Roach v. Regional Jail Authority

• Decision Date: 17 December 1996
• Docket Number: No. 23177,23177
• Citation: 198 W.Va. 694,482 S.E.2d 679
• Court: West Virginia Supreme Court
• Parties: , 133 Lab.Cas. P 58,207 Edward N. ROACH, Complainant Below, Appellant v. REGIONAL JAIL AUTHORITY, Respondent Below, Appellee.

Page 679

482 S.E.2d 679

198 W.Va. 694, 133 Lab.Cas. P 58,207

Edward N. ROACH, Complainant Below, Appellant v. REGIONAL JAIL AUTHORITY, Respondent Below, Appellee.

No. 23177.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 25, 1996.

Decided Dec. 17, 1996.

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 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 (1990).

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).

John C. Yoder, Harpers Ferry, for Appellant.

Chad M. Cardinal, Assistant Attorney General, Charleston, for Appellee.

PER CURIAM.

This is an appeal 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.

I.

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. 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. 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 history ⁴ and indicated that inconsistencies in the Appellant's statements raised serious questions of honesty and integrity.

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.

II.

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 it:

(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...