v. Docket No. 99-BOT-348
BOARD OF TRUSTEES/
MARSHALL UNIVERSITY,
Respondent.
The Grievance Evaluator recommended Grievant "be employed on a regular basis
for the 1998-1999 year, and a thorough evaluation of her performance be conductedconsistent with the requirements set forth in Policy Series 36." Id. President Wade Gilley
accepted this recommendation, and noted Grievant should receive "a thorough evaluation
of [her] performance and a decision concerning [her] continued employment be made at
that time." Id. Neither Grievant or Respondent appealed this Decision, and Grievant was
issued a regular contract for the 1998-1999 year. Accordingly, the ruling was accepted
by both parties.
Obviously, MU is bound by the substantive and procedural requirements set forth in Series
36; however, the burden of proof in this matter rests with Grievant.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of the Cabell County. Any 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.
___________________________________
Dated: April 7, 2000
This grievance was denied at the lower levels, and Grievant appeal to Level IV on
August 20, 1999. A telephonic, pre-hearing conference was conducted on November 11,
1999, to discuss the motions raised by Grievant.
(See footnote 1)
A Level IV hearing was held on
November 15 and 16, 1999, and this case became mature for decision on February 2,
2000, after receipt of the parties' proposed findings of fact and conclusions of law.
(See footnote 2)
Prior to a discussion of this specific grievance, the prior history of grievances and
the motions offered in the pre-hearing conference will be discussed.
Grievant's second motion dealt with Grievant's terminal contract. Grievant also
argued the terminal contract should be rescinded because Respondent's termination of
Grievant's employment during her fifth year of employment prevents her from applying for
tenure. "Prior to a teacher reaching tenure eligibility status [the employer] can decide not
to renew the annual teaching contract and thereby terminate the teacher without the
necessity of any reasons or hearing. . . ." McLendon, supra. Since Grievant was in her
fifth year at the time she received her terminal contract she had not yet reached "tenure
eligibility status." Accordingly, Respondent is within its rights and discretion to terminate
Grievant at this time.
Grievant's second motion also alleges that because Respondent used the term,
"terminal contract", in her letter of non-renewal instead of the term, notice of non-renewalof contract the terminal contract should be rescinded.
(See footnote 3)
Since the terms noted by Grievant
are at times used interchangeably, this Motion was also denied. See n. 3.
A review of the prior grievance history will be helpful to the reader and should aid
in understanding this grievance and the rulings of the undersigned Administrative Law
Judge.
At the close of her fourth year of teaching in the School of Nursing,
(See footnote 4)
Grievant was
given her first terminal contract. She grieved this contract, and at Level II the Grievance
Evaluator recommended the grievance be granted. This ruling stated:
[t]he evidence of ineffective teaching and advising is not voluminous, but
would be acceptable for the examiner to sustain Ms. Rider's nonappointment
if that were the only issue. However, the grievant was not provided with an
evaluation of her third year of employment, a year when one of the major
instructional deficiencies was observed. This omission is a clear violation
of BOT and University policy, and must be resolved through positive action
of the School of Nursing.
Resp. Ex. No. 2, at Level II.
On December 28, 1998, Grievant filed two more grievances.
(See footnote 5)
Grt. Exh. Nos. 22 &
23, at Level IV. One dealt with a written reprimand, dated December 16, 1998, Grievant
received from Associate Dean Linda Scott. This written reprimand reviewed Grievant's
professional conduct during her tenure with the School of Nursing, and noted her behavior
during the Fall semester (1998) constituted incompetence and negligence. The other
grievance focused on a December 3, 1998 letter from Dean Welch which, in essence,
constituted a written reprimand. This letter indicated Grievant had failed to carry out her
required duties in the Spring of 1998, while she served on the Faculty Affairs Committee.
The letter stated Grievant's behavior was unprofessional and unacceptable.
(See footnote 6)
In these two grievances, Grievant alleged these written reprimands were the result
of reprisal for filing her own grievances and for participating in the grievance of another
employee. Grievant also asserted discrimination, retaliation, unfair treatment, and
harassment. Grievance Evaluator Sandra Clements recommended these grievances bedenied on March 1, 1999, and this recommendation was accepted by President Gilley on
March 4, 1999. Grievant did not appeal these rulings.
In the grievance relating to the written reprimand from Associate Dean Scott, the
Grievance Evaluator found 1) conducting two evaluations of Grievant each semester was
reasonable; 2) Grievant gave her own final exam without permission of the course
coordinator; and 3) Grievant copied a great deal of material and when asked about this
she did not explain, but instead replaced the paper. The Grievance Evaluator held
Grievant's decision to give a test without permission was wrong, and the written reprimand
was appropriate given Grievant's actions. Additionally, the Grievance Evaluator did not
find that the issuance of the written reprimand constituted harassment, reprisal, retaliation,
or unfair treatment.
In the grievance relating to the written reprimand from Dean Welch, the Grievance
Evaluator found the disciplinary action was based on Grievant's testimony during a
grievance hearing in which "[Grievant] gave testimony . . . that she had not read Ms.
Karle's tenure folder, [and] had relied on the opinion of other Faculty Affairs Committee
members in making her decision about tenure." Resp. Ex. No. 10, at Level II. The
Grievance Evaluator found Dean Welch was "well within her rights and responsibilities as
the Dean of the School of Nursing to issue a reprimand to Ms. Rider when she learned that
she had not carried out her duties as a member of the Faculty Affairs Committee." Resp.
Ex. No. 10, at Level II. Again, the Grievance Evaluator did not find that the issuance of
the written reprimand constituted harassment, reprisal, retaliation, or unfair treatment.
Grievant filed the present grievance when she received a terminal contract for the1999-2000 year. However, in this grievance she has again alleged harassment,
retaliation, and reprisal since the filing her first grievance in 1998. Grievant cited many of
the same actions that were discussed in the two December grievances as proof of this
behavior toward her. These actions have been ruled on by Grievance Evaluator Clements.
Because Grievant did not appeal the decisions of these two grievances she filed in
December 1998, these issues in those grievances are deemed abandoned, and cannot
be considered further by this Grievance Board. Floren v. Kanawha County Bd. of Educ.,
Docket No. 93-20-327 (May 31, 1994). See Holmes v. Bd. of Directors/W. Va. State
College, Docket No. 99-BOD-216 (Dec. 28, 1999); Pack v. Kanawha County Bd. of Educ.,
Docket No. 93-20-483 (June 30, 1994). Of course, Grievant can and did argue that other
actions by the Respondent could be examples of harassment, retaliation, and reprisal, and
she can argue her second terminal contract was issued incorrectly.
Grievant makes multiple arguments. She argues the terminal contract should be
reversed because she did not receive a statement of reasons from President Gilley, her
termination was the result of harassment, retaliation, and reprisal, and the action was
arbitrary and capricious, and contrary to statutes, regulations, rules, and policies.
(See footnote 7)
Grievant maintains she has been treated unfairly by Dean Welch since Dean Welch was
a student in Grievant's lab section. Respondent maintains the Grievant was properly terminated for ineffective teaching
and advising and ineffective university service. It notes the action was not arbitrary and
capricious, and that Grievant's termination was not the result of harassment or retaliation.
Respondent agrees Grievant did not receive a statement of reasons from President Gilley,
but that all other procedural rules were followed, and as this failure did not cause Grievant
any harm, it should not result in the reversal of her terminal contract.
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact. Because certain incidents were
discovered out of chronological order, the events and issues of this grievance, especially
where they deal with occurrences in specific nursing classes and situations, will be
discussed under those headings.
1. Grievant was employed by the School of Nursing in 1994 in a tenure-track
position. The first year of her employment she received a rating of "good" in her yearly
evaluation.
2. Overall, there have been few complaints about Grievant's presentation of
lecture material or her didactic teaching skills. The majority of the complaints and
allegations of ineffective teaching came from her performance and behavior in the clinical
area. There were also complaints of ineffective advising.
3. During Grievant's teaching career, the Associate Dean of the SON graduate
program has been Dr. Giovanna Morton. From the time Grievant began as a faculty
member until July 1997, the Associate Dean of the undergraduate program was Dr. JudithSortet; after July 1997, the Associate Dean of the undergraduate program was Dr. Linda
Scott.
Graduate Courses and Assignments
Nursing 622
4. In the Fall of 1994, Grievant taught one of two labs in a graduate level
course, Nursing 622, Advanced Family Nursing I. She also taught this course in the Fall
of 1995, 1996, and 1997. In the Fall of 1994, students complained the material covered
in Grievant's section of the class differed from the other section. In the Fall of 1995, 1996,
and 1997, when Grievant taught both sections of the course alone, students complained
Grievant spent too much time in lecture and insufficient time on practice of the assessment
skills taught in the course. Dr. Diana Stotts, the course coordinator,
(See footnote 8)
spoke to Grievant
about these problems each semester without a change in Grievant's teaching behavior.
Resp. Ex. No. 32, at Level II.
5. On February 18, 1999, Associate Dean Scott wrote Dr. Morton asking if she
had a placement for Grievant for Fall 1999, as Grievant was three hours short of a full
load. Resp. Ex. No. 19, at Level II.
6. In a memo dated February 18, 1999, Dr. Morton informed Associate Dean
Scott that because of past problems with Grievant, the course coordinator for AdvancedFamily Nursing recommended Grievant not be given any responsibilities in these courses.
Resp. Ex. No. 20, at Level II.
Nursing 626
7. In Fall 1997, Grievant was assigned to teach both labs of Nursing 626, a
graduate course. She was not the course coordinator. Dr. Morton received complaints
that Grievant repeated previously taught content, and taught materials out of order. Grt.
Ex. No. 8, at Level II.
8. Dean Welch and Associate Dean Scott
(See footnote 9)
were students in one of Grievant's
labs. Dean Welch complained to Dr. Morton that Grievant repeated information and taught
chronic disease processes in an acute disease class.
(See footnote 10)
Grt. Ex. No. 8 at Level II.
9. Because of these complaints and other incidents that occurred while Grievant
was clinical preceptor, it was determined that it was best to reassign [Grievant] to other
courses." Resp. Ex. No. 37, at Level II.
10. Dean Welch and Associate Dean Scott received a "B" in the course and were
satisfied with this grade. Dean Welch and Associate Dean Scott do not blame Grievant
for the grade they received in this course.
11. Dr. Barbara Koster was the course coordinator for the course and was the
faculty member responsible for determining the grades received by Dean Welch and
Associate Dean Scott. Graduate Precepting in Nursing 624
(See footnote 11)
12. In the Spring of 1998, Grievant accepted the responsibility of precepting a
graduate student at West Virginia Health Right ("WVHR"). At some point during the
clinical experience, Grievant told the student the personnel at WVHR were doing illegal
things, and she was leaving. Without seeking prior permission from Dr. Morton, Grievant
reassigned the student to another facility. Resp. Ex. No. 37, at Level II.
13. Dean Welch wrote Grievant on February 9, 1998, noting, "I am seriously
concerned about your lack of responsibility for students' learning during the past few
semesters and with the current semester in the SON. You have on several occasions and
in several different courses not provided students with the clinical experiences required
by the particular course. In addition, you have not discussed the lack of providing an
opportunity for student learning with the course coordinators. As an example[,] this
semester you told a student that you were changing her rotation without first discussing
it with the course coordinator or associate dean. This type of behavior on your part
demonstrates a lack of accountability to those responsible for courses in which you teach.
The above behaviors on your part are unacceptable for a faculty member in the School of
Nursing." Resp. Ex. No. 37, at Level II.
14. Dean Welch discussed the letter with Grievant on February 9, 1998. Dean
Welch reiterated Grievant was accountable to the course coordinator and could not take
it upon herself to make changes without prior discussion with the appropriate person. Grievant was also informed she could come back to discuss the memo when she had
reflected on it. Resp. Ex. No. 37, at Level II.
15. Dr. Morton also conferred with Grievant and informed her that all clinical
assignments and student preceptorships had to be coordinated through Nancy Fagan or
Dr. Morton, as it was important to assure all parties were in agreement with the student's
placement. Dr. Morton also discussed Grievant's inappropriate statements to the student.
"[Grievant] did not see she had acted inappropriately in either situation and said she was
just trying to help the student." Resp. Ex. No. 37, at Level II.
16. During the course of this conference, Grievant shared the letter quoted in
Finding of Fact 13 with Dr. Morton. When Dr. Morton asked Grievant how she thought
she did with her undergraduate assignments, Grievant denied she had any difficulty.
Resp. Ex. No. 37 at Level II.
Nursing 580 and 616
17. During the Spring semester of 1998, Grievant had been tentatively assigned
to teach two graduate level courses, Nursing 580 and 616, in Fall 1998.
18. On June 8, 1998, after Grievant had filed her first grievance, these classes
were canceled by Dr. Morton because only one student had signed up for Nursing 580 and
no students had signed up for Nursing 616. Resp. Ex. No. 38, at Level II. It is SON past
practice to cancel classes if an insufficient number of students enroll. It is not SONpractice to wait to reassign faculty in the Fall after final registration.
(See footnote 12)
Test. Dean Welch,
Level IV hearing.
Undergraduate Nursing Courses
Nursing 325 - Academic year 1995 - 1996
19. During Grievant's second year of employment, she experienced difficulty in
Nursing 325, a course in which she had students in a pediatric, clinical area. Students'
exposure to hospitalized children is limited, as the majority of children are cared for outside
the hospital. This course is extremely important for the clinical experience the students
can derive from the exposure to "sick" children. Test. Associate Dean Sortet, Level IV
Hearing; ren. Resp. Ex. Nos. 33 & 36, at Level II.
20. The length of the clinical experience is four hours, from 8 a.m. to 12 noon.
Grievant spent one hour with her students in pre-conference and one hour with her
students in post-conference. This amount of time is excessive. Test. Associate Dean
Sortet and Dr. Rebecca Appleton, Level IV Hearing.
21. Grievant's supervisor, then Associate Dean Judith Sortet, received a
complaint from the clinical nurse manager of the unit where Grievant's students were
having their clinical experience. Associate Dean Sortet had never received a complaint
of this type before. The Manager informed Associate Dean Sortet that the nurses on the
unit believed the students spent too much time in the break room and in conference, and
did not perform a variety of procedures for their patients, even to the extent of not takingtheir vital signs. Test. Associate Dean Sortet, Level IV Hearing. Resp. Ex. Nos. 33 & 36,
at Level II.
22. Associate Dean Sortet conferenced with Grievant, and although Grievant did
not agree with all the complaints, she agreed she would monitor her students more
carefully and increase opportunities for student learning. Test. Associate Dean Sortet,
Level IV Hearing; Resp. Ex. No. 36, at Level II.
23. The day after this conference, Grievant had students in the clinical area. As
Associate Dean Sortet was leaving the building at 11:30 am, she observed Grievant
entering the building. Grievant had let her students leave the clinical area early. Test.
Associate Dean Sortet, Level IV Hearing; Resp. Ex. No. 36, at Level II.
24. Associate Dean Sortet waited for a couple of weeks, and then called the
Nurse Manager to see if there had been any improvement. There had not been. Grievant
was not assigned to teach this course again, and a part-time faculty member was hired to
perform this clinical assignment. She was removed from the clinical assignment "due to
ineffective clinical teaching." Test. Associate Dean Sortet, Level IV Hearing; Resp. Ex.
Nos. 33 & 36, at Level II.
Nursing 222 - Academic Year 1996 - 1997
25. During the Spring of 1997, Grievant was assigned to teach Nursing students
in one of their first clinical experiences.
26. Although the administration of medications in the clinical area was part of the
required clinical objectives, none of the students assigned to Grievant's clinical group gave
medications to their patients. 27. All other students in all the other clinical groups met this objective.
28. Because Nursing courses build on one another, it is essential that clinical
objectives and course content be followed.
29. Although Grievant conferred with the course coordinator, Dr. Rebecca
Appleton, several times throughout the semester, Grievant never informed her that her
students did not perform these essential clinical objectives, or that there were problems
with her unit that prevented her from meeting these course objectives. Test. Grievant, Dr.
Appleton, Associate Dean Sortet. Resp. Ex. Nos. 33, 36, & 37, at Level II; Resp. Ex. No.
1, at Level IV; Grt. Ex. No. 32, at Level IV.
30. Contrary to Grievant's testimony, this nursing skill was clearly stated in the
course clinical objectives.
(See footnote 13)
Test. Associate Dean Sortet, Dr. Appleton, at Level IV
hearing; Resp. Ex. No. 1, at Level IV; Grt. Ex. No. 32, at Level IV.
31. Contrary to Grievant's testimony, all her students had passed the required
drug test and were qualified to pass medication by the end of March.
(See footnote 14)
Test. of Grievant,
Associate Dean Sortet, and Dr. Appleton, at Level IV hearing. 32. This failure of Grievant's students to perform these required clinical
objectives was not discovered until the students were in their next clinical course, and
were now expected to have some proficiency in administering medications. Test.
Associate Dean Sortet and Dr. Appleton, Level IV Hearing; Resp. Ex. Nos. 36 & 37, at
Level II.
33. When confronted by Associate Dean Sortet and Dr. Appleton about this
failure, Grievant stated she had made a "mistake", her students were not comfortable with
the procedure, there were not any medications to give on her assigned unit, and the
administration of medications was not required by the course objectives. Test. Grievant,
Dr. Appleton, Associate Dean Sortet.
34. Grievant's failure to have her students meet the course objectives in Nursing
222 required the subsequent clinical instructors to provide this basic experience. Test.
Associate Dean Sortet and Dr. Appleton, Level IV Hearing; Resp. Ex. Nos. 36 & 37, at
Level II.
35. Grievant did not understand this difficulty in the clinical area was her problem
and not the students' problem. Test. Associate Dean Sortet, Level IV Hearing; Resp. Ex.
Nos. 36 & 37, at Level II.
36. Grievant was not assigned to teach in this clinical area the following year due
to ineffective teaching. Resp. Ex. No. 33, at Level II.
37. When Grievant was tentatively assigned to teach in Nursing 222 in the
Spring of 1999, Dr. Appleton wrote a memo dated September 16, 1998, requesting
Grievant not be assigned to teach as a clinical instructor due to prior problems. Dr.Appleton was willing to allow Grievant to present some didactic lecture material. Test. Dr.
Appleton, Level IV Hearing; Resp. Ex. No. 18, at Level II.
38. Contrary to Grievant's testimony, Dr. Appleton discussed this September 16,
1998 letter with Grievant before she sent it to Associate Dean Scott. Test. Dr. Appleton,
Level IV Hearing; Resp. Ex. No. 18, at Level II.
39. Grievant was not assigned to teach Nursing 222 in the Spring of 1999.
Nursing 423 - Academic year 1998 - 1999
40. A portion of Grievant's teaching load for the 1998 - 1999 school year was to
be a facilitator in Nursing 423, a course dealing with issues important to Nursing, such as
long-term care and costs of health care. There were four off-campus satellite sections,
and Grievant was assigned a section at Pleasant Valley Hospital in Point Pleasant. The
course met once a week, with a two hour lecture on satellite, conducted by the course
coordinator, Dr. Jane Fotos, followed by a one hour discussion of the issues led by the
section facilitator. Test. Associate Dean Scott, Dean Welch, and Grievant, at Level IV
Hearing; Resp. Ex. No. 35, at Level II; Resp. Ex. No. 3, at Level IV; Grt. Ex. No. 9, at
Level II; Grt. Ex. No. 34, at Level IV.
41. Faculty are expected to visit an instructional or clinical site prior to the start
of classes to familiarize themselves with the area and to prevent potential problems. This
is one reason why faculty return to campus a week before the semester begins. Grievant
did not visit Pleasant Valley Hospital prior to the start of the semester. Test. Grievant,
Associate Dean Scott, at Level IV hearing; Resp. Ex. No. 20, at Level IV. 42. During the initial class in Nursing 423, Grievant experienced several
problems which could have been prevented if Grievant had made this prior site visit. Test.
Grievant, Associate Dean Scott, at Level IV hearing.
43. The one hour, post lecture discussion, is called a wrap-around session, and
it is the facilitator's responsibility to lead this discussion and involve the students in a
dialogue about the evening's content. Test. Associate Dean Scott and Dean Welch, Level
IV Hearing.
44. Contrary to Grievant's testimony, a facilitator is a teacher. A teacher is
defined as one who imparts knowledge or skill or gives instruction. Synonyms for teaching
are instructing, educating, and training. American Heritage Dictionary 1246-47 (2d college
ed. 1992). Synonyms for facilitate are assist, promote, enable, further, help, hasten,
advance, and expedite.
45. The facilitators in Nursing 423 were to assist their students in learning and
understanding the content presented in the previous two hour, satellite lecture. Test.
Associate Dean Scott and Dean Welch, at Level IV Hearing.
46. As part of both the Grievance Evaluator's and President's direction to
thoroughly evaluate Grievant, Dean Welch informed Grievant she would be evaluated
twice each semester. One of these evaluations would be announced and one would be
unannounced.
47. Associate Dean Scott was assigned by Dean Welch to complete Grievant's
Fall evaluations. She arranged with Grievant for the announced visit, and went to Pt.
Pleasant. Associate Dean Scott sat through the two hour lecture by Dr. Fotos, and whenit ended Grievant asked the students if they had any questions, and when they did not, she
excused them go to study by themselves for the exam they would take next week.
(See footnote 15)
As a
result of letting the students go, Associate Dean Scott was unable to observe Grievant's
teaching.
48. Associate Dean Scott wrote her evaluation of what she had observed during
this session, and discussed it with Grievant on October 26, 1998. Associate Dean Scott
noted Grievant did not demonstrate a professional demeanor. She also discussed
Grievant's failure to conduct the required wrap-around session, and noted Grievant did not
cover the course objectives identified for the after-satellite discussion. Resp. Ex. No. 3,
at Level II.
49. When the exam was given the following week, Grievant's group of students
made the lowest grades of all the sections that took the test, and only one or two passed
the test.
(See footnote 16)
50. Associate Dean Scott returned the week after the exam, on October 27,
1998, for the unannounced visit to evaluate Grievant. Grievant did not teach that evening
as a student presentation was scheduled. Before leaving the class, Associate Dean Scott
asked the students if she could be of any help to them in regard to main campus studentactivities. The students were very concerned about their grades. Associate Dean Scott
indicated she was unable to change these grades. Resp. Ex. No. 4, at Level II.
51. On October 28, 1998, Associate Dean Scott sent Grievant a follow up memo
about this second observation. She noted Grievant's group had the lowest grades of all
four sections. Resp. Ex. No. 4, at Level II.
52. Associate Dean Scott believed Grievant should have followed the prepared
syllabus and reviewed with the students, instead of letting them go early the week prior to
the test. Test. Associate Dean Scott, at Level IV hearing.
53. On October 30, 1998, Grievant responded in writing to Associate Dean
Scott's memo of October 28, 1998. Grievant indicated she was considering doing some
of the lecture content herself and making up her own test for her group's final exam.
Grievant believed she would be judged on and was responsible for the student's grades.
Grievant also indicated she was making changes and improvements for the students to get
the information from the class. Resp. Ex. No. 22, at Level II.
54. Grievant again wrote to Associate Dean Scott on November 9, 1998,
indicating Dr. Fotos had given Associate Dean Scott incorrect data about the grades from
her group. She stated she had talked to Dr. Fotos and stated, "I will be writing my own
final exam for this course, and I will be covering the content in the syllabus for my students
since I am being held responsible for their test scores as part of my evaluation." Resp. Ex.
No. 23, at Level II.
55. Contrary to Grievant's testimony, Dr. Fotos did not give Grievant permission
to give her own final exam, but directed Grievant to discuss the issue with Associate DeanScott. Grievant did not discuss the issue with Associate Dean Scott. Test. Associate
Dean Scott, at Level IV Hearing; Resp. Ex. Nos. 26 & 28, at Level II.
56. On November 19, 1998, Associate Dean Scott responded to Grievant's
November 9, 1998 memo, and informed her the course was taught by Dr. Fotos, and Dr.
Fotos was responsible for writing the final exam. Associate Dean Scott again informed
Grievant she was responsible for answering questions and helping students understand
the material taught by Dr. Fotos. Associate Dean Scott noted that allowing facilitators to
write their own finals may be unfair to some students, and clarified, "your students will take
the standard exam prepared by Dr. Fotos." Resp. Ex. No. 24, at Level II.
57. On November 30, 1998, Grievant informed Associate Dean Scott she had
just received the November 19, 1998 memo, and that on November 17, 1998, she had
given her students Part I of her take home exam.
(See footnote 17)
Grievant stated her actions were
"okay" with Dr. Fotos. Grievant explained she was afraid requiring her students to take Dr.
Fotos's final exam would be unfair because her students had not taken "close notes" after
Grievant misinformed them they would not have to take Dr. Fotos's exam. Resp. Ex. No.
24, at Level II.
58. On December 1, 1998, Associate Dean Scott wrote Grievant informing her
she had met with Dr. Fotos, and she "was unaware that you had composed your own take-
home final and stated this had never been discussed." Resp. Ex. No. 26, at Level II.
Associate Dean Scott directed Grievant to meet with Dr. Fotos and submit a written planfor resolving the problem. Associate Dean Scott instructed Grievant that her students
would still be required to take Dr. Fotos's exam. Resp. Ex. No. 26, at Level II.
59. On December 2, 1998, Associate Dean Scott met with Grievant and Dr. Fotos
and resolved how the final exam issue would be settled. Resp. Ex. No. 27, at Level II.
60. On December 10, 1998, Dr. Fotos wrote Associate Dean Scott to summarize
her meeting with Associate Dean Scott and Dean Welch on December 1, 1998. Dr. Fotos
clarified Grievant had discussed with Dr. Fotos that she felt she was being held
responsible for the grades and wanted to give her own final. Dr. Fotos directed Grievant
to discuss the issue with Associate Dean Scott. She reiterated she did not know about
Grievant's final exam, and she had not discussed the content with Grievant. Resp. Ex. No.
28, at Level II.
61. On December 9, 1998, Dean Welch met with Grievant to discuss Grievant's
role as a facilitator.
62. On December 11, 1998, Dean Welch wrote Grievant a letter summarizing
their discussion of December 9, 1998. Dean Welch informed Grievant her role in Nursing
423 was as a facilitator, meaning she was to answer questions and amplify the material
Dr. Fotos presented. Grt. Ex. No. 34, at Level IV.
63. Dean Welch noted Grievant's attempt to "blame the students" for their low
grades. Grievant had stated the students in her section "were the dregs" and they were
"admitted with GPA's of 1.93 - under the 2.0 required." Dean Welch informed Grievant
her statements were untrue and noted Grievant's section was admitted with a GPA of 2.0or better, an average of 2.527, and that her students currently have a collective MU GPA
of 2.235 and were doing well overall. Grt. Ex. No. 34, at Level IV.
64. On December 16, 1998, Associate Dean Scott issued Grievant a written
reprimand and met with her to discuss it. In this written reprimand, Associate Dean Scott
reviewed Grievant's past conduct as a faculty member, and found Grievant had been
"incompetent" and her "conduct to constitute negligence." Resp. Ex. Nos. 6 & 7, at Level
II.
65. In this written reprimand, Associate Dean Scott detailed the recent events
in Nursing 423, noted Grievant's history was replete with incidents of Grievant's failure to
follow directives, and stated Grievant had a "serious and ongoing problem." She referred
Grievant to The Greenbook which lists causes for dismissal, underlining sections which
discussed incompetence, misconduct which impaired the individual's fulfillment of
institutional responsibilities, and insubordination. Associate Dean Scott directed Grievant
to schedule an appointment to present a written plan of improvement. Resp. Ex. Nos. 6
& 7, at Level II.
66. Grievant filed a grievance over this written reprimand on December 28, 1998.
67. On February 1, 1999, Grievant informed Associate Dean Scott that as she
was filing a grievance over the written reprimand, she would not meet with her until this
grievance had been resolved. Grievant submitted a list of statements informing Associate
Dean Scott how she planned to correct her behavior. Resp. Ex. No. 8, at Level II.
68. On February 2, 1999, Associate Dean Scott wrote Grievant informing her the
Improvement Plan was unclear, lacking in detail, and needed elaboration. She noted shewould be happy to discuss the Improvement Plan with Grievant after the hearing. Resp.
Ex. No. 9, at Level II.
69. Grievant never met with Associate Dean Scott to discuss her Improvement
Plan. Test. Grievant and Associate Dean Scott.
Other
70. On February 16, 1999, Dr. Madonna Combs wrote Associate Dean Scott
informing her she did not want Grievant assigned to Nursing 219 for the Fall semester of
1999, as Grievant did not possess the required depth in growth and development and
health promotion, and did not have the expertise to work well with sophomore students.
Resp. Ex. No. 17, at Level II.
University Service - Testimony at Grievance Hearing
71. Prior to the Fall of 1998, Grievant's service to the university had been found
to be satisfactory.
72. In the Spring of 1998, Grievant served on the SON Faculty Affairs
Committee. During this time, another faculty member, Toni Karle, applied for tenure and
the Committee voted to not recommend Ms. Karle for tenure.
73. In the Fall of 1998, Grievant was subpoenaed to testify at Ms. Karle's Level
IV Hearing.
74. Grievant testified she did not know if she had the time or made the time to
review the file, and she should have taken more time to review the files submitted by Ms.
Karle. Grievant also testified that it would be a dereliction of her duty to vote without
seeing the file. Grt. Ex. No. 7, at Level II, pp. 8, 22, & 28. 75. On December 3, 1998, Dean Welch wrote Grievant a written reprimand about
her failure to fulfill her duties as a member of the SON Faculty Affairs Committee. Resp.
Ex. No. 30, at Level II. Dean Welch noted Grievant was aware that she did not perform
her duties as a responsible member of the SON Faculty Affairs Committee, and that she
failed to make her own judgements about the issue prior to voting to recommend against
tenure. Dean Welch informed Grievant her behavior was inappropriate, irresponsible,
unprofessional, and unacceptable. Resp. Ex. No. 30, at Level II.
76. On December 28, 1998, Grievant filed a grievance over this written
reprimand.
77. The Level III Grievance Evaluator found "[Grievant] gave testimony . . . that
she had not read Ms. Karle's tenure folder, [and] had relied on the opinion of other Faculty
Affairs Committee members in making her decision about tenure." Resp. Ex. No. 10, at
Level II.
78. The Administrative Law Judge in the Level IV Karle hearing, Brenda Gould,
found Grievant "did not recall reviewing [Karle's] tenure application, and relied upon what
she was told by another member, Jane Fotos, was in the tenure application." Finding of
Fact 6, Karle v. Bd. of Trustees, Docket No. 98-BOT-258 (Apr. 19, 1999).
79. Grievant's failure to perform properly as a member of the SON Faculty Affairs
Committee was not noted on Grievant's 1998 - 1999 evaluation, because this action had
occurred during the previous year, 1997.
(See footnote 18)
Advising/Office hours
80. On April 15, 1998, Associate Dean Sortet asked Grievant to come to her
office to discuss complaints she had received about her not being available during office
hours to do the required advising.
81. The time period of Monday 1 p.m. to 3 p.m. was to be kept open by all faculty
so that necessary SON meetings could be scheduled. Grievant was aware of this
prohibition. In spite of this directive, Grievant scheduled her office hours from 2 p.m. to
4 p.m. on Monday afternoon. Because Grievant usually had meetings during this time, she
was often not in her office; and students complained about not being able to find her.
Because of these complaints, Associate Dean Sortet again explained to Grievant that 1
p.m. to 3 p.m. on Mondays was to be kept open for meetings. Resp. Ex. Nos. 36 & 37, at
Level II.
82. On April 17, 1998, Grievant wrote Associate Dean Sortet stating she had
changed her office hours from Monday afternoon, and informed Associate Dean Sortet that
other faculty had office hours scheduled on Monday afternoons. Associate Dean Sortet
called Grievant and left a message informing her again that she could have office hours
on Monday, just not from 1 p.m. to 3 p.m. Associate Dean Sortet then checked all faculty
hours and found none of them had regular office hours scheduled on Monday from 1 p.m.
to 3 p.m. Resp. Ex. Nos. 36 & 37, at Level II.
83. Around that same time period, another student complained she had been told
by Grievant to come at 5:30 p.m., during special advising hours. At 5:15 p.m., as the
student was on her way to the meeting, she passed Grievant on her way out. Grievant toldthe student she was not signed up, and she would have to come back at another time for
the meeting. Resp. Ex. Nos. 36 & 37, at Level II; Grt. Ex. No. 30, at Level IV.
84. Grievant was scheduled to be in her office at that time, but when no one
signed up she canceled these hours. Test. Grievant, at Level IV.
85. Faculty are expected to be present in their office during the time periods
listed on their sign-up sheets. Test. Associate Dean Sortet, at Level IV.
86. On April 17, 1997, then Associate Dean Sortet sent a memo to all
Undergraduate faculty informing them that the co-requisites and prerequisites would no
longer be listed in the class schedules published by the Registrar. All Undergraduate
Nursing courses would now list "Permission" for all Undergraduate classes. The co-
requisites or prerequisites would now be listed in the Student Handbook, and students
would only receive "Permission" if they had the co-requisites or prerequisites listed in the
Handbook. Grt. Ex. No. 28, at Level IV.
87. Faculty receive the new handbooks and catalogs as they come out and are
expected to keep their copies of these to use in advising students.
(See footnote 19)
Test. Dean Welch.
88. In November 1998, Grievant met with one of her advisees, R.O.M.
(See footnote 20)
She
noted in her conference report that the student needed three more hours to maintain her
financial aid, and Grievant was going to lighten her load for her senior level by placing herin Nursing 403. Grievant noted on R.O.M.'s student record that there were no co-
requisites or prerequisites listed in the handbook or registration catalog. Test. Grievant;
Resp. Ex. No. 11, at Level II.
89. On January 12, 1999, Associate Dean Scott wrote a memo to Grievant
informing her she had advised R.O.M. incorrectly when she placed her in Nursing 403, as
ROM did not have the necessary co-requisites or prerequisites. Associate Dean Scott
reminded Grievant that co-requisites or prerequisites were no longer listed in the semester
schedule. Associate Dean Scott attached a copy of the current handbook and catalog and
noted the prerequisite was clearly delineated. Associate Dean Scott stated Grievant's
notation in the student's record was "either a failure to check the appropriate course
information or a deliberate falsification of your actions in advising this student." Resp. Ex.
No. 12, at Level II.
90. On January 12, 1999, Grievant E-mailed Associate Dean Scott stating she
would check her catalogs at home to find what she looked at to make the notation in
R.O.M.'s file, she requested copies of all the old handbooks, stated that she hoped
Associate Dean Scott's "reprisal" toward Grievant did not extend to R.O.M., and asked if
Associate Dean Scott had advised R.O.M. of the other courses she could take.
(See footnote 21)
Resp.
Ex. No. 13, at Level II.
91. Associate Dean Scott sent Grievant a memo dated January 13, 1999, noting
Grievant should have copies of the older catalogs, and that everything possible was being
done to assist R.O.M. Resp. Ex. No. 14, at Level II. 92. After another inquiry by Grievant, Associate Dean Scott informed Grievant
the only way to maintain R.O.M.'s financial aid was for Dean Welch to do an independent
study with her. Resp. Ex. No. 15, at Level II.
Evaluations
93. Grievant was evaluated on January 27, 1995, during her first year of
employment. Dean Welch noted Grievant had done "extremely well in her teaching and
advising responsibilities" as a new faculty member, and Grievant received an overall rating
of "Good". Grt. Ex. No. 8, at Level IV.
94. Grievant was again evaluated on April 4, 1996, and received an overall rating
of "Satisfactory." Dean Welch noted Grievant needed to develop in the area of research
and scholarly activities, and her advising of students had been adequate. Grt. Ex. No. 11,
at Level IV.
95. Grievant was not evaluated by Dean Welch during her third academic year,
1996-1997, and this was the reason Grievant's first terminal contract was rescinded.
Grievant did receive a peer evaluation of her didactic teaching skills from then co-faculty
member, Ms. Scott. Faculty Member Scott rated Grievant as "Satisfactory" to "Good".
96. Grievant was evaluated during 1997-1998, her fourth year of employment.
Dean Welch observed Grievant "ha[d] not followed thru with some teaching assignments
appropriately, thus not giving adequate instruction/experience for her students." Grt. Ex.
No. 14, at Level IV. Grievant received an overall rating of "Needs Improvement" and Dean
Welch wrote Grievant was "not satisfactory[,] Becky needs to focus more on meetingstudent needs and be a team member." Grt. Ex. No. 14, at Level IV. Shortly thereafter
Grievant received her first terminal contract.
97. Associate Dean Scott attempted to evaluate Grievant twice during the Fall
semester of 1998. See Findings of Fact 47, 48, 50, & 51.
98. During the Spring 1999, Grievant received two evaluations of her classroom
teaching, one announced and one unannounced. These evaluations rated Grievant as
between "Satisfactory" and "Good". Grt. Ex. No. 26, at Level IV.
99. Grievant received a letter from Dean Welch on May 3, 1999, stating her
contract for 1999 - 2000 academic year would be a terminal contract due to her ineffective
teaching and advising and ineffective service to the university. Grt. Ex. No. 1, at Level II.
100. On May 12, 1999, Grievant met with Dean Welch to discuss the notice of
non-retention. Grievant also received her evaluation for the 1998 - 1999 academic year.
Grievant was rated as unsatisfactory, Dean Welch noted Grievant's problems with
teaching and advising, and that her research/scholarly activity and service to the
community needed improvement. Resp. Ex. No. 34, at Level II.
101. On May 17, 1999, Grievant wrote President Gilley requesting a statement of
reasons for her non-retention, again stating this action constituted harassment and
reprisal. Grievant referred to the filings of her own grievances, her participation in another
grievance, and the class Dean Welch took from Grievant. This request was received May
20, 1999, and Grievant did not receive a response to this request.
102. This grievance was filed on May 20, 1999.
In a grievance challenging non-retention of a probationary faculty member, the
grievant has the burden of proving her complaint by a preponderance of the evidence.
Turman v. Bd. of Trustees/Marshall Univ., Docket No. 99-BOT-199 (Nov.8, 1999); Fasce
v. Bd. of Directors, Docket No. 94-BOD-1072 (Sept. 13, 1995). See W. Va. Code § 18-29-
6; Baroni v. Bd. of Directors, Docket No. 92-BOD-271 (Feb. 11, 1993). 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 Greenbook and Series 36 provide that the appointments of probationary faculty
members, such as Grievant, may be terminated at the end of the contract year "for any
reason that is not arbitrary, capricious, or without factual basis." 128 C.S.R. 36 § 9.4
(1997); Jt. Ex. Nos. 1 & 2. These rules provide Respondent with broad discretion.
"Generally, an action is considered arbitrary and capricious if the agency did not
rely on criteria intended to be considered, explained or reached the decision in a manner
contrary to the evidence before it, or reached a decision that was so implausible that it
cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v.
Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the
Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Healthand Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious
actions have been found to be closely related to ones that are unreasonable. State ex rel.
Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as
arbitrary and capricious when "it is unreasonable, without consideration, and in disregard
of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker,
547 F. Supp. 670 (E.D. Va. 1982)). "While a searching inquiry into the facts is required
to determine if an action was arbitrary and capricious, the scope of review is narrow, and
an administrative law judge may not simply substitute her judgment for that of a board of
education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283
(W. Va. 1982)." Trimboli, supra; See Hattman v. Bd. of Directors, Docket No. 98-BOD-439
(Apr. 30, 1999).
Generally, when applying an "arbitrary and capricious" standard of review, the
inquiry is limited to determining whether relevant factors were considered in reaching the
decision and whether there has been a clear error of judgment. Bowman Transp. v.
Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg, 169
W. Va. 162, 286 S.E.2d 276 (1982); Hill v. Kanawha County Bd. of Educ., Docket No. 94-
20-537 (Mar. 22, 1995). Further, a decision of less than ideal clarity may be upheld if the
agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra,
at 286.
Considerable discretion is accorded to academic administrators in making
personnel decisions regarding such matters as faculty retention or promotion. See
generally, Sui v. Johnson, 784 F.2d 238 (4th Cir. 1984); Smith v. Univ. of N. Carolina, 632F.2d 316 (4th Cir. 1980); Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980).
Moreover, in applying the arbitrary and capricious standard of review to academic matters,
such as promotion, tenure and nonretention of faculty status, this Grievance Board has
recognized that the decisional, subjective process by which such status is awarded or
denied is best left to the professional judgment of those presumed to possess a special
competency in making the evaluation. Gruen v. Bd. of Directors, Docket No. 95-BOD-281
(Mar. 6, 1997); Gomez-Avila v. W. Va. Bd. of Trustees, Docket No. 94-BOT-524 (Mar. 14,
1995); Carpenter v. Bd. of Trustees, Docket No. 93-BOT-220 (Mar. 18, 1994); Cohen v.
W. Va. Univ., Docket No. BOR1-86-247-2 (July 7, 1987). See Sui, supra; Kauffman v.
Shepherd College, Docket No. BOR1-86-216-2 (Nov. 5, 1986). This generally parallels
the federal courts' approach to adjudicating such matters in civil rights disputes:
"Determinations about such matters as teaching ability, research scholarship, and
professional stature are subjective, and unless they can be shown to have been used as
the mechanism to obscure discrimination, they must be left for evaluation by the
professional, particularly since they often involve inquiry into aspects of arcane
scholarship beyond the competence of individual judges." Kunda, supra, at 548. See also
Bina v. Providence College, 39 F.3d 21 (1st Cir. 1994), cert. denied, 115 S. Ct. 1406
(1995); Lieberman v. Gant, 630 F.2d 60 (2d Cir. 1980).
The issues to be decided in this grievance are whether MU's nonrenewal of
Grievant's contract was arbitrary and capricious, not founded on a factual basis,
procedurally incorrect, or done as a form of harassment and retaliation. Before the issues and arguments raised by the parties can be discussed, the issue
of credibility will be addressed.
A. Credibility
In order to decide whether Grievant has met her burden of proof, it is first necessary
to resolve the issue of witness credibility. Where, as here, the existence or nonexistence
of contested material facts hinges on witness' credibility, detailed findings of fact and
explicit credibility determinations are required. Pine v. W. Va. Dep't of Health and Human
Resources, Docket No. 95-HHR-066 (May 12, 1995). E.g., Davis v. Dep't of Motor
Vehicles, Docket No. 89-DMV-569 (Jan. 20, 1990).
An Administrative Law Judge is charged with assessing the credibility of the
witnesses who appear before her. Holmes, supra; Lanehart v. Logan County Bd. of
Educ., Docket No. 95-23-235 (Dec. 29, 1995); Perdue v. Dep't of Health and Human
Resources/Huntington State Hosp., Docket No. 93-HHR-050 (Feb. 4, 1993). The fact that
[some of] this testimony is offered in written form does not alter this responsibility.
Browning v. Mingo County Bd. of Educ., Docket No. 96-29-154 (Sept. 30, 1996). The
United States Merit Systems Protection Board Handbook (MSPB Handbook) is helpful
in setting out factors to examine when assessing credibility. Harold J. Asher and William
C. Jackson, Representing the Agency before the United States Merit Systems Protection
Board 152-53 (1984). Some factors to consider in assessing a witness's testimony are the
witness's: 1) demeanor; 2) opportunity or capacity to perceive and communicate; 3)
reputation for honesty; 4) attitude toward the action; and 5) admission of untruthfulness.
Id. Additionally, the administrative law judge should consider: 1) the presence or absenceof bias, interest, or motive; 2) the consistency of prior statements; 3) the existence or
nonexistence of any fact testified to by the witness; and 4) the plausibility of the witness's
information. Id.
The undersigned Administrative Law Judge had an opportunity to observe many of
the witnesses and to review the written testimony of the witnesses at Level II, and found
some to be more credible than others. It is noted that the majority of Grievant's testimony
disagrees with the rest of the witnesses. It should be noted that the majority of MU's
testimony was supported by the statements of multiple witnesses and numerous
documents.
The witnesses' accounts of the incidents varied on specific points, as is typical of
testimony, but the witnesses agreed on the key points of what happened during Grievant's
tenure. Other than the grade received by Dean Welch and Associate Dean Scott, Grievant
gave no reason why the other witnesses would lie, and it is noted that most of the
testimony was supported by contemporaneous documentation.
(See footnote 22)
Overall, the undersigned
Administrative Law Judge finds the majority of the testimony received from all witnesses
to be truthful, with the exception of Grievant.
Grievant's credibility must be discussed in some detail. At times during the hearing,
Grievant's answers on key questions were evasive or non-responsive. Additionally, there
were several incidents where it was clear Grievant was not telling the truth. For example,
Grievant informed Associate Dean Scott she had permission to write and give her own final
exam in Nursing 423. This was not true. Further, Grievant testified that the administrationof drugs was not a required part of the clinical objectives in Nursing 222, and then
submitted into evidence an incomplete copy of the syllabus without the clinical objectives
attached. After the testimony of Dr. Appleton and submission of a complete syllabus, it
was clear Grievant had been untruthful on this point.
At times, Grievant's testimony was just not plausible or believable, such as when
she maintained that facilitating in Nursing 423 was not teaching, and she should not be
evaluated for teaching. Additionally, Grievant's testimony that the reason for her
termination and the subsequent harassment and retaliation was because she taught a
portion of a course in which Dean Welch received a "B" is implausible and illogical.
(See footnote 23)
Grievant's responses would lead one to believe that only minor problems occurred
while she was a faculty member, or that any problems that occurred during her tenure were
not her fault. Further, Grievant appeared to think that if the problems she created were
eventually resolved, then there had not really been a problem. Examples of this type of
thinking occurred in the ROM advising matter and the Nursing 423 final exam problem.
Further, Grievant did not appear to comprehend what was communicated to her. An
example of this was the discussion with Associate Dean Sortet over Grievant's office
hours/advising time.
Accordingly, the undersigned Administrative Law Judge generally finds Grievant's
testimony to lack credibility.
B. Due Process
The only remaining due process-type issue to address is the failure of Grievant to
receive a statement of reasons from President Gilley.
(See footnote 24)
It is well settled that "[a]n
administrative body must abide by the remedies and procedures it properly establishes to
conduct its affairs." Syl. Pt. 1, Powell v. Brown, 160 W. Va. 723, 238 S.E.2d 220 (1977).
"However, an allegation that an employer failed to follow a specific procedural requirement
in accomplishing a disciplinary action is an affirmative defense, and Grievant has the
burden of establishing the facts to support such allegation by a preponderance of the
evidence." Bradley v. Cabell County Bd. of Educ., Docket No. 99-06-150 (Sept. 9, 1999).
In addition, a grievant must show the procedural error, more likely than not, influenced the
outcome. Otherwise, if the same result would have inevitably been reached, the
procedural violation will be considered as "harmless error." Bradley, supra; Dadisman v.
W. Va. Div. of Rehabilitation Serv., Docket Nos. 98-RS-023/040 (Mar. 25, 1999).
Additionally, when a "violation of the grievance procedure is merely technical,
following substantial compliance with the procedure, and there has existed between the
employee and his supervisors ongoing communications concerning the employee's
employment problems", this procedural error will not invalidate the action of the employer.
Vosberg v. Civil Serv. Comm'n, 166 W. Va. 488, 275 S.E.2d 640 (1981); See McFadden
v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-428 (Feb. 17, 1995).
See generally Parker v. Defense Logistics Agency, 1 M.S.P.B. 489 (1980). In this circumstance, Grievant received a letter from Dean Welch stating the
reasons for her nonretention, ineffective teaching and advising and ineffective university
service. Additionally, by the time she requested the statement of reasons from President
Gilley, she had met with Dean Welch to discuss the notice of nonretention and her last
evaluation. The reasons for her nonretention were discussed then. Further, Grievant filed
the request for the statement of reasons on May 17, 1999, and this was received by
President Gilley on May 20, 1999. Instead of Grievant waiting the ten days specified in
the statute, Grievant filed this grievance on May 20, 1999. Obviously, Grievant was not
harmed by the failure of President Gilley to respond, and Respondent has substantially
complied with the required procedures.
C. Retaliation/ Reprisal
Grievant has alleged her termination was reprisal for filing grievances and testifying
in Ms. Karle's grievance. The majority of the issues Grievant addressed in this argument
were dealt with in Grievant's December grievances. Reprisal is defined in W. Va. Code
§ 18-29-2(p) 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." To demonstrate a prima facie case of reprisal a grievant must
establish by a preponderance of the evidence the following elements:
1) that he/she engaged in protected activity, e.g. filing or participating in a
grievance;
2) that he/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;
4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment;
and/or
5) the adverse action followed the employee's protected activity within such
a period of time that retaliatory motivation can be inferred.
Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989); See Conner
v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995). See also
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251
(1986); Gruen, supra. If a grievant establishes a prima facie case of reprisal, the
employer may rebut the presumption of retaliation by offering legitimate, non-retaliatory
reasons for the adverse action. If the respondent rebuts the claim of reprisal, the
employee may then establish by a preponderance of the evidence that the offered reasons
are merely pretextual. Webb, supra.
Grievant has established a prima facie case of reprisal. Grievant's termination, "the
adverse action" followed "within such a period of time that retaliatory motivation can be
inferred." Within the past several years Grievant has filed three grievances and testified
in another grievance hearing. Given this state of affairs, the undersigned Administrative
Law Judge finds Grievant has established a prima facie case of reprisal, and the burden
shifts to Respondent to rebut the presumption of retaliation.
Respondent has proven legitimate, non-retaliatory reasons for the adverse action.
It has established Grievant was ineffective in teaching and advising and ineffective in
service to the university. Grievant failed to follow directions, failed to pROMote learningin the clinical area, and did not fulfill her duties as a member of the Faculty Affairs
Committee. Grievant did not demonstrate the reasons were merely pretextual.
D. Harassment
"Harassment" is defined under W. Va. Code § 18-29-2(n) as "repeated or continual
disturbance, irritation or annoyance of an employee which would be contrary to the
demeanor expected by law, policy, and professionalism." Harassment has been found in
cases in which a supervisor has constantly criticized an employee's work and created
unreasonable performance expectations, to a degree where the employee cannot perform
her duties without considerable difficulty. Pauley v. Lincoln County Bd. of Educ., Docket
No. 98-22-495 (Jan. 29, 1999). See Moreland v. Bd. of Trustees, Docket No. 96-BOT-462
(Aug. 29, 1997). Similarly, repeated comments of a sexual nature by a supervisor have
been found to constitute harassment. Hall v. W. Va. Dep't of Transp., Docket No. 96-DOH-
433 (Sept. 12, 1997). See Tibbs v. Hancock County Bd. of Educ., Docket No. 98-15-016
(June 16, 1998).
Grievant has not demonstrated she has been subjected to harassment. While it is
true that she received written reprimands and memos informing her of various, multiple
weaknesses, and conferences have been held to discuss, explain, and resolve various
problems; this fact alone does not constitute harassment. Employers are expected to
inform employees about their problems in the work area, and employees are entitled to
receive fair and honest feedback and evaluations. This feedback may not always be
positive. Just because Grievant did not like the information she received, does not meanit was inappropriate or constitutes harassment. The information and corrections Grievant
received were proper and warranted.
E. Merits - Arbitrary and capricious/without factual basis
MU elected not to renew Grievant's probationary contract beyond the 1999-2000
academic year in accordance with authority contained in Series 36 of the Procedural
Rules. As previously noted, the standard of review is whether the action taken by MU was
arbitrary and capricious or without factual basis.
Particularly relevant to the merits of this grievance are the following provisions
relating to probationary faculty members:
9.4. During the probationary period, contracts shall be issued on a
year-to-year basis, and appointments may be terminated at the end of the
contract year. During said probationary period, notices of nonreappointment
may be issued for any reason that is not arbitrary, capricious, or without
factual basis. Any documented information relating to the decision for
nonretention or dismissal shall be provided promptly to the faculty member
upon request.
9.5. After the decision regarding retention has been made by the
president or designee, he or she shall notify the tenure-track faculty member
of the decision as soon as practicable. In case of nonretention of faculty
who began service at the start of the fall term, formal notification shall be
given:
9.5.3. At least one year before the expiration of an appointment after
two or more years of service in the institution.
9.7. Following the receipt of the notice of nonretention, the faculty
member may appeal such nonretention decision by requesting a statement
of reasons and then filing a grievance as provided in Section 14 of these
rules. The request for a statement of reasons shall be in writing and mailedto the president or designee within ten working days of receipt of the notice
of nonretention.
14.2. A tenure-track faculty member given a notice of nonretention
and desiring to appeal it under procedures set out on W. Va. Code § 18-29
must first request a statement of reasons for such nonretention from the
president of the institution or designee within ten (10) working days of
receiving the notice of nonretention. The president or designee shall, within
ten (10) working days of receiving the request, inform the tenure-track faculty
member of the reasons for nonretention.
128 C.S.R. 36; Jt. Ex. No. 1, at Level IV; See W. Va. Code § 18B-7-4.
Grievant has not met her burden of proof and demonstrated by a preponderance
of the evidence that her nonretention was arbitrary and capricious or without a factual
basis. The record is replete with Grievant's history of problems in multiple courses. These
problems eventually came to such a point that it was difficult to find an assignment for
Grievant because no one wanted to work with her, and no course coordinator wanted
Grievant as a member of her team.
Although Respondent did not have the burden of proof in this situation, it
established Grievant was ineffective in teaching and advising and ineffective in university
service. Additionally, Respondent demonstrated Grievant failed to follow directions, and
when caught would prevaricate. Nothing ever appeared to be Grievant's fault. Either her
students were the "dregs", the course syllabus did not require certain clinical requirements,
the clinical unit where she was stationed did not understand the course objectives or could
not provide the proper learning experiences, and/or the scheduling books did not list thecourse requirements. Attempts to point out Grievant's errors were seen as forms of
harassment or retaliation. Respondent's decision not to renew Grievant's probationary
contract was not arbitrary and capricious of lacking a factual basis.
The above-discussion will be supplemented by the following Conclusions of Law.
1. In a grievance challenging non-retention of a probationary faculty member,
the grievant has the burden of proving her complaint by a preponderance of the evidence.
Gruen v. Bd. of Directors, Docket No. 95-BOD-281 (Mar. 6, 1997); Fasce v. Bd. of
Directors, Docket No. 94-BOD-1072 (Sept. 13, 1995). See W. Va. Code § 18-29-6;
Baroni v. Bd. of Directors, Docket No. 92-BOD-271 (Feb. 11, 1993).
2. "An administrative body must abide by the remedies and procedures it
properly establishes to conduct its affairs." Syl. Pt. 1, Powell v. Brown, 160 W. Va. 723,
238 S.E.2d 220 (1977).
3. "[A]n allegation that an employer failed to follow a specific procedural
requirement in accomplishing a disciplinary action is an affirmative defense, and Grievant
has the burden of establishing the facts to support such allegation by a preponderance of
the evidence." Bradley v. Cabell County Bd. of Educ., Docket No. 99-06-150 (Sept. 9,
1999). In addition, a grievant must show the procedural error, more likely than not,
influenced the outcome. Otherwise, if the same result would have inevitably been
reached, the procedural violation will be considered as harmless error. Bradley, supra;
Dadisman v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 98-RS-023/040 (Mar. 25,
1999). 4. When a "violation of the grievance procedure is merely technical, following
substantial compliance with the procedure, and there has existed between the employee
and his supervisors ongoing communications concerning the employee's employment
problems", this procedural error will not invalidate the action of the employer. Vosberg v.
Civil Serv. Comm'n, 166 W. Va. 488, 275 S.E.2d 640 (1981); See McFadden v. W. Va.
Dep't of Health & Human Resources, Docket No. 94-HHR-428 (Feb. 17, 1995). See
generally Parker v. Defense Logistics Agency, 1 M.S.P.B. 489 (1980).
5. President Gilley's failure to give Grievant a statement of reasons was a
"harmless error", as Grievant had an ongoing dialogue with her supervisors about her
employment problems, and Respondent's failure to follow this specific procedural
requirement would not and did not influence the outcome.
6. Reprisal is defined as "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 address it." W. Va. Code § 18-29-2(p). A grievant claiming retaliation
may establish a prima facie case of reprisal by proving the following elements:
1) that he/she engaged in protected activity, e.g. filing or participating in a
grievance;
2) that he/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;
4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment;
and/or
5) the adverse action followed the employee's protected activity within such
a period of time that retaliatory motivation can be inferred.
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 at 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).
7. Although Grievant established a prima facie case of retaliation or reprisal in
regard to MU"s decision not to renew her probationary, tenure track teaching contract, MU
established by a preponderance of the evidence that this decision resulted from continuing
concerns regarding Grievant's ineffective teaching and advising, and later discovered
ineffective university service. Grievant failed to demonstrate these reasons were either
pretextual or a subterfuge for retaliation. See Tex. Dep't of Community Affairs v. Burdine,
450 U.S. 248 (1981).
8. Harassment is defined under W. Va. Code § 18-29-2(n) as repeated or
continual disturbance, irritation or annoyance of an employee which would be contrary to
the demeanor expected by law, policy, and professionalism.
9. Grievant has failed to prove by a preponderance of the evidence that she has
been subjected to harassment. See Pauley v. Lincoln County Bd. of Educ., Docket No. 98-
22-495 (Jan.29, 1999).
10. The Greenbook and Series 36 provide that the appointments of probationary
faculty members, such as Grievant, may be terminated at the end of the contract year "forany reason that is not arbitrary, capricious, or without factual basis." 128 C.S.R. 36 § 9.4
(1997); Jt. Ex. Nos. 1 & 2. These rules provide Respondent with broad discretion.
11. The decision process in non-retention is similar to the decision process in
awarding tenure and promotion. The subjective process by which promotion and tenure
is awarded or denied is best left to the professional judgment of those presumed to
possess a special competency in making the evaluation unless it is shown to be arbitrary
and capricious or clearly wrong. Turman v. Bd. of Trustees/Marshall Univ., Docket No. 99-
BOT-199 (Nov.8, 1999); Gruen, supra. See Sui v. Johnson, 784 F.2d 238 (4th Cir. 1984);
Fasce, supra.
12. "Generally, an action is considered arbitrary and capricious if the agency did
not rely on criteria intended to be considered, explained or reached the decision in a
manner contrary to the evidence before it, or reached a decision that was so implausible
that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp.
v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for
the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of
Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and
capricious actions have been found to be closely related to ones that are unreasonable.
State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is
recognized as arbitrary and capricious when "it is unreasonable, without consideration,
and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington
Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). 13. "While a searching inquiry into the facts is required to determine if an action
was arbitrary and capricious, the scope of review is narrow, and an administrative law
judge may not simply substitute her judgment for that of a board of education. See
generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)."
Trimboli, supra; See Hattman v. Bd. of Directors, Docket No. 98-BOD-439 (Apr. 30, 1999).
14. Generally, when applying an "arbitrary and capricious" standard of review,
the inquiry is limited to determining whether relevant factors were considered in reaching
the decision and whether there has been a clear error of judgment. Bowman Transp. v.
Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg, 169
W. Va. 162, 286 S.E.2d 276 (1982); Hill v. Kanawha County Bd. of Educ., Docket No. 94-
20-537 (Mar. 22, 1995). Further, a decision of less than ideal clarity may be upheld if the
agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra,
at 286.
15. Considerable discretion is accorded to academic administrators in making
personnel decisions regarding such matters as faculty retention or promotion. See
generally, Sui v. Johnson, 784 F.2d 238 (4th Cir. 1984); Smith v. Univ. of N. Carolina, 632
F.2d 316 (4th Cir. 1980); Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980).
Moreover, in applying the arbitrary and capricious standard of review to academic matters,
such as promotion, tenure and nonretention of faculty status, this Grievance Board has
recognized that the decisional, subjective process by which such status is awarded or
denied is best left to the professional judgment of those presumed to possess a special
competency in making the evaluation. Gruen, supra; Gomez-Avila v. W. Va. Bd. ofTrustees, Docket No. 94-BOT-524 (Mar. 14, 1995); Carpenter v. Bd. of Trustees, Docket
No. 93-BOT-220 (Mar. 18, 1994); Cohen v. W. Va. Univ., Docket No. BOR1-86-247-2
(July 7, 1987). See Sui, supra; Kauffman v. Shepherd College, Docket No. BOR1-86-216-
2 (Nov. 5, 1986).
16. It is appropriate to review an employee's past performance evaluations and
the subsequent reoccurrence or continuation of identified problems when deciding whether
to remove that professional from her current position. This practice can establish a
continuing pattern of behavior which has proven not correctable. Williams v. Cabell
County Bd. of Educ., Docket No. 95-06-325 (Oct. 31, 1996).
17. Grievant failed to establish MU's decision not to renew her contract as a
probationary faculty member beyond the 1999-2000 academic year was arbitrary and
capricious or without factual basis. See 131 C.S.R. 36 § 10.4 (1992); Turman, supra;
Kilburn v. Bd. of Directors, 94-BOD-1064 (Dec. 29, 1995); Fasce, supra.
Accordingly, this grievance is DENIED.
JANIS I. REYNOLDS
Administrative Law Judge
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