J. GRAHAM RANKIN,

                  Grievant,

v.                                                DOCKET NO. 99-BOT-421

BOARD OF TRUSTEES/
MARSHALL UNIVERSITY,

                  Respondent.

DECISION

      This grievance was filed by J. Graham Rankin, Grievant, against the Board of Trustees/Marshall University, Respondent ("Marshall"), on or about April 13, 1999, when he was denied tenure and promotion to the rank of Associate Professor from Assistant Professor. Grievant alleged that the process was flawed, and that he had been discriminated against.   (See footnote 1)  As relief he sought to be granted tenure and promoted to the rank of Associate Professor, “for any and all benefits [to be] restored,” and to be transferred to another department.   (See footnote 2) 
      A candidate for tenure at Marshall must prepare a tenure application outlining his accomplishments. In order to obtain tenure, a candidate must demonstrate effective performance in all major areas of responsibility. The major areas of responsibility are teaching and advising, scholarly and creative activities, service to the university, and service to the community. The candidate must also demonstrate excellence in either teaching and advising or scholarly and creative activities. The standards for promotion to Associate Professor are the same, and in addition, the candidate with a terminal degree such as Grievant has, must have at least four years of experience as an Assistant Professor. Promotion and tenure may be awarded at the same time. Grievant chose teaching and advising as the area in which he would need to demonstrate excellence.
      Grievant is an Assistant Professor in the Department of Chemistry. Department of Chemistry applications are first reviewed by the Department Promotion and Tenure Committee. The Committee makes a recommendation on the application, and the application and recommendation are forwarded to the Chairman of the Department of Chemistry for review and recommendation, Dr. Daniel Babb. He reviews the application and makes his recommendation. The application and recommendations are then forwarded to the College of Science Promotion and Tenure Committee for recommendation, and then to the Dean of the College of Science, Dr. Tom Storch. The Dean's recommendation is forwarded to the Vice-President for Academic Affairs, Dr. Sarah N. Denman. The Vice-President is to review the application and make a recommendation, which is next sent to the President of Marshall University, at that time Dr. J. Wade Gilley, who makes the final decision.
      Grievant's application for promotion and tenure was denied at each level, except the College of Science Promotion and Tenure Committee voted three to two in favor of promotion, while voting three to two to deny tenure. This committee explained its action was the result of disagreement about Grievant's qualifications.
      The reason given by Marshall for denying Grievant's application for promotion and tenure was that he did not demonstrate his teaching and advising were excellent, because some students had written very negative comments on Grievant's student evaluations. Marshall did not dispute that Grievant's scholarly and creative activity and service were effective, and those areas need not be addressed.
      The following findings of fact have been made based upon the record developed at Levels II and IV.

Findings of Fact

      1.      Grievant was first employed by Marshall in September 1993 as an Assistant Professor in the Department of Chemistry. He taught various chemistry courses, Chromatography, Forensic Science, Spectroscopic Analytical Methods, and a course called “Freshwater”. He also team-taught two integrated science courses for non-science majors, which are not considered to be within a specific department, team-taught geochemistry in the geology department, and was a guest lecturer in a forensic toxicology course at the medical school.
      2.      The Marshall Greenbook is the official Faculty Handbook. The Greenbook requirements for promotion to the rank of Associate Professor for someone with a terminal degree in an appropriate teaching field are: four years experience as an Assistant Professor; demonstrated effective performance in the four major areas of responsibility; and demonstrated excellence in either teaching and advising or scholarly and creative activities. The other two major areas of responsibility are service to Marshall and professional service to the community. The Greenbook provides that the performance standards are the same to acquire tenure.
      3.      The College of Science has not developed any quantitative standards for excellence.
      4.      The Department of Chemistry Promotion and Tenure Committee advised Grievant by letter dated March 23, 1998, that it had met and reviewed his progress, and was somewhat alarmed by his lack of a publication record. The letter stated Grievant had done a good job in the area of service, but that area was not allowed as an area ofexcellence. Finally, the letter stated with regard to teaching, “[w]hile you have made good progress in terms of the number of complaints about your teaching, it is still not clear that you have always exhibited a 'courteous and sympathetic manner' towards your students. A distressing percentage of your student evaluations have rated you low in this category. Thus, it will be difficult to successfully claim excellence in the teaching area.”
      5.      Grievant prepared his tenure and promotion application, and submitted it in the Fall of 1998. Grievant had previously designated teaching and advising as the area in which he would need to demonstrate excellence. Marshall's Greenbook provides that nothing may be added to or deleted from the application, except relevant information may be added by the graduate dean if the applicant holds graduate or associate graduate faculty status.
      6.      The Department of Chemistry's Promotion and Tenure Committee did not recommend Grievant for promotion or tenure, stating Grievant did not demonstrate excellence in teaching or research. The Committee stated student evaluations were a concern, although there had been improvement over the last two years, but that there seemed to be “a certain amount of grade inflation accompanying this.” In support of this theory, this Committee stated it was pointed out that students taking Chemistry 211 from Grievant tend to receive a lower grade from other professors in Chemistry 212, and students taking other professors for Chemistry 211 tend to receive a higher grade from Grievant in Chemistry 212. The Committee did not indicate the source of this data, and it was not in Grievant's application. The Committee also speculated that because a large number of students who take Grievant for Chemistry 211 do not go on to take Chemistry 212, Grievant was turning off students. The Committee further stated that Grievant does not complete all course materials in Chemistry 211, and his students taking Chemistry 212 are a chapter or more behind other students. The source of this data was also not noted, and was not in Grievant's application. Finally, the Committee stated that the departmenthad expected Grievant's industrial experience to provide a unique additional insight into the way he would teach courses, but had seen no evidence of this. The Committee found Grievant's teaching and advising, and his service, effective.
      7.      The Chairman of the Department of Chemistry, Dr. Daniel Babb, did not recommend Grievant for promotion or tenure.
      8.      The College of Science Promotion and Tenure Committee voted three to two in favor of promoting Grievant, but three to two against tenure.
      9.      The Dean of the College of Science, Dr. Tom Storch, did not recommend Grievant for promotion or tenure.
      10.      The Vice President for Academic Affairs, Dr. Sarah N. Denman, did not recommend Grievant for promotion or tenure.
      11.      Marshall President J. Wade Gilley did not grant Grievant's tenure and promotion request.
      12.      Grievant holds a Bachelor's Degree in Biology. He obtained a doctorate from the Texas A&M University in Oceanography in 1974, and a doctorate from the University of Houston in Chemistry in 1993. He holds a terminal degree in an appropriate teaching field. He worked as a research chemist for Shell Development Co. for 14 years.
      13.      Grievant has more than four years of experience as an Assistant Professor.
      14.      Each professor is rated annually by his supervisor in an annual report. That form provides for ratings in the four major areas of responsibility, and an overall rating. The rating choices are "excellent," "good," "effective," and “needs improvement."
      15.      On his annual reports for the years 1993 through December 1997, Dr. Babb rated Grievant's teaching and advising as good or very good. Dr. Babb never gave Grievant a rating of excellent in teaching and advising on his annual report. On Grievant's annual report for January 1 through December 31, 1996, Dr. Babb noted that Grievant's service to the university was, “well above average both in the department and to theuniversity as well,” yet he rated Grievant's service as “good.” Dr. Babb discussed the annual reports with Grievant each year.
      16.      Until the Fall of 1998, Dr. Babb had only observed Grievant's classroom instruction from the hallway outside the closed classroom door. From the hallway he cannot hear the professor lecture,   (See footnote 3)  but can observe student non-verbal reactions. Dr. Babb never told Grievant about these hallway observations, and drew no conclusions about Grievant's teaching from these observations. Dr. Babb sat in on two of Grievant's classes during the Fall of 1998 as part of the promotion and tenure process. He has never provided Grievant with a written or verbal critique of his teaching after observations.
      17.      Dr. Babb believes an excellent teacher is someone who has the ability to reach and motivate those students who are not as well prepared, and the ability to get students excited about class and to want to go to class. He believes Grievant did a very credible job in advanced classes, and did a very good job in course development, to a fault, in that he spread himself too thin. He believes Grievant is an effective teacher, but could not be considered excellent due to the atmosphere he creates for certain students.
      18.      Grievant developed three new courses while at Marshall: Environmental Analytical Chemistry, Freshwater, and An Introduction to Forensic Science. Each of these courses is a four credit hour course, and each has a laboratory component. The Freshwater course was developed with Dr. Protip Ghosh, Professor of Geology at Marshall, and the Forensic Science course was developed with Dr. Michael Little, Professor of Integrated Science and Technology at Marshall. Both of those courses are for non-science majors. He also developed all the lab experiments for several of his upper level chemistry courses.      19.      Grievant has taught three advanced instrumentation courses as writing intensive courses since the Spring of 1994. He was the first Writing Across the Curriculum certified instructor in the Chemistry Department. Other professors have told him his students write better reports than the other students in their classes.
      20.      In the Fall of 1993, Grievant instituted a program designated as peer tutoring in his lower division courses. Students who score very well on the first exam are asked to be available for fixed “office hours” each week to assist their fellow students. Grievant also gives second chance quizzes. Two questions from the exam given the previous class period, with some modification, are asked, and the students may earn an additional 10 points on the exam. Grievant's student have consistently commented favorably on the second chance quizzes.
      21.      Grievant included in his application seven letters from former students indicating how his classroom instruction had assisted them in their careers. These students felt Grievant was an excellent teacher. Each commented that he was always available to answer questions and to help students in any way. They noted variously his respect and concern for students, his fairness, that he was well prepared, organized, and clear in presenting material, that he made class enjoyable, inspired his students to learn, and that he helped students to grasp basic chemistry concepts and apply them.
      22.      The Department of Chemistry did not compare the student evaluations received by professors until the Spring of 1998. The Spring 1998 evaluations showed students rated Grievant higher than other faculty in the Department of Chemistry in every category. In particular, Grievant was rated 12 to 15% higher than any other Chemistry Department faculty member on the question related to whether the faculty member was an excellent teacher. On the student evaluations for the Spring of 1998, 69 out of 83 students, or 83.1%, stated they agreed or strongly agreed that “my overall rating of this instructor is excellent.” 53 of those students, or 63.9%, agreed or strongly agreed that thecourse was “among the best I have ever taken,” and 52 students, or 70.7%, agreed or strongly agreed that Grievant “is among the best teachers I have known.”
      23.      Grievant has received negative comments on student evaluations. He has also received comments from students on evaluations that he is an excellent teacher and does a good job. The student comments for the Spring of 1998 were extremely complimentary of Grievant's teaching. He received only one negative comment, that he “is not receptive to student problems.” On the other hand, one student found him to be very caring, and one appreciated Grievant's concern for his grades.
      24.      In answering the questions asked on the student evaluations from the Spring of 1996 through the Fall of 1997, over 70% of the students gave Grievant positive ratings on every question but one. 62.4%, or 146 students, responded that, “having taken this course, I have a greater interest in the subject and would like to learn more.” A small percentage of students gave Grievant poor or very poor ratings. One of the areas on the evaluations is whether the instructor treats students in a courteous and sympathetic manner. 194 out of 239 students responded affirmatively to this query, 27 students, 11.3%, responded negatively, and 18 had a neutral opinion. 95.8% found Grievant to be enthusiastic about course material. 74.9% responded that he “stimulates interest on the part of students.”
      25.      Only one student has complained to Dr. Babb about Grievant's teaching since the Fall of 1996, and that occurred on November 16, 1998, after Grievant submitted his application for tenure and promotion. Dr. Babb noted this student complaint in his memorandum to Dean Storch of November 23, 1998, in which he notified the Dean of the Chemistry Department's vote on the application, and his personal view that Grievant's application should be denied.
      26.      Each year students complained to Dean Storch's office about Grievant's teaching. Some students believe that Grievant puts students down in class, is insulting,and rude. Dean Storch never told Grievant about the complaints until the 1997-98 school year.
      27.      Dr. Babb talked to Grievant about student complaints and offered some suggestions. Grievant acted on these suggestions and tried to engage students more, be more encouraging, and make eye contact more. Grievant asked Dr. Babb to come to his classroom and listen to lectures and tell him what it was he was doing, as he did not know why students felt he was putting them down, and Dr. Babb did not know what it was Grievant was doing. Grievant was concerned that because he was from Texas, perhaps he was using language, phrases, or mannerisms from that culture which the students at Marshall found demeaning. Dr. Babb did not sit in on Grievant's class as Grievant had asked.
      28.      Many of the students in Grievant's Spring general chemistry course are repeating the course because they received a poor grade in this course previously.
      29.      Dr. Little submitted a letter in support of Grievant's application, which was included in the application. He noted that he and Grievant had team taught Integrated Science and Introduction to Forensic Science, and had worked together as co-directors of undergraduate independent study research. He stated Grievant, “had recorded a large number of video programs on forensic science and had found several innovative lab exercises on the net. He presented these to students as part of a series of lectures and labs. He was well prepared for all classes and very knowledgeable about the subject matter.” He further stated, “I have observed Graham to be a highly motivated, energetic, and well informed instructor. He was always extremely well prepared and knowledgeable. He demands a high level of performance from students and maintains high standards.”
      30.      Dr. Terry Fenger, Chairman of Microbiology and Director of Forensic Science, submitted a letter which Grievant included in his tenure and promotion application, stating that he was an excellent teacher, and highly recommending him for promotion and tenure.He had observed Grievant teaching Forensic Science at the medical school, and Chromatography. He further offered testimony that Grievant was instrumental in developing two courses in the new Forensic Science Program at Marshall, Toxicology Forensic Science 608, and Multiple Topics, Forensic Science 614. Grievant served on a committee to formulate the topics to be covered in those two courses, and he developed and taught the analytical chemistry aspects of those two courses.
      31.      Grievant has been the coordinator of the Environmental Science Program since its inception.
      32.      At the time he submitted his application for promotion and tenure, Grievant had published five articles in refereed journals, and had two additional articles accepted for publication in refereed journals. Three of the publications resulted from work on his Ph.D. He had made presentations at six professional meetings, and four seminars.
      33.      Grievant has been awarded eight grants while at Marshall.
      34.      Grievant directed the graduate research of six students who completed an MS in Chemistry or Environmental Science, and the undergraduate research of 12 students.
      
Discussion

      Grievant argued initially that the burden of proof in this grievance should rest with Respondent, because the result of the denial of tenure and promotion was a terminal contract. As this termination was not disciplinary, however, this Grievance Board has determined that the burden of proof is upon the grievant to prove by a preponderance of the evidence that he should have received tenure and promotion, and the undersigned is not convinced that this issue needs to be revisited. Brozik v. Bd. of Trustees, Docket No. 98-BOT-142 (Nov. 30, 1998); Gomez-Avila v. W. Va. Bd. of Trustees, Docket No. 94-BOT- 524 (Mar. 14, 1995).      Grievant argued at Level II that the procedures used by the Department of Chemistry to evaluate his tenure and promotion materials were not in writing, that there were no clear-cut criteria for excellence in teaching, and that the decision was arbitrary. Grievant did not pursue these procedural arguments at Level IV, arguing that the decision not to promote Grievant and offer him tenure was arbitrary and capricious, and was based on faulty and incomplete information. Respondent denied arbitrary and capricious action, and asserted that careful consideration was given to Grievant's promotion and tenure application, which was prepared by Grievant, as was his burden. Respondent argued Grievant failed to demonstrate excellence in teaching and advising.
      The review of an institution of higher learning's promotion and tenure decision is "generally limited to an inquiry into whether the process by which such decisions are made conforms to applicable college policy or was otherwise arbitrary and capricious." Harrison v. W. Va. Bd. of Directors, Docket No. 93-BOD-400 (Apr. 11, 1995). "The decisional subjective process by which promotion and tenure are awarded or denied is best left to the professional judgement of those presumed to possess a special competency in making the evaluation unless shown to be arbitrary and capricious or clearly wrong." Sui v. Johnson, 784 F.2d 238 (4th Cir. 1984).
      The arbitrary and capricious standard of review requires a searching and careful inquiry into the facts; however, the scope of review is narrow, and the undersigned may not substitute her judgement for that of the decision-maker. See generally, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). Generally, an action is arbitrary and capricious if the body taking the action did not rely on factors that were intended to be considered, entirely ignored important aspects of the problem, explained its decision in a manner contrary to the evidence before it, or reached a decision that is so implausible that it cannot be ascribed to a difference of view. Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985).      The undersigned "is limited to considering the record before the decision-maker at the time of the decision. An applicant is responsible for informing the decision-maker of her qualifications for promotion. If she does not do so at the appropriate time, such data cannot be considered later by an Administrative Law Judge, as the purpose of a promotion grievance is to assess the institution's decision at the time it was made, utilizing the data it had before it." Baker v. Bd. of Trustees, Docket No. 97-BOT-359 (Apr. 30, 1998) (citations omitted). See also, Castiglia v. Bd. of Trustees, Docket No. 97-BOT-360 (May 27, 1998).
      "In higher education, promotions are not a statutory right nor a reward for a faculty member's years of service. Rather, in accordance with the West Virginia Board of Trustee's Policy Bulletin 36, a promotion is based upon excellence in teaching, service to the institution and/or community, ongoing professional development and other relevant factors." Baker, supra; Hart v. Bd. of Directors, Docket No. 95-BOD-198 (Mar. 6, 1996). However, "[p]romotion and tenure are paramount professional and economic goals of a teacher. Grievant has a valuable property interest in this expectation of tenure. State ex. rel. McLendon v. Morton, 162 W. Va. 431, 249 S.E.2d 919 (1978)." Finver v. Bd. of Trustees, Docket No. 97-BOT-271 (Oct. 15, 1997).
      Neither party articulated what Grievant would need to demonstrate in order to prove he was an excellent teacher. It is difficult for the undersigned to believe that any faculty member always receives glowing student evaluations, and never receives negative written comments from students. Surely even the best professor in the world is not liked by all his students; especially those who are being forced to take his class, and just do not have the ability to grasp the subject matter. Chemistry is a particularly difficult subject for some people. Yet it appears the Department of Chemistry expects Grievant to have no student complaints in order to achieve excellence. This standard certainly seems unrealistic. None of Grievant's other teaching endeavors, and none of the positive student comments,offset the student complaints in the eyes of the Department of Chemistry and College of Science in evaluating teaching performance. The fact that Grievant's student evaluations as a whole are very good, and much better than those of the other teachers in the Chemistry Department, is also not considered. It is mind boggling that a group of scientists would totally ignore quantitative data regarding Grievant's performance, or even make their own observations of Grievant's instruction, and instead rely solely upon the subjective opinions of freshmen students in general chemistry courses. This approach certainly makes it an easy matter to deny promotion or tenure to a faculty member who simply is not liked by his peers for whatever reason. While the Department of Chemistry may believe it should be able to terminate professors who do not fit in, that is not the applicable standard for awarding promotion and tenure. In this case, Grievant's peers, in particular Dr. Babb, did not like the direction of Grievant's research. Further, Grievant had been instrumental in assisting other departments in the College of Science, which appears from the criticism of Grievant “spreading himself too thin,” to have been frowned upon by the Department of Chemistry. In fact, Respondent's written argument notes that, “Dr. Storch also testified that he believed that in terms of Grievant's performance Grievant had spent too much time on many different areas, such as developing new courses and interacting with other departments, rather than focusing on his commitment to the department of Chemistry.” There is no indication in the record, however, that Grievant failed to meet his obligations to the Department of Chemistry.
      Nonetheless, this Grievance Board has previously held that student complaints and poor student evaluations may support a finding that teaching and advising does not meet the standard of effectiveness, even where classroom observations by peers have resulted in good evaluations. Shackleford v. W. Va. Bd. of Directors, Docket No. 96-BOD-414 (Oct. 9, 1997); Gomez-Avila, supra. However, in Shackleford, unlike here, the ratings received by the grievant on student evaluations were below the division and college average. InGomez-Avila, the grievant again had low ratings on the student evaluations, which also is not the case here.
      Student evaluations are useful in that they provide a means of comparison of faculty. In this case, however, no such comparison was available to Grievant, or made by Marshall, until the Spring of 1998. Grievant rated far above the other faculty this evaluation period. Dean Storch found that statistical comparison, however, to be flawed, stating at Level II that Grievant's evaluations also included evaluations of laboratories,

The written comments for the Spring of 1998 were also very positive, and clearly related strictly to Grievant's instruction. Dean Storch did not address this fact, however.
      It is useful to look at the student comments which were a part of the promotion and tenure application to get a flavor for their value as a means of measurement. For the Spring 1996 Chemistry 211-201 course, a general chemistry course, 22 students made written comments. One said the course was interesting and did not go over his head, and “the instructor seemed to go out of his way to help out the class, by giving more than enough chances to bring up our grades.” Two students said he was too hard, and one said he could explain things more clearly, One student commented that he was, “not very good at explaining the classes' questions. Sometimes he had no idea how to solve some of the problems,” while another said, “I feel Dr. Rankin is a very good teacher, and he knows his material and is always ready to answer any question at all times.” Some complained about the material being rushed, and about the exams, while others felt the grading and tests were fair. Another said he “covers the material thoroughly and is alwayswilling to answer any questions a student might have.” The next student comment was, “I feel the instructor did not explain things well.” One said, “Dr. Rankin's teaching style was great, I feel I learned a lot,” while the next student said, “Dr. Rankin acts as if teaching 211 is a waste of his time, as though he is too qualified to teach this course. . ..” One of the students felt “we received an excellent education in chemistry. I look forward to having him again in 212.”
      For the Spring 1996 Chemistry 211-202 course, 21 students made written comments. Three said he was “very good,” while three said he was “excellent.” One said the atmosphere was “comfortable and friendly,” and the student looked forward to coming to class. One said he was very fair and considerate. Two said he really cares about the students and was always available for questions and to help. One praised his enthusiasm, and one said he “kicks Ass!” Almost all the comments were complimentary.
      For the Fall 1996 Chemistry 212-101 course, 25 students made written comments. Several said the grading was very fair, while some criticized the tests. One complained about course presentation, while one said, “it was a pleasure.” Several commented on how helpful and fair Grievant was. One said the presentations became confusing and out of order, while one student found his presentations well organized. One said he encourages people to drop his course too much, while the next said his fairness in grading encouraged the student to stick with it and not drop. One said he did not relate well to most people in the class and made fun of students' wrong answers sometimes, while one said he was one of the “most nicest professors I've had, always happy,” and another described him a having a “very likeable personality and very helpful.” One student said, “Dr. Rankin is a superior instructor; he always makes time for his students and shows a great deal of concern. It has been a pleasure having him for class.”
      There were no negative comments for the Fall 1996 Chemistry 426/526 class.      For the Spring 1997 Chemistry 212 course there were 15 student comments. While several of the students had suggestions for improvement, only one truly negative comment was made, which was that Grievant “needs better teaching methods and some compassion toward struggling students.” Otherwise, the students felt Grievant was fair and a good teacher, and they learned the material. One student felt he was excellent. Contrary to the conclusions of the Department of Chemistry Promotion and Tenure Committee, two students believed his exams were harder than those given by other professors.
      For the Fall 1997 Chemistry 203 course, 12 students made written comments. One said Grievant was fair and willing to help anyone who needed it, and “it's a shame he's not teaching CHM 204 next semester;” the next student said, “he needs to not be teaching!”; the next one said, “Dr. Rankin is one of the finest profs. at MU;” and the next said he should not be teaching introductory courses because he “complicated everything.” Three students said the material needed to be presented more clearly; one did not like the tests; and the rest of the comments were quite complimentary.
      The three student comments for the Fall 1997 Chemistry 211-208 course were complimentary, with one student stating Grievant was one of the best teachers at Marshall.
      Eight students commented on the Fall 1997 Chemistry 212 course. Two felt he was not organized; one complained about the tests; one complained that his method of curving grades was unfair; two comments were not substantive; one stated this was the second time taking the course, and felt he learned much more with Grievant; and one was complementary. Again contrary to the conclusions of the Department Promotion and Tenure Committee, one student commented that Grievant expected students to know more than was covered in the Chemistry 211 course he had taken from another professor.
      Six students commented on the Spring 1998 Chemistry 211-201 course. Only one negative comment was registered, “Professor is not receptive to student problems.” On the other hand, one student found him to be very caring, and one appreciated Grievant's concern for his grades. The remaining comments commended Grievant's instruction, with one student referring to him as great, and another as excellent.
      The eight student comments on the Spring 1998 Chemistry 212-204 course were glowing, with one commenting on his organization, and one commenting that the tests were difficult, but made him think, and grading was fair. One student said Grievant was very good, one said he enjoyed the class, one praised the second chance quiz and peer tutor program, one said he was excellent, and one said his teaching method was great. One student said, “I have been putting CHM 212 off for along time because the C I got in 211 was a miracle. I have gotten an A & B on test for first time ever. Second chance quiz is great idea.”
      Several things are clear from these comments. Student reactions to Grievant vary greatly; most students believe Grievant is a wonderful teacher; very few students have made really negative comments about Grievant; and, based upon these student comments, his teaching has improved.
      Dr. Babb read other negative student comments into the record at the Level II hearing. These comments from the Spring 1997 Integrated Science course team taught with Dr. Little were not a part of Grievant's application, because he had never seen them before. Dr. Babb explained that they were “hidden away” in his office, and he had found them. They were not in Grievant's personnel file, which came up missing during the Spring of 1999. Dr. Babb did not indicate, however, how the student's had rated Grievant overall, nor did he read all the student comments from that course into the record. These comments will not be considered by the undersigned, because they were not part of the application reviewed by the decision makers in this instance, they were not available to Grievant to help him improve his instruction, the positive comments and overall student ratings on the questions asked were not made a part of the record, and the authenticity of these student comments is suspect under the circumstances.      Dr. Babb testified that a “significant number” of students were turned off by Grievant, in that, he had a tendency to denigrate students. He stated that the nature of the student complaints was that Grievant was not being a cheerleader, and he was not telling students they could do it, but rather was turning students off by saying they could not do it or should not be there. Neither the student evaluations or the student letters in Grievant's application support these conclusions. Dr. Babb testified that all faculty have students who are unhappy with them, but a larger number complained about Grievant. He testified he discussed the student complaints with Grievant every semester, and Grievant responded by saying he did not say the things, or he did not do those things the students complained of. He testified he had not had to talk to other professors about negative student comments.
      Grievant asked Dr. Babb to come to his classroom and tell him what he was doing wrong, but no help was forthcoming. Dr. Babb could not even tell Grievant what it was he was doing which was generating the negative student comments. He testified that it was hard to say what Grievant does in his class that generates the negative student comments.
      While Dean Storch has personally received student complaints over the years, he never shared this information with Grievant until sometime during the 1997-98 school year. He could not recall whether he had told Grievant specifically what it was students had complained of, and acknowledged that many students who come to the Dean's office are having trouble and want to drop a course. He explained that he also teaches a freshman orientation class, and students in this class in the Fall of 1997 and 1998 did not evaluate Grievant as an excellent instructor. He did not indicate how many students had made this evaluation, how these students arrived at this conclusion, or at what point in the semester they made this evaluation. He simply concluded if a professor is excellent, he gets no student complaints.      Dr. Babb told Grievant the biggest stumbling block to his promotion and tenure was that he had no publications while at Marshall. Dr. Babb encouraged Grievant to get some work published as quickly as possible, and told him if he could get three articles published, that would meet the necessary standard of effectiveness. Grievant focused on this, and was successful in getting the requisite number of articles published in refereed journals.
      Grievant testified that Dr. Babb told him that he did not give excellents in teaching on annual reports, and when he expressed concern that he would need to demonstrate excellence in teaching, Dr. Babb told him, “we'll take care of that;” that if he rated his teaching as excellent, it would be an automatic tenure, and he was not going to do that until Grievant took care of the problem with his publications. Grievant stated Dr. Babb had him turn his annual report early in the Fall of 1998, so there would be an excellent in his file. Dr. Babb denied he ever told Grievant any of this, and denied that he had Grievant turn in his annual report early. He testified he had rated others as excellent in teaching and advising on their annual reports.
      Grievant asked two chemistry faculty members at Illinois State University to evaluate his tenure and promotion packet. Illinois State University is considered to have one of the outstanding chemistry departments in the country. Their evaluation was that Grievant would have been promoted and received tenure at that school.
      Grievant asked Dr. Ghosh if he could team teach a Geochemistry course with him in 1993. Dr. Ghosh agreed, and Grievant has taught a portion of this course which Dr. Ghosh had seldom taught since that time. Grievant introduced a number of labs in Geochemistry, in gas chromatography, liquid chromatography, and FDIR.   (See footnote 4)  Dr. Ghosh has been extremely impressed by Grievant's teaching, and all of his students have told him they were pleased with his instruction.      Grievant also team taught Integrated Science with Dr. Ghosh, beginning in the fall of 1996. This was the first time this course was taught at Marshall, and Grievant and Dr. Ghosh wrote the course materials, as there was no textbook. Grievant handled the chemistry and biology sections of the course, and developed 6 or 7of the 14 labs.
      Dr. Ghosh testified that he was not aware of any criteria for evaluating teaching excellence. He stated he considered a teacher to be excellent if he loves teaching and considers teaching to be his first priority, has a great concern for teaching, takes great interest in students, goes out of his way in introducing new subjects and topics, and goes out of his way to obtain grants which support large numbers of students. He considers Grievant to be an excellent teacher.
      Dr. Fenger observed Grievant teaching the multiple topics course for three weeks, in order to educate himself on the course materials. He found Grievant to be an excellent teacher. He pointed out that the topic was difficult and technical. The students he spoke with about the course agreed that Grievant presented the material in a very clear, authoritative manner, and his lecture outlines were well designed. He observed that Grievant had taught the labs on gas chromatography at night. Dr. Fenger has asked for Grievant's advice and counsel as the courses in this program have developed.
      Dr. Fenger stated he had gone to President Gilley to explain that Grievant was crucial to the Forensic Science Program, and told him he would support Grievant in an appeal if it would be considered. While the Forensic Science Program had been taught by volunteer faculty in the past, the process has begun to develop a faculty, and Dr. Fenger stated he would be glad to have Grievant. He stated the Program has been allowed to start the search for a toxicologist, and it needs four other faculty.
      Marshall's decision that Grievant's teaching and advising were not excellent is arbitrary and capricious. While it is true that some students complained about Grievant, Dr. Babb had not received a single complaint for two years. Dean Storch has receivedsome complaints, but the record does not reflect how many or their content. Grievant's student evaluations overall cannot be described by a reasonable person as anything but excellent. He has taken criticisms to heart and has even improved his instruction. When compared to other faculty, he was far ahead for the only period when comparisons were available. As to Dr. Babb and Dean Storch's disregard for student responses to the questions asked on the student evaluations, if those questions are so worthless, they should either develop questions which are meaningful or quit wasting students' time by asking for their views.
      Further, the Department of Chemistry committee warned Grievant about the distressing number of students who rated Grievant poorly in treatment of students in a “courteous and sympathetic manner.” However, the fact is that from the Spring of 1996 through the Fall of 1997, Grievant's student evaluations as a whole were excellent. The “distressing” number of students rating Grievant low in courtesy and sympathy was 27, or 11.3%, over three semesters. 194 out of 239 students, however, responded that Grievant treated students in a courteous and sympathetic manner. The Department of Chemistry Promotion and Tenure Committee grudgingly acknowledged that Grievant's student evaluations had improved, once the comparison figures showed his evaluations were so far above the rest of the Department. However, in an effort to discount these excellent evaluations, the Committee made allegations of grade inflation, and that Grievant did not complete course materials. Were these allegations true, they would certainly be cause for concern. However, the record is void of any evidence of this, and the student comments on the evaluations indicate the exact opposite is true.
      As to the criticism that Grievant was turning students off, and was not being a “cheerleader,” 62.4%, or 146 students, responded that, “having taken this course, I have a greater interest in the subject and would like to learn more.” A small percentage of students gave Grievant poor or very poor ratings in this area. 95.8% found Grievant to beenthusiastic about course material. 74.9% responded that he “stimulates interest on the part of students.” How Dr. Babb would know whether Grievant was being a “cheerleader” is unknown. Dr. Babb further admitted he did not know what it was Grievant was doing in class which generated negative student comments.
      From the undersigned's review, Marshall was fortunate to have an individual as qualified and hard working as Grievant on its staff. For some reason, he was willing to stay at Marshall even though he was not provided with the equipment he needed in order to conduct the research necessary to producing publications, and had to rely upon acquaintances elsewhere to assist him in conducting experiments. However, Marshall's Chemistry Department does not want him. The Forensic Science Program, however, wants and needs Grievant, and that is where Grievant wants to be. It seems only logical to put Grievant in the Forensic Science Program, and that is what Marshall should have done.
      The following Conclusions of Law support the Decision reached.
Conclusions of Law

      1.      "The decisional subjective process by which promotion and tenure are awarded or denied is best left to the professional judgement of those presumed to possess a special competency in making the evaluation unless shown to be arbitrary and capricious or clearly wrong." Sui v. Johnson, 784 F.2d 238 (4th Cir. 1984). "Deference is granted to the subjective determination made by the official[s] administering the process." Harrison v. W. Va. Bd. of Directors, Docket No. 93-BOD-400 (Apr. 11, 1995).
      2.      The arbitrary and capricious standard of review requires a searching and careful inquiry into the facts; however, the scope of review is narrow, and the undersigned may not substitute her judgement for that of the decision-maker. See generally, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). Generally, an action is arbitrary and capricious if the body taking the action did not rely on factors that were intended to beconsidered, entirely ignored important aspects of the problem, explained its decision in a manner contrary to the evidence before it, or reached a decision that is so implausible that it cannot be ascribed to a difference of view. Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985).
      3.      The undersigned "is limited to considering the record before the decision- maker at the time of the decision. An applicant is responsible for informing the decision- maker of her qualifications for promotion. If she does not do so at the appropriate time, such data cannot be considered later by an Administrative Law Judge, as the purpose of a promotion grievance is to assess the institution's decision at the time it was made, utilizing the data it had before it." Baker v. Bd. of Trustees, Docket No. 97-BOT-359 (Apr. 30, 1998)(citations omitted). See also, Castiglia v. Bd. of Trustees, Docket No. 97-BOT- 360 (May 27, 1998).
      4.      In order to obtain promotion to the rank of Associate Professor at Marshall, or tenure, a candidate must demonstrate effectiveness in all major areas of responsibility. The major areas of responsibility are teaching and advising, scholarly and creative activity, service to the university, and service to the community. The candidate must also demonstrate excellence in either teaching and advising or scholarly and creative activities.
      5.      Grievant has proven he has met the standard of excellence in teaching and advising.
      6.      Grievant has proven his scholarly and creative activities and service are at least effective.

      Accordingly, this grievance is GRANTED. Respondent is ORDERED to promote Grievant to the rank of Associate Professor and grant him tenure, effective on the same date as it would have become effective had President Gilley granted Grievant's application for promotion and tenure which was submitted in the Fall of1998, and to pay him any back pay to which he is entitled, plus interest at the statutory rate, in the amount of the difference in salary between an Assistant Professor and a tenured Associate Professor.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or to the Circuit Court of 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                                                                                       BRENDA L. GOULD
                                                 Administrative Law Judge

Dated:      June 13, 2000


Footnote: 1
As Grievant presented no evidence in support of his claim of discrimination, and did not further pursue this claim in his arguments, this claim is deemed abandoned.
Footnote: 2
The grievance was denied at Level I on April 23, 1999, and Grievant appealed to Level II. A Level II hearing was held August 19, 1999, and a decision denying the grievance at Level II was issued on September 20, 1999. Level III was waived by Grievant, and he appealed to Level IV on October 6, 1999. A Level IV was held on January 6, 2000. Grievant was represented by Steve Angel, and Respondent was represented by Beth Ann Rauer, Esquire. This case became mature for decision on March 24, 2000, upon receipt of the last of the parties' post-hearing written arguments.
Footnote: 3
Although Dr. Babb testified at Level II that he could hear the professor lecture, his testimony at Level IV was that he could not hear the lecture.
Footnote: 4
This acronym was not identified.