West Virginia Dept. of Health v. West Virginia Civil Service Com'n

• Decision Date: 11 June 1987
• Docket Number: No. 17503,17503
• Citation: 178 W.Va. 237,358 S.E.2d 798
• Parties: WEST VIRGINIA DEPARTMENT OF HEALTH v. WEST VIRGINIA CIVIL SERVICE COMMISSION and Donna Jean Adkins.
• Court: West Virginia Supreme Court

Page 798

358 S.E.2d 798

178 W.Va. 237

WEST VIRGINIA DEPARTMENT OF HEALTH v. WEST VIRGINIA CIVIL SERVICE COMMISSION and Donna Jean Adkins.

No. 17503.

Supreme Court of Appeals of

West Virginia.

June 11, 1987.

Syllabus by the Court

"A final order of the Civil Service Commission based upon a finding of fact will not be reversed by this Court upon appeal unless it is clearly wrong." Syllabus, Billings v. Civil Service Comm'n, 154 W.Va. 688, 178 S.E.2d 801 (1971).

Silas B. Taylor, Deputy Atty. Gen., Barbara Fiedler, Asst. Atty. Gen., for appellant.

Robert S. Baker, APALRED, Beckley, for appellees.

BROTHERTON, Justice:

This is an appeal by Donna Jean Adkins from an order of the Circuit Court of Kanawha County which reversed a partially favorable and partially adverse decision of the Civil Service Commission. The Commission had found that Adkins had falsely and maliciously taken out a misdemeanor battery warrant against the administrator of Pinecrest State Hospital and ruled that Pinecrest had cause to discipline Adkins, but reversed a decision by Pinecrest terminating her. The Commission reinstated Adkins after a one-year absence from work, without back pay, and placed her on an additional disciplinary probation. The Department of Health appealed this decision to the Circuit Court of Kanawha County, who reversed the Commission, holding that Adkins' termination was proper. Adkins is still working at Pinecrest pursuant to a stay issued by the Circuit Court of Kanawha County, and continued by this Court, to maintain the status quo during the pendency of the appeal to this Court.

Donna Adkins was fired from her position as a nurse's assistant on April 15, 1985. In a letter from Jerri L. Hartsock, the Assistant Administrator of Pinecrest Hospital, three reasons were stated for the termination. First, an incident occurred where Adkins falsely accused Hospital Administrator Kyle Baker of slapping her, filed a criminal charge against him, and made statements to the newspapers and television stations concerning this false accusation. Second, she was involved in an underground newspaper known as the "Pinecrest Picker." Third, she sent a petition to United States Senator Robert Byrd, asking that Kyle Baker be removed as administrator of Pinecrest Hospital, which allegedly contained signatures of three Pinecrest Hospital employees who have denied signing the petition. By agreement between the parties, the second two reasons were dropped from consideration, leaving as the only issue the false accusation and criminal charge.

Testimony before the Commission showed that prior to February 4, 1985, Adkins had requested educational leave so that she could attend a class at Beckley College, located approximately one mile from Pinecrest Hospital. This class began in January, 1985, and was to meet three days a week, from 8:00 a.m. to approximately 9:00 a.m. Adkins was given approval to take leave time to attend this class on the condition that she report for work at Pinecrest in time to commence work at the beginning of her 7:00 a.m. shift. Following her reporting to and commencing work, she was allowed to leave to attend class at Beckley College. She would leave work at approximately 7:30 a.m. Following her class, Adkins was required to return to Pinecrest Hospital to complete the remaining portion of her shift and would work from approximately 9:00 a.m. to 3:00 p.m. Adkins was not satisfied with this arrangement, and requested that she not be required to report to work until after her class ended at 9:00 a.m. Adkins was informed that her request would have to be approved by the Educational Leave Committee at Pinecrest. This response was unsatisfactory to Adkins, and she decided to obtain the forms to institute a grievance proceeding. However, when she went to the personnel office at 3:00 p.m. on February 4, 1985, the door was locked.

The hospital administrator, Kyle Baker, noticed Adkins waiting outside the locked office and inquired whether he might be of assistance. She told him she would like to have a grievance form. Baker told her than he would obtain one for her from the personnel office, and did so. While this was going on, the two entered into a discussion about Adkins' educational leave time. The discussion deteriorated into an argument, with Adkins quite excited and yelling, and Baker outwardly calmer, but talking in a loud voice, attempting to interject his thoughts into Adkins' continuous stream of words. Somewhere during the argument, Adkins claimed that Baker struck her with an open hand on the left cheek. Baker strenuously denied slapping Adkins.

Shortly after the alleged striking, Jerri Hartsock, the assistant administrator, returned to the administrative office area of Pinecrest Hospital. She noticed Baker and Adkins in the personnel office and entered the office, where she saw Mr. Baker behind a desk, approximately fifteen feet away from Adkins, who was located in the doorway. Hartsock testified that she heard no undue commotion prior to or during her time in the personnel office, and she saw no red mark on Adkins' face, and that Adkins was not crying. She did say, however, that Adkins was being smug and flippant, as if she was trying to provoke and aggravate Baker.

While no witness viewed the entire incident except Baker and Adkins, other people in the administrative office area who had a chance to see and hear bits and pieces of the argument noted that, other than loud voices, nothing unusual happened. Shortly after the incident, Adkins told ...