmond v. Steele, 159 W.Va. 630, 225 S.E.2d 210 (1976). Moreover, the hearing examiner concluded that the Appellant's employment
status as an "at-will" employee permitted his termination and that violation of a particular
regulation need not be demonstrated. We agree with that determination, and we affirm in
The Appellant also contends that the employer's stated reasons for discharge were
pretextual and that he was actually dismissed in retaliation for filing a grievance against
the Appellee employer. We have consistently recognized the following:
The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy princip[le], then the employer may be liable to the employee for damages occasioned by this discharge.
Syllabus, Harless v. First Nat'l Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978). In syllabus
point ten of Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995), we explained as
"'In an action to redress an unlawful retaliatory discharge under the West Virginia Human Rights Act, W.Va. Code, 5-11-1, et seq., as amended, the burden is upon the complainant to prove by a preponderance of the evidence (1) that the complainant engaged in protected activity, (2) that complainant's employer was aware of the protected activities, (3) that complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation), (4) that complainant's discharge followed his or her protected activities within such period of time that the court can infer retaliatory motivation.' Syl. pt. 4, Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986)." Syl. pt. 1, Brammer v. Human Rights Commission, 183 W.Va. 108, 394 S.E.2d 340 (1990).
Once the complainant has satisfied that burden, the burden then shifts to the
employer to provide a legitimate, intervening reason for the dismissal. As we explained
in syllabus point nine of Mace v. Charleston Area Medical Center Foundation, Inc., 188
W.Va. 57, 422 S.E.2d 624 (1992):
"In a retaliatory discharge action, where the plaintiff claims that he or she was discharged for exercising his or her constitutional right(s), the burden is initially upon the plaintiff to show that the exercise of his or her constitutional right(s) was a substantial or a motivating factor for the discharge. The plaintiff need not show that the exercise of the constitutional right(s) was the only precipitating factor for the discharge. The employer may defeat the claim by showing that the employee would have been discharged even in the absence of the protected conduct." Syllabus point 3, McClung v. Marion County Commission, 178 W.Va. 444, 360 S.E.2d 221 (1987).
188 W. Va. at 59, 422 S.E.2d at 626.
When the Appellant in the case sub judice was suspended, he was specifically informed that the suspension was in response to allegations of misconduct and that he was being suspended pending investigation of the allegations. Thus, as early as the initial suspension, the Appellant should have been aware of the potential for future disciplinary action. His attempt to characterize the cause of dismissal as retaliatory rather than the simple culmination of the investigation of his own misconduct is untenable. The Appellant advances the argument that because he did no work between the suspension and the firing, the only intervening event was the filing of the grievance and could therefore be the only reason for the termination. This argument obviously ignores the reality that he was suspended pending the investigation and that the results of the investigation justified the termination. The hearing examiner and lower court concluded that the Appellant's termination was not premised upon the filing of the grievance. There is no evidence which would sufficiently link the employer's decision with the protected activity, and we affirm the decision of the lower court on this issue.
Footnote: 1 The Honorable Arthur M. Recht resigned as Justice of the West Virginia Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton, Governor of the State of West Virginia, appointed him Judge of the first Judicial Circuit on that same date. Pursuant to an administrative order entered by this Court on October 15, 1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing October 15, 1996, and continuing until further order of this Court.
Footnote: 2 The female inmate testified that she had used the toilet, stood up, and was preparing to remove her clothing when she noticed the Appellant looking at her through the window. She specifically noted that she recognized him because the outdoor lighting was very bright and because his face was close to the window. She estimated that the Appellant remained at the window for several seconds with a "smirky grin." She could not definitively state that the Appellant watched her while she was using the toilet, but she did observe him immediately after she stood up.
Footnote: 3 Regional Jail Authority Policy and Procedure 3036 permits the administrative suspension without pay of employees for up to 30 days during the course of an investigation. The March 13, 1992, letter also notified the Appellant of the specific charges, as follows:
1. On or about 0700 hours Wednesday, 11 March 1992, while assigned to
Central Control at the Eastern Regional Jail, it is alleged that you did cause
and/or allow security Doors 153 and 150-B to be unsecured at the same
time, thus creating an extremely serious breach of security. This alleged
action is in direct violation of Post Orders, entitled "Specific Instructions -
Central Control, #23.
2. On or about 2335 hours on Tuesday, 10 March 1992, while performing an outside perimeter check at the Eastern Regional Jail, it is alleged that you did exceed the professional parameters of you [sic] position by utilizing a prolonged period of observation of a female inmate performing a normal bodily function, possibly creating an invasion of her privacy. This incident allegedly occurred in A-VI-142. It is further alleged that you were observed at her cell window again, within a short period of time. The alleged action is in direct violation of Policy and Procedure No. 3010, Procedure 12, 26, and 33.
Footnote: 4 Prior disciplinary actions include July 6, 1989, letter of reprimand for unauthorized radio communications; January 2, 1990, suspension for introduction of contraband and use of vulgar or suggestive language when dealing with female inmates; October 10, 1990, verbal reprimand for personal use of telephone and failure to complete paperwork; October 24, 1990, verbal reprimand for unacceptable language with regard to female officer; and January 19, 1992, verbal reprimand for receipting a personal check for an inmate.
Footnote: 5 The specific provisions upon which the Appellee relied provided as follows: Paragraph 12 of Regulation 3010 states that employees shall not develop sexual relationships with an inmate and that "any employee who attempts to use their position to develop an inappropriate relationship shall be subject to disciplinary action." Paragraph 26 states that the appearance of impropriety, fraternization, or other non-professional association by and between employees or inmates is not permitted, and Paragraph 33 calls for employees to be respectful, polite, and courteous in their contacts with inmates. With regard to the security of the central control room doors, Paragraph 23 of the specific instructions/central control states, "All doors leading into the central control will remain locked at all times . . . ."