West Virginia Department of Transportation/Division of Highways v. Thomas A. Powers

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
WEST VIRGINIA DEPARTMENT OF
TRANSPORTATION/DIVISION OF HIGHWAYS,
June 6, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Employer Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

vs.) No. 24-ICA-410 (Grievance Board Case No. 2024-0527-DOT)

THOMAS A. POWERS,
Grievant Below, Respondent

MEMORANDUM DECISION

Petitioner West Virginia Department of Transportation/Division of Highways
(“DOT”) appeals the September 16, 2024, order of the West Virginia Public Employees
Grievance Board (“Board”). Respondent Thomas A. Powers did not participate in this
appeal.1 The issue on appeal is whether the Board erred by reversing the DOT’s decision
to terminate respondent’s employment.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the Board’s decision but no substantial
question of law. This case satisfies the “limited circumstances” requirement of Rule 21(d)
of the Rules of Appellate Procedure for reversal in a memorandum decision. For these
reasons, the Board’s decision is reversed.

Mr. Powers worked for the DOT as a Transportation Construction Superintendent
with the Department of Highways. On October 19, 2023, a female crewmember under Mr.
Powers’ direct supervision reported that Mr. Powers and other crewmembers made
inappropriate sexual remarks and gestures to her during work. She informed one of Mr.
Powers’ superiors, Jeremy Casto, Assistant Director of Operations, and requested that she
be transferred to a new work crew. The DOT began investigating the matter in November
2023.

On December 12, 2023, a report substantiating the allegations was issued by the
DOT’s investigator. According to the report, the investigator interviewed Mr. Powers, the
female crewmember, and Mr. Powers’ coworkers and supervisors. In his interview, Mr.
Powers denied any wrongdoing. However, based upon the other interviews, the

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Petitioner is represented by Jack E. Clark II, Esq.

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investigator determined that between September 2023 and October 2023 Mr. Powers made
disparaging remarks towards women in the workplace and regularly made jokes of a sexual
nature. For example, the investigation showed that Mr. Powers often made jokes, remarks,
and engaged in conversation with male crew members about the female anatomy and
sexual intercourse. It was determined that, at times, the female crewmember was subjected
to those remarks and jokes.

Following the investigation, on January 5, 2024, Mr. Casto issued Mr. Powers a
Form RL-544 (“Form”), which included the recommendation that Mr. Powers’
employment be terminated. As the basis for this recommendation, the Form set forth that
the investigation substantiated Mr. Powers’ violation of the following subsections of DOT
Policy 3.26, Section 4.5, Prohibited Workplace Harassment: (B.) Improper questions about
an employee’s private life; (C.) Sexually discriminatory ridicule, insults, jokes, or
drawings; and (G.) Repeated sexually explicit or implicit comments of obscene and
suggestive remarks that are unwelcome or discomforting to the employee. This conduct
also violated the following subsections of DOT Policy 3.32, Section 4.2, Standards of Work
Performance and Conduct: (C.) Maintenance of high standard of personal conduct and
courtesy in dealing with the public, fellow employees, subordinates, supervisors, and
officials; and (J.) Refusal to engage in insulting, abusive, threatening, offensive,
defamatory, harassing, or discriminatory conduct or language and prompt reporting of the
same to the appropriate authority.2

On January 10, 2024, Mr. Powers participated in a predetermination meeting with
the DOT and was given the opportunity to respond to the Form and the disciplinary
recommendation of dismissal. Mr. Powers signed a verification of disciplinary action and
in response wrote: “My plea is I know I have violated policy[,] I understand it and I would
like to see if days off and put to work in Tennerton for my couple of months to March and
do the repair work there. And retire if at all possible.”

On January 12, 2024, the DOT issued Mr. Powers a letter of dismissal, which stated
that he was being terminated for gross misconduct, effective January 27, 2024, and further
explained:

The reason for your termination is your violation of the WVDOT Standards
of Work Performance. More specifically, but not limited to:

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The Form also noted Mr. Powers had a prior substantiated violation of DOT policy,
which resulted in his suspension in March 2022 for grabbing a subordinate around the
neck/collar and verbally threatening him. The Form further indicated a prior history of job-
related performance issues for Mr. Powers. However, the Board did not rely upon these
prior violations below, and they do not form the basis of our ruling in this appeal.
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A recent investigation revealed, with evidence, that you have been making
inappropriate sexual remarks and telling inappropriate jokes made
inappropriate sexual remarks and body gestures and told inappropriate jokes
to female subordinate employee. We have zero tolerance for this type of
behavior that undermines our policies, values, and safety at the WVDOT.

WVDOT Standards of Work Performance and Conduct:

C. Maintenance of high standard of personal conduct and courtesy in dealing
with the public, fellow employees, subordinates, supervisors, and officials.

E. Compliance with working rules, policies, procedures, regulations, and
laws that apply to DOT employees.

F. Avoidance of detrimental behavior, outside activity, employment, or
interests that may interfere with work performance or conduct, or that may
create a conflict of interest.

J. Refusal to engage in insulting, abusive, threatening, offensive, defamatory,
harassing, or discriminatory conduct or language and prompt reporting of the
same to the appropriate authority.

Thereafter, Mr. Powers filed his grievance on February 7, 2024, and requested a
level three hearing before the Board’s administrative law judge (“ALJ”). Hearings were
held on May 13, 2024, and July 2, 2024. The ALJ issued the Board’s decision on September
16, 2024, finding that the DOT had failed to meet its burden of proof and ordering that Mr.
Powers’ employment be reinstated.

In support of this decision, the Board’s order found that in its case in chief, the DOT
heavily relied upon hearsay testimony of the DOT’s investigator; the DOT adduced
testimony from select DOT employees who had previously given statements during the
investigation that corroborated the allegations against Mr. Powers, however, in their
testimonies at the administrative hearing, these witnesses gave contradictory recollections
of what they observed and effectively recanted their prior statements; Mr. Powers called
two witnesses who testified that he was not present at work at the time some of the alleged
misconduct occurred; the female crewmember was no longer employed by the DOT and
was not called as a witness; and there was no witness at the administrative hearing who
affirmatively testified that Mr. Powers engaged in the alleged inappropriate conduct. The
order further observed that the DOT made no attempt to refresh any witness’s memory or
use their prior statements to rehabilitate their testimony. It also determined that the DOT
investigator’s testimony was entitled to little weight.

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The Board’s order also specifically addressed Mr. Powers’ January 10, 2024,
written response to the proposed disciplinary action. Here, the Board declined to find that
this statement was a concession of wrongdoing by Mr. Powers, but rather, the order
concluded Mr. Powers’ statement “was simply attempting to be agreeable for settlement
purposes to at least be allowed to retire and did not admit to any factual allegation.”

The Board reinstated Mr. Powers’ employment and awarded him backpay, along
with the return of other benefits. This appeal followed.

In this appeal, we apply the following standard of review:

The court may affirm the order or decision of the agency or remand the case
for further proceedings. It shall reverse, vacate, or modify the order or
decision of the agency if the substantial rights of the petitioner or petitioners
have been prejudiced because the administrative findings, inferences,
conclusions, decision, or order are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 29A-5-4(g) (2021); accord W. Va. Code § 6C-2-5 (2024) (stating that this
Court has appellate jurisdiction over Board decisions).

On appeal, the DOT raises several points to argue that the Board erred in its
determination that the DOT had not met its burden of proof against Mr. Powers. Among
those arguments, the DOT contends that the Board’s conclusion that Mr. Powers’ January
10, 2024, statement was not an admission of wrongdoing was erroneous. The DOT
maintains that Mr. Powers’ statement establishes that his conduct violated DOT policy and
supported his termination. We agree.

In this case, the DOT had the burden of proving by a preponderance of the evidence
that the termination of Mr. Powers’ employment was justified. See W. Va. Code R. § 156-
1-3 (2018), 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.”). Moreover, Mr. Powers was
dismissed for good cause by the DOT. To be effective, a termination for good cause
requires “misconduct of a substantial nature directly affecting the rights and interest of the

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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).

Below, the Board’s order placed considerable emphasis on its determination that the
testimony of the DOT’s witnesses was inconsistent with their prior statements and
ultimately insufficient to prove Mr. Powers’ misconduct. Critically, however, the Board
gave de minimis consideration to Mr. Powers’ January 10, 2024, statement, which was
written and signed by Mr. Powers and provides the most competent evidence of whether
Mr. Powers violated DOT policy.

The reliable, probative, and substantial evidence establishes that Mr. Powers was
provided an opportunity to respond to the results of the sexual harassment/misconduct
investigation against him, as well as the disciplinary recommendation of dismissal. In plain
terms, Mr. Powers stated, “I know I have violated policy[,] I understand it.” While the
Board attempts to downplay Mr. Powers’ statement by concluding that he was just trying
to be “agreeable” without admitting to any factual allegation, we conclude that this
determination is clearly wrong.

Based upon the cited violations of DOT policy and reference to the November 2023
investigation and report, it is obvious that his statement was referring to the substantiated
findings of the investigation. Frankly, Mr. Powers’ statement speaks for itself and clearly
acknowledges that he committed significant violations of DOT policy. Moreover, when
considering that Mr. Powers’ superintendent position required supervising work crews
completing projects on our state’s public roads and the alleged misconduct occurred within
his own work crew during regular business hours, Mr. Powers’ misconduct was neither
trivial nor inconsequential. As such, the DOT justified its termination of Mr. Powers’
employment by a preponderance of the evidence. Therefore, the Board’s reinstatement of
Mr. Powers’ employment must be reversed.

Accordingly, we reverse the Board’s September 16, 2024, order.
Reversed.

ISSUED: June 6, 2025

CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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