West Virginia Dept. of Natural Resources v. Myers

• Court: West Virginia Supreme Court
• Writing for the Court: PER CURIAM; NEELY; NEELY
• Citation: West Virginia Dept. of Natural Resources v. Myers, 443 S.E.2d 229, 191 W.Va. 72 (W. Va. 1994)
• Decision Date: 28 March 1994
• Docket Number: No. 21538,21538
• Parties: WEST VIRGINIA DEPARTMENT OF NATURAL RESOURCES, Plaintiff Below, Appellees, v. Christine Mann MYERS, Defendant Below, Appellant.

Page 229

443 S.E.2d 229

191 W.Va. 72

WEST VIRGINIA DEPARTMENT OF NATURAL RESOURCES, Plaintiff Below, Appellees, v. Christine Mann MYERS, Defendant Below, Appellant.

No. 21538.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1994.

Decided March 28, 1994.

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).

Shirley A. Skaggs, Asst. Atty. Gen., Charleston, WV, for appellee.

Kathryn K. Allen, West & Jones, Clarksburg, for appellant.

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...