WV Natural Resources v. Myers
Annotate this CaseJanuary 1994 Term
___________
No. 21538
___________
WEST VIRGINIA DEPARTMENT OF NATURAL RESOURCES,
Plaintiff Below, Appellee,
v.
CHRISTINE MANN MYERS,
Defendant Below, Appellant
_______________________________________________________
Appeal from the Circuit Court of Upshur County
Honorable Thomas Keadle, Judge
Civil Action No. 91-P-34
AFFIRMED IN PART; REVERSED IN PART
_______________________________________________________
Submitted: January 19, 1994
Filed: March 28, 1994
Shirley A. Skaggs
Assistant Attorney General
Charleston, WV
Attorney for the Appellee
Kathryn K. Allen
West & Jones
Clarksburg, WV
Attorney for the Appellant
The opinion of the Court was delivered PER CURIAM.
JUSTICE NEELY dissents and reserves the right to file a dissenting
opinion.
SYLLABUS BY THE COURT
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 Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).
2. "Discrimination based upon pregnancy constitutes
illegal sex discrimination under the West Virginia Human Rights
Act, W.Va. Code, 5-11-9(a) [1981]." Syllabus point 2, Frank's Shoe
Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986).
3. "Unless a wrongful discharge is malicious, the
wrongfully discharged employee has a duty to mitigate damages by
accepting similar employment to that contemplated by his or her
contract if it is available in the local area, and the actual wages
received, or the wages the employee could have received at
comparable employment where it is locally available, will be
deducted from any back pay award; however, the burden of raising
the issue of mitigation is on the employer." Syllabus point 2,
Mason County Board of Education v. State Superintendent of Schools,
170 W.Va. 632, 295 S.E.2d 719 (1982).
Per Curiam:
This case is before the Court on the appeal of Christine
Mann Myers from the July 23, 1992, order of the Circuit Court of
Upshur County.
The appellant, Christine Myers, was employed by the
Department of Natural Resources (DNR) as a conservation officer
from 1979 until October 12, 1990. Apparently, in July, 1990, Ms.
Myers advised her supervisor that she was pregnant and asked
whether she could be given light duty and permitted to wear plain
clothes during the last portion of her pregnancy. He refused.
During her first pregnancy, Ms. Myers was not given light duty and
was required to wear a uniform and carry a firearm through the
eighth month of her pregnancy, when she took leave. By the time of
the second pregnancy, she had accumulated approximately eighty days
of sick and annual leave, which she then requested that she be
allowed to take instead of light duty.
Ms. Myers does not dispute that the DNR has never changed
job responsibilities to create a light duty position for a
conservation officer in the past. She requested sick leave and
annual leave, beginning August 19, 1990. She submitted sick leave
forms, which were approved by her physician, indicating that she
was unable to carry out her regular work detail. Her superior accepted the leave forms, and she did not report to work from
August 19, 1990, to September 19, 1990.
This appeal also involves an incident which occurred the
prior year. On August 22, 1989, Ms. Myers had received a written
reprimand from her superior for failing to appear for routine boat
patrol. She explained that she had been requested to assist with
a drug raid being carried out by the Lewis County Sheriff and that
the Sheriff's Department had notified the DNR of her involvement
with the Sheriff's raid. The DNR, claiming that she had not
followed procedure, issued a letter of reprimand charging her with
insubordination. Ms. Myers filed a grievance based upon the
reprimand in her record.
The Lewis County Sheriff sent a letter to Colonel Hall,
the chief of the law enforcement division of the DNR, on
September 5, 1989, which stated that Ms. Myers had provided
assistance at his request and asked that the letter be removed from
her personnel file. The letter was not removed at this point. The
grievance was scheduled for a Level IV hearing on September 7,
1990.
Ms. Myers met with Colonel Hall on August 7, 1990. After
lunch, she alleges that he requested that she withdraw the
grievance because it would cost the DNR a great deal of money. She
refused, unless the letter was withdrawn from her file. Ms. Myers notified her union representative that Colonel Hall had approached
her regarding the grievance. Mr. Maupin, the union representative,
notified the Director of the DNR that Colonel Hall had attempted
"through intimidation and improper ex-parte communication to coerce
conservation officer Christine Mann Myers into withdrawing her
pending grievance." On September 6, 1990, Ms. Myers was advised
that the State had removed the letter of reprimand from her file,
and the grievance was then dismissed.
Ms. Myers claims that during the period between August 7,
1990, when she met Colonel Hall, and September 27, 1990, the date
she was ultimately terminated, Colonel Hall obtained, from her ex-
husband, a copy of a confidential affidavit filed in a domestic
proceeding pending in the Circuit Court of Lewis County. The
affidavit erroneously reported that Ms. Myers intended to leave her
job on August 19, 1990. Ms. Myers' lawyer later admitted that she
made a mistake in preparing this affidavit and that Ms. Myers had
no intention of quitting her job and was prepared to return to work
following the birth of her second child. Thus, Colonel Hall wrote
a letter to Ms. Myers dated September 7, 1990, advising her that,
based on the contents of the affidavit and the fact that she was
attending nursing classes at Fairmont State College, he presumed
she was resigning from her position with the DNR and he was
processing her resignation. On September 11, 1990, Ms. Myers
responded to Colonel Hall in writing, stating that she had no
intention of resigning her position. She also advised him that she was currently on maternity sick leave, granted to her by the DNR
Law Enforcement Section, because the Department had not offered her
light duty for the remaining term of her pregnancy. Ms. Myers does
not dispute that the DNR had never changed job responsibilities to
create light duty in the past. However, she does note that
requested annual leave had never been refused to a conservation
officer in the past, with three exceptions, none of which existed
in her case.
After Ms. Myers' September 11, 1990, letter to Colonel
Hall explaining that she was on maternity sick leave because no
light duty position had been created, Colonel Hall wrote to Ms.
Myers and advised her that a light duty position was available for
the remainder of her pregnancy, effective September 22, 1990. This
duty consisted of answering the telephone and radio work, and
required Ms. Myers to be alone at night at French Creek. She also
claims that, without her knowledge or consent, Colonel Hall had
contacted her physician and inquired whether she could perform the
light duty arranged. On September 24, 1990, her doctor responded
that he would recommend that she be given a different job which
would alleviate her migraines.
Colonel Hall met with Ms. Myers on September 20, 1990, at
Fairmont State College and ordered her to report for duty on
September 22, 1990. Sick leave was paid to Ms. Myers up to September 21, 1990, and the Colonel disapproved any sick leave
thereafter.
On September 21, Ms. Myers requested sick leave from her
immediate supervisor, Captain Sayers. The request was denied. She
advised Colonel Hall that she did not feel she was able to report
to work on September 22 and requested sick or annual leave.
Colonel Hall denied that request as well. She claims that DNR
regulations provide that annual leave shall be granted at such
times as will not materially affect the agency's efficient
operations.
On September 22, 1990, Ms. Myers failed to show up for
work. She claims that she attempted to call and notify her
superiors that she was unable to report to work because she was
experiencing false labor. However, she states she was unable to
contact her immediate supervisor, Captain Sayers, to report as
such. Thus, shortly thereafter, she was advised that she had been
dismissed from her position because she had abandoned her job. On
September 27, 1990, Colonel Hall sent the appellant a fifteen-day
notice of dismissal, effective October 12, 1990. The appellant did
not respond, in person or in writing, to the allegations contained
in the notice of dismissal. However, on October 23, 1990, the
appellant filed a Level IV grievance protesting her dismissal.
The appellant also complains that Colonel Hall, by letter
dated September 21, 1990, sent a "vicious" letter to Judge Keadle
alleging that Ms. Myers had knowingly and willfully submitted a
false affidavit before the court. The affidavit in question was
from a separate domestic case involving the family law master and
included a statement to the effect that Ms. Myers intended to quit
work on August 19, 1990. Ms. Myers asserts that the statement in
question was erroneous, and her lawyer admitted that she failed to
correct the error before filing the affidavit before the family law
master. Colonel Hall obtained the affidavit from Ms. Myers' ex-
husband.
In March 28, 1991, Sue Keller, Senior Hearing Examiner,
granted the grievance. The conclusions of law noted the definition
of reprisal and "that the appellant has shown by a preponderance of
the evidence, that the chief administrator of the law enforcement
section of the DNR had engaged in a series of retaliatory actions,
culminating in her dismissal, immediately following an incident
relating to a prior grievance which he (Colonel Hall) shortly
thereafter resolved in the appellant's favor." By decision dated
March 25, 1991, she ordered that the DNR reinstate the appellant to
the position of conservation officer with all back pay and benefits
to which she was entitled.
On April 29, 1991, the DNR filed a petition for appeal to
the Circuit Court of Upshur County. The petition requested that the court reverse the decision of the West Virginia Education and
State Employees Grievance Board pursuant to W.Va. Code § 29-6A-7 on
the grounds that it was (a) contrary to law and contrary to rules,
regulations, and written policies of the DNR; (b) in excess of
statutory authority and jurisdiction of the Grievance Board; (c) in
excess of the hearing examiner's statutory authority; (d) clearly
wrong in view of the reliable, probative, and substantial evidence
of the whole record; (e) arbitrary and capricious and characterized
by the abuse of discretion or clearly unwarranted exercise of
discretion; (f) made upon unlawful procedures; and (g) affected by
other error of law. In a memorandum decision dated July 7, 1992,
the circuit court held that the hearing examiner's decision was
clearly wrong in view of the reliable, probative, and substantial
evidence in the record. Thus, by order dated July 23, 1992, the
Circuit Court of Upshur County reversed the Grievance Board and
refused to reinstate the appellant to a position as conservation
officer and award her back pay, because she abandoned her position
pursuant to West Virginia Division of Personnel Rules and
Regulations § 13.02. It is from this final ruling that Ms. Myers
appeals.
West Virginia Code § 29-6A-1 et seq. (1993) provides the
grievance procedures for state employees. West Virginia Code § 29-
6A-7 discusses the reviewability of the hearings examiner's
decision:
The decision of the hearing examiner shall be
final upon the parties and shall be enforceable in circuit court: Provided, That
either party or the state civil service
commission may appeal to the circuit court of
the county in which the grievance occurred on
the grounds that the hearing examiner's
decision (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.
The applicable standard of review in cases involving the
State Grievance Board was discussed in Randolph County Board of
Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). That
case involved an appeal of a final order of a hearing examiner for
the West Virginia Education and State Employees Grievance Board.
In footnote 1, the Court noted that in 1988, the West Virginia
Educational Grievance Board was combined with the newly created
State Employees Grievance Board, and the judicial review provisions
found in W.Va. Code § 29-6A-7 are substantially similar to those
contained in W.Va. Code § 18-29-7. Id. at 524, n.1. Thus,
syllabus point 1 of Scalia applies in this case even though it does
not involve the Educational Employees Grievance Board: "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." Id. at syl. pt. 1. In determining
whether the hearing examiner was clearly wrong, the lower court was directed to examine "the reliable, probative and substantial
evidence on the record as a whole." Id. at 527. See also Hyre v.
Upshur County Board of Education, 186 W.Va. 267, 412 S.E.2d 265
(1991); Hare v. Randolph County Board of Education, 183 W.Va. 436,
396 S.E.2d 203 (1990).
The DNR alleges that the hearing examiner's order
exceeded her statutory authority. The circuit court found that the
hearing examiner's order was against the weight of the credible
evidence. We disagree and, for the reasons stated below, reverse
in part and affirm in part the July 23, 1992, order of the Circuit
Court of Upshur County.
In Frank's Shoe Store v. West Virginia Human Rights
Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986), this Court
established what was necessary to make a prima facie case for an
action of unlawful reprisal:
[T]he 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.
Id. at syl. pt. 4, in part.
An employer may rebut the presumption of retaliatory
action by offering "credible evidence of legitimate
nondiscriminatory reasons for its actions . . . ." Mace v. Pizza
Hut, Inc., 180 W.Va. 469, 377 S.E.2d 461, 464 (1988); see also
Shepherdstown Volunteer Fire Department v. State ex rel. West
Virginia Human Rights Commission, 172 W.Va. 627, 309 S.E.2d 342
(1983). Should the employer succeed in rebutting the presumption,
the employee then has the opportunity to prove by a preponderance
of the evidence that the reasons offered by the employer for
discharge were merely a pretext for unlawful discrimination. Mace,
377 S.E.2d at 464.
The hearing examiner found that the appellant met her
burden of proof and established a prima facie case of reprisal by
showing that nineteen days after her union representative contacted
the division director regarding Colonel Hall's conversation with
her, in which he requested that she withdraw her grievance, he
travelled to Weston for the purpose of procuring information from
her former spouse. A week later, he advised her that he was
processing her resignation, and two days after that, he changed her
days off, which interfered with her college attendance. He also
withdrew her previously approved sick leave and refused to grant
her annual leave at a time when she was suffering from false labor.
Finally, she was dismissed from her position within a period of
approximately six weeks after she had met with Colonel Hall
regarding the prior grievance.
In response, the DNR offered a legitimate reason for the
dismissal action. They state that the appellant abandoned her
position when she failed to report to work on September 22 and 23,
1990. The appellant does not deny that she did not appear for work
those days. She does state, however, that she called both Captain
Sayers and Colonel Hall to explain about her false labor. They
deny ever receiving such phone calls.
In this case, the hearing examiner concluded that Ms.
Myers met her burden to show that the legitimate, nonretaliatory
reason of the employer for dismissing her was merely a pretext for
the unlawful discharge. In doing so, the hearing examiner pointed
to the Colonel's inappropriate contact with the grievant's
physician, his assignment of an evening shift during her third
trimester of pregnancy, the sudden reversal on the decision to
allow light duty, his decision to change her schedule so that she
was unable to attend class, given his knowledge of her class
schedule, and in light of the letter he wrote to Judge Keadle
regarding Ms. Myers' "lack of credibility." Equally damaging is
Colonel Hall's unusual methods of obtaining information, such as
obtaining an affidavit from a case in which the DNR was not
involved from the appellant's ex-husband.
In reversing the Grievance Board's decision, the circuit
court reviewed the evidence of record and found that the hearing
examiner's conclusion was against the reliable, credible, and probative evidence. The court found that the appellant's actions
in failing to report for work after having her annual and sick
leave withdrawn was the same as abandoning her position and thus,
the DNR was correct in firing her. While we agree that the
abandonment of a position may be a legitimate reason for
termination of employment, the court's order does not consider the
uncontroverted facts that the DNR had rarely refused annual and
sick leave when requested. As to their statement that allowing Ms.
Myers the time off would put the DNR in a severely short-handed
position during hunting season, it failed to explain what job
Colonel Hall thought an eight months pregnant woman could safely
perform. Her late night job at French Creek was hardly crucial and
could be performed by anyone. If that position had been offered
when she first requested light duty, then its importance would have
more credibility. As it is, Ms. Myers had requested and been
granted her own sick and annual leave to use while she was off by
her immediate supervisor, who apparently saw nothing wrong in
allowing her to do so. She was fully entitled and, in fact,
required to use that time for her maternity leave. The DNR's
sudden desperate need for her services strikes this Court as odd.
Evidence admitted before the Grievance Board revealed
that employees were required to use accumulated sick and annual
leave during their pregnancies. West Virginia Code § 21-5D-4
permits a total of twelve weeks of unpaid family leave, following
the exhaustion of all of the annual and personal leave, for the birth of a child. The West Virginia Division of Personnel Rules
and Regulations § 16.04(f)(4) provides that accrued sick leave
shall be granted for an incapacity due to pregnancy under the same
conditions applying to any illness. Further evidence adduced at
the hearing revealed that annual leave had been refused only on
very specific occasions in the past. West Virginia Division of
Personnel Rules and Regulations, § 16.03(c), provides that annual
leave "shall be granted at such time as will not materially affect
the agency's efficient operation." Clearly, there was no problem
with the appellant taking leave time prior to Colonel Hall's
discovery that she was on leave. His sudden withdrawal of that
leave looks quite suspicious.
In syllabus point 2 of Frank's Shoe Store, supra, we
held that "[d]iscrimination based upon pregnancy constitutes
illegal sex discrimination under the West Virginia Human Rights
Act, W.Va. Code, 5-11-9(a) [1981]." Given the evidence presented
and the fact that Ms. Myers had worked uneventfully for the DNR for
eleven years prior to this incident, there was sufficient evidence
for the hearing examiner to believe the DNR's actions were causally
related to either her prior grievance or her pregnancy.
Consequently, we agree with the hearing examiner's
conclusion that the appellant had shown by a preponderance of the
evidence that the chief administrator of the law enforcement
section of the DNR had engaged in a series of retaliatory actions, culminating in her dismissal, immediately following an incident
relating to a prior grievance.See footnote 1 Under the standard of review set
forth in Scalia, we cannot find that the hearing examiner was
clearly wrong, in view of the probative, reliable, and substantial
evidence on the record as a whole. We reverse the decision of the
Circuit Court of Upshur County and hold that the appellant is
entitled to the reinstatement of her job.
Further, the DNR's allegation that back pay is not
permissible in this case is also erroneous. In Mason County Board
of Education v. State Superintendent of Schools, 170 W.Va. 632, 295 S.E.2d 719 (1982), this Court determined that back pay was
available in certain situations: "[I]n those cases where an
employee has been wrongfully discharged out of malice, by which we
mean that the discharging agency or official willfully and
deliberately violated the employee's rights under circumstances
where the agency or individual knew or with reasonable diligence
should have known of the employee's rights, then the employee is
entitled to a flat back pay award." Id. at 725. The Court
expressed the opinion that "the policy considerations against
malicious discharge . . . outweigh the policy considerations that
favor protection of the constituent class receiving government
services, and this rule should operate to discourage malicious discharges." Id. "Unless a wrongful discharge is malicious, the
wrongfully discharged employee has a duty to mitigate damages by
accepting similar employment to that contemplated by his or her
contract if it is available in the local area, and the actual wages
received, or the wages the employee could have received at
comparable employment where it is locally available, will be
deducted from any back pay award; however, the burden of raising
the issue of mitigation is on the employer." Id. at syl. pt. 2.
In the case now before us, the evidence shows that the
DNR knowingly terminated the appellant from her employment after
withdrawing leave time she was obliged to use under W.Va. Code
§ 21-5D-4 for her pregnancy-related problems and subsequent
maternity leave. The appellant had used her annual and sick leave
during and after her first pregnancy, so the procedures related to
pregnant employees was familiar to the DNR. There is sufficient
evidence to show that the DNR deliberately violated her rights, and
thus, she is entitled to a flat back pay award.See footnote 2
However, the DNR also argues that back pay and interest
on the back pay is inappropriate because the appellant was
discharged for cause. The DNR points to Orndorff v. West Virginia
Department of Health, 165 W.Va. 1, 267 S.E.2d 430 (1980), in which
the Court stated that where the disciplined employee was not
entirely without fault, the court can decline to award interest on
a back pay award if there was good cause for the disciplinary
action. Id. at 434.
This Court subsequently interpreted Orndorff in Fraley v.
Civil Service Commission, 177 W.Va. 729, 356 S.E.2d 483 (1987).
Based upon the rule stated in Orndorff, the Court refused to grant
interest on a back pay award to a civil service employee dismissed
for "good cause." In Fraley, the employee was discharged because,
as a classified civil service employee, he was prohibited from
holding any other paid office. However, he was both the coroner
for Hardy County and an employee of the Department of Highways.
Upon review, the West Virginia Department of Highways erroneously
failed to provide for procedural due process. Fraley was awarded
back pay and benefits for the period between the date of his
dismissal and the date of his hearing before the Civil Service
Commission. However, he was denied an award of interest on the
back pay because the dismissal action, although erroneous, was
based upon good cause. Id. at 488.
Based upon the interpretation of Orndorff, we agree that
the appellant would not be entitled to interest upon the back pay.
She failed to report for duty and failed to contact anyone on the
day she was ordered to return from her leave. Regardless of the
propriety of the withdrawal of the annual leave, it was improper to
fail to appear for her assignment. The correct procedure would
have been through the Grievance Board.
Consequently, we reverse the decision of the Circuit
Court of Upshur County and hold that the appellant, Christine Mann
Myers, be reinstated to her position as conservation officer with
back pay. However, we affirm that portion of the circuit court's
order which denied interest upon that back pay.
Affirmed in part; reversed in part.
Footnote: 1Reprisal is defined as "the retaliation of an employer or agent towards a grievant . . . or any other participant in the grievance procedure either for an alleged injury itself or any lawful attempt to redress it." W.Va. Code § 29-6A-2(p).
Footnote: 2Syllabus point 4 of Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990), states:
Once a claimant establishes a prima facie case
of discrimination and presents evidence on the
issue of damages, the burden of producing
sufficient evidence to establish the amount of
interim earnings or lack of diligence shifts
to the defendant. The defendant may satisfy
his burden only if he establishes that:
(1) there were substantially equivalent
positions which were available; and (2) the
claimant failed to use reasonable care and
diligence in seeking such positions.
In this case, we do not reach the issue of mitigation.
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