v. Docket No. 00-15-063
HANCOCK COUNTY BOARD OF EDUCATION,
Respondent.
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.
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.
(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.
(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