Margaret L. Workman
Darrell V. McGraw, Jr.
Margaret Workman Law, L.C. Attorney General
Charleston, West Virginia B. Allen Campbell
Attorney for the Appellant Senior Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
1 Grievance rulings involve a combination of both deferential and plenary
review. Since a reviewing court is obligated to give deference to factual findings rendered
by an administrative law judge, a circuit court is not permitted to substitute its judgment for
that of the hearing examiner with regard to factual determinations. Credibility
determinations made by an administrative law judge are similarly entitled to deference.
Plenary review is conducted as to the conclusions of law and application of law to the facts,
which are reviewed de novo. Syl. Pt. 1, Cahill v. Mercer County Bd. of Educ., 208 W. Va.
177, 539 S.E.2d 437 (2000).
2. W.Va.Code, 29-6-15, requires that the dismissal of a civil service employee be for good cause, which means misconduct of a substantial nature directly affecting the rights and interest of the public, rather than upon trivial or inconsequential matters, or mere technical violations of statute or official duty without wrongful intention. Syl. Pt. 1, Oakes v. Department of Fin. and Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980).
This is an appeal by Mr. Rodney Sloan (hereinafter Appellant or Mr. Sloan) from a June 26, 2002, order of the Circuit Court of Kanawha County, affirming a decision of the West Virginia Education and State Employees Grievance Board (hereinafter Grievance Board) upholding Mr. Sloan's termination from employment with the Office of the Chief Medical Examiner (hereinafter OCME). Upon thorough review of the record, briefs, and arguments of counsel, we reverse the decision of the lower court and remand with directions to enter an order reinstating Mr. Sloan to his former position and to calculate the back pay award due to Mr. Sloan.
By late 1998, however, the evidence produced at the hearings indicates that the
professional relationship between Dr. Kaplan and Mr. Sloan began to deteriorate. At that
time, Dr. Kaplan regularly utilized the services of Mr. Bill Gardner as a forensic consultant.
Through various sources, Mr. Sloan was apprised that Mr. Gardner's qualifications and
experience were questionable, and Mr. Sloan brought these concerns to Dr. Kaplan's
attention. Dr. Kaplan was apparently displeased with Mr. Sloan's information and, according
to Mr. Sloan, indicated that he would not entertain any such negative information concerning
(See footnote 1)
In December 1998, Dr. Kaplan approached Mr. Sloan concerning the
possibility of transferring some of Mr. Sloan's duties to another employee, Mr. Mike Kane,
ostensibly on a temporary basis only. In January 1999, Mr. Sloan received a letter from Dr.
Kaplan informing him that his title had been changed from Chief Investigator to Chief
Investigator Recruitment and that Mr. Kane had been assigned the title of Chief Investigator
Operations. Subsequent to this alteration, Mr. Sloan was also reassigned from day shift to
According to the OSME, sometime in early to mid-1999, Mr. Sloan discovered
a bag at the OSME in a long term cooler which contained body parts, with a tag identifying
the contents as the remains of decedent David W.
(See footnote 2)
Upon making this discovery, the OSME
contends that the Appellant contacted Mr. James Lowry of the Charleston Mortuary to inform
him that additional body parts, belonging to a body released to the Charleston Mortuary on
July 30, 1998,
(See footnote 3)
had been discovered. The Appellant, however, failed to inform Dr. Kaplan
that these additional remains had been located, and no further action regarding the remains
was taken at that time.
On March 15, 2000, the bag allegedly containing some of the David W.
remains was rediscovered in the long term cooler by a morgue technician. No formal
investigation has been undertaken to determine if the remains were actually those of David
(See footnote 4)
When Mr. Sloan was confronted by Office Administrator Larry Kennedy regarding the
discovered body parts, Mr. Kennedy testified that Mr. Sloan told him he had known about
the remains for some period of time but had become busy and had forgotten about the
On March 27, 2000, Mr. Sloan filed a grievance based upon reassignment of
his job duties and alteration of his working schedule. On April 5, 2000, a notice of a hearing
on Mr. Sloan's grievance was transmitted to the OSME. On April 6, 2000, the OSME
dismissed Mr. Sloan from his employment, after fifteen years of service. Mr. Sloan
thereafter filed a second grievance, contending that the discharge constituted retaliation for
the filing of the prior grievance, age and political discrimination, disparate treatment, and a
violation of civil service rules and regulations.
In July and August 2000, Mr. Sloan's two grievances were combined for
hearings. Mr. Sloan's essential allegations were that the OSME offered no legitimate proof
of an improper body release or improper body handling, no good cause for the termination,
and inadequate reason for the alterations in job duties or working hours. Moreover, Mr.
Sloan contended that the discharge constituted a reprisal for the filing of March 2000
grievance and that he was treated differently from other employees who were also at fault in
the turmoil surrounding the David W. remains. He further argued that by responding to his
alleged transgressions with outright termination, the OSME had punished him more severely
than other individuals had been punished for misdeeds within the office.
The OSME countered Mr. Sloan's arguments by presenting testimony
indicating that the primary justification for Mr. Sloan's discharge was his failure to inform
his superiors that portions of a body released in July 1998 remained in a bag in the freezer
of the office until March 15, 2000. The OSME also presented evidence indicating that a
demotion letter was being drafted as early as January or February 2000 based upon concerns
with Mr. Sloan's work habits, such as sleeping on the job and leaving the place of
employment for short periods to obtain breakfast. Thus, the OSME contends that, upon
learning of Mr. Sloan's failure to inform his superiors of the discovery of additional remains,
termination was determined to be the proper resolution.
Subsequent to the presentation of evidence on July 7, 2002; July 18, 2002;
August 15, 2002; and October 23, 2002, the Grievance Board denied Mr. Sloan's grievances
by order dated January 30, 2003. The board held that the OSME had proven the existence
of facts justifying the termination, that Mr. Sloan had been dismissed for good cause, that he
was not treated in a disparate manner,
(See footnote 5)
and that he was not the victim of reprisal.
(See footnote 6)
Appellant appealed that determination to the Circuit Court of Kanawha County, and the
Grievance Board's conclusions were affirmed. It is from that ruling that Mr. Sloan currently
appeals, maintaining that the decisions of the Grievance Board and lower court were contrary
to law, clearly wrong, or arbitrary and capricious.
in reviewing an ALJ's decision that was affirmed by the circuit
court, this Court accords deference to the findings of fact made
below. This Court reviews decisions of the circuit under the
same standard as that by which the circuit reviews the decision
of the ALJ. We must uphold any of the ALJ's factual findings
that are supported by substantial evidence, and we owe
substantial deference to inferences drawn from these facts. . . .
We review de novo the conclusions of law and application of
law to the facts.
195 W. Va. at 304, 465 S.E.2d at 406. This Court has invariably explained that as a reviewing tribunal, we must determine whether the ALJ's findings were reasoned, i.e., whether he or she considered the relevant factors and explained the facts and policy concerns on which he or she relied, and whether those facts have some basis in the record. Id., 465 S.E.2d at 406. (See footnote 7)
The legal standard applicable to facts of this nature was enunciated in syllabus
point one of Oakes v. Department of Finance and Administration, 164 W. Va. 384, 264
S.E.2d 151 (1980), where this Court explained as follows regarding the termination of a state
employee: W.Va.Code, 29-6-15, requires that the dismissal of a civil service employee be
for good cause, which means misconduct of a substantial nature directly affecting the rights
and interest of the public, rather than upon trivial or inconsequential matters, or mere
technical violations of statute or official duty without wrongful intention.
(See footnote 8)
See also Trimble
v. West Virginia Board of Directors, 209 W. Va. 420, 549 S.E.2d 294 (2001). In Oakes, an
employee had been terminated from his civil service position as postmaster for the state
capitol post office for negligent mail handling. This Court held that good cause had not
been demonstrated to justify the termination. 164 W. Va. at 389, 264 S.E.2d at 154. This
Court explained that nothing in the record indicate[d] that Mr. Oakes had a prior history of
negligent or inefficient conduct in his supervision of the Capitol Post Office, nor that he had
received any reprimands or been subjected to any disciplinary proceedings. 164 W. Va. at
387, 264 S.E.2d at 153; see also Blake v. Civil Serv. Comm'n, 172 W. Va. 711, 310 S.E.2d
472 (1983) (finding no good cause for dismissal for petty theft of clothing); Guine v. Civil
Serv. Comm'n, 149 W. Va. 461, 141 S.E.2d 364 (1965) (finding no good cause for
In Fox v. Board of Education of Doddridge County, 160 W. Va. 668, 236
S.E.2d 243 (1977), this Court addressed the issue of whether a teacher's unexcused absence
from a parent-teacher conference constituted wilful neglect of duty substantiating his
dismissal. This Court found that the dismissal was not supportable and reversed the
termination decision, reasoning as follows:
We believe [dismissal was not warranted] for the simple reason that the punishment does not fit the misdeed. Unexcused absence from those occasions at which attendance is expected may be valid grounds for disciplinary action such as a temporary suspension from teaching responsibilities. But it does not follow that the same recalcitrant conduct calls for permanent banishment of the errant teacher from the school system. Suspension, responsibly exercised, may be a reasonable means of maintaining order and authority over school board employees. Dismissal undoubtedly has therapeutic disciplinary qualities.
But we believe that dismissal predicated upon an isolated
incident of unexcused absence from a parent-teacher conference
is so unduly severe as to be arbitrary and unreasonable.
160 W. Va. at 671-72, 236 S.E.2d at 246 (footnote omitted); see also Beverlin v. Board of Educ. of Lewis County, 158 W. Va. 1067, 216 S.E.2d 554 (1975) (concluding that dismissal of teacher for unexcused absence for purpose of registering for evening class at university was arbitrary and capricious).
Similarly, in Tucker v. Board of Education of the Town of Norfolk, 418 A.2d
933 (Conn. 1979), a tenured teacher was fired for insubordination when she took a two-day
leave of absence after her superiors had denied permission for such leave. The court in
Tucker found that dismissal was too harsh and held:
We are of the opinion that, although there are circumstances indicating that the plaintiff was insubordinate in her conduct, a review of the entire record discloses that the drastic disciplinary action of dismissal constituted exceedingly excessive punishment for the plaintiff's misconduct, and an abuse of discretion, especially in the light of the plaintiff's excellent and unblemished school record as a capable, dedicated teacher.
418 A.2d at 938.
In the opinion of this Court, application of the law, as reviewed above, to the
facts of this matter presents the formidable dilemma of choosing a proper punishment to fit
the transgression. As the Grievance Board and lower court observed, there is considerable
evidence supporting a finding that Mr. Sloan committed a serious oversight; yet the facts of
the case equally support a finding that the entire chronicle of events surrounding the handling
of the David W. body reveals a very unsatisfactory portrait of the OSME as an entity. Mr.
Sloan's participation in this disarray, even if viewed in a light most favorable to the OSME,
appears minimal. Even assuming all the allegations of the OSME to be true, Mr. Sloan's
most offensive act was his negligence in failing to timely reveal his discovery of additional
body parts in the freezer. He was simply one actor in the chaos; yet he appears to have been
cast as the scapegoat in this matter, the individual against whom all the blame could be
Based upon the solemn nature of Mr. Sloan's job responsibilities, the OSME
could quite possibly have been justified in disciplining Mr. Sloan in some fashion; however,
termination appears to be excessive and will not be upheld by this Court. The good cause
legally necessary to support a decision of termination is absent in this case. This Court has
previously acknowledged that the work record of a long time civil service employee is a
factor to be considered in determining whether discharge is an appropriate disciplinary
measure in cases of misconduct. Buskirk v. Civil Serv. Comm'n, 175 W. Va. 279, 285, 332
S.E.2d 579, 585 (1985). Mr. Sloan exhibited an excellent work record prior to the difficulties
he experienced in his working relationship with Dr. Kaplan.
In addition to our finding that the employer lacked good cause to terminate the
Appellant, we also note that the Grievance Board correctly found that the Appellant had
established a prima facie case of reprisal based upon the fact that the termination immediately
followed the filing of the initial grievance. The Grievance Board, however, concluded that
the OCME had proven a legitimate, non-retaliatory reason for the termination. Mr. Kennedy
testified that a demotion letter had been drafted one week prior to the Appellant's
termination. At that time, however, the OSME already knew of the alleged mishandling of
the David W. remains. Consequently, it is difficult to accept the OSME's argument that the
demotion was translated into a termination based upon the alleged mishandling of the David
W. remains. The Appellant contends that the dismissal letter was triggered by the receipt of
the notice of hearing on his grievance, as received by the OSME on April 5, 2000. We find
that the Grievance Board and lower court conclusion that the OCME proved a legitimate,
non-retaliatory reason for the termination to be in error.
Having premised our reversal on the issues of lack of good cause for
termination and the OSME's reprisal for the filing of a grievance, we need not address the
Appellant's additional contention regarding disparate treatment. The events leading to the
Appellant's termination included the alteration of his job title, duties, hours, and other
working conditions. Accordingly, upon remand, Mr. Sloan shall be reinstated to his former
position of Chief Medico-legal Investigator or an equivalent position, with working
conditions, benefits, and salary no less favorable than those which he obtained in that
position. An award of back pay shall also be calculated. With regard to the Appellant's
request for an award of attorney fees, such award may be determined on remand, in
accordance with West Virginia Code § 29-6A-10 (1998) (Repl. Vol. 2001), which provides
in pertinent part as follows:
If an employee appeals to a circuit court an adverse decision of a hearing examiner rendered in a grievance proceeding pursuant to provisions of this article or is required to defend an appeal and the person substantially prevails, the adverse party or parties is liable to the employee, upon final judgment or order, for court costs, and for reasonable attorney's fees, to be set by the court, for representing the employee in all administrative hearings and before the circuit court and the supreme court of appeals, and is further liable to the employee for any court reporter's costs incurred during any administrative hearings or court proceedings: Provided, That in no event shall such attorney's fees be awarded in excess of a total of one thousand five hundred dollars for the administrative hearings and circuit court proceedings nor an additional one thousand dollars for supreme court proceedings. . . .