LOGAN COUNTY BOARD OF EDUCATION,
Respondent,
and
CLETIS " ED" NAPIER,
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.
___________________________________
Dated: September 27, 2000
Intervenor.
Grievant, Lana Turner, filed the following Statement of Grievance:
Violation of W. V. Code 18-29-2(m)(n)(o)(p) in scheduling for 1998-1999
from Librarian/Media Specialist to teaching four classes during a seven
period day.
(See footnote 1)
Violation of 18A-2-7 in significant changes in teaching
assignment without receiving a transfer. Relief sought: to be returned to
duties of Librarian, all harassment, reprisal, retaliation to cease and desist
immediately.
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)
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.
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:
Ms. Turner is willing to withdraw her grievance on the following conditions:
First, the Superintendent will approve and recommend her leave of absence
to attend a three (3) month training in association with her "high-tech"
partnership. . . . In addition, in stead (sic) of being placed on an
Administrative Transfer, that Ms. Turner and Mr. Napier will work to resolve
the issue of providing library skills training to the students at Chapmanville
Middle School on a rotation basis for next year's scheduling purposes. . . .
Finally, in regard to the cross sexual harassment claims
(See footnote 4)
, I am not sure what
will be needed to resolve those issues[,] but if the parties are willing to sit
down and discuss the matter and treat the complaints as serious by both the
Board and Mr. Napier, then I am sure we can reach a mutual agreement that
will allow both sides to continue to work together as supervisor/employee
with both sides understanding the need for cooperation[,] but moreimportantly, the need for basic respect for the positions and work
relationship.
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.
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.
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:
I don't see any evidence of sexual harassment. I see a lot of anger on the
part on Lana directed at several people; and that anger eventually focused
on Ed. it appears to me that Ms. Turner has used her position and this
sexual harassment claim to gain preferential treatment. She has repeatedly
missed work, has left school grounds at lunch time and returned to school
late. The Central Office staff had tried to work cooperatively with her by
granting her numerous request[s] to present programs out of the county.
This in itself creates a hardship on the school and on the students served by
Ms. Turner. Ms. Turner would like to continue her affiliation with Bell Atlantic
and ARSI; but that is not possible in the current situation at Chapmanville
Middle School. She has made the comment that she needs the income
generated by that affiliation.
Again, I have found no basis for sexual harassment.
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.
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:
1) that he/she engaged in protected activity, e.g. filing or participating in a
grievance;
2) that he/she was subsequently treated in an adverse manner by the
employer or an agent;
3) that the employer's official or agent had actual or constructive knowledge
that the employee engaged in the protected activity;
4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment;
and/or
5) the adverse action followed the employee's protected activity within such
a period of time that retaliatory motivation can be inferred.
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.
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:
1) that he/she engaged in protected activity, e.g. filing or participating in a
grievance;
2) that he/she was subsequently treated in an adverse manner by the
employer or an agent;
3) that the employer's official or agent had actual or constructive knowledge
that the employee engaged in the protected activity;
4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment;
and/or
5) the adverse action followed the employee's protected activity within such
a period of time that retaliatory motivation can be inferred.
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.
JANIS I. REYNOLDS
Administrative Law Judge
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