DIANNE LOGAR,
Grievant,
v. Docket No. 00-30-270
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
Dianne Logar (Grievant) initiated this grievance on July 10, 2000, alleging that the
principal at the school where she is employed as a teacher engaged in reprisal against her
by distributing confidential information about her to parents at a meeting on June 12, 2000.
She requests as relief the following: (1) public apology by principal for damage to her
professional reputation; (2) an end to all retaliatory action by Mr. Wolfe; and (3)
disciplinary action should be brought upon Mr. Wolfe. In response to the level one
grievance, Principal Ken Wolfe apologized to Grievant in a letter dated July 12, 2000.
Grievant appealed to level two, and a hearing was held on August 4, 2000. The grievance
was denied in a written level two decision dated August 10, 2000. Level three
consideration was bypassed, and Grievant appealed to level four on August 15, 2000. On
September 13, 2000, the parties agreed that this matter could be submitted for a decision
based upon the record developed below. This grievance was assigned to the undersigned
administrative law judge on September 21, 2000.
(See footnote 1)
The following findings of fact are made from a preponderance of the evidence ofrecord.
Findings of Fact
1. Grievant is employed as a seventh grade teacher at Cheat Lake Middle
School.
2. Grievant recently filed a grievance alleging harassment by her principal, Ken
Wolfe.
See Logar v. Monongalia County Bd. of Educ., Docket No. 00-30-218 (Sept. 22,
2000 (Logar I). The allegations involved in that grievance revolved around Grievant's
removal, in October of 1999, by Mr. Wolfe from participation in team meetings held by
the seventh grade teachers.
3. On June 12, 2000, Mr. Wolfe held a meeting with approximately 20
concerned parents of fifth grade students regarding the possibility of moving fifth grade
classes to exterior buildings located adjacent to the main school building at Cheat Lake
Middle School.
4. At the June 12 meeting, Mr. Wolfe distributed several letters and
memorandums, authored by various groups of teachers, expressing support for the
relocation of the fifth grade classes. Included in the group of letters was a letter dated
June 5, 2000, from the seventh grade teachers, which stated, in part:
Recognizing that diversity of opinion is necessary and expected in the
group decision-making process, our efforts to work with Mrs. Dianne Logar
have proven futile. Without her attendance at team meetings, we have
become cohesive and more productive. As members of the seventh grade
team, we respectfully request that Mrs. Logar not participate in team
meetings during the 2000-2001 school year. Based on events of this year,
we would again expect continued difficulties (as stated more in depth in
previous communications with you.)
Areas of concern include: intimidation tactics, lack of cooperation,
disrespect to team members, refusal to follow team decisions or
administrative direction, negative attitude, and open distrust displayed at
meetings. These unprofessional behaviors are a barrier to effective
teaming.
5. The June 5, 2000, letter from the seventh grade teachers also contained the
statement: [w]e continue to support your decision made at the beginning of this school
year and the findings of the Level II grievance procedure.
6. Grievance Evaluator Louis Hlad rendered a level two decision in Logar I on
June 16, 2000, denying the grievance.
7. Mr. Lake's secretary had copied the documents to be distributed at the June
12 meeting, which he did not review prior to the meeting. Mr. Lake became aware that the
letter regarding Grievant had been included in the documents distributed at the meeting
when Grievant initiated this grievance on July 10, 2000.
8. Upon discovering that the letter regarding Grievant had been distributed at
the meeting, Mr. Lake issued the following letter to Grievant on July 10, 2000:
I would like to make an apology for the information, which was part of
a packet copied for the June 12 meeting held with some 5th grade parents.
When copies were made of the information concerning the reorganization
of the fifth grade classrooms this letter was inadvertently placed in this
packet. I am sorry for this obvious mistake and will certainly be more careful
in the future.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving her grievance by a preponderance of the evidence. Procedural Rules of theW. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Holly v.
Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell
County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.
Grievant contends that Mr. Lake intentionally distributed the letter in an effort to
damage her reputation, after she had filed a grievance against him earlier this year.
W. Va. Code § 18-29-2(p) defines "reprisal" as "the retaliation of an employer or agent
toward a grievant or any other participant in the grievance procedure either for an alleged
injury itself or any lawful attempt to redress it." A grievant claiming retaliation may
establish a prima facie case of reprisal by establishing:
(1) that she engaged in protected activity, e.g., filing a grievance;
(2) that she was subsequently treated in an adverse manner by the employer
or an agent;
(3) that the employer's official or agent had actual or constructive knowledge
that the employee engaged in the protected activity; and
(4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment.
Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
See
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251
(1986);
Fareydoon-Nezhad v. W. Va. Bd. of Trustees/Marshall Univ., Docket No.
94-BOT-088 (Sept. 19, 1994);
Webb v. Mason County Bd. of Educ., Docket No. 89-26-56
(Sept. 29, 1989). If a grievant establishes a prima facie case of reprisal, the employer may
rebut the presumption of retaliation raised thereby by offering legitimate, non-retaliatory
reasons for its actions.
See Mace v. Pizza Hut, Inc., 377 S.E.2d 461 (W.Va. 1988);
Shepherdstown Vol. Fire Dept. v. W. Va. Human Rights Comm'n, 309 S.E.2d 342 (W. Va.
1983);
Webb,
supra.
The evidence presented by Grievant fails to explain the required causal
connection between her prior grievance against Mr. Lake and his alleged effort to damage
her reputation with this particular group of fifth grade parents. One would think that, if Mr.
Lake truly desired to harm Grievant's reputation, he would not have selected this particular
audience. Nevertheless, Mr. Lake provided a rational explanation of how this letter
inadvertently got distributed at the meeting. Included in the same group of documents
distributed at the meeting were several other letters of similar format, all of which were
signed by groups of teachers from particular grade levels. Mr. Lake testified that he had
also received such a letter from the seventh grade teachers, possibly on the same day that
he received the letter from them regarding Grievant. It is easy to imagine that, when Mr.
Lake collected letters for the meeting, giving them to his secretary for copying, he
mistakenly included the letter about Grievant. Grievant has not proven Mr. Lake's act was
intentional or motivated by retaliation.
Although Mr. Lake has apologized to Grievant for his mistake, she contends that,
in order to salvage her reputation, he must issue a public apology, at least to all of the
people who were present at the June 12 meeting. While Grievant's concern for her
reputation is certainly understandable, a public apology is not available as relief from this
Grievance Board.
Fekete v. Bd. of Trustees, 95-BOT-484 (Aug. 2, 1996);
Maxey v. W. Va.
Dept. of Health and Human Resources/Div. of Human Services, Docket No. 92-HHR-504
(Feb. 4, 1993);
Helvey v. Workers' Compensation Fund, Docket No. 91-WCF-034 (March30, 1992).
Moreover, as pointed out by Respondent, since it is unknown how many of the
people at the meeting actually read the letter, calling attention to it through a public
apology could actually cause Grievant more embarrassment. Accordingly, Grievant's
request for a public apology must be denied.
Likewise, the Grievance Board is without authority, statutory or otherwise, to order
that disciplinary action be taken against another employee.
Coster v. W. Va. Div. of
Corrections, Docket No. 98-CORR-506 (Feb. 24, 1999);
Daugherty v. Bd. of Directors,
Docket No. 93-BOD-295 (Apr. 27, 1994).
See Daggett v. Wood County Bd. of Educ.,
Docket No. 91-54-497 (May 14, 1992). Accordingly, Grievant's request for disciplinary
action against Mr. Lake is also denied.
Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law
1. In a non-disciplinary matter, Grievant has the burden of proving her
grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. &
State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996);
Holly v. Logan County Bd. of
Educ., Docket No. 96-23-174 (Apr. 30, 1997);
Hanshaw v. McDowell County Bd. of Educ.,
Docket No. 33-88-130 (Aug. 19, 1988).
See W. Va. Code § 18-29-6.
2. A grievant claiming retaliation under
W. Va. Code § 18-29-2(p) may establish
a prima facie case of reprisal by establishing:
(1) that she engaged in protected activity, e.g., filing a grievance;
(2) that she was subsequently treated in an adverse manner by the employer
or an agent;
(3) that the employer's official or agent had actual or constructive knowledge
that the employee engaged in the protected activity; and
(4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment.
Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
See
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251
(1986);
Fareydoon-Nezhad v. W. Va. Bd. of Trustees/Marshall Univ., Docket No.
94-BOT-088 (Sept. 19, 1994);
Webb v. Mason County Bd. of Educ., Docket No. 89-26-56
(Sept. 29, 1989).
3. A public apology is not available as relief from this Grievance Board.
Fekete
v. Bd. of Trustees, 95-BOT-484 (Aug. 2, 1996);
Maxey v. W. Va. Dept. of Health and
Human Resources/Div. of Human Services, Docket No. 92-HHR-504 (Feb. 4, 1993);
Helvey v. Workers' Compensation Fund, Docket No. 91-WCF-034 (March 30, 1992).
4. Grievant has failed to establish that the distribution of a letter regarding her
at a meeting with fifth grade parents was the result of reprisal, and she is not entitled to
any of the relief requested.
Accordingly, this grievance is DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County or theCircuit Court of Mongalia 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: September 25, 2000 _______________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1