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.” 

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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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