LANA TURNER,
            Grievant,
            
v.                                                       Docket No. 98-23-473

LOGAN COUNTY BOARD OF EDUCATION,
            Respondent,

and

CLETIS " ED" NAPIER,
            Intervenor.

D E C I S I O N

      Grievant, Lana Turner, filed the following Statement of Grievance:

      This grievance was denied at Level I, and a Level II hearing was held on October 19 and November 4, 1998. Principal Cletis "Ed" Napier was allowed to intervene into the grievance prior to the second day of hearing at Level II. A Level II Decision issued November 9, 1998, denied this grievance. It appears Grievant elected to by-pass Level III. After multiple continuances and a possible settlement agreement, a Level IV hearing was held on March 3, 2000. At the close of this hearing, the parties agreed to obtain an affidavit from the former Superintendent, John Myers, and the case would then become mature for decision on April 4, 2000. This deadline passed and an affidavit of Mr. Myerswas not received until August 2, 2000. This case became mature for decision on August 22, 2000.   (See footnote 2) 
Procedural History

      This case has a lengthy and rather tortured history. It was filed in 1998, and had two days of hearing at Level II. After it was denied there, it was appealed to Level IV, but Grievant asked for it to be held in abeyance as the parties had reached a settlement agreement. Apparently, after Grievant had received the things she asked for pursuant to the settlement agreement, she refused to sign it saying she had never agreed to a settlement agreement, and requested a Level IV hearing on all the issues. Respondent filed a Motion to Dismiss, based on the verbal settlement agreement. After a pre-hearing telephone conference on September 20, 1999, this Motion was denied on January 20, 2000. Prior to the start of the Level IV hearing on the merits, Respondent renewed its Motion to Dismiss, and evidence was taken on this issue.
      After the hearing was adjourned, dates had been selected for the submission of proposals, and Respondent had submitted these proposals. Then on April 18, 2000,Grievant 's attorney filed a Motion to Reopen the hearing for the taking of additional testimony. This request was made at the direction of Grievant. Grievant noted that two of the witnesses she wanted to call did not appear. Grievant also wanted to present additional testimony "regarding other incidents as examples of retaliation where projects were taken away", and Grievant felt "rebuttal evidence was not properly presented." A telephone conference on this issue was held on May 15, 2000. Both Respondent and Intervenor objected to this Motion. The Motion was denied for the following reasons: 1) Grievant released one of the witnesses from her subpoena and knew at the time of the hearing that she would not be available; 2) Grievant did not serve the other witness, and knew at the time of the hearing that he would not be available for testimony;   (See footnote 3)  3) at hearing, Grievant was allowed to present rebuttal testimony and did so; 4) neither Grievant nor her representative requested a continuance for the presentation of additional testimony; and 5) this grievance was filed in 1998, and it is time for the issues it presents to be resolved.       The first issue to address is Respondent's Motion to Dismiss.
I.      Whether or not the parties reached a Settlement Agreement?
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact on the settlement agreement issue and Respondent's Motion.
Findings of Fact on Settlement Agreement Issue

      1.      This grievance was filed on September 8, 1998.
      2.      Sometime in December 1998, after Grievant had appealed to Level IV, Grievant contacted Superintendent Ray Woolsey about receiving a leave of absence from February 8, 1999 to May 14, 1999, to attend a technology consortium. This leave of absence would require LCBOE to hire a long-term substitute for Grievant's position.
      3.      On or about January 5, 1999, Superintendent Woolsey told Grievant that if she would drop her grievance, he would approve her leave of absence.
      4.      Sometime within the next few days, Grievant's attorney and Respondent's attorney had a telephone conversation about the possibility of reaching a settlement agreement.
      5.      By letter dated January 12, 1999, to Respondent's attorney, Grievant's attorney confirmed this conversation, and stated:

      6.      On January 15, 1999, the parties, including Grievant, met to discuss the possibility of settlement. As a result of these discussions, Grievant was granted the following considerations: 1) Grievant was granted a leave of absence from her position from February 8, 1999 to May 14, 1999; 2) Grievant was not placed on administrative transfer; and 3) Grievant was allowed to serve on the Curriculum Committee to plan the teaching of library skills to Chapmanville Middle School's students. These are the considerations she had requested.
      7.      A final report on the sexual harassment claims was issued on January 22, 1999, with a finding of no sexual harassment. Thus, the sexual harassment claims had been investigated and resolved as well. Resp. Ex. No. 11, at Level IV.
      8.      Because Superintendent Ray Woolsey believed a settlement agreement had been reached, he recommended Grievant be granted the requested leave of absence.   (See footnote 5)  On January 28, 1999, LCBOE voted to approve Grievant's leave of absence.
      9.      Grievant's attorney was to author the Dismissal Order and send it to all parties for signatures. Because time was so short after the approval received at the January 28, 1999 Board meeting, Grievant's attorney sent the Dismissal Order to Grievant at the consortium. This Order stated, in part, "the matters contained in the grievance regarding class scheduling have been settled and/or compromised and further requested the hearing scheduled for February 17, 1999, be cancelled (sic)." The Order asked thatthe grievance be dismissed and stricken from the docket of the Grievance Board. Grievant refused to sign this Order as she did not like the language.
      10.      Grievant's attorney wrote another Dismissal Order for Grievant's signature sometime later in 1999, after Grievant had returned from the leave of absence. This Order stated Grievant was withdrawing her grievance, but not waiving her right to pursue other legal action or remedies in other forums or venues.   (See footnote 6)  This Order also asked the grievance be dismissed and stricken from the docket of the Grievance Board. Grievant refused to sign this Order as she did not like the language. She informed her attorney she wished to pursue her grievance at Level IV.
      11.      A pre-hearing conference was held on Respondent's Motion to Dismiss on September 20, 1999. Grievant's attorney indicated Grievant had some difficulty with the language of the settlement agreement, but she did not believe Grievant would sign any settlement agreement, even if the issues involved were clearly explained to her. This Motion was denied on January 20, 2000.
      12.      At the Level IV hearing, sworn testimony and additional documents were presented on the settlement agreement issue.
      13.      At the Level IV hearing, in some very confusing testimony, Grievant at first said she did not agree to have the scheduling issue resolved and dropped from the grievance, and zero was resolved and settled prior to attending the consortium. In latertestimony, Grievant reluctantly agreed that the scheduling portion of the grievance had been settled.
      14.      Grievant did not believe it was "right" for LCBOE to propose this settlement agreement and to tie attending the conference with her grievance.
      15.      Grievant was allowed to attend the conference, to participate on the Curriculum Committee to deal with the scheduling of library science, and was not placed on administrative transfer. All of these concessions were granted within one year.
Discussion of Settlement Agreement Issue

      Typically, the party asserting the existence of a settlement agreement has the burden of proof on this issue, and must prove by a preponderance of the evidence that the parties had reached a settlement agreement and all issues were resolved by this agreement. See Strawser v. Dep't of Health and Human Resources, Docket No. 99-HHR- 414 (Mar. 6, 2000). However, because there is no written agreement, Respondent must demonstrate its case through written documents and testimony, and the evidence to establish an oral contract must be full, clear, and convincing. Gray v. Marino, 138 W. Va. 585, 765 S.E.2d 585 (1953); Ice v. Ice, 119 W. Va. 409, 193 S.E. 912 (1937). "Clear and convincing evidence requires the party with the burden of proof to produce evidence substantially more than a preponderance of the evidence, but less than that required to prove the matter beyond a reasonable doubt." Lohr v. Div. of Corrections, Docket No. 99- CORR-157D (Nov. 15, 1998). Additionally, all the facts and circumstances must convince the court that "such agreement is fair, just and free of suspicion." Id. The undersigned Administrative Law Judge is to look "not only to the direct proof adduced, but to thesurrounding circumstances, as shown by the evidence, in determining whether or not such relief will be granted." Id. "Where the basis of litigation is a verbal contract, and there is a sharp conflict as to its terms, the situation of the parties and all the circumstances surrounding them which tend to substantiate the evidence of either party as to the terms of the contract and its true meaning and effect, and what the parties did under the contract, is generally admissible as evidence." Dickson Fuel Co. v. Glenn Coal Co., 103 W. Va. 366, 374, 137 S.E. 539 (1927). If the evidence of the parties' "conduct and other facts and circumstances of the case are inconsistent with the contract sought to be established, the [Respondent] has not proved such contract by clear and convincing evidence." Gray, supra.
      It must be noted that "[t]he law favors and encourages the resolution of controversies by contracts of compromise and settlement rather than by litigation; and it is the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy." Syl. Pt. 1, Sanders v. Roselawn Memorial Gardens, 152 W. Va. 91, 159 S.E.2d 784 (1968). This Grievance Board, of course, also recognizes this general rule of law. Dye v. W. Va. Dep't of Educ., Docket No. 99-DOE-217 (Sept. 16, 1999); Lowe v. W. Va. Div. of Corrections, Docket No. 99-CORR- 095 (June 10, 1999); Vance v. Logan County Bd. of Educ., Docket No. 95-23-190 (Mar. 15, 1996). See McDowell County Bd. of Educ. v. Stephens, 191 W. Va. 711, 447 S.E.2d 912 (1994). The Grievance Board has authority to uphold such contracts, provided they are fairly made, and not in contravention of some law or public policy. Lowe, supra; Adkins v. Logan County Bd. of Educ., Docket No. 97-23-216 (Sept. 29, 1997); Vance,supra. See McDowell County Bd. of Educ., supra. Thus, the Grievance Board may review and interpret a settlement agreement in accordance with the definition of “grievance” set forth in W. Va. Code § 18-29-2(a). See Kyle v. W. Va. Div. of Corrections, Docket No. 99- CORR-077D (Aug. 3, 1999); Patrick v. W. Va. Dep't of Transp., Docket No. 94-DOH-571 (Apr. 21, 1995).
      Of course, the issue here is whether the parties had an oral contract or a settlement agreement. Grievant argues she never wanted to agree to any settlement proposal and thought it was unfair for LCBOE to connect her desire to attend the consortium with her grievance. Although Grievant believed this type of negotiation was "not right", Grievant was represented by counsel every step of the way, and she presented no evidence that she was coerced into a settlement agreement.
      Respondent contends this grievance should be dismissed, and a settlement agreement was reached by the parties as demonstrated by the evidence. Grievant's attorney contends that only a portion of the grievance, the issue of Grievant's scheduling, which is now moot, was covered by the settlement agreement.
      The undersigned Administrative Law Judge notes this settlement agreement, if there is one, must be considered as an oral or verbal contract. There was insufficient time to put the agreement in writing prior to Grievant's departure for the consortium. A brief examination of the law concerning oral or verbal contracts should be helpful in assessing whether a settlement agreement was reached between the parties.
      In Shrewsbury v. Humphrey, 183 W. Va. 291, 395 S.E.2d 535 (1990), the West Virginia Supreme Court of Appeals defined some terms which are useful in clarifying oralcontracts. "In the law of contracts a representation is 'a statement express or implied made by one of two contracting parties to the other, before or at the time of making the contract, in regard to some past or existing fact, circumstance, or state of facts pertinent to the contract, which is influential in bringing about the agreement.' Black's Law Dictionary, 3rd ed., 1534. A promise is 'a declaration, verbal or written, made by one person to another for a good or valuable consideration, in the nature of a covenant by which the promisor binds himself to do or forbear some act, and gives to the promisee a legal right to demand and enforce a fulfillment.' Black's Law Dictionary, 3rd ed., 1433." Shrewsbury, supra.
      Additionally, Thompson v. Stucky, 171 W. Va. 983, 300 S.E.2d 295 (1983), stated that "the established law in this State, however, is that the terms of a verbal contract must expressly or by necessary implication provide for performance beyond a year, or contain nothing consistent with complete performance within a year, in order to come within the statute of frauds." (citing Wood & Brooks Co. v. Hewitt Lumber Co., 89 W. Va. 254, 109 S.E. 242 (1921); Brown v. Western Maryland Ry., 84 W. Va. 271, 99 S.E. 457 (1919); Reckley v. Zenn, 74 W. Va. 43, 81 S.E. 565 (1914)). "Furthermore, if an oral contract may, in any possible event, be fully performed according to its terms within a year, it is not within this subdivision of the statute of frauds, and it is only necessary that the contract be capable, by reasonable construction, of full performance by one side within a year in order to remove it from the Statute of Frauds." Thompson, supra (citing Jones v. Shipley, 122 W. Va. 65, 7 S.E.2d 346 (1940); Wood & Brooks Co., supra; McClanahan v. Otto-Marmet Coal & Mining Co., 74 W. Va. 543, 82 S.E. 752 (1914); Reckley, supra; Smith v. Black, 100W. Va. 433, 130 S.E. 657 (1925)). Thompson further noted that a contract is removed from the Statute of Frauds if it is capable of being performed within one year, and that "the authorities, though some are quite ancient, are substantially in accord with our view."
      In Stump v. Harold, 125 W. Va. 254, 23 S.E.2d 656 (1942), the West Virginia Supreme Court of Appeals clarified that full performance was an important part in finding an oral contract and removing it from the Statute of Frauds, and the requirement that it be in writing. Smith, supra, stated "[p]artial performance will not be sufficient to take a case out of the statute of frauds, but full performance, the authorities say, will do so." See Callaham v. Bank, 126 W. Va. 907, 30 S.E.2d 735 (1944).
      While it is clear "that the policy of the law is to encourage settlements." Valloric v. Dravo Corp., 178 W. Va. 14, 18 n. 6, 357 S.E.2d 207, 212 n. 6 (1987), it is also clear that a court may only enforce a settlement when there has been a definite meeting of the minds. See, O'Connor v. GCC Beverages, Inc., 182 W. Va. 689, 391 S.E.2d 379 (1990); Evans v. Robinson, 197 W. Va. 482, 475 S.E.2d 858 (1996). This is more difficult to determine with an oral contract.
      In O'Connor, supra, the West Virginia Supreme Court of Appeals noted the contractual nature of compromise and settlement and held that "a definite meeting of the minds of the parties is essential to a valid compromise, since a settlement cannot be predicated on equivocal actions of the parties." In O'Connor, and Humphrey v. Chrysler Motors Corp., 184 W. Va. 30, 299 S.E. 2d 60 (1990), the West Virginia Supreme Court of Appeals found that no settlement was reached because "there was no true meeting of the minds on the day in question." Id. In these cases, the attorneys for the parties hammeredout the settlement agreements without the plaintiffs being present. When presented with the final settlement agreements, plaintiffs did not agree with the compromised reached. O'Connor also held in its Syllabus Point, "[w]here, from all the evidence and circumstances of the case, it appears that the parties to an agreement being negotiated between them intend that, as a condition precedent to its becoming binding upon them, it should be reduced to writing and signed by the parties, an oral agreement, though it covers all the terms of the proposed agreement, is not binding on the parties, until it is reduced to writing, and has been signed by all the parties thereto." See Blair v. Dickinson, 133 W. Va. 38, 54 S.E.2d 828 (1949).
      Several factors point to a finding that a complete settlement agreement was reached by the parties. First, there is no indication the parties ever intended to reduce the settlement agreement to writing for it to be valid. This fact is demonstrated by the language of the Dismissal Orders Grievant's attorney wrote. Second, Grievant's attorney sent her client several proposed Dismissal Orders. Each of these stated the grievance should be dismissed and stricken from the docket of the Grievance Board. This type of language would not be used if only a portion of the grievance were resolved. Additionally, Grievant received all that she asked for, and after Respondent had engaged in complete performance, Grievant then stated there was either no settlement agreement reached or the agreement was only for a portion of the grievance that was moot. If Grievant believed there was no settlement agreement, why did she not question her attorney in early February about the Dismissal Order she received?       It is well-understood that "since a compromise and settlement is contractual in nature, a definite meeting of the minds of the parties is essential to a valid compromise, since a settlement cannot be predicated on equivocal actions of the parties." 15A C.J.S. Compromise & Settlement § 7(1)(1967). O'Connor, supra. The undersigned Administrative Law Judge finds there was a definite meeting of the minds in this instance.
       Apparently, Grievant changed her mind after she received all the consideration she sought. It is also clear she did not think it was "right" to settle the grievance, and this may also account for her decision to back out on the deal. Grievant is a professional educator, teacher, and librarian with a Masters degree, plus 45 additional hours, and she was represented by competent counsel. Grievant knew what she had agreed to but, she later decided it "wasn't right" and refused to sign what she had promised to sign. Grievant assented to an oral settlement agreement and should not now be allowed to breach that contract. Kyle, supra. Grievant received the consideration for which she asked. It is clearly wrong to reward a party seeking to breach a settlement agreement, with no evidence that the agreement should be set aside. Kyle, supra; Lowe, supra.
      Accordingly, the undersigned Administrative Law Judge finds a settlement agreement was reached between the parties. However, since others could disagree about this ruling, and because of the long-term and continuing problems Grievant perceives she has suffered at the hands of Intervenor Napier and LCBOE, the merits of this grievance will be addressed.
II.      Merits of the Grievance
      Grievant attempted to support her allegations of harassment, sexual harassment, and retaliation through describing a series of incidents that occurred over a period of eightyears. These incidents were raised to no one until the grievance was filed. It also appears the claim of sexual harassment was not clearly presented until Grievant testified at Level IV. The events Grievant alleges to support her claim will be discussed in chronological order.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact on the merits of the case.
Findings of Fact of the Merits

       1.      Grievant has been employed by the Logan County Board of Education ("LCBOE") for approximately twenty-two years. She was first hired as an elementary teacher, but later took additional classes and became certified as a Librarian.
      2.      Intervenor Napier first became Grievant's supervisor when they were still at Chapmanville Junior High School. This was in the 1991-1992 school year. Later they moved to Chapmanville Middle School.
      3.      Because Intervenor Napier wanted his school and its students to be computer literate, he directed Grievant to obtain training in this area. He believed Grievant was the best choice for this training because as the Librarian she could pass the information on, he would not have to obtain a substitute each time she was absent for training, and no classroom would be disrupted.
      4.      Grievant, at first, was reluctant, but after she received some training she found she enjoyed the things she was learning and frequently wanted to attend more conferences, be placed on more committees, and learn more.
      5.      Intervenor Napier allowed Grievant to attend multiple seminars and conferences. He agreed to allow Appalachian Rural Systemic Initiative ("ARSI") to beplaced in the school and to allow Grievant to be the school partner, as ARSI promised technology hardware and software. This program required Grievant to be gone half of the day, and even though ARSI provided a substitute, there were problems because the substitute was often not as competent as Grievant or as knowledgeable about the school and its resources. ARSI also required Intervenor Napier to accept certain responsibilities and training.
      6.      In approximately 1991, when they were still at the old school, Intervenor Napier ran into a life-size poster of Marilyn Monroe in the library, was startled, and at first, thought it was Grievant.   (See footnote 7)  This poster was part of a social studies project. He later told Grievant about this incident, as he thought it was funny.   (See footnote 8)  He did not make any sexually harassing remarks when he discussed this incident with Grievant.
      7.      In approximately 1992, Intervenor Napier was leaning over a copier trying to fix it, and Grievant was behind him when his backside was pinched. He hollered. Other teachers who were around, asked what had happened, and he said Grievant had pinched him. He later found out a table had somehow moved, and pinched him, not Grievant.   (See footnote 9)  Intervenor Napier did not make any sexually harassing remarks.
      8.      Intervenor Napier says he is frequently embarrassed by the comments made to him by female teachers and has found this to be a common feeling of male principals who have mostly female faculty and staff.      9.      Sometime in the early 1990's, Intervenor Napier told Grievant he believed she was high maintenance. Upon further questioning from Grievant, Intervenor Napier described a portion of the famous restaurant scene from "Harry Met Sally" and said a woman was having sex. He did not know the name of the movie. When Intervenor Napier saw he had embarrassed her, he apologized and stated he would never say anything like that to her again. There was no testimony to show Intervenor Napier has broken this promise.
      10.      Intervenor Napier believed Grievant was high maintenance because she was frequently in his office wanting something, complaining about something, and, at times, discussing her personal problems.
      11.      Sometime in 1994, Grievant came to Intervenor Napier to question him about rumors that they were having an affair. Intervenor Napier had not heard of the rumors and told Grievant so. Intervenor Napier's response was, "You know how people will talk." He also indicated that these rumors had a negative effect on him as well. Grievant interpreted Intervenor Napier's remark to mean he knew who was telling the rumors, and he refused to tell her. She was very angry that he did not confront the rumor-mongers.
      12.      Sometime in approximately 1995 or 1996, Grievant found out a faculty member had made a demeaning comment about her hair color, blonde, and indicated this is why she is ditzy. She complained to Intervenor Napier, and Intervenor Napier called the teacher in, in Grievant's presence, explained this type of behavior was inappropriate, and must not occur again. The teacher apologized and there have been no further comments of this type.       13.      Grievant alleged Intervenor Napier had made comments of the same type at least fifty times over the years, and he has made these comments in front of others. Intervenor Napier denies these comments. No other witness stated they had heard these comments. The undersigned Administrative Law Judge finds Intervenor Napier did not make derogative comments about Grievant's hair color.   (See footnote 10)  Intervenor Napier had stated he discussed with Grievant that they both have blonde hair.
      14.      In March 1997, Ms. Martina Mills instigated a confrontation with Grievant. During this confrontation Ms. Mills said something like "Get out of my fucking face, or I'll knock the hell out of you." Grievant response was "Go ahead, come on and hit me."   (See footnote 11)  Intervenor Napier was at a conference on the day this occurred. Ms. Mills went immediately to Assistant Principal Jack Bailey and confessed that she had done something that could get her fired. Grievant also came to Assistant Principal Bailey to complain about the verbal assault. Intervenor Napier was informed of the event and scheduled a meeting to deal with the conflict using the skills he had been taught in administrative training classes. Assistant Principal Bailey was also present. Grievant did not want to attend because she had not had time to organize all her issues on paper so she could presentthem. Intervenor Napier made it clear he wanted Grievant to attend and she did. However, Grievant did not participate in the exchange of ideas, and believed none of the problems with Ms. Mills were her fault. Ms. Mills apologized for her behavior and received a written reprimand from Intervenor Napier. Grievant did not. Grievant believes that in this incident she had been discriminated against and had been treated worse than Ms. Mills. Grt.'s Test. at Level IV.
      15.      Over the years while Grievant was at Chapmanville Middle School she has had multiple health and personal problems. She would discuss these problems with Intervenor Napier and leave his office in tears. Intervenor Napier became uncomfortable with this sharing, and discouraged Grievant from this behavior.
      16.      During the troubles discussed in Finding of Fact 15, Grievant had difficulty arriving at work on time and was missing work. Grievant asked Intervenor Napier if she should request a leave of absence, and he told her that would not be necessary, to come to work when she could.
      17.      Grievant has had repeated difficulty with a variety of faculty members over the years. She believes this is because they are jealous of her many conferences and her higher standards. Grievant has informed Intervenor Napier of these difficulties, and also in May 1998, Grievant wrote a 13 page, single spaced letter to then Superintendent John Myers detailing all the things she believed these faculty members and their ring leader, Martina Mills, had done to her. She also discussed her anger at the treatment she was receiving. Although she stated in this letter she had been sexually harassed by Intervenor Napier she did not list any specifics. The main focus of this epistle was the horrible treatment she had received at the hands of Ms. Mills, and how Ms. Mills had turned thefaculty against her. She stated Ms. Mills was the reason Intervenor Napier had taken away all her projects.
      18.      Intervenor Napier encouraged Grievant to be a "team player", and he indicated she had a lot to share with the faculty given her level of expertise. Grievant refused to be a "team player", saying she did not trust these people and did not want to lower her standards. Resp. Ex. No. 9, at Level IV.
      19.      The difficulty with other faculty stems from several areas. First, Grievant is not present in the school when the faculty and the students need her services. Second, the faculty were jealous that Grievant was allowed to attend so many conferences and seminars, was allowed to work on so many committees, and spent so much time away from her teaching assignment. Third, Grievant did not like faculty and students to be in her area when she was not present, and she complained that they did not leave the area as they had found it. Grievant did not make the faculty feel welcome in the library.
      20.      In Spring 1998, Grievant and three other sponsors took the National Junior Honor Society students to an out of town meeting. While there, they had some difficulty with the students and a parent who was not a chaperone. When the group returned, the teachers had a meeting with Intervenor Napier and requested the students be suspended. Grievant informed Intervenor Napier that the students had planned a "sex fest" (students' term). During this tense meeting, Intervenor Napier may have stated to the group in general, "It's possible that if you punish these students, the parents will think you were just upset because the students had a 'sex fest' and you weren't invited."   (See footnote 12)  The majority of thegroup thought this was a humorous comment, and it lightened the mood of the meeting. This feeling about the comment was shared by one of the teachers, Virginia Rayburn, who admitted to being rather straitlaced. After the meeting, Grievant talked to Ms. Rayburn, and told her she was very upset about this comment that Intervenor Napier had personally directed to her.
      21.      Over time, faculty started to complain about Grievant's frequent absences and their inability to use the library and receive assistance from Grievant. They indicated to Intervenor Napier they believed Grievant received preferential treatment, and was allowed to attend conferences and training they all could benefit from and wanted to attend. Further, Grievant was gone from the school more than half the time, and frequently had difficulty returning when she was expected. There were numerous complaints about Grievant never being there and taking long lunches.
      22.      The faculty complaints caused Intervenor Napier to examine his policy of allowing Grievant to attend conferences and training. He decided it was time for Grievant to spend more time at the school so the faculty could benefit from her expertise, and also so other faculty could receive training and be on committees.
      23.      In March or April of 1998, Intervenor Napier shared with Grievant his plan to withdraw from the ARSI project, and indicated he would not approve so many outside workshops for her, but instead would begin to pass the opportunities for training and participation on committees around to all the faculty.      24.      Superintendent Woolsey had also received criticisms about the SHARE   (See footnote 13)  program that Grievant conducted. The complaints focused on the quality of instruction and the students were bored. This information was shared with Grievant in early April of 1998.       25.       One of the reasons Intervenor Napier became disillusioned with the ARSI program was the computers he had been promised were not received.
      26.      Additionally, ARSI had changed its focus and directed its funding and energies only toward science and math. ARSI questioned Grievant's continued involvement because she was not certified in these areas. The science teachers at Chapmanville Middle School did not want to participate in these programs with Grievant.
      27.      When Intervenor Napier informed Grievant of his plans and started to cut back on the number of programs Grievant was allowed to attend and started to send other faculty to these programs and placing then on committees, Grievant felt as if Intervenor Napier was treating her unfairly.
      28.      Grievant had left either all or a portion of the May 1998 letter in the copier. It was found by "someone" and the letter was shared among the faculty and staff.   (See footnote 14) 
      29.      After Intervenor Napier found out he was being accused of sexual harassment, he had further reason to not want to participate in the ARSI program, as it required overnight trips where Grievant would be in attendance. After Grievant accused him of sexual harassment, Intervenor Napier was very careful in his interactions with Grievant.              30.      When Intervenor Napier decided he did not want to continue to work with ARSI, Grievant became very upset and angry with Intervenor Napier. Since ARSI would not allow Grievant to continue the ARSI program without the principal's support, Grievant applied for a classroom teaching position at Chapmanville East Grade School in April 1998. Because she had discussed the ARSI program with this principal, she believed this school would support the ARSI program. Grievant received this position on May 21, 1998. Initially, this principal stated he would support the program, but when he found out all that was required, he stated he would be unable to participate.
      31.      Since Grievant still wanted to work with the ARSI program, then Assistant Superintendent Woolsey attempted to assist Grievant in finding another school for the program. At his encouragement, Grievant applied for a teaching position at Logan Middle School, but later withdrew her application.
      32.      In the meantime, the Librarian position at Chapmanville Middle School was posted from June 3-8, 1998. Grievant applied for the position. The duties for the coming school year had changed, and the successful applicant would be responsible for teaching four classes in Library Science as well as maintaining the library. Grievant did not inquire if there had been any changes in the duties of the position. Grievant had taught classes in Library Science in the past.   (See footnote 15)        
      33.      At the time of the planning and posting of the position, no one thought Grievant would apply for the position. The posting directed the employee to see theattached Job Description. There was no Job Description attached, but Grievant did not ask anyone for a copy.
      34.      The Job Description does not state a Librarian/Media Specialist will be required to teach classes, but it does say "[i]mplements a curriculum of library/media instruction which provides for the teaching of library skills to students."
      35.      Intervenor Napier asked Assistant Superintendent Brenda Skibo if he should call Grievant and tell her about the changes. This change was instituted at Superintendent Woolsey's directions as the state test scores in this area were low. Additionally, Chapmanville Middle School had lost faculty, and teaching this course would help in scheduling.
      36.      Assistant Superintendent Skibo asked Intervenor Napier if he thought he should call all applicants and give them the same information, and if he normally would not, she did not think it was appropriate to do so for this one applicant.
      37.      Grievant received the Librarian/Media Specialist position at Chapmanville Middle School because of her seniority and qualifications. She was very distressed when she learned she would be required to teach classes, and filed this grievance. She argued W. Va. Code § 18A-2-7 had been violated and argued she had been given a significantchanges in her assignment without receiving a transfer.   (See footnote 16)  She believed Intervenor Napier had assigned her these duties in retaliation her for filing complaints against him.
      38.      Although Grievant had accused Intervenor Napier of sexual harassment she had never filed a formal complaint. Because these accusations were not formally filed as such, no Title IX investigation was conducted. LCBOE dealt with the issues raised in Grievant's letter through meetings, an investigation by Superintendent Woolsey and Respondent's attorney, and directions to those involved. Apparently, LCBOE believed many of the complaints would become moot since Grievant was leaving Chapmanville Middle School and would not longer be around Ms. Mills, and Intervenor Napier.
      39.      Sometime in October 1998, Intervenor Napier and Grievant filed cross claims of sexual harassment.
      40.      Contrary to Grievant's testimony these complaints were investigated.
      41.      On October 23-26, 1998, and November 2-9, 1998, Jo Ann Gore   (See footnote 17)  interviewed numerous employees including Grievant and Intervenor Napier. Ms. Gore noted several of the witnesses had been interviewed the school year before bySuperintendent Woolsey and LCBOE's attorney.   (See footnote 18)  Ms. Gore's January 26, 1999 report does not list any findings of sexual harassment.
      42.      Additionally, Assistant Superintendent Skibo interviewed Grievant and Intervenor Napier and held meetings with them. Assistant Superintendent Skibo's report found no sexual harassment, and she believed the situation developed because Grievant was upset when Intervenor Napier no longer wished to support the ARSI program. Assistant Superintendent Skibo concluded:


Resp. Ex. No. 11, at Level IV. The undersigned Administrative Law Judge finds this assessment to be valid.
      43.      None of the many witnesses called by any party had seen either Intervenor Napier or a member of the administration engage in harassment, sexual harassment, retaliation, reprisal, or intimidation in relation to Grievant.
Discussion of Merits

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Toney v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997). See W. Va. Code § 18-29-6. A preponderance of the evidence is 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. Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997). It may not be determined by the number of witnesses, but by the greater weight of all evidence, the witnesses' opportunity for knowledge, information the witnesses possess, and the witnesses' manner of testifying; these factors determine the weight of the testimony. Black's Law Dictionary, 5th Ed., p. 1064. “If the evidence is evenly balanced between the parties, there can be no recovery” by the party bearing the burden of proof. Adkins v. Smith, 142 W. Va. 772 (1957).
A.      Credibility
      In order to decide the merits of this grievance, 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, DocketNo. 89-DMV-569 (Jan. 20, 1990). Grievant's testimony contradicts the testimony of Respondent's witnesses, as well as some of the testimony of her witnesses.
      An Administrative Law Judge is charged with assessing the credibility of the witnesses who appear before her. 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 System 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 absence of 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 the demeanor of the witnesses and to assess their words and actions during their testimony. No witness called either by Respondent or Grievant supported her claims of retaliation, reprisal, harassment, sexual harassment, or intimidation. They had never observed this behavior from Intervenor Napier or from anyone in the administration. The only thing thatthey had ever heard were rumors or stories told by Grievant. The statements of these witnesses were consistent with each other, consistent with their prior statements, and internally consistent. There was no indication that any of the witnesses was untruthful. The demeanor of these witnesses was straightforward, and their testimony was plausible.
      The same cannot be said for Grievant. It was plain that Grievant's stories, and the part she played and Intervenor Napier's part in them, has changed over the years. Her telling of some of these stories contradicted prior versions, such as her recounting of her role in the verbal altercation with Ms. Mills. It was unclear whether Grievant was lying, shading the truth, suffered from inadequate insight, or incorrectly assessed events in which she is involved. It was obvious Grievant had a strong tendency to personalize events, and also placed her own interpretation on these occurrences.
      Examples may be useful in understanding Grievant's point of view. Ms. Mills received a written reprimand for her role in the altercation. This discipline appeared appropriate as she was the instigator. Grievant received no discipline for her role in this affair even though she had responded in kind. Again, this appears to have been an appropriate action on Intervenor Napier's part. Grievant was clear in her testimony that she believed she was discriminated against in this event, and she was treated "worse" than Ms. Mills.
      Another example is Grievant's repeated declaration that Intervenor Napier knew who was spreading the rumors about their alleged affair and refused to do anything about it. This assessment of the situation is not supported by the testimony of anyone, including Grievant. Intervenor Napier stated he first learned of the rumors when Grievant told him about them. Grievant agrees Intervenor Napier stated, "You know how people will talk." She decided this meant Intervenor Napier knew who was spreading the rumors, refused to tell her who they were, and also refused to take any action against these rumor- mongers. This analysis demonstrates Grievant's faulty logic in situations involving her. The conclusion reached is not based on the data presented. Accordingly, Grievant's testimony is found to be biased and non-credible.
B.      Harassment
      Grievant is alleging that she was subjected to harassment by Intervenor Napier and the various administrators in violation of W. Va. Code § 18-29-2(n). "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 a pattern of harassment. There was no credible evidence that Intervenor Napier engaged in a pattern of conduct directed toward Grievant with the intent, either direct or implied by the circumstances presented, of disturbing, irritating, or annoying her. See Phares v. W. Va. Dep't of PublicSafety, Docket No. 91-CORR-275 (Dec. 31, 1991). See also White v. Monongalia County Bd. of Educ., Docket No. 93-30-371 (Mar. 30, 1994).
      In terms of changing the duties and scheduling classes in Library Science, this decision was within Intervenor Napier's discretion, and this was his right and responsibility. Additionally, it was done at the direction of Superintendent Woolsey because of the low test scores received by Chapmanville Middle School students in the area of Library Science. There was no evidence presented to show that this decision of Intervenor Napier was arbitrary and capricious or clearly wrong.
      Further, Grievant did not demonstrate that any of Intervenor Napier's management decisions violated any rule, regulation, or statute, or constituted a substantial detriment to or interference with her effective job performance or the health and safety of students or employees. W. Va. Code § 18-29-2(a). See Ball v. Dep't of Highways, Docket No. 96- DOH-141 (July 31, 1997).
      Supervisors are expected to inform supervisees about issues in the workplace. Intervenor Napier's decision to withdraw from ARSI was based on his assessment of the entire situation, and the need for Chapmanville Middle School to bring up its test scores, and to provide students with the benefit of all the training Grievant had received. This was the plan from the start. His request for Grievant to meet with him and Ms. Mills to resolve an obvious conflict using approved techniques is also appropriate. His decision to spread out the training and committee opportunities to all employees was based on feedback from the faculty. At times, Intervenor Napier was required to give negative information about her work performance and the complaints of the faculty. Just because Grievant did not like the information she received, does not mean it was inappropriate or constitutesharassment or indicates sexual harassment. See Rider v. Bd. of Trustees, Docket No.99- BOT-348 (Apr. 17, 2000). The undersigned Administrative Law Judge does not find harassment in this set of facts.
C.      Sexual Harassment
      In addition to claiming harassment in violation of W. Va. Code § 18-29-2(n), Grievant alleges she was subjected to unlawful sexual harassment, a violation of Title VII of the federal Civil Rights Act and LCBOE's Sexual Harassment Policy. Grievant's claims of sexual harassment are the type usually delineated as the creation of a hostile work environment.
      This Grievance Board has concluded employees may be disciplined for sexual harassment where their conduct creates an intimidating, hostile or offensive work environment for one or more employees. Turner v. W. Va. Div. of Highways, Docket No. 94-DOH-594 (Feb. 27, 1995); Stonestreet v. W. Va. Dep't of Admin., Docket No. 93- ADMN-182 (Nov. 30, 1993). See also Harry v. Marion County Bd. of Educ., Docket Nos. 95-24-575 & 96-24-111 (Sept. 23, 1996).
      Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., prohibits discrimination in respect to an individual's conditions of employment on the basis of such individual's sex. 42 U.S.C. § 2000e-2(a)(1). This language has been interpreted to preclude requiring people to work in a discriminatorily hostile or abusive environment. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Whether a working environment is hostile or abusive can be determined only by looking at all of the circumstances. These factors may include the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or if it constitutes an offensive utterance; andwhether it reasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). Certainly any act might be construed by someone as harassing, hostile, disruptive, or offensive. The question is what standard is to be applied. Hattman v. Bd. of Directors/West Liberty State College, Docket No. 95-BOD-265R (July 13, 1998). In determining whether a hostile environment exists, the totality of the circumstances must be considered from the perspective of a reasonable person's reaction to a similar environment under similar or like circumstances. Harris, supra; Laneheart v. Logan County Bd. of Educ., Docket No. 97-23-088 (June 13, 1997).
      Applying the foregoing principles to the evidence presented, the undersigned Administrative Law Judge finds Grievant has not proven by a preponderance of the evidence that Principal Napier's conduct created an offensive and hostile working environment. The one incident in which Intervenor Napier's behavior was inappropriate was the 1992 incident involving an explanation of the term high maintenance. However, this incident was not sexual harassment, was not intended to create a hostile work environment, was apologized for, and nothing like this occurred again. It was at most a lapse of judgement, and the undersigned Administrative Law Judge wonders if Grievant was as upset in 1992 as she appeared to be in 2000 over this occurrence. It is interesting Grievant did not complain about this conversation until she received a class schedule she did not like.
      Grievant has failed to prove she was treated differently or was harassed. Mere allegations alone without substantiating facts are insufficient to prove a grievance. Baker v. Bd. of Directors/W. Va. Univ. at Parkersburg, Docket No. 97-BOT-359 (Apr. 30, 1998);See Harrison v. W. Va. Bd. of Directors/Bluefield State College, Docket No. 93-BOD-400 (Apr. 11, 1995).
D.      Reprisal
      Grievant's claim of reprisal will be addressed next. Reprisal is defined in W. Va. Code § 18-29-2(o) 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:



See Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989); 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 v. Bd. of Directors/Concord College, Docket No. 95-BOD-281 (Mar. 6, 1997). 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 bya preponderance of the evidence that the offered reasons are merely pretextual. Webb, supra.
      Grievant has failed to establish a prima facie case of reprisal or retaliation. While it is true that Grievant filed a complaint in the Spring of 1998, the majority of the content of this 13 page letter was directed at Ms. Mills and the negative effect Ms. Mills' behavior had on Grievant work performance, interaction with others, her reputation, and her working relationship with Intervenor Napier. Additionally, Intervenor Napier had already decided to withdraw his support for the ARSI project, and Superintendent Woolsey had already received complaints about the SHARE program. Intervenor Napier had already started to place other faculty members in committees because of complaints he had received from the staff. Of course, Grievant's 13 page letter did not encourage Intervenor Napier to change his planned course and probably hardened his resolve to withdraw from ARSI.
      Further, Grievant's schedule was not changed by Intervenor Napier in retaliation. The class schedule was changed because of low test scores, and at Superintendent Woolsey's direction. At the time the new class schedule was in place, Grievant did not occupy the position, and neither LCBOE or Intervenor Napier had any reason to believe Grievant would be in the Librarian/Media Specialist position at Chapmanville Middle School.
      In total, although Grievant voiced many complaints and recounted many stories or incidents she viewed as harassment, sexual harassment, and reprisal, these events do not add up to a pattern to support her claims. As previously stated, mere allegations alone without substantiating facts are insufficient to prove a grievance. Baker, supra; See Harrison, supra. The undersigned Administrative Law Judge did not find it necessary todiscuss in detail each and every example Grievant gave as proof of mistreatment, as Grievant had not shown a pattern of harassment. Many of the incidents Grievant presented were easily explained, were not confirmed by the testimony of other witnesses, and were the result of Grievant's misperception of events.   (See footnote 19) 
      The above-discussion on the merits will be supplemented by the following Conclusions of Law.
Conclusions of Law on Merits

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Toney v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997). See W. Va. Code § 18-29-6.
      2.       The evidence to establish an oral contract must be full, clear, and convincing. Gray v. Marino, 138 W. Va. 585, 765 S.E.2d 585 (1953); Ice v. Ice, 119 W. Va. 409, 193 S.E. 912 (1937). "Clear and convincing evidence requires the party with the burden of proof to produce evidence substantially more than a preponderance of theevidence, but less than that required to prove the matter beyond a reasonable doubt." Lohr v. Div. of Corrections, Docket No. 99-CORR-157D (Nov. 15, 1998). Additionally, all the facts and circumstances must convince the court is convinced that "such agreement is fair, just and free of suspicion." Id.
      3.      "The law favors and encourages the resolution of controversies by contracts of compromise and settlement rather than by litigation; and it is the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy." Syl. Pt. 1, Sanders v. Roselawn Memorial Gardens, 152 W. Va. 91, 159 S.E.2d 784 (1968).
      4.      The Grievance Board has authority to uphold such contracts, provided they are fairly made, and not in contravention of some law or public policy. Lowe, supra; Adkins v. Logan County Bd. of Educ., Docket No. 97-23-216 (Sept. 29, 1997); Vance, supra. See McDowell County Bd. of Educ., supra.
      5.      Full performance is an important part in finding an oral contract and removing it from the Statute of Frauds and the requirement that it be in writing. In Stump v. Harold, 125 W. Va. 254, 23 S.E.2d 656 (1942).
      6.      A court may only enforce a settlement when there has been a definite meeting of the minds. See, O'Connor v. GCC Beverages, Inc., 182 W. Va. 689, 391 S.E.2d 379 (1990); Evans v. Robinson, 197 W. Va. 482, 475 S.E.2d 858 (1996). This conclusion is more difficult to determine with an oral contract.
      7.      The parties had reached a settlement agreement that encompassed all issues within the grievance.       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.      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).
      10.      Grievant has not demonstrated she has been subjected to harassment. There was no credible evidence that Intervenor Napier engaged in a pattern of conduct directed toward Grievant with the intent, either direct or implied by the circumstances presented, of disturbing, irritating, or annoying her. See Phares v. W. Va. Dep't of Public Safety, Docket No. 91-CORR-275 (Dec. 31, 1991). See also White v. Monongalia County Bd. of Educ., Docket No. 93-30-371 (Mar. 30, 1994).
      11.       Employees may be disciplined for sexual harassment where their conduct creates an intimidating, hostile or offensive work environment for one or more employees. Turner v. W. Va. Div. of Highways, Docket No. 94-DOH-594 (Feb. 27, 1995); Stonestreet v. W. Va. Dep't of Admin., Docket No. 93-ADMN-182 (Nov. 30, 1993). See also Harry v. Marion County Bd. of Educ., Docket Nos. 95-24-575 & 96-24-111 (Sept. 23, 1996).      12.      In determining whether a hostile environment exists, the totality of the circumstances must be considered from the perspective of a reasonable person's reaction to a similar environment under similar or like circumstances. Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Laneheart v. Logan County Bd. of Educ., Docket No. 97-23-088 (June 13, 1997).
      13.      Grievant has not demonstrated she was the victim of sexual harassment.
      14.      Reprisal is defined in W. Va. Code § 18-29-2(o) 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."
      15.      To demonstrate a prima facie case of reprisal a grievant must establish by a preponderance of the evidence the following elements:



See Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989); 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 v. Bd. of Directors/Concord College, Docket No. 95-BOD-281 (Mar. 6,1997). 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.
      16.      Grievant has failed to establish a prima facie case of reprisal or retaliation.
      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 Logan 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: September 27, 2000


Footnote: 1
      The issues of discrimination and favoritism were not discussed in any detail; thus, they will be combined with Grievant's general complaints of harassment, sexual harassment. and reprisal.
Footnote: 2
      At Level IV, Grievant was represented by Joan Hill, who also wrote and mailed the proposals. On August 2, 2000, a Notice of Appearance was entered by Attorney Henry Hills, from the law firm of Crandall Pyles Haviland and Turner, as Ms. Hill had resigned from that firm. Intervenor Napier represented himself, and the Logan County Board of Education was represented by Attorney Brian Abraham.
Footnote: 3
      The parties agreed at the end of the Level IV hearing that they would arrange to either obtain an affidavit from this witness or take his testimony by deposition, if the witness had anything of substance to add, which was in question. At the time the Motion to Reopen was denied, Grievant was still given the option of obtaining an affidavit from the witness, and this affidavit was submitted on August 2, 2000.
Footnote: 4
      Both Grievant and Intervenor Napier filed Sexual Harassment claims in the Fall of 1998, after Grievant filed her grievance.
Footnote: 5
      On January 26, 1999, Grievant faxed Superintendent Woolsey and requested a final decision on her leave of absence.
Footnote: 6
      Grievant filed a complaint of sexual harassment with the Human Rights Commission. The parties represented during the last telephone conference that a    (See footnote 20) "no probable cause" determination had been issued.
Footnote: 7
      Grievant is rather petite and blonde.
Footnote: 8
      Grievant stated Intervenor Napier told her he got 'hot" and/or "excited" when this occurred.
Footnote: 9
      Grievant stated Intervenor Napier also told the teachers that Lana's pinching him had got him "excited" and/or "hot". No other witnesses were called to discuss this event.
Footnote: 10
      Interestingly, Grievant, in Exhibit No. 9 at Level IV, written in May of 1998, stated Intervenor Napier had ceased to make these types of comments approximately one year ago. Grievant also testified at Level IV that Intervenor Napier no longer made these types of comments. Accordingly, even if Grievant's allegation were to be believed, this type of behavior had ceased approximately two years prior to the filing of the grievance and could not be considered timely. Additionally, these comments alone would not rise to the level of sexual harassment.
Footnote: 11
      Grievant wrote in a 13 page letter in May 1998 in which made this statement, but in her sworn testimony at Level IV, Grievant testified she made no response at all. This letter will be discussed in more detail in Finding of Fact Number 17. Resp. Ex. No. 9, at Level IV.
Footnote: 12
      Grievant asserted Intervenor Napier used the term "sex fest" and directed the comment directly to her. No one else in the meeting agreed with Grievant's interpretationof events. The other witnesses said Grievant used the term, and they did not think Intervenor Napier did. Intervenor Napier stated he did not think he used the term, but he could have made a statement such as the one listed above. No one in the group, with the exception of Grievant, took offense at this statement, no matter who said it.
Footnote: 13
      This acronym was not explained in any detail by the parties.
Footnote: 14
      It is also possible that the "someone" found this letter on the library computer and made a copy of it from there.
Footnote: 15
      It was unclear from the record what form these classes took.
Footnote: 16
      This argument is totally without merit. It is sufficient to state that Grievant requested a transfer from her former position, and then requested to transfer back. The duties of the position were to change from the 1997-1998 school year to the 1998-1999 school year. If Grievant had not left the position, she may have had a question about the new duties depending on when these duties were decided, and whether Library Science classes are normally taught by Librarians/Media Specialists in middle and high schools. However that issue does not need to be decided, as Grievant left the position, and the change in the duties were required by student needs. The evidence of record indicates Intervenor Napier and Superintendent Woolsey were aware of Grievant's plans to transfer when the new duties were solidified for the 1998-1999 schedule.
Footnote: 17
      Ms. Gore's exact title was not given in the record, nor was it on her signed report. Resp. Ex. No. 9, at Level IV.
Footnote: 18
      Ms. Gore also noted, contrary to Grievant's sworn testimony, that she had been informed by Superintendent Woolsey and the Board's attorney that there was no evidence of sexual harassment.
Footnote: 19
      Additionally, the undersigned Administrative Law Judge, after spending a large amount of time listening to the witnesses, examining the evidence, and hearing the anger and distress in the parties' testimony, feels compelled to point out Grievant's animosity toward Intervenor Napier and many of the faculty at Chapmanville Middle School. The hostility at Chapmanville Middle School has created an unhealthy situation for the employees and students who are there, including Grievant. Much of this animosity is created and fed by Grievant and her perceptions of the events that involve her. The statements made by Assistant Superintendent Skibo appear valid.

Footnote: 20
      On January 26, 1999, Grievant faxed Superintendent Woolsey and requested a final decision on her leave of absence.