AMY ROUSH,
Grievant,
v. Docket No. 00-26-140
MASON COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Amy Roush, received a three day suspension from the Mason County
Board of Education ("MCBOE" or "Board"). She grieves this action as unduly harsh and
asserts her actions were not intentional. Her Statement of Grievance asserts:
Amy Roush was suspended for three days by the Mason County Board of
Education. She believes that this action was arbitrary and capricious and in
excess of what was warranted by her actions. RELIEF SOUGHT: Amy asks
that the record of her suspension be cleared from her personnel record and
that she be reimbursed for lost wages and benefits.
A pre-suspension hearing was held on April 10, 2000, with Grievant present,
testimony taken, and Grievant given an opportunity to respond.
(See footnote 1)
After the presentation of
this evidence, MCBOE voted to accept Superintendent Larry Parsons' recommendation
for Grievant to receive a three day suspension. Subsequently, Grievant appealed to Level
IV on April 20, 2000. A Level IV hearing was held on June 1, 2000, and the parties wished
and agreed to submit the pre-suspension hearing in lieu of repeating this testimony. This
case became mature for decision on July 5, 2000, after receipt of the parties' proposed
findings of fact and conclusions of law.
(See footnote 2)
Issues and Arguments
Grievant admits she passed out magazine articles without reviewing them, but that
she never intended for her sixth grade students to receive inappropriate materials. She
argues the punishment she received, a three day suspension, was too severe for her
actions, and states a written reprimand would be more appropriate for her mistake. At the
Level IV hearing, she argued for the first time that Superintendent Larry Parsons relied
illegally on her prior one day suspension to increase her punishment. In her post-hearing
proposals, Grievant argued for the first time that her actions should be seen as
unsatisfactory performance, and pursuant to W. Va. Code § 18A-2-8 &12, Grievant must
be given notice of her deficiencies and a reasonable time to correct these deficiencies.
Respondent argues Grievant's actions warranted the level of discipline she
received. Respondent notes that if Grievant had done even a cursory review of the
materials she handed to the students, she would have seen they were very inappropriate.
Respondent reiterated the discipline meted out was not too severe as Grievant knew it was
her duty to review materials before she distributed them. Respondent also contends
Grievant's handling of the situation in the classroom was incorrect, and resulted in the
student, who had shown the article to his mother, as believing he had done "something
wrong." Respondent argued at Level IV, that Grievant's prior one day suspension was not
considered as part of this disciplinary decision, and notes the issues of the two offenses
were different. Respondent, of course, made no response to Grievant's allegation that herbehavior was unsatisfactory performance; and thus, she should be given an opportunity
to correct her behavior before discipline is imposed.
(See footnote 3)
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
Findings of Fact
1. Grievant is employed as a sixth grade teacher by MCBOE at Ordnance
Elementary.
2. As part of a planned exercise for February 28, 2000, on the use of commas,
Grievant asked students to bring in magazines in which they could find examples of the
various uses. Grt. Ex. No. 2, at Level IV.
3. Many students did not bring in their own magazines or articles. For those
who did not bring their own materials, she tore articles out of the books the other students
had brought. Grievant did not review any of the articles she passed out.
4. Grievant passed out a page from Redbook magazine to N.S.
(See footnote 4)
On one side
of the page, numbered 123, the article was a continuation of an article on a female police
officer. This article discussed her usual day, and discussed the officer studying "whores";
phony rape charges; one night stands; drugs buys; and the indiscriminate firing of riflesby boys. This article contained words and phrases, such as: "lovers", offers to "try the
goods", "prostitutes", "shit", and "priests buy sex". Admin. Ex. No. 1.
5. On the second side of this page, 124, is an article entitled "Sexual Stamina".
The title is in approximately four inch high, colored type. This article discusses in rather
graphic detail what sexual stamina is and uses such phrases as "sustaining erections",
"simple thrusting", "the foreplay [needed] to reach orgasm" and "[m]en think the longer they
can stay hard, the better." Admin. Ex. No. 1.
6. N.S. took this magazine article home with him to complete the assignment.
While at home, he asked his mother for assistance with his homework.
7. His mother was "totally appalled" by the content of the articles. Pre-
suspension hearing at 9.
8. Ms. S. took her concerns and a copy of the articles to Principal Kim Neal, and
he discussed it with Grievant and Ms. S. Principal Neal directed Grievant to call all the
parents in this class, explain what had happened, and request the return all articles that
had been sent home.
9. Grievant called all the parents on Thursday evening, March 2, 2000.
10. On Friday, March 3, 2000, Grievant discussed these events with the class.
She informed the students that the student who received the article should have come to
her instead of to his mother. Grievant also informed the class that the mother should have
come to the teacher instead of the Principal. Grievant indicated to the students that the
parent was trying "to call her a bad person and teacher." N.S. "felt mad and a little bit sad"when Grievant made these statement in class, and felt as if Grievant were criticizing both
him and his mother. Test. N.S., pre-suspension hearing, at 6.
11. Grievant was aware on February 28, 2000, that as a teacher she had a duty
to review all the materials she passed out in class to insure the content is appropriate.
She also agreed the content of the articles was shocking and not appropriate for sixth
graders. Grt.'s test., pre-suspension hearing, at 20 & 26.
12. Grievant did not believe N.S. or his mother did anything wrong, but testified
she discussed the issue with her class so it would not happen again, and if anything
inappropriate was passed out in class again, students would inform her.
13. After discussing in some detail the events described above with Grievant and
her representative, Superintendent Larry Parsons recommended Grievant be suspended
for three days. The letter informing Grievant of this recommendation examined the
typeface and contents of the articles, noted the profanity and discussion of prostitution,
and stated Grievant had been "completely indifferent to [her] responsibility to review the
content of the material." The letter also stated the following:
This lapse in duty was compounded by your decision to discuss this incident
with the entire class on March 3, 2000. As part of your discussion, certain
statements have been attributed to you, including your opinion that the
student in question should have shown the articles to you rather than others.
These comments are not considered appropriate in that they serve to chill
the willingness of children to approach any adult concerning an
uncomfortable situation. Moreover, such comments were perceived by the
student as a comment on your part that he had done something wrong, even
though he was not singled out.
The letter went on to note Grievant had admitted to both distributing the articles without
reading them and to expressing her opinion that the student should have shown the
materials to her. Admin. Ex. No. 2.
14. On October 16, 1997, MCBOE approved Superintendent Parsons'
recommendation to suspend Grievant for one day for willful neglect of duty. Grievant had
not reported to work, nor did she call in to say she was ill until well after the school day had
started, and a substitute was already covering her class.
15. As the result of an agreement between then Assistant Superintendent
George Miller, Superintendent Parsons, Grievant, and her representative, reached
October 7, 1997, the report of Grievant's suspension was not placed in her personnel file,
and she was allowed to take the day she had missed as her suspension day.
(See footnote 5)
The report
was not placed in Grievant's file at her request because she had informed the
administration she was seeking employment elsewhere.
(See footnote 6)
16. Although this prior suspension was discussed when Grievant and her
representative met with Superintendent Parsons about this suspension, the disciplinary
action recommended for this neglect of duty was based on the facts of this specific
incident.
(See footnote 7)
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 evidence 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. It may not be determined by the number of the witnesses, but by the
greater weight of the evidence, which does not necessarily mean the greater number of
witnesses, but the opportunity for knowledge, information possessed, and manner of
testifying[; this] determines the weight of the testimony." Petry v. Kanawha County Bd. of
Educ., Docket No. 96-20-380 (Mar. 18, 1997). See Black's Law Dictionary, 5th ed. at
1064. In other words, "[t]he preponderance standard generally requires proof that a
reasonable person would accept as sufficient that a contested fact is more likely true than
not." Leichliter v. W. Va. Dep't of Health and Human Resources, Docket No. 92-HHR-486
(May 17, 1993). Where the evidence equally supports both sides, the employer has notmet its burden. Id.; See Adkins v. Smith, 142 W. Va. 772, 98 S.E.2d 712 (1957); Burchell
v. Bd. of Trustees/Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).
The issues raised by Grievant will be discussed one at a time.
I. Merits of the case
The question is whether Grievant's behavior and actions substantiate the charges
against her. The authority of a county board of education to discipline an employee must
be based upon one or more of the causes listed in W. Va. Code §18A-2-8, as amended,
and must be exercised reasonably, not arbitrarily or capriciously. 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 identifies the types of action that can result in disciplinary
action and 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 or a
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.
The suspension letter clearly stated the specific charges against Grievant, revealed
as the results of an investigation, and identified the behaviors for which she was to receive
a three day suspension. The fact that these charges were not placed in the exact wording
of W. Va. Code § 18A-2-8 is of no moment. The information received by Grievant was
sufficient to place her on notice of the charges, and the proper focus is whether the charge
of misconduct is proven, not the label attached to such conduct. Gillespie v. KanawhaCounty 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). See Brown v. Mercer
County Bd. of Educ., Docket No. 98-27-113 (July 30, 1998); Huffstutler v. Cabell County
Bd. of Educ., Docket No. 97-06-150 (Oct. 31, 1997).
(See footnote 8)
After a review of the behavior exhibited by Grievant, the undersigned Administrative
Law Judge finds Grievant's behavior falls within the definition of willful neglect of duty, as
Grievant knew what behavior was required and did not respond accordingly. Respondent
must prove a charge of willful neglect of duty by a preponderance of the evidence.
Arbaugh v. Putnam County Bd. of Educ., Docket No. 90-40-437 (May 22, 1991). Although
the West Virginia Supreme Court of Appeals has not formulated a precise definition of
willful neglect of duty, it does encompass something more serious than incompetence
and imports a knowing and intentional act, as distinguished from a negligent act. Bd. of
Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990). Hence, 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 act. Hoover v. Lewis County Bd. of
Educ., Docket No. 93-21-427 (Feb. 24, 1994). See Chaddock, supra.
MCBOE has met its burden of proof. Through her own testimony Grievant admitted
she knew it was her duty to review any material to assess whether it was appropriate
before she assigned it to her students. Since Grievant was aware of her duty and failedto perform it, her behavior constitutes "a knowing and intentional act." Hoover, supra. See
Brown, supra.
Additionally, Grievant's remarks indicating both the student and his mother should
have come to her instead of the principal were ill-advised and unprofessional. If Grievant
wants to insure nothing like this ever happens again, the correct plan of action is to review
materials before passing them out to the class, not to instruct students to return offensive
materials if they are again placed in a sixth grader's possession.
II. Mitigation/Severity of Penalty
The argument that Grievant's three day suspension is excessive given the facts of
the situation, is an affirmative defense, and Grievant bears the burden of demonstrating
the penalty was "clearly excessive or reflects an abuse of the agency['s] discretion or an
inherent disproportion between the offense and the personnel action." Martin v. W. Va.
Fire Comm'n, Docket No. 89-SFC-145 (Aug. 8, 1989).
"When considering whether to mitigate the punishment, factors to be considered
include the employee's work history and personnel evaluations; whether the penalty is
clearly disproportionate to the offense proven; the penalties employed by the employer
against other employees guilty of similar offenses
(See footnote 9)
; and the clarity with which the employee
was advised of prohibitions against the conduct involved." Phillips v. Summers County Bd.
of Educ., Docket No. 93-45-105 (Mar. 31, 1994). See Austin v. Kanawha County Bd. of
Educ., Docket No. 97-20-089 (May 5, 1997). Mitigation of a penalty is considered on acase by case basis. Conner v. Barbour County Bd. of Educ., Docket No. 95-01-031 (Sept.
29, 1995); McVay v. Wood County Bd. of Educ., Docket No. 95-54-041 (May 18, 1995).
A lesser disciplinary action may be imposed when mitigating circumstances exist.
Mitigating circumstances are generally defined as conditions which support a reduction in
the level of discipline in the interest of fairness and objectivity, and also include
consideration of an employee's long service with a history of otherwise satisfactory work
performance. Pingley v. Div. of Corrections, Docket No. 95-CORR-252 (July 23, 1996).
This Grievance Board has held that "mitigation of the punishment imposed by an
employer is extraordinary relief, and is granted only when there is a showing that a
particular disciplinary measure is so clearly disproportionate to the employee's offense that
it indicates an abuse of discretion or was arbitrary and capricious. Considerable
deference is afforded the employer's assessment of the seriousness of the employee's
conduct and the prospects for rehabilitation." Overbee v. Dep't of Health and Human
Resources/Welch Emergency Hosp., Docket No. 96-HHR-183 (Oct. 3, 1996). Respondent
has substantial discretion to determine a penalty in these types of situations, and the
undersigned Administrative Law Judge will not substitute her judgement for that of the
employer. Tickett v. Cabell County Bd. of Educ., Docket No. 97-06-233 (Mar. 12, 1998);
Huffstutler, supra.
"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)). " 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.
Given that considerable deference is afforded the employer's assessment of the
seriousness of the employee's conduct and the appropriate disciplinary action, this penalty
cannot be found to be excessive. Overbee, supra. While it is true that reasonable minds
may differ as to the correct discipline, a three day suspension for willful neglect of duty
which resulted in a sixth grader receiving sexually explicit and profane materials cannot
be considered unreasonable. This initial inappropriate action was compounded by
Grievant's subsequent discussion with her class about her beliefs that the student and his
mother had not dealt with the situation correctly. Accordingly, the punishment will not be
mitigated. The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law
1. An employer must establish the charges in a disciplinary matter by a
preponderance of the evidence. W. Va. Code §18-29-6; Nicholson v. Logan County Bd.
of Educ., Docket No. 95-23-129 (Oct. 18, 1995); Froats v. Hancock County Bd. of Educ.,
Docket No. 91-15-159 (Aug. 15, 1991).
2. A county board of education possesses the authority to terminate an
employee, but this authority cannot be exercised in an arbitrary and capricious manner.
W. Va. Code §18A-2-8; See Lanehart v. Logan County Bd. of Educ., Docket No. 95-23-235
(Dec. 29, 1995).
3. W. Va. Code §18A-2-8 identifies the types of action that can result in
disciplinary action and 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 or a
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.
4. It is not necessary for a board of education to identify an employee's offenses
by the exact terms utilized in W. Va. Code § 18A-2-8, as long as the required written notice
of charges specifically identifies the alleged acts of which the employee is accused.
5. Willful neglect of duty is one of the causes listed in W. Va. Code §18A-2-8
for which an education employee may be disciplined. See, Jones v. Mingo County Bd. ofEduc., Docket No. 95-29-151 (Aug. 24, 1995); Beverlin v. Bd. of Educ., 158 W. Va. 1067,
216 S.E.2d 554 (1975).
6. To prove willful neglect of duty, the employer must establish the employee's
conduct constituted a knowing and intentional act, rather than a negligent act. 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).
7. Grievant's behavior falls within the category of willful neglect of duty as she
committed a knowing and intentional act, as distinguished from a negligent act.
Chaddock, supra.
8. MCBOE has met its burden of proof and demonstrated Grievant was guilty
of willful neglect of duty and engaged in a knowing and intentional act" when she
distributed materials to her students without first assessing the content of these articles.
9. When considering whether to mitigate the punishment, factors to be
considered include the employee's work history and personnel evaluations; whether the
penalty is clearly disproportionate to the offense proven; the penalties employed by the
employer against other employees guilty of similar offenses; and the clarity with which the
employee was advised of prohibitions against the conduct involved." Phillips v. Summers
County Bd. of Educ., Docket No. 93-45-105 (Mar. 31, 1994). See Austin v. Kanawha
County Bd. of Educ., Docket No. 97-20-089 (May 5, 1997).
10. "Mitigation of the punishment imposed by an employer is extraordinary relief,
and is granted only when there is a showing that a particular disciplinary measure is so
clearly disproportionate to the employee's offense that it indicates an abuse of discretionor was arbitrary and capricious. Considerable deference is afforded the employer's
assessment of the seriousness of the employee's conduct and the prospects for
rehabilitation. Overbee v. Dep't of Health and Human Resources/Welch Emergency
Hosp., Docket No. 96-HHR-183 (Oct. 3, 1996).
11. Respondent has substantial discretion to determine a penalty in these types
of situations, and the undersigned Administrative Law Judge will not substitute her
judgement for that of the employer. Tickett v. Cabell County Bd. of Educ., Docket No. 97-
06-233 (Mar. 12, 1998); Huffstutler v. Cabell County Bd. of Educ., Docket No. 97-06-150
(Oct. 31, 1997).
12. The correct standard to apply when assessing whether a punishment should
be mitigated is the arbitrary and capricious standard.
13. "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 ArlingtonHosp. 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.
14. While Grievant established she had good evaluations, she failed to establish
MCBOE's decision to give her a three day suspension for her willful neglect of duty was
so excessive as to require the undersigned Administrative Law Judge to decrease the
penalty.
Accordingly, this grievance is DENIED.
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.
___________________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: August 28, 2000.
Footnote: 1 Exhibits from the pre-suspension hearing will be denoted as Admin. Ex. No. ---.
Footnote: 2 Grievant was represented by Steve Angel from the West Virginia Federation of
Teachers, and MCBOE was represented by Attorney Greg Bailey. Mr. Bailey elected not
to submit these proposals.
Footnote: 3 Grievant's conduct and the subsequent disciplinary action will not be viewed as
unsatisfactory performance as the charges against Grievant were not made "as the result
of an employee evaluation pursuant to [
W. Va. Code § 18A-2-12]."
Footnote: 4 In keeping with prior decision of this Grievance Board, minors and their parents will
be identified only by their initials.
See Jones v. Preston County Bd. of Educ., Docket No.
99-39-017 (Mar. 16, 1999).
Footnote: 5 This agreement is memorialized by a handwritten, draft letter dated October 13,
1997. There was no copy of a typed copy in the file, and Grievant could not remember if
she received a copy of this agreement.
Footnote: 6 This file and report were placed in a disciplinary file kept separate and apart and
stored in Assistant Superintendent Miller's office.
Footnote: 7 The parties discussed at some length the issue of whether Grievant was given a
three day suspension this time because her prior suspension had been for one day andthis suspension must be longer to be progressive. The testimony at Level IV indicated
Grievant's prior suspension had been discussed at the conference held before Grievant's
suspension. The testimony on this issue at Level IV was conflicting, but all remembered
the prior suspension had been discussed. Dr. Parsons said it did not effect his decision,
and Grievant stated this suspension was for three days to be progressive. Dr. Parsons'
testimony at the pre-suspension hearing was clear. When question by the Board, he
responded he did not believe the prior suspension should be examined at this pre-
suspension hearing, as the two incidents were unrelated, and the prior suspension had not
effected this recommendation to MCBOE.
Footnote: 8 MCBOE stated it was not necessary for it to label the charges, as it was up to the
courts and the Grievance Board to identify them pursuant to
W. Va. Code § 18A-2-8
.
Footnote: 9 Little evidence was submitted as to similar offenses and their punishment.
Information was submitted that an inappropriate article was given to a student and turned
in right away. There was no information about the details or consequences of this action.