CHARLESTON - The state Supreme Court has affirmed a lower court decision to reinstate a Department of Highways mechanic back to work after his having been terminated for his alleged accessing of pornography on a state owned computer.

The per curiam opinion was filed on June 5 with Justice Allen H. Loughry II dissenting and filing a dissenting opinion. Justice Margaret L. Workman did not participate in the consideration or decision.

Kenneth R. Litten, a mechanic with the West Virginia Department of Transportation, Division of Highways, was alleged to have accessed and attempted to access pornographic websites on a computer owned by the State on Aug. 27, 2010. He was terminated by letter dated Nov. 29, 2010.

Litten’s User ID was utilized three times on Aug. 27, 2010 to search for pornographic images on the computer in the break room of the shop in Burlington. 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, had a unique User ID and password, and Litten and his co-workers were trained on the proper use of the State’s computer resources. There were 14 employees at the shop – nine mechanics, one welder, a shop foreman, an office assistant, an equipment supervisor and an assistant to the equipment supervisor.

Shortly after Aug. 27, 2010, the state Office of Technology discovered that “offensive search engine keywords” had been used on the computer under the User ID assigned to Litten. After an investigation, the office issued a Network Violation Report to the DOH regarding 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,” the opinion states.

After Litten was terminated, he filed a grievance challenging his termination with the West Virginia Public Employee Grievance Board. On Sept. 27, 2011, the Administrative Law Judge granted Litten’s grievance and directed that he be reinstated to employment with back pay and lost benefits.

The DOH appealed to the Circuit Court of Kanawha County, and the court entered an order affirming the ALJ’s decision on Jan. 23, 2012. The DOH then appealed to the state’s high court.

“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 court wrote.

“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 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 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.”

Although the number written on the bulletin board had been updated, the court concluded that it would not have been difficult for another individual to ascertain the updated password due to the pattern Litten used in updating. Also, the court noted that there was significant User ID and password sharing in the shop and Litten, nor any other employee, had not been charged with failure to secure his password.

It was also significant that there were work orders put into evidence which would have placed Litten on specific tasks away from the break room during the times he was alleged to have accessed the computer.

“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 opinion says.

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

“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.”

Loughry, dissenting, wrote, “The evidence in this case demonstrated that on August 27, 2010, Mr. Litten’s User ID and password were used to conduct internet searches in violation of the Office of Technology’s policies on Information Security and Network Violation Management, as well as the Department of Transportation’s policy regarding Proper Use of Information Technology.

“The search engine keywords, including such terms as 'crotchless,' 'blackzilla,' 'dildo' and 'nude,' were obviously designed to access pornographic and adult-oriented websites. The technological evidence also showed that Mr. Litten’s User ID had been used at varying times to conduct searches using keywords 'voyeur g string,' 'what boys want' and 'upskirt.'

“Significantly, the DOH presented evidence, albeit limited by the Administrative Law Judge, that Mr. Litten was the only employee ever observed by his coworkers viewing pornographic material and adult-oriented websites on the break room computer.

“The abundance of circumstantial evidence readily demonstrated that it was more likely than not that Mr. Litten was the individual accessing adult-oriented searches on August 27, 2010, all of which was sufficient to sustain the DOH’s termination of his employment,” Loughery concluded.

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