           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January Term 2013
                                                                 FILED
                                  _______________             June 5, 2013
                                                              released at 3:00 p.m.
                                                              RORY L. PERRY II, CLERK
                                    No. 12-0287             SUPREME COURT OF APPEALS
                                  _______________               OF WEST VIRGINIA


             WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,
                         DIVISION OF HIGHWAYS,
                                Petitioner

                                          v.

                               KENNETH R. LITTEN,
                                   Respondent


                  Appeal from the Circuit Court of Kanawha County
                       The Honorable Tod J. Kaufman, Judge
                             Civil Action No. 11-AA-132

                                    AFFIRMED


                               Submitted: May 14, 2013
                                 Filed: June 5, 2013



Krista D. Black, Esq.                                Katherine L. Dooley, Esq.
West Virginia Department of Transportation           The Dooley Law Firm, P.L.L.C.
Division of Highways, Legal Division                 Charleston, West Virginia
Charleston, West Virginia                            Counsel for the Respondent
Counsel for the Petitioner


The Opinion of the Court was delivered PER CURIAM.

JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.
JUSTICE WORKMAN did not participate in the consideration or decision of this matter.
                                 SYLLABUS BY THE COURT


               1. “When reviewing the appeal of a public employee’s grievance, this Court reviews

decisions of the circuit court under the same standard as that by which the circuit court reviews the

decision of the administrative law judge.” Syl. pt. 1, Martin v. Barbour County Board of Education,

228 W.Va. 238, 719 S.E.2d 406 (2011).



               2. “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.” Syl. pt. 1,

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




Per Curiam:
       The West Virginia Department of Transportation, Division of Highways (“DOH”), appeals

the order of the Circuit Court of Kanawha County which affirmed the decision of the West Virginia

Public Employees Grievance Board. Pursuant to the decision of the Board, Kenneth R. Litten

(“Litten”), a mechanic, was reinstated to his employment.



       Litten’s employment with the DOH was terminated for allegedly accessing and attempting

to access pornographic websites on August 27, 2010, using a computer owned by the State.

According to the State, not only was accessing and attempting to access pornography a violation of

State policy, Litten’s use of the computer in that regard potentially exposed the State computer

network to “viruses, worms and other malware.” Litten, emphasizing that the computer was located

in a common area for his use and the use of approximately 13 other workers, denied that he was the

offending employee. The Grievance Board found in favor of Litten and directed the DOH to

reinstate him to his employment with back pay and lost benefits. On January 23, 2012, the circuit

court entered an order affirming the decision of the Grievance Board.



       Having carefully considered the briefs, the argument of counsel and the appendix-record, this

Court is of the opinion that the order of the circuit court should be affirmed.




                                      I. Factual Background


                                                  2
       Litten, hired in November 1999, worked for the DOH as a mechanic in Burlington, West

Virginia. The employees at the shop included nine mechanics, one welder, a shop foreman, an office

assistant, an equipment supervisor and an assistant to the equipment supervisor. The shop had an

employee break room with a State-owned computer the employees shared for work-related use.

Although the computer was not assigned to any particular individual, each employee, including the

mechanics, had a unique User ID and password. Litten, as well as his co-workers, were trained on

the proper use of the State’s computer resources.



       Shortly after August 27, 2010, the West Virginia Office of Technology discovered that the

User ID assigned to Litten had been utilized on the break room computer in connection with

“offensive search engine keywords” to access and attempt to access pornographic websites. To

confirm that the inappropriate use of the computer was intentional, the Office of Technology

examined Litten’s User ID computer records for a 24-hour period surrounding offenses committed

on August 27, 2010.1


       1
          The authority of the Office of Technology, a part of the West Virginia Department of
Administration, is found in W.Va. Code, 5A-6-1 [2006], et seq. Pursuant to that authority, the
Office of Technology, through its Chief Technology Officer, issued a written policy in 2007
entitled Information Security. Section 7.0 of the policy stated in part:

               Under the provisions of West Virginia Code § 5A-6-4a et seq., the Chief
       Technology Officer (CTO) is charged with securing State government
       information and the data communications infrastructure from unauthorized uses,
       intrusions, or other security threats. The CTO is granted both the authority and
       the responsibility to develop information technology policy, promulgate that
       policy, audit for policy compliance, and require corrective action where
       compliance is found to be unsatisfactory or absent.

       The Information Security policy included the following provisions relevant to this case:
(1) employees “must have no expectation of privacy” while using State-provided information

                                                3
          The Office of Technology then issued a Network Violation Report to the DOH with regard

to the computer activity traced to Litten’s User ID. The Report contained (1) a summary of the

inappropriate searches which took place on August 27, 2010, (2) the times the searches were

conducted and (3) the search terms used. Copies of sexually explicit pictures from the websites

accessed were included in the Report. Litten’s User ID was utilized three times on August 27, 2010,

(after log-in times at 7:16 a.m., 9:53 a.m., and 12:30 p.m.) to search for pornographic images on the

computer in the break room.



          By letter dated November 29, 2010, the DOH terminated Litten’s employment. The letter

stated:


                  The reason for your dismissal is your direct violation of the West Virginia
          Office of Technology’s policies on Information Security and Network Violation
          Management, and the Department of Transportation’s policy regarding Proper Use
          of Information Technology.2 More specifically,

                  On August 27, 2010 during the hours of 10:00 a.m. and 2:00 p.m., you visited
          and attempted to visit numerous known pornographic websites. You were denied
          access to over 400 requested sites or files that are categorized as known pornography
          or offensive search engine keywords. The Office of Technology was able to trace
          these activities to the IP address for your computer . . . and your unique user



resources; (2) employees must never attempt to disable, defeat or circumvent security controls;
(3) all passwords are confidential and must not be shared; and (4) each employee “must be
accountable for securing his or her computer, and for any actions that can be identified to have
originated from it.” Finally, the Information Security policy included an appendix which set
forth a number of unacceptable uses of State-provided technology. Among the unacceptable
uses listed was “any use for viewing, transmitting, receiving, saving, or printing sexually explicit
material.”
          2
         The Department of Transportation’s policy regarding Proper Use of Information
Technology, like the policy of the Office of Technology, prohibited accessing offensive images,
such as obscene, pornographic or sexually explicit material.

                                                   4
       identification . . . . Due to the serious nature of this offense, coupled with your
       prior discipline for misuse of state resources, your dismissal is warranted.3
       (emphasis and footnotes added)


       It should be noted that the termination letter did not accuse Litten of violating State policy

by failing to secure his User ID and password. The letter only charged inappropriate computer use

“during the hours of 10:00 a.m. and 2:00 p.m.” on August 27, 2010.



                                    II. Procedural Background

       In December 2010, Litten filed a grievance challenging his termination with the West

Virginia Public Employees Grievance Board. In July 2011, a Level Three evidentiary hearing was

conducted by the Administrative Law Judge.4 On September 27, 2011, the Administrative Law

Judge granted Litten’s grievance and directed that he be reinstated to his employment with back pay

and lost benefits, less wages he earned, while dismissed, through alternate employment.



       The evidence at the hearing demonstrated that, prior to August 27, 2010, Litten had written

his User ID, except for the first letter, on the front of an informational document posted on a bulletin

board beside the break room computer. Litten had also written his password on the back of the



       3
         Litten received a ten-day suspension from the DOH in December 2009 with regard to a
missing item of State equipment. The parties herein have not set forth the details of the incident,
and the appendix-record does not reveal any direct connection between the suspension and the
circumstances in this case. In the present case, the Administrative Law Judge found that Litten
“was viewed as a good employee who was always willing to help his co-workers with
diagnosing mechanical problems and making repairs.”
       4
         See W.Va. Code, 6C-2-1 [2008], et seq., and West Virginia Code of State Rules § 156-
1-1 [2008], et seq., concerning procedure in public employee grievance cases.

                                                   5
document, although, due to updates, the password as written was not accurate as of August 27, 2010.

Nevertheless, the Administrative Law Judge confirmed that, even though Litten had not safeguarded

his password, he was not accused of that violation as a basis for his termination. Instead, the

Administrative Law Judge emphasized that the termination letter only charged Litten with accessing

and attempting to access pornographic websites during the hours of 10:00 a.m. and 2:00 p.m. on

August 27, 2010.



       Furthermore, Litten’s work orders for that day supported Litten’s denial that he searched for

pornographic websites on the break room computer. Specifically, the Administrative Law Judge

determined that Litten was helping a co-worker repair a crane in the early morning hours of August

27, 2010. As to the subsequent times that day, the Administrative Law Judge concluded:



               [The Division’s] problem in putting Grievant at the computer when the
       second inappropriate search was conducted at 10:06 a.m. [after the 9:53 a.m. log-in]
       on August 27, 2010, is that the work orders show that Grievant was working on a
       box truck from 9:00 a.m. to 11:30 a.m. Grievant admitted that the starting and
       ending time shown on the work orders is not exact, as employees round these times
       to the nearest half hour. However, 10:06 a.m. is not near the starting or ending time
       shown on the work order.

             The same is true of the time in the early afternoon when the inappropriate
       computer usage was recorded.5 (footnote added)


       The DOH appealed, and on January 23, 2012, the Circuit Court of Kanawha County entered

an order affirming the decision of the Administrative Law Judge of the Public Employees Grievance



       5
         With regard to the early afternoon, the Administrative Law Judge found that the work
order showed that Litten worked from 12:00 p.m. to 3:30 p.m. away from the break room.

                                                 6
Board. Although the circuit court expressed no problem with the August 27, 2010, log-in times of

7:16 a.m., 9:53 a.m., and 12:30 p.m., the circuit court concluded that log-off times, determined by

the Administrative Law Judge to be 7:54 a.m., 10:26 a.m. and 1:13 p.m., respectively, constituted

error in view of the testimony that the Office of Technology had no mechanism to show when an

employee, such as Litten, “actually logged off the PC.”      The circuit court’s order made clear,

however, that the error notwithstanding, the DOH was unable to establish that Litten was the

individual who accessed and attempted to access the pornographic websites.



       The DOH asks this Court to reverse the adjudications below and uphold the termination of

Litten’s employment.



                                    III. Standards of Review

       In syllabus point 1 of Martin v. Barbour County Board of Education, 228 W.Va. 238, 719

S.E.2d 406 (2011), this Court observed: “When reviewing the appeal of a public employee’s

grievance, this Court reviews decisions of the circuit court under the same standard as that by which

the circuit court reviews the decision of the administrative law judge.” Accord syl. pt. 1, Armstrong

v. Division of Culture and History, 229 W.Va. 538, 729 S.E.2d 860 (2012). Thus, pursuant to W.Va.

Code, 6C-2-5(b) [2007], circuit court review in a grievance case concerns whether the decision of

the administrative law judge:


             (1) Is contrary to law or a lawfully adopted rule or written policy of the
       employer;
             (2) Exceeds the administrative law judge’s statutory authority;
             (3) Is the result of fraud or deceit;
             (4) Is clearly wrong in view of the reliable, probative and substantial

                                                 7
       evidence on the whole record; or
              (5) Is arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion.


       Of further assistance is syllabus point 1 of Cahill v. Mercer County Board of Education, 208

W.Va. 177, 539 S.E.2d 437 (2000), which states:


               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.



Accord syl. pt. 1, Shanklin v. Board of Education of the County of Kanawha, 228 W.Va. 374, 719

S.E.2d 844 (2011). See syl. pt. 3, Watkins v. McDowell County Board of Education, 229 W.Va. 500,

729 S.E.2d 822 (2012) (A final order of a grievance board examiner based on findings of fact should

not be reversed unless clearly wrong.).



                                    IV. Assignments of Error

       The issue in this case is whether the DOH carried its burden of proving the allegations

against Litten by a preponderance of the evidence.



       The West Virginia Code of State Rules § 156-1-3 [2008], states in part: “The grievant bears

the burden of proving the grievant’s case by a preponderance of the evidence, except in disciplinary

matters, where the burden is on the employer to prove that the action taken was justified.” Here, the


                                                  8
action taken was termination from employment, and the DOH has the burden to prove the grounds

therefor by a preponderance of the evidence. See Watkins supra, 229 W.Va. at _, 729 S.E.2d at 833

(The applicable standard of proof in a grievance proceeding is preponderance of the evidence.);

Darby v. Kanawha County Board of Education, 227 W.Va. 525, 530, 711 S.E.2d 595, 600 (2011)

(The order of the hearing examiner properly stated that, in disciplinary matters, the employer bears

the burden of establishing the charges by a preponderance of the evidence.). See also Hovermale

v. Berkeley Springs Moose Lodge, 165 W.Va. 689, 697 n. 4, 271 S.E.2d 335, 341 n. 4 (1980) (“Proof

by a preponderance of the evidence requires only that a party satisfy the court or jury by sufficient

evidence that the existence of a fact is more probable or likely than its nonexistence.”); State ex rel.

Smith v. Scott, 167 W.Va. 231, 233, 280 S.E.2d 811, 813 (1981) (“The term ‘preponderance of the

evidence’ does not refer exclusively to the quantity of testimony but to the quality of that testimony

as well.”).6



        The first assignment of error raised by the DOH alleges that the circuit court, in affirming

the Administrative Law Judge, incorrectly required the DOH to present direct evidence to prove that

Litten was the offending employee, thereby holding the DOH to a higher standard of proof than a

preponderance of the evidence standard. In other words, the DOH contends that it was required to


        6
          Although W.Va. Code, 6C-2-4(a)(3) [2008], states that “formal rules of evidence and
procedure do not apply” to Level One grievance hearings, neither that statute nor the West
Virginia Code of State Rules § 156-1-1 [2008], et seq., address whether formal rules of evidence
apply to Level Three hearings. However, two predecessor statutes, W.Va. Code, 29-6A-6(e)
[1998], concerning State employees, and W.Va. Code, 18-29-6 [1992], concerning education
employees, indicate that formal rules of evidence do not apply to grievance hearings. See syl. pt.
3, in part, University of West Virginia Board of Trustees v. Fox, 197 W.Va. 91, 475 S.E.2d 91
(1996) (Formal rules of evidence do not apply to grievance procedures under W.Va. Code, 18-
29-6.).

                                                   9
produce a witness who saw Litten accessing and attempting to access pornographic websites on

August 27, 2010. However, neither the Administrative Law Judge nor the circuit court required the

DOH to present such direct evidence.



       The contention of the DOH is not sustainable because the Administrative Law Judge, quite

properly, based the decision on circumstantial evidence. The Level Three evidentiary hearing lasted

two days, following which the Administrative Law Judge issued a lengthy decision containing

findings of fact and conclusions of law. The decision stated that the DOH had not proven “that it

was more likely than not” that Litten accessed and attempted to access pornographic websites on

August 27, 2010, during the hours of 10:00 a.m. and 2:00 p.m.



       The evidence of record demonstrates that the computer was used by anyone at the Burlington

shop who happened to be in the break room and that someone else could have conducted the

searches with Litten’s User ID and password which were on the bulletin board. Litten’s User ID and

password on the bulletin board on August 27, 2010, were substantially correct. Except for the first

letter, “A,” the User ID was correct. The password was also correct, except that the password’s last

number, as written, was “13.” However, the paper on the bulletin board revealed that Litten always

updated his password by changing the last number thereof in a consecutive manner, i.e., “9,” “10,”

“11,” “12" and “13.” By the time Litten was dismissed, the number was “25.” The import of that

evidence is that it would not have been difficult for another individual to have identified and utilized

Litten’s User ID and password.




                                                  10
       More significant was the sharing of User IDs and passwords at the Burlington shop. As

stated above, the termination letter did not discipline Litten for failing to secure his User ID and

password. Nor were other employees so disciplined. As found by the Administrative Law Judge,

the DOH, in the summer of 2010, hired five summer workers in the Burlington area but did not

obtain computer IDs for them. The decision was made to allow the five summer workers to use the

IDs assigned to five full-time employees who did not ordinarily use the computer. Passwords were

then created by the summer workers. Although the DOH later considered such misuse of IDs to be

a violation of State policy on computer security, no discipline was ordered. In another instance, the

employees at the Burlington shop were given the task, in November 2010, of using the computer to

enter information on a questionnaire regarding their job duties and responsibilities. Many of the

employees, uncomfortable with computer technology, gave their User ID and password to the office

secretary so that she could complete the questionnaire for them. None of the employees were

disciplined for violating State policy on computer security.



       Although the DOH states that those examples of User ID and password sharing were job

related, and that the November 2010 incident occurred after the inappropriate searches allegedly

committed by Litten, the evidence is that User ID and password security was not strictly observed

at the Burlington shop.7


       7
          With regard to the summer worker incident, the Director of Human Resources of the
Department of Transportation testified that he was told by an employee of the DOH that “they
wanted to have access for these summer employees to perform data entry functions, and they
didn’t want to go through the trouble of getting them through the Office of Technology.” The
Director then testified that he replied to the employee as follows: “I told her that I recognized
that that was for a legitimate reason, but that it still violated the Office of Technology’s policy on
the use of identification numbers and passwords. And that she should not do that.”

                                                 11
        Ultimately, the issues surrounding the presence of Litten’s User ID and password on the

bulletin board, and whether the work orders evidenced a lack of opportunity to conduct the

inappropriate searches, constituted factual conflicts which were resolved by the Administrative Law

Judge. The record supports the findings of the Administrative Law Judge that Litten was not in the

break room but engaged in repair work on August 27, 2010, during the times he allegedly made the

inappropriate searches.    Applying the standard of review expressed in W.Va. Code, 6C-2-5(b)

[2007], those findings are not clearly wrong “in view of the reliable, probative and substantial

evidence on the whole record.” Moreover, the Administrative Law Judge resolved the questions of

fact by way of circumstantial evidence. The DOH was not required to present direct evidence to

prove that Litten was the offending employee.



        Finally, the DOH contends that the Administrative Law Judge committed an abuse of

discretion in excluding evidence that Litten had accessed pornographic websites at the work site on

other days. During the Level Three hearing, the Administrative Law Judge stated that the DOH was

limited to the accusations set forth in the termination letter, i.e., that Litten conducted inappropriate

searches on August 27, 2010, during the hours of 10:00 a.m. and 2:00 p.m. As a result, evidence

of inappropriate searches on other days was excluded on grounds of relevancy. The Administrative

Law Judge also excluded the evidence because of the difficulty of rebutting the evidence in the

absence of specific dates during which those other alleged searches took place.



        Asserting error, the DOH maintains that evidence of accessing and attempting to access




                                                   12
pornographic websites on other days would have revealed a pattern of activity by Litten and, thus,

should have been admitted at the Level Three hearing on the issue of the identity of the offending

employee. Litten, however, points out that allegations of computer misuse on days other than

August 27, 2010, were never cited by the DOH as a basis for his termination. Moreover, Litten

insists that the Administrative Law Judge, in fact, heard and considered evidence of inappropriate

searches on other days, the exclusion notwithstanding.



       A review of the Level Three transcript demonstrates that the Administrative Law Judge

allowed co-workers to testify that they had seen Litten accessing pornographic websites on other

occasions and that Litten had said that he could circumvent the State’s computer security controls.

As the DOH acknowledges, the evidence of inappropriate searches on other days was admitted by

the Administrative Law Judge on the issue of whether, by disciplining Litten, the DOH had treated

him differently from other employees.



       Upholding the decision of the Administrative Law Judge to reinstate Litten to his

employment, the circuit court stated:


                In reviewing whether the record supports the ALJ’s decision, it is important
       to keep in mind that the reason for terminating [Litten] was that he was allegedly
       accessing or attempting to access pornographic materials on a specific date, August
       27, 2010, in the break room of District 5 Burlington Headquarters. * * * [T]he
       record reflects that the ALJ heard and carefully considered all of the evidence before
       it, including the testimony of [DOH] witnesses that had previously seen [Litten] on
       pornographic websites[.]


       Although ruled admissible for a limited purpose, the evidence of inappropriate searches on


                                                13
other days was heard by the Administrative Law Judge and was included in the record subsequently

reviewed by the circuit court. To the extent additional evidence of that nature was excluded during

the Level Three hearing, such evidence was cumulative, and the Administrative Law Judge

disallowed the evidence under the exercise of sound discretion. Upon the whole, this assignment

does not rise to the level of reversible error.



                                            V. Conclusion

        Upon review, this Court is of the opinion that the result below should not be disturbed. The

determinations of the Administrative Law Judge were not clearly wrong. Accordingly, the January

23, 2012, order of the Circuit Court of Kanawha County, which affirmed the decision of the

Administrative Law Judge of the Public Employees Grievance Board, is affirmed.



                                                                                         Affirmed.




                                                  14
