JOHN WARD,
Grievant,
v. Docket No. 00-49-101
UPSHUR COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
John Ward (Grievant) filed this grievance directly at level four on March 16, 2000,
challenging a ten-day suspension without pay. He seeks as relief reimbursement for ten
days' pay, plus interest. A level four hearing was held before the undersigned
administrative law judge in the Grievance Board's office in Elkins, West Virginia, on June
7, 2000, July 27, 2000, and September 25, 2000. Grievant was represented by William
C. White, Representative for the West Virginia Education Association, and Respondent
was represented by counsel, Kimberly S. Croyle. This matter became mature for
consideration upon receipt of the parties' fact/law proposals on November 3, 2000.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant is employed by Respondent Upshur County Board of Education
(UCBOE) as a sixth grade English teacher at Buckhannon-Upshur Middle School(BUMS). He has been employed by UCBOE as a classroom teacher for approximately
twenty years.
2. On February 24, 2000, D.M.
(See footnote 1)
, a student in Grievant's ninth period class,
disrupted the class twice by pretending to fall out of his desk and causing the other
students to laugh. He was verbally warned by Grievant on both occasions to cease this
disruptive conduct.
3. After having disrupted the class as described above, D.M. then pretended
to trip over another student's feet (J.K.) on his way back to his desk from the pencil
sharpener, again falling on the floor and causing the class to laugh.
4. Once D.M. had returned to his desk, Grievant placed both hands on D.M.'s
desk, and pulled or scooted the desk forward approximately two feet (with D.M. still
seated in the desk). Grievant then leaned down in D.M.'s face, saying Stop it--you had
better hope I don't lose my patience.
5. Grievant may have raised his voice slightly, but he did not yell or scream at
D.M. when he moved D.M.'s desk forward.
6. Immediately after Grievant moved D.M. and his desk forward, D.M. moved
his desk back to its original position and continued with his school work. Grievant did not
respond to D.M. moving the desk back. 7. Grievant moved D.M.'s desk in order to separate him from the other students
and to make it clear to him that his misbehavior must stop.
8. On November 3, 1983, Grievant lost his temper with a disruptive student and
threw a book at him. Grievant received a written reprimand as a result of this incident.
9. On February 5, 1985, a ten-year-old student made an obscene gesture
toward Grievant and called him an obscene name. Grievant responded by grabbing her,
lifting her up by the coat, and shouting at her. Grievant was again reprimanded for his
conduct.
10. On October 15, 1987, Grievant pulled his car in front of a school bus, forcing
it to stop, so he could confront a high school student. He then followed the bus to the
student's home and engaged in a verbal confrontation with the student and his parents.
Grievant received a written reprimand as a result of this incident and was placed on an
improvement plan. Grievant successfully completed the improvement plan and was
complimented by UCBOE officials for his receptiveness to suggestions and his willingness
to improve.
11. On May 23, 1990, Grievant threw a stool across his classroom to
demonstrate to students what would happen if he lost his temper with them. Grievant was
suspended for five days as a result of this incident.
12. As a result of the incident which occurred with D.M. on February 24, 2000,
Superintendent Mary Alice Klein recommended that Grievant be suspended for ten days
without pay for willful neglect of duty, insubordination, and violating the State Board ofEducation Teacher Code of Conduct and the Upshur County Teacher Code of Conduct.
This recommendation was ratified by UCBOE.
Discussion
In disciplinary matters, the employer bears the burden of establishing the charges
by a preponderance of the evidence.
W. Va. Code §18-29-6;
Hoover v. Lewis County Bd.
of Educ., Docket No. 93-21-427 (Feb. 24, 1994);
Landy v. Raleigh County Bd. of Educ.,
Docket No. 89-41-232 (Dec. 14, 1989). A preponderance of the evidence is defined as
"evidence which is of greater weight or more convincing than the evidence which is offered
in opposition to it; that is, evidence which as a whole shows that the fact sought to be
proved is more probable than not."
Black's Law Dictionary (6th ed. 1991),
Leichliter v. W.
Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where
the evidence equally supports both sides, a party has not met its burden of proof.
Id.
The authority of a county board of education to suspend an employee must be
based upon one or more of the causes listed in
W. Va. Code § 18A-2-8, and must be
exercised reasonably, not arbitrarily or capriciously.
Parham v. Raleigh County Bd. of
Educ., 192 W. Va. 540, 453 S.E.2d 374 (1994),
Bell v. Kanawha County Bd. of Educ.,
Docket No. 91-20-005 (Apr. 16, 1991);
See Beverlin v. Bd. of Educ., 158 W. Va. 1067, 216
S.E.2d 554 (1975).
W. Va. Code § 18A-2-8 provides, in pertinent part:
Notwithstanding any other provisions of law, a board may suspend or
dismiss any person in its employment at any time for: Immorality,
incompetency, cruelty, insubordination, intemperance, willful neglect of duty,
unsatisfactory performance, the conviction of a felony or a guilty plea of nolo
contendere to a felony charge. A charge of unsatisfactory performance shall
not be made except as the result of an employee performance evaluation
pursuant to section twelve of this article.
Along with charging Grievant with willful neglect of duty and insubordination,
Respondent contends that Grievant has violated provisions of both the state and county
versions of the teacher code of conduct. The suspension of a classroom teacher based
upon violations of state or county policy may be upheld, but only if the employee's conduct
also falls within one or more of the listed reasons set forth in the statute.
Brown v. Mercer
County Bd. of Educ., Docket No. 98-27-113 (July 30, 1998). The proper focus is whether
the charge of misconduct is proven, not the label attached to such conduct.
Gillespie v.
Kanawha County Bd. of Educ., Docket No. 90-20-496 (June 6, 1991)
(citing Russell v.
Kanawha County Bd. of Educ., Docket No. 90-20-415 (Jan. 24, 1991)).
Insubordination is the "willful failure or refusal to obey reasonable orders of a
superior entitled to give such order."
Riddle v. Bd. of Directors, So. W. Va. Community
College, Docket No. 93-BOD-309 (May 31, 1994);
Webb v. Mason County Bd. of Educ.,
Docket No. 26-89-004 (May 1, 1989). It "encompasses more than an explicit order and
subsequent refusal to carry it out. It may also involve a flagrant or willful disregard for
implied directions of an employer."
Sexton v. Marshall Univ.
, Docket No. BOR2-88-029-4
(May 25, 1988) (
citing
Weber v. Buncombe County Bd. of Educ.
, 266 S.E.2d 42 (N.C.
1980)). In order to establish insubordination, an employer must demonstrate that a policy
or directive that applied to the employee was in existence at the time of the violation, and
the employee's failure to comply was sufficiently knowing and intentional to constitute the
defiance of authority inherent in a charge of insubordination.
Conner v. Barbour County
Bd. of Educ.
, Docket No. 94-01-394 (Jan. 31, 1995). To prove willful neglect of duty, the employer must establish that the employee's
conduct constituted a knowing and intentional act, rather than a negligent one.
Hoover v.
Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994).
See Bd. of Educ. v.
Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990). Although the West Virginia Supreme
Court has not formulated a precise definition of willful neglect of duty, it does encompass
something more serious than incompetence and requires "a knowing and intentional act,
as distinguished from a negligent act."
Chaddock,
supra. Willful neglect of duty has also
been defined as an employee's intentional and inexcusable failure to perform a
work-related responsibility.
Adkins v. Cabell County Bd. of Educ., Docket No. 89-06-656
(May 23, 1990).
Grievant contends that he did not knowingly nor intentionally engage in any type
of conduct which he knew or should have known was prohibited. He introduced the
testimony of several other teachers employed by Respondent who testified that they had
moved a desk, with a student seated in it, as a classroom management technique. The
instances described by these teachers usually involved a disruptive student whom the
teacher wished to separate from the other students. None of these teachers had raised
their voices or engaged in this conduct out of anger. Respondent argues that the
situations described by the other teachers were dissimilar from the instant case, and points
out that none of those teachers had been previously reprimanded for using inappropriate
discipline techniques.
Respondent agrees with Grievant's contention that there is no UCBOE policy which
specifically prohibits moving an occupied student desk. However, it contends thatGrievant's conduct violated portions of the state and county teacher code of conduct
requiring teachers to provide a safe and positive learning environment and treat students
fairly and with a caring, honest and professional attitude. Moreover, Respondent believes
that Grievant knowingly and intentionally committed an act which he knew was prohibited,
constituting insubordination and willful neglect of duty. As noted above, the focus in
disciplinary cases is upon whether or not the employee's misconduct falls into one or more
of the categories listed in
W. Va. Code § 18A-2-8. Both insubordination and willful neglect
of duty require an employer to prove that the conduct and the defiance of authority were
knowing and intentional.
Although it is obvious that Grievant has had a difficult history involving dealing with
children who pose disciplinary problems, it should be noted that the latest of those
incidents occurred approximately ten years ago. Moreover, Respondent has failed to
prove by a preponderance of the evidence that Grievant actually lost his temper with D.M.
The students seated near D.M. when the incident occurred all testified that Grievant did
not yell at D.M. and that D.M. did not seem afraid. In fact, D.M. moved his desk back to
its original position immediately after Grievant pulled him toward the front of the classroom.
This does not appear to be an action consistent with a student who is afraid or fearful.
Unlike the incidents for which Grievant was disciplined in the past, this did not
involve a loss of temper followed by a physical threat or violent act. Respondent has
attempted to prove that the movement of the desk with D.M. seated in it was a violent act,
followed by a threat. The evidence simply does not support this contention. D.M.'s own
actions demonstrate that he did not feel threatened by Grievant's conduct. In addition,Grievant's statement that D.M. had better hope I don't lose my patience could have
meant that D.M. would be referred to the office for discipline if he committed any further
infractions. This would not constitute an inappropriate threat for a teacher to make to a
student who is misbehaving, as UCBOE officials admitted.
Although Grievant could have used another method to deal with D.M.'s misbehavior,
such as sending him to the office, his conduct does not rise to the level of a knowing and
intentional act. It is true that Grievant has been disciplined in the past for disciplining
students inappropriately, but the evidence presented does not establish that Grievant
knew or should have known that his conduct in this instance was also inappropriate or that
he would be disciplined for it. Accordingly, Respondent has failed to meet its burden of
proof, and the 10-day suspension must be reversed.
Conclusions of Law
1. In disciplinary matters, the employer bears the burden of establishing the
charges by a preponderance of the evidence.
W. Va. Code §18-29-6;
Hoover v. Lewis
County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994);
Landy v. Raleigh County Bd.
of Educ., Docket No. 89-41-232 (Dec. 14, 1989).
2. The authority of a county board of education to suspend an employee must
be based upon one or more of the causes listed in
W. Va. Code § 18A-2-8, and must be
exercised reasonably, not arbitrarily or capriciously.
Parham v. Raleigh County Bd. of
Educ., 192 W. Va. 540, 453 S.E.2d 374 (1994),
Bell v. Kanawha County Bd. of Educ.,
Docket No. 91-20-005 (Apr. 16, 1991);
See Beverlin v. Bd. of Educ., 158 W. Va. 1067, 216
S.E.2d 554 (1975). 3. A board of education employee may be suspended at any time for immorality,
incompetency, cruelty, insubordination, intemperance, willful neglect of duty, unsatisfactory
performance, the conviction of a felony or a guilty plea of nolo contendere to a felony
charge.
W. Va. Code § 18A-2-8.
4. In order to establish insubordination, an employer must demonstrate that a
policy or directive that applied to the employee was in existence at the time of the violation,
and the employee's failure to comply was sufficiently knowing and intentional to constitute
the defiance of authority inherent in a charge of insubordination.
Conner v. Barbour
County Bd. of Educ.
, Docket No. 94-01-394 (Jan. 31, 1995).
5. To prove willful neglect of duty, the employer must establish that the
employee's conduct constituted a knowing and intentional act, rather than a negligent one.
Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994).
See Bd. of
Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990).
6. Respondent failed to prove by a preponderance of the evidence that Grievant
committed actions constituting insubordination or willful neglect of duty on February 24,
2000.
Accordingly, this grievance is GRANTED. Respondent is ORDERED to expunge
all records of Grievant's ten-day suspension, and reimburse him all back pay and benefits
to which he would have been entitled during the suspension period, plus interest at the
statutory rate.
Any party may appeal this Decision to the Circuit Court of Kanawha County or the
Circuit Court of Upshur County, and such appeal must be filed within thirty (30) days of
receipt of this Decision. W. Va. Code § 18-29-7. Neither the West Virginia Education and
State Employees Grievance Board nor any of its Administrative Law Judges is a party to
such appeal and should not be so named. However, the appealing party is required by
W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance
Board. The appealing party must also provide the Board with the civil action number so
that the record can be prepared and properly transmitted to the appropriate circuit court.
Date: November 16, 2000 _______________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1