BECKY RIDER,
            Grievant,

v.                                                       Docket No. 99-BOT-348

BOARD OF TRUSTEES/
MARSHALL UNIVERSITY,
            Respondent.

D E C I S I O N

      Grievant, Becky Rider, argues Marshall University ("MU") should not have issued her a terminal contract, and that this action was illegal and the result of a continuing practice of harassment, retaliation, and reprisal. She requests as relief the reversal of her terminal contract, all reprisals be removed from her personnel file, fair and equal treatment, disciplinary action against the Dean of the School of Nursing, Lynne Welch, and any and all other equitable relief.
      This grievance was denied at the lower levels, and Grievant appeal to Level IV on August 20, 1999. A telephonic, pre-hearing conference was conducted on November 11, 1999, to discuss the motions raised by Grievant.   (See footnote 1)  A Level IV hearing was held on November 15 and 16, 1999, and this case became mature for decision on February 2, 2000, after receipt of the parties' proposed findings of fact and conclusions of law.   (See footnote 2) 
      Prior to a discussion of this specific grievance, the prior history of grievances and the motions offered in the pre-hearing conference will be discussed.
Grievant's Motions
      Grievant filed two motions prior to the Level IV hearing. The first was a Motion in Limine to Limit the Evidence. Grievant wanted to restrict the evidence about her performance to the contract year of 1998 - 1999. Grievant presented no evidence to support this Motion, other than noting tenure-track employees are issued contracts on a yearly basis. This Motion was denied. In fairness to both the employer and the employee, the reasons for retaining or terminating a faculty member's contract are typically based on the entire employment history. State ex. rel McLendon v. Morton, 162 W. Va. 431, 146 S.E.2d 919, 926; Williams v. Cabell County Bd. of Educ., Docket No.95-06-325 (Oct. 31, 1996).
      Grievant's second motion dealt with Grievant's terminal contract. Grievant also argued the terminal contract should be rescinded because Respondent's termination of Grievant's employment during her fifth year of employment prevents her from applying for tenure. "Prior to a teacher reaching tenure eligibility status [the employer] can decide not to renew the annual teaching contract and thereby terminate the teacher without the necessity of any reasons or hearing. . . ." McLendon, supra. Since Grievant was in her fifth year at the time she received her terminal contract she had not yet reached "tenure eligibility status." Accordingly, Respondent is within its rights and discretion to terminate Grievant at this time.
      Grievant's second motion also alleges that because Respondent used the term, "terminal contract", in her letter of non-renewal instead of the term, notice of non-renewalof contract the terminal contract should be rescinded.   (See footnote 3)  Since the terms noted by Grievant are at times used interchangeably, this Motion was also denied. See n. 3.
History of Prior Grievances

      A review of the prior grievance history will be helpful to the reader and should aid in understanding this grievance and the rulings of the undersigned Administrative Law Judge.
      At the close of her fourth year of teaching in the School of Nursing,   (See footnote 4)  Grievant was given her first terminal contract. She grieved this contract, and at Level II the Grievance Evaluator recommended the grievance be granted. This ruling stated:

Resp. Ex. No. 2, at Level II.

      The Grievance Evaluator recommended Grievant "be employed on a regular basis for the 1998-1999 year, and a thorough evaluation of her performance be conductedconsistent with the requirements set forth in Policy Series 36." Id. President Wade Gilley accepted this recommendation, and noted Grievant should receive "a thorough evaluation of [her] performance and a decision concerning [her] continued employment be made at that time." Id. Neither Grievant or Respondent appealed this Decision, and Grievant was issued a regular contract for the 1998-1999 year. Accordingly, the ruling was accepted by both parties.
      On December 28, 1998, Grievant filed two more grievances.   (See footnote 5)  Grt. Exh. Nos. 22 & 23, at Level IV. One dealt with a written reprimand, dated December 16, 1998, Grievant received from Associate Dean Linda Scott. This written reprimand reviewed Grievant's professional conduct during her tenure with the School of Nursing, and noted her behavior during the Fall semester (1998) constituted incompetence and negligence. The other grievance focused on a December 3, 1998 letter from Dean Welch which, in essence, constituted a written reprimand. This letter indicated Grievant had failed to carry out her required duties in the Spring of 1998, while she served on the Faculty Affairs Committee. The letter stated Grievant's behavior was unprofessional and unacceptable.   (See footnote 6) 
      In these two grievances, Grievant alleged these written reprimands were the result of reprisal for filing her own grievances and for participating in the grievance of another employee. Grievant also asserted discrimination, retaliation, unfair treatment, and harassment. Grievance Evaluator Sandra Clements recommended these grievances bedenied on March 1, 1999, and this recommendation was accepted by President Gilley on March 4, 1999. Grievant did not appeal these rulings.
      In the grievance relating to the written reprimand from Associate Dean Scott, the Grievance Evaluator found 1) conducting two evaluations of Grievant each semester was reasonable; 2) Grievant gave her own final exam without permission of the course coordinator; and 3) Grievant copied a great deal of material and when asked about this she did not explain, but instead replaced the paper. The Grievance Evaluator held Grievant's decision to give a test without permission was wrong, and the written reprimand was appropriate given Grievant's actions. Additionally, the Grievance Evaluator did not find that the issuance of the written reprimand constituted harassment, reprisal, retaliation, or unfair treatment.
      In the grievance relating to the written reprimand from Dean Welch, the Grievance Evaluator found the disciplinary action was based on Grievant's testimony during a grievance hearing in which "[Grievant] gave testimony . . . that she had not read Ms. Karle's tenure folder, [and] had relied on the opinion of other Faculty Affairs Committee members in making her decision about tenure." Resp. Ex. No. 10, at Level II. The Grievance Evaluator found Dean Welch was "well within her rights and responsibilities as the Dean of the School of Nursing to issue a reprimand to Ms. Rider when she learned that she had not carried out her duties as a member of the Faculty Affairs Committee." Resp. Ex. No. 10, at Level II. Again, the Grievance Evaluator did not find that the issuance of the written reprimand constituted harassment, reprisal, retaliation, or unfair treatment.       Grievant filed the present grievance when she received a terminal contract for the1999-2000 year. However, in this grievance she has again alleged harassment, retaliation, and reprisal since the filing her first grievance in 1998. Grievant cited many of the same actions that were discussed in the two December grievances as proof of this behavior toward her. These actions have been ruled on by Grievance Evaluator Clements. Because Grievant did not appeal the decisions of these two grievances she filed in December 1998, these issues in those grievances are deemed abandoned, and cannot be considered further by this Grievance Board. Floren v. Kanawha County Bd. of Educ., Docket No. 93-20-327 (May 31, 1994). See Holmes v. Bd. of Directors/W. Va. State College, Docket No. 99-BOD-216 (Dec. 28, 1999); Pack v. Kanawha County Bd. of Educ., Docket No. 93-20-483 (June 30, 1994). Of course, Grievant can and did argue that other actions by the Respondent could be examples of harassment, retaliation, and reprisal, and she can argue her second terminal contract was issued incorrectly.

Issues and Arguments

      Grievant makes multiple arguments. She argues the terminal contract should be reversed because she did not receive a statement of reasons from President Gilley, her termination was the result of harassment, retaliation, and reprisal, and the action was arbitrary and capricious, and contrary to statutes, regulations, rules, and policies.   (See footnote 7)  Grievant maintains she has been treated unfairly by Dean Welch since Dean Welch was a student in Grievant's lab section.       Respondent maintains the Grievant was properly terminated for ineffective teaching and advising and ineffective university service. It notes the action was not arbitrary and capricious, and that Grievant's termination was not the result of harassment or retaliation. Respondent agrees Grievant did not receive a statement of reasons from President Gilley, but that all other procedural rules were followed, and as this failure did not cause Grievant any harm, it should not result in the reversal of her terminal contract.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact. Because certain incidents were discovered out of chronological order, the events and issues of this grievance, especially where they deal with occurrences in specific nursing classes and situations, will be discussed under those headings.
Findings of Fact

      1.      Grievant was employed by the School of Nursing in 1994 in a tenure-track position. The first year of her employment she received a rating of "good" in her yearly evaluation.
      2.      Overall, there have been few complaints about Grievant's presentation of lecture material or her didactic teaching skills. The majority of the complaints and allegations of ineffective teaching came from her performance and behavior in the clinical area. There were also complaints of ineffective advising.
      3.      During Grievant's teaching career, the Associate Dean of the SON graduate program has been Dr. Giovanna Morton. From the time Grievant began as a faculty member until July 1997, the Associate Dean of the undergraduate program was Dr. JudithSortet; after July 1997, the Associate Dean of the undergraduate program was Dr. Linda Scott.
Graduate Courses and Assignments
Nursing 622
      4.      In the Fall of 1994, Grievant taught one of two labs in a graduate level course, Nursing 622, Advanced Family Nursing I. She also taught this course in the Fall of 1995, 1996, and 1997. In the Fall of 1994, students complained the material covered in Grievant's section of the class differed from the other section. In the Fall of 1995, 1996, and 1997, when Grievant taught both sections of the course alone, students complained Grievant spent too much time in lecture and insufficient time on practice of the assessment skills taught in the course. Dr. Diana Stotts, the course coordinator,   (See footnote 8)  spoke to Grievant about these problems each semester without a change in Grievant's teaching behavior. Resp. Ex. No. 32, at Level II.
      5.      On February 18, 1999, Associate Dean Scott wrote Dr. Morton asking if she had a placement for Grievant for Fall 1999, as Grievant was three hours short of a full load. Resp. Ex. No. 19, at Level II.
      6.      In a memo dated February 18, 1999, Dr. Morton informed Associate Dean Scott that because of past problems with Grievant, the course coordinator for AdvancedFamily Nursing recommended Grievant not be given any responsibilities in these courses. Resp. Ex. No. 20, at Level II.
Nursing 626
      7.      In Fall 1997, Grievant was assigned to teach both labs of Nursing 626, a graduate course. She was not the course coordinator. Dr. Morton received complaints that Grievant repeated previously taught content, and taught materials out of order. Grt. Ex. No. 8, at Level II.
      8.      Dean Welch and Associate Dean Scott   (See footnote 9)  were students in one of Grievant's labs. Dean Welch complained to Dr. Morton that Grievant repeated information and taught chronic disease processes in an acute disease class.   (See footnote 10)  Grt. Ex. No. 8 at Level II.       9.      Because of these complaints and other incidents that occurred while Grievant was clinical preceptor, it was determined that it was best to reassign [Grievant] to other courses." Resp. Ex. No. 37, at Level II.
      10.      Dean Welch and Associate Dean Scott received a "B" in the course and were satisfied with this grade. Dean Welch and Associate Dean Scott do not blame Grievant for the grade they received in this course.
      11.      Dr. Barbara Koster was the course coordinator for the course and was the faculty member responsible for determining the grades received by Dean Welch and Associate Dean Scott. Graduate Precepting in Nursing 624   (See footnote 11) 
      12.      In the Spring of 1998, Grievant accepted the responsibility of precepting a graduate student at West Virginia Health Right ("WVHR"). At some point during the clinical experience, Grievant told the student the personnel at WVHR were doing illegal things, and she was leaving. Without seeking prior permission from Dr. Morton, Grievant reassigned the student to another facility. Resp. Ex. No. 37, at Level II.
      13.      Dean Welch wrote Grievant on February 9, 1998, noting, "I am seriously concerned about your lack of responsibility for students' learning during the past few semesters and with the current semester in the SON. You have on several occasions and in several different courses not provided students with the clinical experiences required by the particular course. In addition, you have not discussed the lack of providing an opportunity for student learning with the course coordinators. As an example[,] this semester you told a student that you were changing her rotation without first discussing it with the course coordinator or associate dean. This type of behavior on your part demonstrates a lack of accountability to those responsible for courses in which you teach. The above behaviors on your part are unacceptable for a faculty member in the School of Nursing." Resp. Ex. No. 37, at Level II.
      14.      Dean Welch discussed the letter with Grievant on February 9, 1998. Dean Welch reiterated Grievant was accountable to the course coordinator and could not take it upon herself to make changes without prior discussion with the appropriate person. Grievant was also informed she could come back to discuss the memo when she had reflected on it. Resp. Ex. No. 37, at Level II.
      15.      Dr. Morton also conferred with Grievant and informed her that all clinical assignments and student preceptorships had to be coordinated through Nancy Fagan or Dr. Morton, as it was important to assure all parties were in agreement with the student's placement. Dr. Morton also discussed Grievant's inappropriate statements to the student. "[Grievant] did not see she had acted inappropriately in either situation and said she was just trying to help the student." Resp. Ex. No. 37, at Level II.
      16.      During the course of this conference, Grievant shared the letter quoted in Finding of Fact 13 with Dr. Morton. When Dr. Morton asked Grievant how she thought she did with her undergraduate assignments, Grievant denied she had any difficulty. Resp. Ex. No. 37 at Level II.
Nursing 580 and 616
      17.      During the Spring semester of 1998, Grievant had been tentatively assigned to teach two graduate level courses, Nursing 580 and 616, in Fall 1998.
      18.      On June 8, 1998, after Grievant had filed her first grievance, these classes were canceled by Dr. Morton because only one student had signed up for Nursing 580 and no students had signed up for Nursing 616. Resp. Ex. No. 38, at Level II. It is SON past practice to cancel classes if an insufficient number of students enroll. It is not SONpractice to wait to reassign faculty in the Fall after final registration.   (See footnote 12)  Test. Dean Welch, Level IV hearing.
Undergraduate Nursing Courses
Nursing 325 - Academic year 1995 - 1996
      19.      During Grievant's second year of employment, she experienced difficulty in Nursing 325, a course in which she had students in a pediatric, clinical area. Students' exposure to hospitalized children is limited, as the majority of children are cared for outside the hospital. This course is extremely important for the clinical experience the students can derive from the exposure to "sick" children. Test. Associate Dean Sortet, Level IV Hearing; ren. Resp. Ex. Nos. 33 & 36, at Level II.
      20.      The length of the clinical experience is four hours, from 8 a.m. to 12 noon. Grievant spent one hour with her students in pre-conference and one hour with her students in post-conference. This amount of time is excessive. Test. Associate Dean Sortet and Dr. Rebecca Appleton, Level IV Hearing.
      21.      Grievant's supervisor, then Associate Dean Judith Sortet, received a complaint from the clinical nurse manager of the unit where Grievant's students were having their clinical experience. Associate Dean Sortet had never received a complaint of this type before. The Manager informed Associate Dean Sortet that the nurses on the unit believed the students spent too much time in the break room and in conference, and did not perform a variety of procedures for their patients, even to the extent of not takingtheir vital signs. Test. Associate Dean Sortet, Level IV Hearing. Resp. Ex. Nos. 33 & 36, at Level II.
      22.      Associate Dean Sortet conferenced with Grievant, and although Grievant did not agree with all the complaints, she agreed she would monitor her students more carefully and increase opportunities for student learning. Test. Associate Dean Sortet, Level IV Hearing; Resp. Ex. No. 36, at Level II.
      23.      The day after this conference, Grievant had students in the clinical area. As Associate Dean Sortet was leaving the building at 11:30 am, she observed Grievant entering the building. Grievant had let her students leave the clinical area early. Test. Associate Dean Sortet, Level IV Hearing; Resp. Ex. No. 36, at Level II.
      24.      Associate Dean Sortet waited for a couple of weeks, and then called the Nurse Manager to see if there had been any improvement. There had not been. Grievant was not assigned to teach this course again, and a part-time faculty member was hired to perform this clinical assignment. She was removed from the clinical assignment "due to ineffective clinical teaching." Test. Associate Dean Sortet, Level IV Hearing; Resp. Ex. Nos. 33 & 36, at Level II.
Nursing 222 - Academic Year 1996 - 1997
      25.      During the Spring of 1997, Grievant was assigned to teach Nursing students in one of their first clinical experiences.
      26.      Although the administration of medications in the clinical area was part of the required clinical objectives, none of the students assigned to Grievant's clinical group gave medications to their patients.      27.      All other students in all the other clinical groups met this objective.
      28.      Because Nursing courses build on one another, it is essential that clinical objectives and course content be followed.
      29.      Although Grievant conferred with the course coordinator, Dr. Rebecca Appleton, several times throughout the semester, Grievant never informed her that her students did not perform these essential clinical objectives, or that there were problems with her unit that prevented her from meeting these course objectives. Test. Grievant, Dr. Appleton, Associate Dean Sortet. Resp. Ex. Nos. 33, 36, & 37, at Level II; Resp. Ex. No. 1, at Level IV; Grt. Ex. No. 32, at Level IV.
      30.      Contrary to Grievant's testimony, this nursing skill was clearly stated in the course clinical objectives.   (See footnote 13)  Test. Associate Dean Sortet, Dr. Appleton, at Level IV hearing; Resp. Ex. No. 1, at Level IV; Grt. Ex. No. 32, at Level IV.
      31.       Contrary to Grievant's testimony, all her students had passed the required drug test and were qualified to pass medication by the end of March.   (See footnote 14)  Test. of Grievant, Associate Dean Sortet, and Dr. Appleton, at Level IV hearing.      32.       This failure of Grievant's students to perform these required clinical objectives was not discovered until the students were in their next clinical course, and were now expected to have some proficiency in administering medications. Test. Associate Dean Sortet and Dr. Appleton, Level IV Hearing; Resp. Ex. Nos. 36 & 37, at Level II.
      33.      When confronted by Associate Dean Sortet and Dr. Appleton about this failure, Grievant stated she had made a "mistake", her students were not comfortable with the procedure, there were not any medications to give on her assigned unit, and the administration of medications was not required by the course objectives. Test. Grievant, Dr. Appleton, Associate Dean Sortet.
      34.      Grievant's failure to have her students meet the course objectives in Nursing 222 required the subsequent clinical instructors to provide this basic experience. Test. Associate Dean Sortet and Dr. Appleton, Level IV Hearing; Resp. Ex. Nos. 36 & 37, at Level II.
      35.      Grievant did not understand this difficulty in the clinical area was her problem and not the students' problem. Test. Associate Dean Sortet, Level IV Hearing; Resp. Ex. Nos. 36 & 37, at Level II.
      36.      Grievant was not assigned to teach in this clinical area the following year due to ineffective teaching. Resp. Ex. No. 33, at Level II.
      37.      When Grievant was tentatively assigned to teach in Nursing 222 in the Spring of 1999, Dr. Appleton wrote a memo dated September 16, 1998, requesting Grievant not be assigned to teach as a clinical instructor due to prior problems. Dr.Appleton was willing to allow Grievant to present some didactic lecture material. Test. Dr. Appleton, Level IV Hearing; Resp. Ex. No. 18, at Level II.
      38.      Contrary to Grievant's testimony, Dr. Appleton discussed this September 16, 1998 letter with Grievant before she sent it to Associate Dean Scott. Test. Dr. Appleton, Level IV Hearing; Resp. Ex. No. 18, at Level II.
      39.      Grievant was not assigned to teach Nursing 222 in the Spring of 1999.
Nursing 423 - Academic year 1998 - 1999
      40.      A portion of Grievant's teaching load for the 1998 - 1999 school year was to be a facilitator in Nursing 423, a course dealing with issues important to Nursing, such as long-term care and costs of health care. There were four off-campus satellite sections, and Grievant was assigned a section at Pleasant Valley Hospital in Point Pleasant. The course met once a week, with a two hour lecture on satellite, conducted by the course coordinator, Dr. Jane Fotos, followed by a one hour discussion of the issues led by the section facilitator. Test. Associate Dean Scott, Dean Welch, and Grievant, at Level IV Hearing; Resp. Ex. No. 35, at Level II; Resp. Ex. No. 3, at Level IV; Grt. Ex. No. 9, at Level II; Grt. Ex. No. 34, at Level IV.
      41.      Faculty are expected to visit an instructional or clinical site prior to the start of classes to familiarize themselves with the area and to prevent potential problems. This is one reason why faculty return to campus a week before the semester begins. Grievant did not visit Pleasant Valley Hospital prior to the start of the semester. Test. Grievant, Associate Dean Scott, at Level IV hearing; Resp. Ex. No. 20, at Level IV.       42.      During the initial class in Nursing 423, Grievant experienced several problems which could have been prevented if Grievant had made this prior site visit. Test. Grievant, Associate Dean Scott, at Level IV hearing.       
      43.      The one hour, post lecture discussion, is called a wrap-around session, and it is the facilitator's responsibility to lead this discussion and involve the students in a dialogue about the evening's content. Test. Associate Dean Scott and Dean Welch, Level IV Hearing.
      44.      Contrary to Grievant's testimony, a facilitator is a teacher. A teacher is defined as one who imparts knowledge or skill or gives instruction. Synonyms for teaching are instructing, educating, and training. American Heritage Dictionary 1246-47 (2d college ed. 1992). Synonyms for facilitate are assist, promote, enable, further, help, hasten, advance, and expedite.
      45.      The facilitators in Nursing 423 were to assist their students in learning and understanding the content presented in the previous two hour, satellite lecture. Test. Associate Dean Scott and Dean Welch, at Level IV Hearing.
      46.      As part of both the Grievance Evaluator's and President's direction to thoroughly evaluate Grievant, Dean Welch informed Grievant she would be evaluated twice each semester. One of these evaluations would be announced and one would be unannounced.
      47.      Associate Dean Scott was assigned by Dean Welch to complete Grievant's Fall evaluations. She arranged with Grievant for the announced visit, and went to Pt. Pleasant. Associate Dean Scott sat through the two hour lecture by Dr. Fotos, and whenit ended Grievant asked the students if they had any questions, and when they did not, she excused them go to study by themselves for the exam they would take next week.   (See footnote 15)  As a result of letting the students go, Associate Dean Scott was unable to observe Grievant's teaching.
      48.      Associate Dean Scott wrote her evaluation of what she had observed during this session, and discussed it with Grievant on October 26, 1998. Associate Dean Scott noted Grievant did not demonstrate a professional demeanor. She also discussed Grievant's failure to conduct the required wrap-around session, and noted Grievant did not cover the course objectives identified for the after-satellite discussion. Resp. Ex. No. 3, at Level II.
      49.      When the exam was given the following week, Grievant's group of students made the lowest grades of all the sections that took the test, and only one or two passed the test.   (See footnote 16) 
      50.      Associate Dean Scott returned the week after the exam, on October 27, 1998, for the unannounced visit to evaluate Grievant. Grievant did not teach that evening as a student presentation was scheduled. Before leaving the class, Associate Dean Scott asked the students if she could be of any help to them in regard to main campus studentactivities. The students were very concerned about their grades. Associate Dean Scott indicated she was unable to change these grades. Resp. Ex. No. 4, at Level II.
      51.      On October 28, 1998, Associate Dean Scott sent Grievant a follow up memo about this second observation. She noted Grievant's group had the lowest grades of all four sections. Resp. Ex. No. 4, at Level II.
      52.      Associate Dean Scott believed Grievant should have followed the prepared syllabus and reviewed with the students, instead of letting them go early the week prior to the test. Test. Associate Dean Scott, at Level IV hearing.
      53.      On October 30, 1998, Grievant responded in writing to Associate Dean Scott's memo of October 28, 1998. Grievant indicated she was considering doing some of the lecture content herself and making up her own test for her group's final exam. Grievant believed she would be judged on and was responsible for the student's grades. Grievant also indicated she was making changes and improvements for the students to get the information from the class. Resp. Ex. No. 22, at Level II.
      54.      Grievant again wrote to Associate Dean Scott on November 9, 1998, indicating Dr. Fotos had given Associate Dean Scott incorrect data about the grades from her group. She stated she had talked to Dr. Fotos and stated, "I will be writing my own final exam for this course, and I will be covering the content in the syllabus for my students since I am being held responsible for their test scores as part of my evaluation." Resp. Ex. No. 23, at Level II.
      55.      Contrary to Grievant's testimony, Dr. Fotos did not give Grievant permission to give her own final exam, but directed Grievant to discuss the issue with Associate DeanScott. Grievant did not discuss the issue with Associate Dean Scott. Test. Associate Dean Scott, at Level IV Hearing; Resp. Ex. Nos. 26 & 28, at Level II.
      56.      On November 19, 1998, Associate Dean Scott responded to Grievant's November 9, 1998 memo, and informed her the course was taught by Dr. Fotos, and Dr. Fotos was responsible for writing the final exam. Associate Dean Scott again informed Grievant she was responsible for answering questions and helping students understand the material taught by Dr. Fotos. Associate Dean Scott noted that allowing facilitators to write their own finals may be unfair to some students, and clarified, "your students will take the standard exam prepared by Dr. Fotos." Resp. Ex. No. 24, at Level II.
      57.      On November 30, 1998, Grievant informed Associate Dean Scott she had just received the November 19, 1998 memo, and that on November 17, 1998, she had given her students Part I of her take home exam.   (See footnote 17)  Grievant stated her actions were "okay" with Dr. Fotos. Grievant explained she was afraid requiring her students to take Dr. Fotos's final exam would be unfair because her students had not taken "close notes" after Grievant misinformed them they would not have to take Dr. Fotos's exam. Resp. Ex. No. 24, at Level II.
      58.      On December 1, 1998, Associate Dean Scott wrote Grievant informing her she had met with Dr. Fotos, and she "was unaware that you had composed your own take- home final and stated this had never been discussed." Resp. Ex. No. 26, at Level II. Associate Dean Scott directed Grievant to meet with Dr. Fotos and submit a written planfor resolving the problem. Associate Dean Scott instructed Grievant that her students would still be required to take Dr. Fotos's exam. Resp. Ex. No. 26, at Level II.
      59.      On December 2, 1998, Associate Dean Scott met with Grievant and Dr. Fotos and resolved how the final exam issue would be settled. Resp. Ex. No. 27, at Level II.
      60.      On December 10, 1998, Dr. Fotos wrote Associate Dean Scott to summarize her meeting with Associate Dean Scott and Dean Welch on December 1, 1998. Dr. Fotos clarified Grievant had discussed with Dr. Fotos that she felt she was being held responsible for the grades and wanted to give her own final. Dr. Fotos directed Grievant to discuss the issue with Associate Dean Scott. She reiterated she did not know about Grievant's final exam, and she had not discussed the content with Grievant. Resp. Ex. No. 28, at Level II.
      61.      On December 9, 1998, Dean Welch met with Grievant to discuss Grievant's role as a facilitator.
      62.      On December 11, 1998, Dean Welch wrote Grievant a letter summarizing their discussion of December 9, 1998. Dean Welch informed Grievant her role in Nursing 423 was as a facilitator, meaning she was to answer questions and amplify the material Dr. Fotos presented. Grt. Ex. No. 34, at Level IV.
      63.      Dean Welch noted Grievant's attempt to "blame the students" for their low grades. Grievant had stated the students in her section "were the dregs" and they were "admitted with GPA's of 1.93 - under the 2.0 required." Dean Welch informed Grievant her statements were untrue and noted Grievant's section was admitted with a GPA of 2.0or better, an average of 2.527, and that her students currently have a collective MU GPA of 2.235 and were doing well overall. Grt. Ex. No. 34, at Level IV.
      64.      On December 16, 1998, Associate Dean Scott issued Grievant a written reprimand and met with her to discuss it. In this written reprimand, Associate Dean Scott reviewed Grievant's past conduct as a faculty member, and found Grievant had been "incompetent" and her "conduct to constitute negligence." Resp. Ex. Nos. 6 & 7, at Level II.
      65.      In this written reprimand, Associate Dean Scott detailed the recent events in Nursing 423, noted Grievant's history was replete with incidents of Grievant's failure to follow directives, and stated Grievant had a "serious and ongoing problem." She referred Grievant to The Greenbook which lists causes for dismissal, underlining sections which discussed incompetence, misconduct which impaired the individual's fulfillment of institutional responsibilities, and insubordination. Associate Dean Scott directed Grievant to schedule an appointment to present a written plan of improvement. Resp. Ex. Nos. 6 & 7, at Level II.
      66.      Grievant filed a grievance over this written reprimand on December 28, 1998.       67.      On February 1, 1999, Grievant informed Associate Dean Scott that as she was filing a grievance over the written reprimand, she would not meet with her until this grievance had been resolved. Grievant submitted a list of statements informing Associate Dean Scott how she planned to correct her behavior. Resp. Ex. No. 8, at Level II.
      68.      On February 2, 1999, Associate Dean Scott wrote Grievant informing her the Improvement Plan was unclear, lacking in detail, and needed elaboration. She noted shewould be happy to discuss the Improvement Plan with Grievant after the hearing. Resp. Ex. No. 9, at Level II.
      69.      Grievant never met with Associate Dean Scott to discuss her Improvement Plan. Test. Grievant and Associate Dean Scott.
Other
      70.      On February 16, 1999, Dr. Madonna Combs wrote Associate Dean Scott informing her she did not want Grievant assigned to Nursing 219 for the Fall semester of 1999, as Grievant did not possess the required depth in growth and development and health promotion, and did not have the expertise to work well with sophomore students. Resp. Ex. No. 17, at Level II.
University Service - Testimony at Grievance Hearing
      71.      Prior to the Fall of 1998, Grievant's service to the university had been found to be satisfactory.
      72.      In the Spring of 1998, Grievant served on the SON Faculty Affairs Committee. During this time, another faculty member, Toni Karle, applied for tenure and the Committee voted to not recommend Ms. Karle for tenure.
      73.      In the Fall of 1998, Grievant was subpoenaed to testify at Ms. Karle's Level IV Hearing.
      74.      Grievant testified she did not know if she had the time or made the time to review the file, and she should have taken more time to review the files submitted by Ms. Karle. Grievant also testified that it would be a dereliction of her duty to vote without seeing the file. Grt. Ex. No. 7, at Level II, pp. 8, 22, & 28.      75.      On December 3, 1998, Dean Welch wrote Grievant a written reprimand about her failure to fulfill her duties as a member of the SON Faculty Affairs Committee. Resp. Ex. No. 30, at Level II. Dean Welch noted Grievant was aware that she did not perform her duties as a responsible member of the SON Faculty Affairs Committee, and that she failed to make her own judgements about the issue prior to voting to recommend against tenure. Dean Welch informed Grievant her behavior was inappropriate, irresponsible, unprofessional, and unacceptable. Resp. Ex. No. 30, at Level II.
      76.      On December 28, 1998, Grievant filed a grievance over this written reprimand.
      77.       The Level III Grievance Evaluator found "[Grievant] gave testimony . . . that she had not read Ms. Karle's tenure folder, [and] had relied on the opinion of other Faculty Affairs Committee members in making her decision about tenure." Resp. Ex. No. 10, at Level II.
      78.      The Administrative Law Judge in the Level IV Karle hearing, Brenda Gould, found Grievant "did not recall reviewing [Karle's] tenure application, and relied upon what she was told by another member, Jane Fotos, was in the tenure application." Finding of Fact 6, Karle v. Bd. of Trustees, Docket No. 98-BOT-258 (Apr. 19, 1999).
      79.      Grievant's failure to perform properly as a member of the SON Faculty Affairs Committee was not noted on Grievant's 1998 - 1999 evaluation, because this action had occurred during the previous year, 1997.   (See footnote 18) 
Advising/Office hours
      
80.      On April 15, 1998, Associate Dean Sortet asked Grievant to come to her office to discuss complaints she had received about her not being available during office hours to do the required advising.
      81.      The time period of Monday 1 p.m. to 3 p.m. was to be kept open by all faculty so that necessary SON meetings could be scheduled. Grievant was aware of this prohibition. In spite of this directive, Grievant scheduled her office hours from 2 p.m. to 4 p.m. on Monday afternoon. Because Grievant usually had meetings during this time, she was often not in her office; and students complained about not being able to find her. Because of these complaints, Associate Dean Sortet again explained to Grievant that 1 p.m. to 3 p.m. on Mondays was to be kept open for meetings. Resp. Ex. Nos. 36 & 37, at Level II.
      82.      On April 17, 1998, Grievant wrote Associate Dean Sortet stating she had changed her office hours from Monday afternoon, and informed Associate Dean Sortet that other faculty had office hours scheduled on Monday afternoons. Associate Dean Sortet called Grievant and left a message informing her again that she could have office hours on Monday, just not from 1 p.m. to 3 p.m. Associate Dean Sortet then checked all faculty hours and found none of them had regular office hours scheduled on Monday from 1 p.m. to 3 p.m. Resp. Ex. Nos. 36 & 37, at Level II.
      83.      Around that same time period, another student complained she had been told by Grievant to come at 5:30 p.m., during special advising hours. At 5:15 p.m., as the student was on her way to the meeting, she passed Grievant on her way out. Grievant toldthe student she was not signed up, and she would have to come back at another time for the meeting. Resp. Ex. Nos. 36 & 37, at Level II; Grt. Ex. No. 30, at Level IV.
      84.      Grievant was scheduled to be in her office at that time, but when no one signed up she canceled these hours. Test. Grievant, at Level IV.
      85.      Faculty are expected to be present in their office during the time periods listed on their sign-up sheets. Test. Associate Dean Sortet, at Level IV.
      86.      On April 17, 1997, then Associate Dean Sortet sent a memo to all Undergraduate faculty informing them that the co-requisites and prerequisites would no longer be listed in the class schedules published by the Registrar. All Undergraduate Nursing courses would now list "Permission" for all Undergraduate classes. The co- requisites or prerequisites would now be listed in the Student Handbook, and students would only receive "Permission" if they had the co-requisites or prerequisites listed in the Handbook. Grt. Ex. No. 28, at Level IV.
      87.      Faculty receive the new handbooks and catalogs as they come out and are expected to keep their copies of these to use in advising students.   (See footnote 19)  Test. Dean Welch.       88.      In November 1998, Grievant met with one of her advisees, R.O.M.   (See footnote 20)  She noted in her conference report that the student needed three more hours to maintain her financial aid, and Grievant was going to lighten her load for her senior level by placing herin Nursing 403. Grievant noted on R.O.M.'s student record that there were no co- requisites or prerequisites listed in the handbook or registration catalog. Test. Grievant; Resp. Ex. No. 11, at Level II.
      89.      On January 12, 1999, Associate Dean Scott wrote a memo to Grievant informing her she had advised R.O.M. incorrectly when she placed her in Nursing 403, as ROM did not have the necessary co-requisites or prerequisites. Associate Dean Scott reminded Grievant that co-requisites or prerequisites were no longer listed in the semester schedule. Associate Dean Scott attached a copy of the current handbook and catalog and noted the prerequisite was clearly delineated. Associate Dean Scott stated Grievant's notation in the student's record was "either a failure to check the appropriate course information or a deliberate falsification of your actions in advising this student." Resp. Ex. No. 12, at Level II.       
      90.      On January 12, 1999, Grievant E-mailed Associate Dean Scott stating she would check her catalogs at home to find what she looked at to make the notation in R.O.M.'s file, she requested copies of all the old handbooks, stated that she hoped Associate Dean Scott's "reprisal" toward Grievant did not extend to R.O.M., and asked if Associate Dean Scott had advised R.O.M. of the other courses she could take.   (See footnote 21)  Resp. Ex. No. 13, at Level II.
      91.      Associate Dean Scott sent Grievant a memo dated January 13, 1999, noting Grievant should have copies of the older catalogs, and that everything possible was being done to assist R.O.M. Resp. Ex. No. 14, at Level II.      92.      After another inquiry by Grievant, Associate Dean Scott informed Grievant the only way to maintain R.O.M.'s financial aid was for Dean Welch to do an independent study with her. Resp. Ex. No. 15, at Level II.       
Evaluations
      
93.      Grievant was evaluated on January 27, 1995, during her first year of employment. Dean Welch noted Grievant had done "extremely well in her teaching and advising responsibilities" as a new faculty member, and Grievant received an overall rating of "Good". Grt. Ex. No. 8, at Level IV.
      94.      Grievant was again evaluated on April 4, 1996, and received an overall rating of "Satisfactory." Dean Welch noted Grievant needed to develop in the area of research and scholarly activities, and her advising of students had been adequate. Grt. Ex. No. 11, at Level IV.
      95.      Grievant was not evaluated by Dean Welch during her third academic year, 1996-1997, and this was the reason Grievant's first terminal contract was rescinded. Grievant did receive a peer evaluation of her didactic teaching skills from then co-faculty member, Ms. Scott. Faculty Member Scott rated Grievant as "Satisfactory" to "Good".
      96.      Grievant was evaluated during 1997-1998, her fourth year of employment. Dean Welch observed Grievant "ha[d] not followed thru with some teaching assignments appropriately, thus not giving adequate instruction/experience for her students." Grt. Ex. No. 14, at Level IV. Grievant received an overall rating of "Needs Improvement" and Dean Welch wrote Grievant was "not satisfactory[,] Becky needs to focus more on meetingstudent needs and be a team member." Grt. Ex. No. 14, at Level IV. Shortly thereafter Grievant received her first terminal contract.
      97.      Associate Dean Scott attempted to evaluate Grievant twice during the Fall semester of 1998. See Findings of Fact 47, 48, 50, & 51.
      98.      During the Spring 1999, Grievant received two evaluations of her classroom teaching, one announced and one unannounced. These evaluations rated Grievant as between "Satisfactory" and "Good". Grt. Ex. No. 26, at Level IV.
      99.      Grievant received a letter from Dean Welch on May 3, 1999, stating her contract for 1999 - 2000 academic year would be a terminal contract due to her ineffective teaching and advising and ineffective service to the university. Grt. Ex. No. 1, at Level II.
      100.      On May 12, 1999, Grievant met with Dean Welch to discuss the notice of non-retention. Grievant also received her evaluation for the 1998 - 1999 academic year. Grievant was rated as unsatisfactory, Dean Welch noted Grievant's problems with teaching and advising, and that her research/scholarly activity and service to the community needed improvement. Resp. Ex. No. 34, at Level II.
      101.      On May 17, 1999, Grievant wrote President Gilley requesting a statement of reasons for her non-retention, again stating this action constituted harassment and reprisal. Grievant referred to the filings of her own grievances, her participation in another grievance, and the class Dean Welch took from Grievant. This request was received May 20, 1999, and Grievant did not receive a response to this request.
      102.      This grievance was filed on May 20, 1999.       
Discussion
      
      In a grievance challenging non-retention of a probationary faculty member, the grievant has the burden of proving her complaint by a preponderance of the evidence. Turman v. Bd. of Trustees/Marshall Univ., Docket No. 99-BOT-199 (Nov.8, 1999); Fasce v. Bd. of Directors, Docket No. 94-BOD-1072 (Sept. 13, 1995). See W. Va. Code § 18-29- 6; Baroni v. Bd. of Directors, Docket No. 92-BOD-271 (Feb. 11, 1993). A preponderance of the evidence is defined as "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR- 486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      The Greenbook and Series 36 provide that the appointments of probationary faculty members, such as Grievant, may be terminated at the end of the contract year "for any reason that is not arbitrary, capricious, or without factual basis." 128 C.S.R. 36 § 9.4 (1997); Jt. Ex. Nos. 1 & 2. These rules provide Respondent with broad discretion.
      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Healthand Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). "While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of a board of education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra; See Hattman v. Bd. of Directors, Docket No. 98-BOD-439 (Apr. 30, 1999).
      Generally, when applying an "arbitrary and capricious" standard of review, the inquiry is limited to determining whether relevant factors were considered in reaching the decision and whether there has been a clear error of judgment. Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982); Hill v. Kanawha County Bd. of Educ., Docket No. 94- 20-537 (Mar. 22, 1995). Further, a decision of less than ideal clarity may be upheld if the agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra, at 286.
      Considerable discretion is accorded to academic administrators in making personnel decisions regarding such matters as faculty retention or promotion. See generally, Sui v. Johnson, 784 F.2d 238 (4th Cir. 1984); Smith v. Univ. of N. Carolina, 632F.2d 316 (4th Cir. 1980); Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980). Moreover, in applying the arbitrary and capricious standard of review to academic matters, such as promotion, tenure and nonretention of faculty status, this Grievance Board has recognized that the decisional, subjective process by which such status is awarded or denied is best left to the professional judgment of those presumed to possess a special competency in making the evaluation. Gruen v. Bd. of Directors, Docket No. 95-BOD-281 (Mar. 6, 1997); Gomez-Avila v. W. Va. Bd. of Trustees, Docket No. 94-BOT-524 (Mar. 14, 1995); Carpenter v. Bd. of Trustees, Docket No. 93-BOT-220 (Mar. 18, 1994); Cohen v. W. Va. Univ., Docket No. BOR1-86-247-2 (July 7, 1987). See Sui, supra; Kauffman v. Shepherd College, Docket No. BOR1-86-216-2 (Nov. 5, 1986). This generally parallels the federal courts' approach to adjudicating such matters in civil rights disputes: "Determinations about such matters as teaching ability, research scholarship, and professional stature are subjective, and unless they can be shown to have been used as the mechanism to obscure discrimination, they must be left for evaluation by the professional, particularly since they often involve inquiry into aspects of arcane scholarship beyond the competence of individual judges." Kunda, supra, at 548. See also Bina v. Providence College, 39 F.3d 21 (1st Cir. 1994), cert. denied, 115 S. Ct. 1406 (1995); Lieberman v. Gant, 630 F.2d 60 (2d Cir. 1980).
      The issues to be decided in this grievance are whether MU's nonrenewal of Grievant's contract was arbitrary and capricious, not founded on a factual basis, procedurally incorrect, or done as a form of harassment and retaliation.      Before the issues and arguments raised by the parties can be discussed, the issue of credibility will be addressed.
A.      Credibility
      In order to decide whether Grievant has met her burden of proof, 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, Docket No. 89-DMV-569 (Jan. 20, 1990).
       An Administrative Law Judge is charged with assessing the credibility of the witnesses who appear before her. Holmes, supra; 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 Systems 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 absenceof 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 many of the witnesses and to review the written testimony of the witnesses at Level II, and found some to be more credible than others. It is noted that the majority of Grievant's testimony disagrees with the rest of the witnesses. It should be noted that the majority of MU's testimony was supported by the statements of multiple witnesses and numerous documents.
      The witnesses' accounts of the incidents varied on specific points, as is typical of testimony, but the witnesses agreed on the key points of what happened during Grievant's tenure. Other than the grade received by Dean Welch and Associate Dean Scott, Grievant gave no reason why the other witnesses would lie, and it is noted that most of the testimony was supported by contemporaneous documentation.   (See footnote 22)  Overall, the undersigned Administrative Law Judge finds the majority of the testimony received from all witnesses to be truthful, with the exception of Grievant.
      Grievant's credibility must be discussed in some detail. At times during the hearing, Grievant's answers on key questions were evasive or non-responsive. Additionally, there were several incidents where it was clear Grievant was not telling the truth. For example, Grievant informed Associate Dean Scott she had permission to write and give her own final exam in Nursing 423. This was not true. Further, Grievant testified that the administrationof drugs was not a required part of the clinical objectives in Nursing 222, and then submitted into evidence an incomplete copy of the syllabus without the clinical objectives attached. After the testimony of Dr. Appleton and submission of a complete syllabus, it was clear Grievant had been untruthful on this point.
      At times, Grievant's testimony was just not plausible or believable, such as when she maintained that facilitating in Nursing 423 was not teaching, and she should not be evaluated for teaching. Additionally, Grievant's testimony that the reason for her termination and the subsequent harassment and retaliation was because she taught a portion of a course in which Dean Welch received a "B" is implausible and illogical.   (See footnote 23) 
      Grievant's responses would lead one to believe that only minor problems occurred while she was a faculty member, or that any problems that occurred during her tenure were not her fault. Further, Grievant appeared to think that if the problems she created were eventually resolved, then there had not really been a problem. Examples of this type of thinking occurred in the ROM advising matter and the Nursing 423 final exam problem. Further, Grievant did not appear to comprehend what was communicated to her. An example of this was the discussion with Associate Dean Sortet over Grievant's office hours/advising time.       
       Accordingly, the undersigned Administrative Law Judge generally finds Grievant's testimony to lack credibility.
B.      Due Process
      The only remaining due process-type issue to address is the failure of Grievant to receive a statement of reasons from President Gilley.   (See footnote 24)  It is well settled that "[a]n administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs." Syl. Pt. 1, Powell v. Brown, 160 W. Va. 723, 238 S.E.2d 220 (1977). "However, an allegation that an employer failed to follow a specific procedural requirement in accomplishing a disciplinary action is an affirmative defense, and Grievant has the burden of establishing the facts to support such allegation by a preponderance of the evidence." Bradley v. Cabell County Bd. of Educ., Docket No. 99-06-150 (Sept. 9, 1999). In addition, a grievant must show the procedural error, more likely than not, influenced the outcome. Otherwise, if the same result would have inevitably been reached, the procedural violation will be considered as "harmless error." Bradley, supra; Dadisman v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 98-RS-023/040 (Mar. 25, 1999).
      Additionally, when a "violation of the grievance procedure is merely technical, following substantial compliance with the procedure, and there has existed between the employee and his supervisors ongoing communications concerning the employee's employment problems", this procedural error will not invalidate the action of the employer. Vosberg v. Civil Serv. Comm'n, 166 W. Va. 488, 275 S.E.2d 640 (1981); See McFadden v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-428 (Feb. 17, 1995). See generally Parker v. Defense Logistics Agency, 1 M.S.P.B. 489 (1980).      In this circumstance, Grievant received a letter from Dean Welch stating the reasons for her nonretention, ineffective teaching and advising and ineffective university service. Additionally, by the time she requested the statement of reasons from President Gilley, she had met with Dean Welch to discuss the notice of nonretention and her last evaluation. The reasons for her nonretention were discussed then. Further, Grievant filed the request for the statement of reasons on May 17, 1999, and this was received by President Gilley on May 20, 1999. Instead of Grievant waiting the ten days specified in the statute, Grievant filed this grievance on May 20, 1999. Obviously, Grievant was not harmed by the failure of President Gilley to respond, and Respondent has substantially complied with the required procedures.
C. Retaliation/ Reprisal
      Grievant has alleged her termination was reprisal for filing grievances and testifying in Ms. Karle's grievance. The majority of the issues Grievant addressed in this argument were dealt with in Grievant's December grievances. Reprisal is defined in W. Va. Code § 18-29-2(p) 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:



Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989); See 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, supra. 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.
      Grievant has established a prima facie case of reprisal. Grievant's termination, "the adverse action" followed "within such a period of time that retaliatory motivation can be inferred." Within the past several years Grievant has filed three grievances and testified in another grievance hearing. Given this state of affairs, the undersigned Administrative Law Judge finds Grievant has established a prima facie case of reprisal, and the burden shifts to Respondent to rebut the presumption of retaliation.
      Respondent has proven legitimate, non-retaliatory reasons for the adverse action. It has established Grievant was ineffective in teaching and advising and ineffective in service to the university. Grievant failed to follow directions, failed to pROMote learningin the clinical area, and did not fulfill her duties as a member of the Faculty Affairs Committee. Grievant did not demonstrate the reasons were merely pretextual.
D.      Harassment
      "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 harassment. While it is true that she received written reprimands and memos informing her of various, multiple weaknesses, and conferences have been held to discuss, explain, and resolve various problems; this fact alone does not constitute harassment. Employers are expected to inform employees about their problems in the work area, and employees are entitled to receive fair and honest feedback and evaluations. This feedback may not always be positive. Just because Grievant did not like the information she received, does not meanit was inappropriate or constitutes harassment. The information and corrections Grievant received were proper and warranted.
E.      Merits - Arbitrary and capricious/without factual basis
      MU elected not to renew Grievant's probationary contract beyond the 1999-2000 academic year in accordance with authority contained in Series 36 of the Procedural Rules. As previously noted, the standard of review is whether the action taken by MU was arbitrary and capricious or without factual basis.
      Particularly relevant to the merits of this grievance are the following provisions relating to probationary faculty members:
. . .

. . .

. . .

      
. . .


128 C.S.R. 36; Jt. Ex. No. 1, at Level IV; See W. Va. Code § 18B-7-4.

Obviously, MU is bound by the substantive and procedural requirements set forth in Series 36; however, the burden of proof in this matter rests with Grievant.
      Grievant has not met her burden of proof and demonstrated by a preponderance of the evidence that her nonretention was arbitrary and capricious or without a factual basis. The record is replete with Grievant's history of problems in multiple courses. These problems eventually came to such a point that it was difficult to find an assignment for Grievant because no one wanted to work with her, and no course coordinator wanted Grievant as a member of her team.
       Although Respondent did not have the burden of proof in this situation, it established Grievant was ineffective in teaching and advising and ineffective in university service. Additionally, Respondent demonstrated Grievant failed to follow directions, and when caught would prevaricate. Nothing ever appeared to be Grievant's fault. Either her students were the "dregs", the course syllabus did not require certain clinical requirements, the clinical unit where she was stationed did not understand the course objectives or could not provide the proper learning experiences, and/or the scheduling books did not list thecourse requirements. Attempts to point out Grievant's errors were seen as forms of harassment or retaliation. Respondent's decision not to renew Grievant's probationary contract was not arbitrary and capricious of lacking a factual basis.
      The above-discussion will be supplemented by the following Conclusions of Law.             

Conclusions of Law

      1.      In a grievance challenging non-retention of a probationary faculty member, the grievant has the burden of proving her complaint by a preponderance of the evidence. Gruen v. Bd. of Directors, Docket No. 95-BOD-281 (Mar. 6, 1997); Fasce v. Bd. of Directors, Docket No. 94-BOD-1072 (Sept. 13, 1995). See W. Va. Code § 18-29-6; Baroni v. Bd. of Directors, Docket No. 92-BOD-271 (Feb. 11, 1993).
      2.      "An administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs." Syl. Pt. 1, Powell v. Brown, 160 W. Va. 723, 238 S.E.2d 220 (1977).
      3.      "[A]n allegation that an employer failed to follow a specific procedural requirement in accomplishing a disciplinary action is an affirmative defense, and Grievant has the burden of establishing the facts to support such allegation by a preponderance of the evidence." Bradley v. Cabell County Bd. of Educ., Docket No. 99-06-150 (Sept. 9, 1999). In addition, a grievant must show the procedural error, more likely than not, influenced the outcome. Otherwise, if the same result would have inevitably been reached, the procedural violation will be considered as “harmless error.” Bradley, supra; Dadisman v. W. Va. Div. of Rehabilitation Serv., Docket Nos. 98-RS-023/040 (Mar. 25, 1999).       4.      When a "violation of the grievance procedure is merely technical, following substantial compliance with the procedure, and there has existed between the employee and his supervisors ongoing communications concerning the employee's employment problems", this procedural error will not invalidate the action of the employer. Vosberg v. Civil Serv. Comm'n, 166 W. Va. 488, 275 S.E.2d 640 (1981); See McFadden v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-428 (Feb. 17, 1995). See generally Parker v. Defense Logistics Agency, 1 M.S.P.B. 489 (1980).
      5.      President Gilley's failure to give Grievant a statement of reasons was a "harmless error", as Grievant had an ongoing dialogue with her supervisors about her employment problems, and Respondent's failure to follow this specific procedural requirement would not and did not influence the outcome.
      6.      Reprisal is defined as "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 address it." W. Va. Code § 18-29-2(p). A grievant claiming retaliation may establish a prima facie case of reprisal by proving the following elements:



Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995). See Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251 (1986) ; Fareydoon-Nezhad v. W. Va. Bd. of Trustees at Marshall Univ., Docket No. 94- BOT-088 (Sept. 19, 1994); Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989).
      7.      Although Grievant established a prima facie case of retaliation or reprisal in regard to MU"s decision not to renew her probationary, tenure track teaching contract, MU established by a preponderance of the evidence that this decision resulted from continuing concerns regarding Grievant's ineffective teaching and advising, and later discovered ineffective university service. Grievant failed to demonstrate these reasons were either pretextual or a subterfuge for retaliation. See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).
      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.      Grievant has failed to prove by a preponderance of the evidence that she has been subjected to harassment. See Pauley v. Lincoln County Bd. of Educ., Docket No. 98- 22-495 (Jan.29, 1999).
      10.      The Greenbook and Series 36 provide that the appointments of probationary faculty members, such as Grievant, may be terminated at the end of the contract year "forany reason that is not arbitrary, capricious, or without factual basis." 128 C.S.R. 36 § 9.4 (1997); Jt. Ex. Nos. 1 & 2. These rules provide Respondent with broad discretion.
      11.      The decision process in non-retention is similar to the decision process in awarding tenure and promotion. The subjective process by which promotion and tenure is awarded or denied is best left to the professional judgment of those presumed to possess a special competency in making the evaluation unless it is shown to be arbitrary and capricious or clearly wrong. Turman v. Bd. of Trustees/Marshall Univ., Docket No. 99- BOT-199 (Nov.8, 1999); Gruen, supra. See Sui v. Johnson, 784 F.2d 238 (4th Cir. 1984); Fasce, supra.
      12.      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)).       13.      "While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of a board of education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra; See Hattman v. Bd. of Directors, Docket No. 98-BOD-439 (Apr. 30, 1999).
      14.      Generally, when applying an "arbitrary and capricious" standard of review, the inquiry is limited to determining whether relevant factors were considered in reaching the decision and whether there has been a clear error of judgment. Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982); Hill v. Kanawha County Bd. of Educ., Docket No. 94- 20-537 (Mar. 22, 1995). Further, a decision of less than ideal clarity may be upheld if the agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra, at 286.
      15.      Considerable discretion is accorded to academic administrators in making personnel decisions regarding such matters as faculty retention or promotion. See generally, Sui v. Johnson, 784 F.2d 238 (4th Cir. 1984); Smith v. Univ. of N. Carolina, 632 F.2d 316 (4th Cir. 1980); Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980). Moreover, in applying the arbitrary and capricious standard of review to academic matters, such as promotion, tenure and nonretention of faculty status, this Grievance Board has recognized that the decisional, subjective process by which such status is awarded or denied is best left to the professional judgment of those presumed to possess a special competency in making the evaluation. Gruen, supra; Gomez-Avila v. W. Va. Bd. ofTrustees, Docket No. 94-BOT-524 (Mar. 14, 1995); Carpenter v. Bd. of Trustees, Docket No. 93-BOT-220 (Mar. 18, 1994); Cohen v. W. Va. Univ., Docket No. BOR1-86-247-2 (July 7, 1987). See Sui, supra; Kauffman v. Shepherd College, Docket No. BOR1-86-216- 2 (Nov. 5, 1986).
      16.      It is appropriate to review an employee's past performance evaluations and the subsequent reoccurrence or continuation of identified problems when deciding whether to remove that professional from her current position. This practice can establish a continuing pattern of behavior which has proven not correctable. Williams v. Cabell County Bd. of Educ., Docket No. 95-06-325 (Oct. 31, 1996).
      17.      Grievant failed to establish MU's decision not to renew her contract as a probationary faculty member beyond the 1999-2000 academic year was arbitrary and capricious or without factual basis. See 131 C.S.R. 36 § 10.4 (1992); Turman, supra; Kilburn v. Bd. of Directors, 94-BOD-1064 (Dec. 29, 1995); Fasce, supra.
      Accordingly, this grievance is DENIED.

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

                                     ___________________________________
                                                 JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: April 7, 2000


Footnote: 1
      These motions will be discussed later.
Footnote: 2
      Grievant was represented by Attorney George Mills, and Respondent was represented by Senior Assistant Attorney General Connie Bowling.
Footnote: 3
      At hearing the parties agreed Grievant had sent Respondent notice of her intent to apply for tenure this year, and she had not been prevented from doing so. Accordingly, even though this evidence was not presented at the pre-hearing conference, this information is an additional reason for denying Grievant's motion. It should be clear that by terminating Grievant at this point in time for ineffective teaching and advising and ineffective service to the university, that Respondent has already decided Grievant did not possess the necessary skills and qualitites for tenure.
Footnote: 4
      The name of the School of Nursing has changed and is now called the College of Nursing and Health Professionals. In this grievance it will be referred to as the School of Nursing or SON.
Footnote: 5
      The parties indicate two grievances were filed and two were submitted into the record. However, these grievances overlapped to a great degree.
Footnote: 6
      It should be noted that this behavior was not discovered until November 1998 when Grievant testified during a Level IV grievance hearing.
Footnote: 7
      Grievant also renewed all the arguments previously addressed in the section dealing with her Motions. As they have been previously addressed they will not be discussed again.
Footnote: 8
      The course coordinator for a particular course is the faculty member ultimately responsible for all aspects of the learning experience. These responsibilities include lecture materials, test construction, evaluation, syllabus, and class and clinical objectives.
Footnote: 9
      Associate Dean Scott was not the Associate Dean then, but a faculty member.
Footnote: 10
      Grievant has repeatedly stated that Dean Welch's and Associate Dean Scott's grade in this course is the reason why she was terminated.
Footnote: 11
      A preceptor in the graduate Nursing program instructs and facilitates the clinical learning of a student who is already a registered nurse.
Footnote: 12
      The issue of whether the canceling of these classes was harassment, reprisal, or retaliation was decided in the negative by the Grievance Evaluator at Level II in the December grievances filled by Grievant.
Footnote: 13
      It must be noted that Grievant submitted a copy of the course syllabus to support her claim. It was not discovered until the course coordinator, Dr. Appleton, testified that the copy submitted by Grievant was quite incomplete and did not contain the course's clinical objectives which clearly stated that the administration of medications was a course requirement. Compare Resp. Ex. No. 1, at Level IV and Grt. Ex. No. 32, at Level IV.
Footnote: 14
      Grievant testified the drug dosage test was not given until late in the semester, the third week of April. She asserted her students could not give medications until the last week, and there was not enough time to have this clinical experience. Six of Grievant's students passed the medication test on their first attempt, March 7, 1997, and were ready to give medication thereafter. The other two students passed the test on the second attempt and were qualified shortly thereafter.
Footnote: 15
      Grievant says she informed Associate Dean Scott in advance that she had already told the students they would be allowed to leave early to study for the exam on their own. Associate Dean Scott testified Grievant did not tell her this.
Footnote: 16
      There was much E-mail back and forth between Grievant and Associate Dean Scott as to the exact grades of the students; however, there was no argument that Grievant's group made the lowest grades of the four sections.
Footnote: 17
      Grievant gave no explanation why a portion of a final exam was given a month before exams.
Footnote: 18
      This action of the part of Dean Welch was based on the advice of counsel.
Footnote: 19
      The       co-requisites or prerequisites vary depending on the year the student entered the program; thus, it is necessary for faculty members to keep the older copies of these materials.
Footnote: 20
      In keeping with prior decision of this Grievance Board, students and their relatives will be identified only by their initials. See Jones v. Preston County Bd. of Educ., Docket No. 99-39-017 (Mar. 16, 1999).
Footnote: 21
      R.O.M. wrote a letter supporting Grievant when she filed her first grievance.
Footnote: 22
      Some statements were obviously put in written form later.
Footnote: 23
      It is noted that Grievant informed many individuals that the only reason Dean Welch gave her for her first terminal contract was because of her ineffective teaching in Nursing 626. This is incorrect.
Footnote: 24
      It appears from the discussion of the parties that this request was received during the time surrounding his resignation.