CHARLESTON – A current and former employee of the state Department of Health and Human Resources have filed separate lawsuits against the agency for suspending them for almost four years without explanation.
Loretta Smith and Crystal Kendall filed their complaints in Kanawha Circuit Court against the DHHR.
“As far as I know, these cases are the first time the grievance board actually said the DHHR had violated the constitutional rights of two of its employees,” attorney Walt Auvil told The West Virginia Record. “I’ve never heard of that before or since.”
Walt Auvil
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According to the complaints, Smith is a resident of Calhoun County and works as a Child Protective Services worker, and Kendall is a former CPS supervisor who lived in Calhoun County before moving to Wood County.
On March 19, 2019, Smith, Kendall and co-worker Joyce Underwood were placed on a non-disciplinary suspension pending an investigation by the Office of Inspector General. Both Smith and Kendall filed grievances before the state Public Employees Grievance Board alleging retaliatory suspension without cause and asking “to be made whole in every way including back pay with interest and benefits restored.”
During the suspension, both women say they were terminated October 9, 2019, for alleged gross misconduct because of unwillingness to participate in OIG questioning. Their grievance hearings took place May 19, 2020. The board found the DHHR violated their due process rights to continued employment by suspending them without an opportunity to be heard while an unreasonably long investigation was conducted. It also granted Kendall’s grievance contesting her firing because the DHHR did not prove gross misconduct.
The board ordered the DHHR to complete any investigation and issue a report within 30 days. Within five days after the report, the DHHR was ordered to give the women a predetermination hearing before any discipline was handed out or to allow them to return to work.
The woman say the DHHR failed to comply with any aspects of that order but scheduled predetermination conferences for them.
The DHHR filed an appeal of the grievance board decision on June 30, 2020. But 20 months later, the appeal still hadn’t been heard. In March 2022, a Kanawha Circuit Court judge ruled in favor of both Smith and Kendall. Both had been on unpaid suspension for more than three years.
Once the appeal window closed, attorneys for both sides worked to establish a plan for return to work and to calculate lost wages. After several months of negotiations and discussions, Smith returned to work December 5, 2022, almost four years after she and Kendall had been suspended. Kendall decided to resign from her position and used sick days until her resignation became effective December 16, 2022.
The plaintiffs’ backpay issues were cleared up on April 3, 2023. Several months later, both women received backpay payments. Smith’s money was direct deposited into her bank account, and Kendall received a pay card. But there still were discrepancies in the amounts owed.
The women renewed their prior notice of suit on July 26, 2023. Kendall received another deposit from DHHR on her pay card for $10,000 on August 24, 2023.
“At no time during the nearly three years that the case was active did the WV DHHR Office of the Inspector General provide any findings or reports whatsoever, let alone present any findings of wrongdoing to support the lengthy, non-disciplinary, unpaid suspension, and this remains true to the date of the filing of this complaint,” both lawsuits state.
The plaintiffs accuse the DHHR of retaliation, civil contempt, intentional infliction of emotional distress and wage payment violation.
They seek damages for mental and emotional distress, injunctive relief, backpay, attorney fees and other relief.
Both women are being represented by Walt and Kirk Auvil of The Employment Law Center in Parkersburg.
Kanawha Circuit Court case number 23-C-982 (Smith) and 23-C-983 (Kendall)
