                          STATE OF WEST VIRGINIA

                        SUPREME COURT OF APPEALS

                                                                            FILED
West Virginia Division of Natural Resources,                             April 9, 2015
                                                                         released at 3:00 p.m.
Respondent Below, Petitioner                                           RORY L. PERRY II, CLERK
                                                                     SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA

vs) No. 14-0130 (Kanawha County 13-AA-100)

James Franklin Williams
Grievant Below, Respondent


                           MEMORANDUM DECISION

       Petitioner West Virginia Division of Natural Resources (“DNR”), by counsel
William R. Valentino, appeals the final order of the Circuit Court of Kanawha County
filed January 10, 2014, enforcing the Decision of the West Virginia Public Employees
Grievance Board (the “Board”) in favor of Respondent James Franklin Williams,
represented by Michael E. Froble. The DNR dismissed Mr. Williams as Supervisor of
Maintenance at Hawks Nest State Park, classified by the West Virginia Division of
Personnel (“DOP”) as a Building Maintenance Supervisor II. The Board’s Decision of
August 19, 2013, reinstated Mr. Williams, and it awarded him back pay.

       Upon consideration of the record on appeal, the parties’ briefs, and their oral
arguments, this Court discerns no substantial question of law and determines that no
prejudicial error affected the proceedings below. For those reasons, a memorandum
opinion affirming the circuit court’s order is the appropriate disposition pursuant to Rule
21 of the West Virginia Rules of Appellate Procedure.

       Mr. Williams began his employment at Hawks Nest on September 10, 2012, under
the supervision of Joe Baughman, the park’s Assistant Superintendent. Mr. Baughman,
in turn, reported to Superintendent John Bracken. On September 19, 2012, about one
week after he had first arrived at work, Mr. Williams made a sexually overt remark to one
or more colleagues concerning a female co-worker, as a consequence of which DNR
Director Frank Jezioro suspended him for two days without pay. Later that autumn, the
same co-worker filed suit against the DNR in the Circuit Court of Kanawha County,
alleging, inter alia, that Superintendent Bracken had sexually harassed her (the “sexual
harassment litigation”).

      Mr. Williams completed the remainder of his six-month probationary period
without incident. Near the close of his probation, on March 4, 2013, Mr. Williams was
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evaluated by Superintendent Bracken and rated “good.” Almost immediately thereafter,
however, in late March 2013, Superintendent Bracken began to document deficiencies
that he perceived in Mr. Williams’s job performance. On April 24, 2013, Superintendent
Bracken issued a written Performance Improvement Plan (“PIP”) to Mr. Williams
detailing those deficiencies and establishing a ninety-day period whereby certain job
standards and benchmarks were to be achieved.1

       About two weeks following institution of the PIP, on May 9, 2013, Mr. Williams
and Assistant Superintendent Baughman had a conversation in the latter’s office. During
this conversation, Mr. Williams mentioned to Mr. Baughman that “Mr. Bracken had
better back off” the PIP, else he would bring to light certain statements that the
superintendent had allegedly made to him concerning the sexual harassment litigation.
Mr. Baughman reported the conversation — which he “construe[d] . . . as a threat” from
Mr. Williams — to Superintendent Bracken. In so doing, Mr. Baughman recommended
that Superintendent Bracken abandon the PIP “because [Mr. Williams] might say
something or do something that would be detrimental to this case that you’re involved
with.”2
      1
          Although Assistant Superintendent Baughman stood in the position of immediate
supervisor to Mr. Williams, the record suggests that their professional relationship was
quite amicable and that Mr. Williams often took Mr. Baughman into his confidence as
one might ordinarily confide in a peer.        Many of the supervisory responsibilities
concerning Mr. Williams were undertaken instead by Superintendent Bracken, who
contended that he devised the PIP because Mr. Williams “was not performing [his] duties
as we needed him to.” Mr. Williams countered that the PIP was a pretext, imposed in
retaliation for his refusal to accede to Superintendent Bracken’s repeated demands that
Mr. Williams use his private contracting license to purchase Freon for repairs to
refrigeration and HVAC equipment at the park. Mr. Williams explained that such
procurements are heavily regulated and that he was fearful of losing his license were he
to attempt to obtain Freon in a manner inconsistent with those regulations. For purposes
of our analysis, the salient point is that the PIP existed; the rationale supporting its
imposition is less important.
      2
         Mr. Williams flatly refuted Mr. Baughman’s version of the conversation. The
Administrative Law Judge conducting the hearing on behalf of the Board, however,
specifically found that “[b]ased solely upon witness credibility, [the DNR] established by
a preponderance of the credible evidence that [Mr. Williams] engaged in the conduct
alleged.” More to the point, according to the ALJ, “there was no credible evidence to
suggest that Superintendent Bracken conspired with Assistant Superintendent Baughman
to fabricate this charge.”



                                            2

       Superintendent Bracken opted instead to relay Mr. Baughman’s report up the
supervisory chain, with the result that Mr. Williams soon found his employment
terminated by the DNR. In the letter of dismissal delivered May 22, 2013, Director
Jezioro explained that he had decided to separate Mr. Williams from employment after
“reviewing [his] threat and having considered the obviously gross and egregious intent to
subvert the improvement plan and the Superintendent’s authority.” Elaborating, the
Director recounted his belief that Mr. Williams had “attempt[ed] to intimidate and
threaten the Superintendent and coerce the Superintendent away from fulfilling his
supervisory responsibilities.”

       The next day, May 23, 2013, Mr. Williams filed a Level Three grievance
challenging his dismissal. See W. Va. Code § 6C-2-4(a)(4) (2008) (providing that “[a]n
employee may proceed directly to level three . . . when the grievant has been
discharged”). Following an evidentiary hearing on July 30, 2013, the presiding
Administrative Law Judge (“ALJ”) rendered the Board’s written Decision on August 19,
2013. Therein, the ALJ concluded that “it was not demonstrated that [Mr. Williams’s]
statements constituted a serious threat of harm or wrongdoing, and it appears that the
[DNR’s] reaction to these statements was inappropriate and grossly excessive.” The ALJ
observed that Mr. Baughman “did not admonish [Mr. Williams] for this supposed threat,”
or “make any effort to clarify” the statement’s meaning, further faulting Mr. Baughman
for waiting until after work to report the conversation. The ALJ thought it relevant “that
there was no allegation that [Mr. Williams] ever stated he was going to make something
up or say anything regarding Superintendent Bracken that was not true.” At the end of
the day, the ALJ mused, “this is just one supervisor grousing to another about his
treatment by their mutual boss, rather than a threat of real or actual harm.” The ALJ thus
granted the grievance and ordered Mr. Williams reinstated with full back pay, plus
interest.

        On August 23, 2013, the DNR timely appealed the Board’s Decision to the Circuit
Court of Kanawha County. See W. Va. Code § 6C-2-5(c) (2007). The circuit court
denied the appeal by its Order of January 10, 2014, agreeing with the ALJ that the
evidence did not show that Mr. Williams had threatened Superintendent Bracken. Absent
a credible threat, reasoned the circuit court, “the Board was not clearly wrong nor abused
its discretion finding that the allegations of misconduct did not constitute good cause for
the dismissal of Williams.” The DNR noticed the instant appeal from the circuit court’s
Order on February 5, 2014.

       The Board’s Decision reinstating Mr. Williams must be permitted to stand unless
it was clearly wrong. See Syl. pt. 3, Martin v. Barbour Cnty. Bd. of Educ., 228 W. Va.
238, 719 S.E.2d 406 (2011) (“‘A final order of the hearing examiner for the West
Virginia [Public] Employees Grievance Board, made pursuant to W. Va. Code, [6C–2–1],

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et seq. [ ], and based upon findings of fact, should not be reversed unless clearly wrong.’”
(quoting syl. pt. 1, Randolph Cnty. Bd. of Educ. v. Scalia, 182 W. Va. 289, 387 S.E.2d
524 (1989))). The ultimate disposition of a grievance appeal frequently turns on the
deference properly afforded the ALJ’s findings of fact and concomitant assessment of the
witnesses’ credibility:

              [A] reviewing court is obligated to give deference to factual
              findings rendered by an administrative law judge[; thus], a . . .
              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 Cnty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000).

       In his decision below, the ALJ relied on Board precedent and referenced the
Workplace Security Policy promulgated by the DOP, which lists several criteria designed
to evaluate the danger posed by threatening or assaultive behavior. The DOP criteria
include: (1) the recipient’s perception that the threat is real; (2) the nature and severity of
harm if the threat is realized; (3) the likelihood that such harm will result; (4) the
imminence of the threatened harm; (5) the duration of risk; and (6) the past behavior of
the source of the threat. See Burkhammer v. Dep’t of Health & Human Res., No. 03­
HHR-276, 2003 WL 22978082 (W. Va. Pub. Emp. Grievance Bd. Nov. 12, 2003), at *4.

        In a case such as here, where a disputed statement is pivotal to the determination
of what transpired, the latitude accorded the ALJ to make credibility assessments is
crucial to the proper resolution of the issues raised. Evaluating all of the criteria together
and examining the totality of the circumstances in which the statements were made, the
ALJ was not clearly wrong in declining to find that Mr. Williams engaged in misconduct
justifying his dismissal. The ALJ looked behind the superficiality of the particular
statements and Mr. Baughman’s reaction to them to consider also their rather vague and
contingent nature, the amicable relationship between the speaker and the listener, and the
frustration that Mr. Williams was no doubt feeling near the onset of the PIP, all to
conclude that the supposed threat was empty.3

       3
         The Board decisions cited by the ALJ recognize, albeit implicitly, that specific
threats are more credible than vague ones. Compare Burkhammer at *2 (dismissal
upheld where grievant specifically warned estranged co-worker that “if he couldn’t have
                                                                         (continued . . .)

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        If a civil service employee is to be dismissed, the dismissal must “be for good
cause, which means misconduct of a substantial nature directly affecting the rights and
interest of the public, rather than upon trivial or inconsequential matters, or mere
technical violations of statute or official duty without wrongful intention.” Syl. pt. 1,
Oakes v. W. Va. Dep’t of Fin. & Admin., 164 W. Va. 384, 264 S.E.2d 151 (1980). The
circuit court explained that an act evidencing “willful disregard of the employer’s interest
or a wanton disregard of standards of behavior which the employer has a right to expect”
permits an employer to conclude that its employee has engaged in misconduct
sufficiently gross to justify dismissal. Graley v. W. Va. Parkways Econ. Dev. & Tourism
Auth., No. 91-PEDTA-225 (W. Va. Pub. Emp. Grievance Bd. Dec. 23, 1991) at 41 (citing
Buskirk v. Civil Serv. Comm’n, 175 W. Va. 279, 332 S.E.2d 579 (1985)).

       A chastened employee who unwisely blurts out an imagined retribution against the
source of his frustration may lack firm control of his emotions, but if the words spewed
forth are not intended to be taken seriously, the employee has merely exhibited poor
judgment and not substantial misconduct. The ALJ found that the statements made by
Mr. Williams, taken in context, amounted to grousing or blowing off steam. Based on
the record before us, that finding is not clearly wrong, and it must therefore be accepted
as the definitive resolution of the most critical material fact underlying this employment
dispute. Absent a serious threat from Mr. Williams, the DNR was without good cause to
dismiss him.4


[her], then no one else ever would,” and that he would kill himself after “tak[ing] care” of
her and others) with Jefferson v. Shepherd Univ., No. 07-HE-116, 2008 WL 2226722 (W.
Va. Pub. Emp. Grievance Bd. Mar. 12, 2008) at *1 (no palpable threat where grievant
complained generally to co-worker about supervisor that “[i]f it were not for my wife and
kids, it would come to blows,” and “[s]ometimes I am so angry I could come out
swinging”), and Bowe v. Workers’ Comp. Comm’n, 04-WCC-268 (W. Va. Pub. Emp.
Grievance Bd. Oct. 27, 2004) at 4 (grievant’s statement that supervisor “better have his
ducks in a row, because shit will hit the fan” communicated no serious threat of
violence).
       4
         The DNR urges that even if the statements did not constitute gross misconduct,
they nonetheless amounted to misconduct to a sufficient degree to justify a lesser
disciplinary action, particularly in light of the prior suspension of Mr. Williams for
making sexually inappropriate remarks. Specifically, DNR complains in its petition for
appeal that the Board’s exoneration of Mr. Williams “depriv[ed it] from citing this
incident for purposes of progressive discipline should [he] engage in similar, or even
different, misconduct in the future.” At oral argument, however, the DNR advised us that
Mr. Williams has voluntarily left his employment in the classified service. Inasmuch as
                                                                          (continued . . .)

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      For the foregoing reasons, we affirm the circuit court’s order of January 10, 2014,
upholding the Board’s Decision of August 19, 2013, reinstating Mr. Williams and
awarding him back pay.

                                                                                 Affirmed.

ISSUED: April 9, 2015

CONCURRED IN BY:

Acting Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II
Judge Christopher D. Chiles, sitting by temporary assignment

DISQUALIFIED:

Chief Justice Margaret L. Workman




there is virtually no possibility that the scenario envisioned by the agency will occur, its
argument for alternative discipline has been effectively mooted.



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