Gainer v. Walker

Decision Date19 May 2009
Docket NumberNo. 34401.,34401.
Citation701 S.E.2d 837,226 W.Va. 434
CourtWest Virginia Supreme Court
PartiesPamela GAINER, Plaintiff Below, Appellee v. Martha Yeager WALKER, Secretary, West Virginia Department of Health and Human Resources, and the State of West Virginia, Defendants Below, Appellants.

Syllabus by the Court

1. "A final order of the hearing examiner for the West Virginia Education and State Employees Grievance Board, made pursuant to W.Va.Code, 29-6A-1, et seq. [ (1988) ], and based upon findings of fact, should not be reversed unless clearly wrong." Syllabus, Quinn v. West Virginia Northern Community College, 197 W.Va. 313, 475 S.E.2d 405 (1996).

2. "Although we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board, we review, de novo, questions of law." Syllabus Point 2, Maikotter v. University of W. Va. Bd. of Trs., 206 W.Va. 691, 527 S.E.2d 802 (1999).

3. "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." Syllabus Point 1, Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000).

4. "There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as 'costs,' without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Syllabus Point 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

Darrell V. McGraw Jr., Esq., Attorney General, Jennifer Kathleen Akers, Esq., Assistant Attorney General, Charleston, WV, for Appellant.

Loren B. Howley, Esq., Grantsville, WV, for Appellee.


This case is before this Court upon appeal of a final order of the Circuit Court of Calhoun County entered November 2, 2007. In that order, the circuit court reversed the decision of the West Virginia Education and State Employees Grievance Board (hereinafter, the "Grievance Board") 1 which upheld a four-day suspension of the appellee, Pamela Gainer, without pay, by the appellant, Martha Yeager Walker, Secretary of the West Virginia Department of Health and Human Resources (hereinafter, "appellant" or "DHHR"). The circuit court found that the Grievance Board's decision was clearly wrong in view of the reliable, probative, and substantial evidence on the whole record, and ordered the DHHR to pay the appellee lostwages and reasonable attorney's fees due to her suspension. In this appeal, the DHHR contends that the circuit court erred by reversing the decision of the Grievance Board, and awarding the appellee attorney's fees in the amount of $9,045.00. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, this Court finds that the circuit court did not commit reversible error and accordingly, affirms the decision below.


The appellee, Pamela Gainer, is employed by the DHHR as a foster care worker. She began her employment with the DHHR on September 2, 1975, and has worked there on a continuous basis. As a part of her duties, the appellee is required to monitor and report upon the care and welfare of minor children who have been placed in foster homes by the DHHR. On July 10, 2006, the appellee was suspended without pay for four working days for allegedly breaching the confidentiality of sensitive social service case records. Specifically, the appellee obtained recordings from a confidential adoption record and shared them with two attorneys who were not employees of the DHHR.

One of the cases assigned to the appellee by the DHHR, relevant to this appeal, was for a male child, C.S.,2 who was born November 29, 2002, and was taken into custody by the DHHR in March 2003. C.S., an infant with special medical needs, was placed in the foster home of a woman, herein referred to as S.B., as soon as he was ready to leave the hospital. After C.S.'s placement in S.B.'s home, the appellee made four home visits between April 19, 2003, and August 4, 2004, to assess his care and welfare. On each of these home visits, the appellee recorded in her notes that C.S., who was developmentally delayed, was always in a playpen and did not seem to be getting the attention necessary for his optimal development. She noted that he did not have good large muscle control, did not walk well, and was not learning to speak properly. The appellee believed that S.B. was not spending enough time with C.S.

According to the appellee, she regularly discussed her concerns with other social workers in her office, but decided she would not seek removal of C.S. from S.B.'s home because he was in the only home he had ever known. She also stated that it was the DHHR's policy to discourage moving foster children after placement with a foster parent as this may create an unstable environment for the child. She also considered the fact that S.B. lived in close proximity to a hospital, which was important considering C.S.'s existing health issues. On September 3, 2004, after the Circuit Court of Calhoun County terminated the parental rights of C.S.'s biological parents, C.S.'s case was transferred to the DHHR's adoption unit and assigned to adoption specialist Jennifer Hogue. C.S. was formally adopted by S.B. on August 29, 2005.

During much of this same time period, the appellee was also a foster care worker for C.S.'s half-sibling, H.T., a female child who was born January 19, 2004. H.T. was placed in a separate foster home and was not initially placed with S.B. With regard to H.T., both S.B. and the family where H.T. had temporarily been placed (hereinafter, "C.H."), wanted to adopt her. As a consequence, a placement hearing was scheduled in the Circuit Court of Calhoun County.

In preparation for her own potential testimony at the hearing, the appellee had obtained access to the DHHR's electronic file on C.S. The appellee believed that reviewing C.S.'s case history was critical to determine if placement of H.T. in S.B.'s home was in the best interests of both, or either, of the children. The file, which contained the appellee's notes, also included Ms. Hogue's notes regarding C.S. After reading Ms. Hogue's notes, the appellee learned that both she and Ms. Hogue had made similar observations regarding C.S.'s care in S.B.'s home. At the September 8, 2005, hearing, however, the appellee concluded that Ms. Hogue hadtestified inconsistently from her notes as contained in the DHHR's confidential file regarding C.S.

With regard to the testimony at that hearing, Ms. Hogue stated during direct examination she did not recall ever seeing C.S. in a playpen in S.B.'s home, and that she had no concerns about his care in S.B.'s home. According to the appellee, however, Ms. Hogue had noted in the official case file that C.S. was spending a lot of time in a playpen and that she was concerned about his progress as a developmentally delayed child. Ms. Hogue's notes also indicated that she believed C.S. could not focus and could not communicate, except by grunting, and that he had made very little progress with regard to his developmental delays. Given this information, the appellee, who had printed C.S.'s entire record,3 provided a copy of Ms. Hogue's notes to the attorney for H.T.'s foster parent as well as to H.T.'s guardian ad litem. Those notes were then used to cross-examine Ms. Hogue regarding her previous testimony.

Thereafter, on December 6, 2005, the circuit court, in an eighteen-page order, authorized and empowered the DHHR to separate the siblings, thereby refusing to order placement of H.T. in S.B.'s home. The circuit court's order allowing for separation of the siblings was based, in part, on the appellee's concerns, as well as the appellee's disclosure of Ms. Hogue's notes. It explained that:

[The appellee's] concern about [C.S.] was corroborated by other [DHHR] workers from Harrison County, who also noticed that [C.S.] spent a lot of time in his playpen. Although she did not recall it when she testified on direct examination, adoption specialist Jennifer Hogue had a concern that [C.S.] spent too much time in his playpen and was otherwise confined to a small portion of the house, as shown by her case notes after her home visit on November 17, 2004.

The appellee contends that she chose to disclose the information to the guardian ad litem and counsel for H.T.'s foster mother, instead of the prosecuting attorney, because they were the only lawyers in the case who were actually advocating the DHHR's position, which was that C.S. and H.T. should not be placed together in S.B.'s home. The appellee maintains that throughout the entire case, the prosecutor had demonstrated a history of refusing to cooperate with the DHHR, as evidenced by his statement that, "We'll just sit back and let these foster parents duke it out." She also cited an eight-page report submitted to the circuit court from the DHHR concerning issues surrounding the prosecuting attorney's handling of the case. Thus, given the appellee's belief that the prosecutor was not doing his job, she gave the information to the two attorneys whom she believed "were aggressively advocating the [DHHR's] position regarding the children's best interests."

Following the hearing regarding the custody of H.T., Ms. Hogue filed an internal complaint against the appellee for releasing her notes from C.S.'s confidential file. Subsequent to an investigation of the complaint, on July 10, 2006, the appellee was suspended for four days, without pay, for a...

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    • United States
    • West Virginia Supreme Court
    • November 6, 2013
    ...alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is de novo); Gainer v. Walker, 226 W.Va. 434, 438–39, 701 S.E.2d 837, 841–42 (2009) (standard of review governing grievance rulings includes “[p]lenary review ... as to the conclusions of law and app......

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