JOHN WARD,

      Grievant,

v.                                                      Docket No. 00-49-101

UPSHUR COUNTY BOARD OF EDUCATION,

      Respondent.

DECISION

      John Ward (“Grievant”) filed this grievance directly at level four on March 16, 2000, challenging a ten-day suspension without pay. He seeks as relief reimbursement for ten days' pay, plus interest. A level four hearing was held before the undersigned administrative law judge in the Grievance Board's office in Elkins, West Virginia, on June 7, 2000, July 27, 2000, and September 25, 2000. Grievant was represented by William C. White, Representative for the West Virginia Education Association, and Respondent was represented by counsel, Kimberly S. Croyle. This matter became mature for consideration upon receipt of the parties' fact/law proposals on November 3, 2000.
      The following findings of fact are made from a preponderance of the evidence of record.

Findings of Fact

      1.      Grievant is employed by Respondent Upshur County Board of Education (“UCBOE”) as a sixth grade English teacher at Buckhannon-Upshur Middle School(“BUMS”). He has been employed by UCBOE as a classroom teacher for approximately twenty years.
      2.      On February 24, 2000, D.M.   (See footnote 1)  , a student in Grievant's ninth period class, disrupted the class twice by pretending to fall out of his desk and causing the other students to laugh. He was verbally warned by Grievant on both occasions to cease this disruptive conduct.
      3.      After having disrupted the class as described above, D.M. then pretended to trip over another student's feet (J.K.) on his way back to his desk from the pencil sharpener, again falling on the floor and causing the class to laugh.
      4.      Once D.M. had returned to his desk, Grievant placed both hands on D.M.'s desk, and pulled or “scooted” the desk forward approximately two feet (with D.M. still seated in the desk). Grievant then leaned down “in D.M.'s face,” saying “Stop it--you had better hope I don't lose my patience.”
      5.      Grievant may have raised his voice slightly, but he did not yell or scream at D.M. when he moved D.M.'s desk forward.
      6.      Immediately after Grievant moved D.M. and his desk forward, D.M. moved his desk back to its original position and continued with his school work. Grievant did not respond to D.M. moving the desk back.      7.      Grievant moved D.M.'s desk in order to separate him from the other students and to make it clear to him that his misbehavior must stop.
      8.      On November 3, 1983, Grievant lost his temper with a disruptive student and threw a book at him. Grievant received a written reprimand as a result of this incident.
      9.      On February 5, 1985, a ten-year-old student made an obscene gesture toward Grievant and called him an obscene name. Grievant responded by grabbing her, lifting her up by the coat, and shouting at her. Grievant was again reprimanded for his conduct.
      10.      On October 15, 1987, Grievant pulled his car in front of a school bus, forcing it to stop, so he could confront a high school student. He then followed the bus to the student's home and engaged in a verbal confrontation with the student and his parents. Grievant received a written reprimand as a result of this incident and was placed on an improvement plan. Grievant successfully completed the improvement plan and was complimented by UCBOE officials for his receptiveness to suggestions and his willingness to improve.
      11.      On May 23, 1990, Grievant threw a stool across his classroom to demonstrate to students what would happen if he lost his temper with them. Grievant was suspended for five days as a result of this incident.
      12.      As a result of the incident which occurred with D.M. on February 24, 2000, Superintendent Mary Alice Klein recommended that Grievant be suspended for ten days without pay for willful neglect of duty, insubordination, and violating the State Board ofEducation Teacher Code of Conduct and the Upshur County Teacher Code of Conduct. This recommendation was ratified by UCBOE.
Discussion

      In disciplinary matters, the employer bears the burden of establishing the charges by a preponderance of the evidence. W. Va. Code §18-29-6; Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994); Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989). A preponderance of the evidence is defined as "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary (6th ed. 1991), Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      The authority of a county board of education to suspend an employee must be based upon one or more of the causes listed in W. Va. Code § 18A-2-8, and must be exercised reasonably, not arbitrarily or capriciously. Parham v. Raleigh County Bd. of Educ., 192 W. Va. 540, 453 S.E.2d 374 (1994), Bell v. Kanawha County Bd. of Educ., Docket No. 91-20-005 (Apr. 16, 1991); See Beverlin v. Bd. of Educ., 158 W. Va. 1067, 216 S.E.2d 554 (1975). W. Va. Code § 18A-2-8 provides, in pertinent part:
      Along with charging Grievant with willful neglect of duty and insubordination, Respondent contends that Grievant has violated provisions of both the state and county versions of the teacher code of conduct. The suspension of a classroom teacher based upon violations of state or county policy may be upheld, but only if the employee's conduct also falls within one or more of the listed reasons set forth in the statute. Brown v. Mercer County Bd. of Educ., Docket No. 98-27-113 (July 30, 1998). The proper focus is whether the charge of misconduct is proven, not the label attached to such conduct. Gillespie v. Kanawha County Bd. of Educ., Docket No. 90-20-496 (June 6, 1991) (citing Russell v. Kanawha County Bd. of Educ., Docket No. 90-20-415 (Jan. 24, 1991)).
      Insubordination is the "willful failure or refusal to obey reasonable orders of a superior entitled to give such order." Riddle v. Bd. of Directors, So. W. Va. Community College, Docket No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). It "encompasses more than an explicit order and subsequent refusal to carry it out. It may also involve a flagrant or willful disregard for implied directions of an employer." Sexton v. Marshall Univ. , Docket No. BOR2-88-029-4 (May 25, 1988) ( citing Weber v. Buncombe County Bd. of Educ. , 266 S.E.2d 42 (N.C. 1980)). In order to establish insubordination, an employer must demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, and the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination. Conner v. Barbour County Bd. of Educ. , Docket No. 94-01-394 (Jan. 31, 1995).      To prove willful neglect of duty, the employer must establish that the employee's conduct constituted a knowing and intentional act, rather than a negligent one. Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994). See Bd. of Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990). Although the West Virginia Supreme Court has not formulated a precise definition of willful neglect of duty, it does encompass something more serious than incompetence and requires "a knowing and intentional act, as distinguished from a negligent act." Chaddock, supra. Willful neglect of duty has also been defined as an employee's intentional and inexcusable failure to perform a work-related responsibility. Adkins v. Cabell County Bd. of Educ., Docket No. 89-06-656 (May 23, 1990).
      Grievant contends that he did not knowingly nor intentionally engage in any type of conduct which he knew or should have known was prohibited. He introduced the testimony of several other teachers employed by Respondent who testified that they had moved a desk, with a student seated in it, as a classroom management technique. The instances described by these teachers usually involved a disruptive student whom the teacher wished to separate from the other students. None of these teachers had raised their voices or engaged in this conduct out of anger. Respondent argues that the situations described by the other teachers were dissimilar from the instant case, and points out that none of those teachers had been previously reprimanded for using inappropriate discipline techniques.
      Respondent agrees with Grievant's contention that there is no UCBOE policy which specifically prohibits moving an occupied student desk. However, it contends thatGrievant's conduct violated portions of the state and county teacher code of conduct requiring teachers to provide a safe and positive learning environment and treat students fairly and with a caring, honest and professional attitude. Moreover, Respondent believes that Grievant knowingly and intentionally committed an act which he knew was prohibited, constituting insubordination and willful neglect of duty. As noted above, the focus in disciplinary cases is upon whether or not the employee's misconduct falls into one or more of the categories listed in W. Va. Code § 18A-2-8. Both insubordination and willful neglect of duty require an employer to prove that the conduct and the defiance of authority were “knowing and intentional.”
      Although it is obvious that Grievant has had a difficult history involving dealing with children who pose disciplinary problems, it should be noted that the latest of those incidents occurred approximately ten years ago. Moreover, Respondent has failed to prove by a preponderance of the evidence that Grievant actually lost his temper with D.M. The students seated near D.M. when the incident occurred all testified that Grievant did not yell at D.M. and that D.M. did not seem afraid. In fact, D.M. moved his desk back to its original position immediately after Grievant pulled him toward the front of the classroom. This does not appear to be an action consistent with a student who is afraid or fearful.       Unlike the incidents for which Grievant was disciplined in the past, this did not involve a loss of temper followed by a physical threat or violent act. Respondent has attempted to prove that the movement of the desk with D.M. seated in it was a violent act, followed by a threat. The evidence simply does not support this contention. D.M.'s own actions demonstrate that he did not feel threatened by Grievant's conduct. In addition,Grievant's statement that D.M. “had better hope I don't lose my patience” could have meant that D.M. would be referred to the office for discipline if he committed any further infractions. This would not constitute an inappropriate threat for a teacher to make to a student who is misbehaving, as UCBOE officials admitted.
      Although Grievant could have used another method to deal with D.M.'s misbehavior, such as sending him to the office, his conduct does not rise to the level of a knowing and intentional act. It is true that Grievant has been disciplined in the past for disciplining students inappropriately, but the evidence presented does not establish that Grievant knew or should have known that his conduct in this instance was also inappropriate or that he would be disciplined for it. Accordingly, Respondent has failed to meet its burden of proof, and the 10-day suspension must be reversed.
Conclusions of Law

      1.      In disciplinary matters, the employer bears the burden of establishing the charges by a preponderance of the evidence. W. Va. Code §18-29-6; Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994); Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989).
      2.      The authority of a county board of education to suspend an employee must be based upon one or more of the causes listed in W. Va. Code § 18A-2-8, and must be exercised reasonably, not arbitrarily or capriciously. Parham v. Raleigh County Bd. of Educ., 192 W. Va. 540, 453 S.E.2d 374 (1994), Bell v. Kanawha County Bd. of Educ., Docket No. 91-20-005 (Apr. 16, 1991); See Beverlin v. Bd. of Educ., 158 W. Va. 1067, 216 S.E.2d 554 (1975).      3.      A board of education employee may be suspended at any time for immorality, incompetency, cruelty, insubordination, intemperance, willful neglect of duty, unsatisfactory performance, the conviction of a felony or a guilty plea of nolo contendere to a felony charge. W. Va. Code § 18A-2-8.
      4.      In order to establish insubordination, an employer must demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, and the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination. Conner v. Barbour County Bd. of Educ. , Docket No. 94-01-394 (Jan. 31, 1995).
      5.      To prove willful neglect of duty, the employer must establish that the employee's conduct constituted a knowing and intentional act, rather than a negligent one. Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994). See Bd. of Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990).
      6.      Respondent failed to prove by a preponderance of the evidence that Grievant committed actions constituting insubordination or willful neglect of duty on February 24, 2000.

      Accordingly, this grievance is GRANTED. Respondent is ORDERED to expunge all records of Grievant's ten-day suspension, and reimburse him all back pay and benefits to which he would have been entitled during the suspension period, plus interest at the statutory rate.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or the Circuit Court of Upshur County, and such appeal must be filed within thirty (30) days of receipt of this Decision. W. Va. Code § 18-29-7. Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

Date:      November 16, 2000                   _______________________________                                                 DENISE M. SPATAFORE
                                                Administrative Law Judge


Footnote: 1
      In accordance with Grievance Board practice, the identity of minor students involved in this grievance will be protected through the use of only their initials. Shipley v. Grant County Bd. of Educ., Docket No. 97-12-169 (Sept. 29, 1997); Edwards v. McDowell County Bd. of Educ., Docket No. 93-23-38 (June 23, 1994).