VERNETA MARTIN,
                  Grievant,

v.                                                      Docket No. 00-15-063

HANCOCK COUNTY BOARD OF EDUCATION,
                  Respondent.

D E C I S I O N

      Grievant, Verneta Martin, employed by Hancock County Board of Education (HCBOE) as a teacher, filed a grievance directly at level two on May 27, 1999, in which she stated:
I have decided to file a Level II grievance. Level I grievances require a meeting with my immediate supervisor, the principal, who refused to meet with us the last time you set up a meeting. Filing this grievance has become necessary because the principal's actions and attitude toward me displays a pattern of harassment which has created a hostile work environment for me. I feel that I am being discriminated against due to noticeable difference[s] in treatment that I am receiving.

Relief Sought: I would like a disclosure of these allegations to be brought to the attention of the Hancock County Board of Education and investigated by them. I wish to receive the equal and fair treatment I've experienced for 32 years and am entitled to have. (I reserve the right to contact the EEOC) & (WV Code 5-1-1).   (See footnote 1) 
      Dr. Charles Chandler, Superintendent, remanded the matter to level one, where it was denied by Principal Martha Baker. Following a hearing at level two, Superintendent Chandler denied the grievance at level two after he determined that Grievant had failed to prove discrimination or harassment. Grievant elected to bypass consideration at levelthree, as is permitted by W. Va. Code §18-29-4(c), and advanced her appeal to level four on February 16, 2000.
      A level four hearing was conducted on May 1, 2000, at which time Grievant was represented by Owens Brown, WVEA Consultant, and HCBOE was represented by William T. Fahey, Esq., Assistant Prosecuting Attorney of Hancock County. The grievance became mature for decision upon receipt of Grievant's proposed findings of fact and conclusions of law on May 25, 2000. HCBOE declined the opportunity to submit post- hearing proposals.
      The following facts are made based upon a review of the record in its entirety.

Findings of Fact
      1.      Grievant has been employed by HCBOE for thirty-two (32) years, and has been assigned as a teacher at Jefferson Elementary School (JES) at all times pertinent to this grievance.
      2.      Martha Baker was appointed principal at JES effective the 1997-98 school year, and, was employed under a one-year, probationary contract. HCBOE elected to not renew her contract at the conclusion of that year. That action was upheld by the Grievance Board in Baker v. Hancock County Bd. of Educ., Docket No. 97-15-447 (May 5, 1998); however, Ms. Baker was reinstated as principal at JES by Circuit Court Order on or about February 15, 1999.
      3.      On March 5, 1999, Ms. Baker filed a Complaint in the Circuit Court of Hancock County naming various individuals, including Grievant who was a WVEA building representative at the time, as Defendants. In general, the Complaint charged tortiousinterference with Ms. Baker's employment contract. The Complaint was never served, and was eventually dismissed.
      4.      Upon her return to work, Ms. Baker advised teacher Nancy Conley that she was going to start a file on the people who tried to get her fired, and she was not going to put up with troublemakers, referring to members of the teachers' organization.
      5.      By letter dated March 23, 1999, Ms. Baker advised the JES staff as follows:
      There has been confusion over telephone messages received last Friday. Therefore, Mrs. Shaffer and Mrs. V. Martin have requested that all calls received shall be answered as follows: 'I am sorry, they are unavailable at this time, may I take a message?' This will pertain to all incoming calls as of today. Please check your mailboxes for phone messages.

      The response to the message last Friday (March 19, 1999) was that the teacher had already left the building. Mrs. V. Martin and Mrs. Shaffer are concerned that the call could have been a stalker and we should not give out any information.

      6.      At some point, Grievant's spouse called her at school to discuss a change in child care. Mr. Martin was advised that a note would be placed in Grievant's mailbox.       7.      On April 22, 1999, Ms. Baker completed a performance evaluation of Grievant, rating her “satisfactory” in all areas. The evaluation form used by MCBOE allows only for a determination of “satisfactory” or “unsatisfactory”.
      8.      On May 4, 1999, Grievant reported a female student created a loud disturbance in the restroom. The student stated that she “pretended to 'blow up' the toilet”. Other students reported that she also pretended to be blown out of the stall, into the wall, and then slid down the wall, as if she were injured. The incident occurred during class time, and Grievant did not fill out the specific form required in these situations.      9.      Ms. Baker returned the student to Grievant's class with a note indicating that when Grievant filled out the form, it would be sent to the central office.
      10.      On May 7, 1999, Ms. Baker completed an “Observation/Data Form” for Grievant, noting, “[o]n 5-4-99 I asked Mrs. Martin to fill out discipline slip on student she sent to my office. Her response was this is not a convenient time to fill out form. It is now 5-7-99 at 4:00 p. m. and she has not filled out the form. She did have time to come down to my office and question my handling of the problem on 5-4-99.”
      11.      Teacher Judymae Shaffer sent a student to Ms. Baker's office for disciplinary reasons on May 3, 1999, and was not required to complete a specific form.
      12.      Ms. Baker completed a second “Observation/Data Form” for Grievant on May 7, 1999, alleging that she refused to comply with directives. Ms. Baker cited two examples. The first involved efforts to schedule a meeting with parents, and that she had to send Grievant three notes before receiving a response. The second incident occurred when Ms. Baker removed two students from Grievant's class for a disciplinary problem. Grievant indicated her displeasure, and advised Ms. Baker that she would have to explain the assignment to the students since they missed her class. Ms. Baker directed her to find time to instruct the students, but Grievant sent them to the office for instruction after lunch anyway.
      13.      On May 19, 1999, Ms. Baker completed an “Observation/Data Form” for Grievant. The only section of the form Ms. Baker completed was “Communication”, stating,

      On 5-12-99, I received a phone call from the Cleveland Zoo asking me to give a message to Mrs. Martin. The lady from the Zoo stated that Mrs. Martin's money for the 6th gradetrip was due on the 19th of May 1999. I asked the caller when the trip was to take place and her response was May 24, 1999.

      This phone call was the first information I had received about a trip for the 6th grade. The lady from the Zoo said that a Mrs. Wells scheduled the trip for Mrs. Martin, and that Mrs. Martin would receive the invoice and other information in the mail.

      As of that date Mrs. Martin had not filled out any paperwork or discussed this trip with myself or Dr. Chandler.

      14.      Dorothy Niles, a Title I teacher at JES, was coordinating the Cleveland Zoo trip with Grievant, but did not receive an “Observation/Data Form” from Ms. Baker.
      15.      The “Observation/Data Forms” are not part of the employee's personnel file, nor are they considered evaluations, but rather are “an optional tool”, not an official part of the disciplinary process.

Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of his 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); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ. Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code §18-29-6.
      Grievant alleges she has been harassed by Ms. Baker, as evidenced by comments the principal made to co-workers relating to keeping files on staff members, that she was required to complete a specific disciplinary form for a student when other teachers were not, her receipt of three “Observation/Data Forms”, which she characterizes as reprimands,Ms. Bakers' use of written rather than verbal communication, and the selective notification of teachers for telephone messages. HCBOE acknowledges that a personality conflict exists, but denies that Grievant has been subject to any discipline or harassment.
      W. Va. Code §18-29-2(n) defines harassment as “repeated or continued disturbance, irritation, or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession.” Key to this definition is the requirement that the action be “contrary to the demeanor expected by law, policy and profession.” Randolph v. Putnam County Bd. of Educ., Docket No. 00-40-012 (May 2, 2000).
      W. Va. Code §18-29-2(m) defines discrimination as “any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.”      An employee seeking to establish discrimination must first establish a prima facie case of discrimination under W. Va. Code §18-29-2(m) by demonstrating the following:
(a)that she is similarly situated, in a pertinent way, to one or more other employee(s);

(b)that she has, to her detriment, been treated by her employer in a manner that the other employee(s) has/have not, in a significant particular; and,

(c)that such differences were unrelated to actual job responsibilities of the grievant and/or the other employee(s) and were not agreed to by the grievant in writing.

Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Once the grievant establishes a prima facie case of discrimination, the burden shifts to the employer to demonstrate a legitimate, non-discriminatory reason to substantiate its actions. Thereafter, a grievant may show that the offered reasons are pretextual. Deal v.Mason County Bd. of Educ., Docket No. 96-26-106 (Aug. 30, 1996). See Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
      The evidence of record establishes that Grievant participated in efforts to insure that Ms. Baker did not remain as principal at JES. Upon her return, Ms. Baker made remarks which clearly put Grievant and others, on notice that she was resentful of their actions, and would possibly be taking measures against them. Making this approach so public immediately set a negative tone for the work place, and was contrary to the demeanor expected by the profession. Of course, from the viewpoint of many staff members, they must endure an administrator they do not respect. The work environment has deteriorated to such a degree that it is doubtful that harmony may ever be recovered.
      While Grievant may not have always acted with the utmost cooperation, she has established that Ms. Baker held her accountable for completing specific student disciplinary forms when another teacher was not, and that she was issued an “Observation/Data Form” regarding a field trip to the Cleveland Zoo, while a co-worker did not receive that form. Ms. Baker has treated Grievant differently than other teachers, and there has been no legitimate reason given for the difference in treatment. Although Grievant has not yet suffered any adverse consequences in the form of discipline or unsatisfactory evaluations, the principal's actions are reasonably found to be disturbing, irritating, or annoying.
      Finally, the undersigned takes administrative notice that since the level four hearing was conducted in this matter, HCBOE's action to terminate Ms. Baker's employment was upheld by the West Virginia Supreme Court of Appeals in Baker v. Board of Education,County of Hancock, Slip Opinion No. 26567 (June 28, 2000). In light of this event, Grievant's relief must be limited accordingly.

      Conclusions of Law
      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of his 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); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ. Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code §18-29-6.
      2.      W. Va. Code §18-29-2(n) defines harassment as “repeated or continued disturbance, irritation, or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession.” Key to this definition is the requirement that the action be “contrary to the demeanor expected by law, policy and profession.” Randolph v. Putnam County Bd. of Educ., Docket No. 00-40-012 (May 2, 2000).
      3.      W. Va. Code §18-29-2(m) defines discrimination as “any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.”      
      4.      An employee seeking to establish discrimination must first establish a prima facie case of discrimination under W. Va. Code §18-29-2(m) by demonstrating the following:
(a)that she is similarly situated, in a pertinent way, to one or more other employee(s);
(b)that she has, to her detriment, been treated by her employer in a manner that the other employee(s) has/have not, in a significant particular; and,

(c)that such differences were unrelated to actual job responsibilities of the grievant and/or the other employee(s) and were not agreed to by the grievant in writing.

Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Once the grievant establishes a prima facie case of discrimination, the burden shifts to the employer to demonstrate a legitimate, non-discriminatory reason to substantiate its actions. Thereafter, a grievant may show that the offered reasons are pretextual. Deal v. Mason County Bd. of Educ., Docket No. 96-26-106 (Aug. 30, 1996). See Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
      5.      Grievant has proven that she has been subject to harassment and discrimination.
      Accordingly, the grievance is GRANTED, and HCBOE is Ordered to ensure that all the “Observation/Data Forms” are destroyed.

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

Date: July 10, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE



Footnote: 1
      At level four, Grievant amended her request for relief to removal of the “Observation/Data Forms” from all files, and to stop the harassment and discrimination.