Troy Carter was a correctional officer and shift supervisor with the rank of lieutenant at the Department of Homeland Security (DHS), Southern Regional Jail and Correctional Facility in West Virginia. Carter received a call from Major Larry Warden in May 2022 “informing him that he was being suspended for 60 days pending investigation of a possible unreported use of force that occurred on January 25 or 26 of 2022.”
Sometime in the preceding four months, Carter and Corporal Pack were having a conversation over Southern’s A-Tower intercom. That conversation, recorded and transcribed as part of DHS’s investigation, included the following exchange:
Pack: I hate my f***ing job some days.
Carter: Say what?
Pack: I hate my f***ing job some days.
Carter: Why?
Pack: That (redacted) dumb mother f***er in Medical.
Carter: What did he do?
Pack: He apparently, you got one of the damn trustees coming through for whatever f***ing reason, hold on. Alright, anyway. He apparently, like climbed under (inaudible) bunk and was not coming out. Radosevich was like trying to, I don’t know Radosevich was trying to f***ing do, f***ing dick around with him I guess cause he was like holding on to the bed or whatever. I went in there and smacked him one good time in the f***ing ribs and was like mother f***er, if you don’t come out, you haven’t dealt with me yet. I said I will f***ing hurt you. I said get the f*** out. He said (Pack makes stuttering noises) and went to hawk a loogie or something. I said please spit on me. Old man or not, you’re about to lose your f***ing false teeth.
Carter: Did he listen to you?
Pack: (Pack makes stuttering noses again) Mamaw was like “yeah, I wouldn’t spit on that one.”
Carter: I love Mamaw.
Pack: He took his meds and everything once I got there. I don’t know what Radosevich was f***ing doing.
On the same day that Warden called Carter, the DHS sent Mr. Carter a letter to confirm his verbal, non-disciplinary suspension pending investigation of an unreported use of force. Following a predetermination hearing several weeks later, Carter was notified by letter that he was receiving a 40-hour suspension for failure to report a suspected use of force, listing numerous policy directives that he was alleged to have violated.
After the grievance process failed to resolve the issue, the West Virginia Public Employees Grievance Board found that Carter’s version of events was not credible, and that he had violated the mandatory reporting provision of a policy directive. The Board further concluded that Carter had failed “to establish a prima facie case that the discipline imposed upon him was the result of discrimination or retaliation and that even if he did, DHS had successfully rebutted such a claim by showing a legitimate non-retaliatory reason for the discipline.” Finally, the predetermination hearing, notice, and opportunity to respond that he was given negated any due process claim.
On appeal to the West Virginia Intermediate Court of Appeals, Carter prevailed, and the Court vacated and remanded. The Court found that the Board had failed to hold DHS to its burden, which was to prove, by a preponderance of the evidence, that the disciplinary action taken against Carter was justified.
“Despite the credibility analysis performed by the Board, the Board’s decision never addresses how, under the facts of this case, DHS met its burden of proving that Carter violated the provisions of the policy directives cited in the September 13, 2022, letter. Further, as to the policy directive provision relied on by the Board, the decision did not include any analysis of how Mr. Carter being informed of the possible use of force after the fact constitutes Mr. Carter ‘using and/or witnessing’ a use of force.”
Carter v. Department of Homeland Security, Southern Regional Jail and Correctional Facility, 2024 (W. Va. App. LEXIS 273).