CHERYL PAULEY,

                  Grievant,

      v.

DOCKET NO. 99-20-462

KANAWHA COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N


      Grievant, Cheryl Pauley, filed this grievance against her employer, the Kanawha County Board of Education (“Board”) on November 1, 1999:
      Grievant appealed her suspension directly to level four in accordance with W. Va. Code § 18A-2-8. A level four hearing was conducted on December 10, 1999, to supplement the record established in Grievant's pre-disciplinary hearing before the Board. The pre-disciplinary hearing was conducted on July 12, July 19, and September 10, 1999.   (See footnote 1)  The grievance became mature for decision on January 24, 2000, the deadline for the parties' submission of proposed findings of fact and conclusions of law. The Board was represented by James Withrow, Esq., and Grievant was represented by John E. Roush, Esq., West Virginia School Service Personnel Association.
SUMMARY OF EVIDENCE

Board Exhibits (July 12, 1999 Pre-disciplinary hearing - Vol. I)   (See footnote 2) 

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 -
Board Exhibits (September 10, 1999 Pre-disciplinary hearing - Vol III).

Ex. 1 -

Ex. 2 -

Joint Exhibit (Level four hearing)
Ex. 1 -


Board Exhibits (Level four hearing)

Ex. 1 -

Ex. 2 -
Testimony

      The Board presented the testimony of Gary Hendricks, Linda DuVal, Christy Nobles, John Ferrara, Carol Greene, Francine Thalheimer, Jean White, Rosie Schofield, Ruth Lockhart, Kathy Jo Thompson, Barry Bowe, Sarah Blount, and Beverly Lawrence. Grievant testified in her own behalf, and presented the testimony of Mildred O. Haley, Cynthia Martin, Billy Boggess, and Karen P. Williams.

PROCEDURAL BACKGROUND


      Grievant was notified of the initial charges against her by letter dated June 9, 1999, from Superintendent Ron Duerring. In this letter the Superintendent informed Grievant she was suspended with pay effective June 7, 1999, on the basis of nine allegations. The charges related to failure of Grievant to perform her job duties in an appropriate manner and of violating the Board's sexual harassment policy by making inappropriate comments about her principal and a teacher at her school. The allegations concerning the inappropriate comments quickly became the focus of the complaint against Grievant, and while some evidence was taken about Grievant's failure to properly perform her job, the bulk of the evidence and the ultimate punishment was a result of her inappropriate remarks. A pre-disciplinary hearing on the charges against Grievant was held on July 12, 1999, and July 19, 1999.
      Subsequently, additional evidence of a similar nature relating to Grievant's conduct came to the attention of Superintendent Ron Duerring, and a second notice of charges andhearing was sent to Grievant on September 2 and 3, 1999. A hearing on the additional charges was held on September 10, 1999, over Grievant's objection. On September 23, 1999, Hearing Examiner Hillary Cowan issued a memorandum to Superintendent Duerring recommending that Grievant be suspended without pay, issued a formal reprimand, and be ordered to receive additional training and counseling on the Board's sexual harassment policy. Superintendent Duerring accepted Ms. Cowan's recommendation, and on September 28, 1999, he notified Grievant that she was suspended without pay effective October 4 through October 29, 1999, a period of twenty (20) employment days. The letter also served as a written reprimand, and Grievant was ordered to receive additional training and counseling as suggested by Ms. Cowan. The Board ratified the Superintendent's recommendation and notified Grievant of its decision by letter dated October 22, 1999.
FINDINGS OF FACT

      1.      Grievant is employed by the Board as a cook. For the four years prior to filing this grievance, she has been assigned to Chandler Elementary School (“Chandler”).
      2.      Grievant attended staff development on sexual harassment on December 4, 1998, which addressed, among other things, same sex relationships.
      3.      During the spring of 1999, the principal at Chandler, Barry Bowe, began receiving complaints concerning Grievant's behavior, particularly relating to providing food services for the Head Start program.      4.      On May 27, 1999, the Head Start program sponsored a luncheon with its CASE   (See footnote 3)  partner. The adults who attended the luncheon were provided their meals for free.
      5.      Sometime in late May, 1999, Christy Nobles, the Head Start aide, was told by Grievant that the Head Start students were not allowed to have food from the salad bar. Grievant also told her that adults in the Head Start program had to pay for their meals. LII Tr., pp. 35-36. Ms. Nobles discussed this situation with Linda DuVal, the Director of the Head Start program.
      6.      On June 1, 1999, Francine Thalheimer, a counselor at Chandler, noticed there were no large salad bowls on the salad bar. She asked Grievant for a salad bowl, and Grievant told her she could not have one, because the bowls in stock were the last ones and they needed to last through the end of the year and the beginning of the next term. LII Tr., p. 67. Ruth Lockhart, a substitute cook, told Principal Bowe about this encounter, and he confirmed it with Ms. Thalheimer.
      7.      Principal Bowe looked into this matter and found there were approximately 1,000 large salad bowls in storage.
      8.      On June 1, 1999, a substitute cook was called in to work with Grievant. Jean White, the substitute, worked all day on June 1, 1999. At the end of the day, Grievant told her to report to work the next day at 6:00 a.m., and that she would make sure the school secretary knew Ms. White would be working that day.      9.      That evening, Ms. White received a call to report to another substitute job on June 2, 1999. She was unsure whether she should report to that job or go to Chandler. At approximately 6:10 a.m. on June 2, Ms. White called Grievant to ask her whether she should report to work, and Grievant answered in the affirmative.
      10.      Ms. White got to Chandler about 7:30 and Grievant told her everything was already done, and instructed Ms. White to help with the fish sticks she was preparing. Grievant was upset with Ms. White for not reporting to work at 6:00 a.m. as directed.
      11.      Ms. White was concerned about Grievant's behavior, and went to Principal Bowe around 8:30 or 9:00 a.m. She told Principal Bowe about her confusion regarding the two substitute jobs, and that Grievant had told her everything was already done. Principal Bowe told Ms. White she could leave, and that she would be paid for the entire day.
      12.      In the meantime, Grievant found that Ms. White had left the school, and went to the school secretary, Rosie Schofield, to tell her not to pay Ms. White. Ms. Schofield told her Principal Bowe had already directed her to pay Ms. White for the entire day.
      13.      Also on June 1, 1999, the Head Start teacher, Johnny Ferrara, and the aide, Ms. Nobles, wrote a letter to Principal Bowe detailing concerns they had with Grievant's behavior and work performance in relation to the Head Start program. Mr. Ferrara and Ms. Nobles indicated that these incidents were the culmination of increased hostility by Grievant toward the Head Start program.
      14.      A couple of weeks prior to June 2, 1999, Carol Greene, a teacher at Chandler, told Grievant she would be taking her students on a field trip on June 2, and would need lunches made up for them. On June 2, Ms. Greene reminded Grievant of thefield trip. Grievant replied that she needed to get bread to make the sandwiches, and asked Ms. Greene to go purchase the bread. Following a discussion about whether it was appropriate for Ms. Greene to buy the bread, Ms. Greene went to Big Bear and bought two loaves of bread.
      15.      Ms. Greene turned in the receipt for the bread to Ms. Schofield, and told Principal Bowe what had happened. He was shocked at Grievant's behavior, and instructed Ms. Greene to document the event.
      16.      As a result of these incidents, Principal Bowe had a conference with Grievant on June 2, 1999, at which time he informed her she could seek help from the school's employee assistance program. Grievant declined this offer.
      17.      On June 3, 1999, Grievant called Gary Hendricks, Director of Child Nutrition, and told him about the complaints which had been made against her. Grievant told Mr. Hendricks that adults and parent volunteers with the Head Start program had been eating for free at Chandler. Since the school year was almost over, Mr. Hendricks suggested they talk about this matter in July, once the new school year began.   (See footnote 4) 
      18.      During this conversation, Grievant said something to the effect that, “Barry's boyfriend came in and gets to eat free.” Mr. Hendricks took this a reference to a relationship between Principal Bowe and Johnny Ferrara.
      19.      Mr. Hendricks talked to Principal Bowe on June 3, 1999, and asked him whether parent volunteers and adults were eating for free in the Head Start program. Principal Bowe told Mr. Hendricks that he had interpreted the Head Start regulations to allow parent volunteers to eat free. Mr. Hendricks informed him that this was not correct.
      20.      Principal Bowe talked to Johnny Ferrara that same day about this matter. Mr. Ferrara followed up this conversation with a memorandum to Grievant informing her that three (3) free meals had been provided to adults, and that the school would be reimbursed for those meals. PH Vol. 1, Ex. 1.
      21.      Ruth Lockhart, a substitute cook at Chandler, overheard Grievant's telephone conversation with Gary Hendricks. Rose Schofield, the school secretary, asked Ms. Lockhart what Grievant and Mr. Hendricks were talking about. Ms. Lockhart told her Grievant said Principal Bowe and Johnny Ferrara were lovers.
      22.      Kathy Jo Thompson, a substitute custodian, heard Grievant refer to Principal Bowe and Mr. Ferrara as “butt buddies.”
      23.      Rose Schofield heard Grievant comment that Principal Bowe was nice “as long as you don't mess with his boyfriend.”
      24.      Sarah Blount, a behavior disorder aide, heard Grievant refer to Principal Bowe as a “faggot.”
      25.      Beverly Lawrence, a special education aide, heard Grievant say, “I don't have to do anything that faggot says.” Grievant was alone in the kitchen and did not know Ms. Lawrence had come into the kitchen when she said this. Grievant was “venting” alone, or so she thought.
      26.      On June 4, 1999, Principal Bowe learned that Grievant had talked to Mr. Hendricks and Sue McCracken, the President of the Kanawha County School ServicePersonnel Association. He also heard that Grievant was spreading rumors about him, although the record does not indicate exactly how he found this out, or who told him.
      27.      On that Friday, June 4, 1999, Principal Bowe wrote a letter to Superintendent Ron Duerring reporting what he had heard from employees at Chandler regarding Grievant's alleged comments, and asking for guidance. Superintendent Duerring consulted with Bill Courtney, Director of Personnel, and determined that Grievant should be suspended with pay, and communicated that to Principal Bowe.
      28.      On Sunday, June 6, 1999, Principal Bowe called Grievant at home and told her she was being suspended with pay, effective June 7, 1999, through the end of the school year.
      29.      Principal Bowe reported Grievant's conduct to Carolyn Cloer, the Title IX Hearing Examiner.
      30.      Mildred Haley, retired Head Start aide, and Cynthia Martin, speech language pathologist, have never heard Grievant call Principal Bowe or Mr. Ferrara any derogatory names, or make reference to a romantic relationship between them.
      31.      Ruth Lockhart, the substitute cook, gossiped continually about everybody and everything, and used negative terminology regarding Principal Bowe and Mr. Ferrara. Several staff members commented that Mr. Ferrara got special treatment from Principal Bowe, including Ruth Lockhart, Rose Schofield, and Mary Ellis, a kindergarten teacher.

      As indicated above, the charges relating to Grievant's uncooperative attitude and work performance were not the focus of the Board's ultimate decision to discipline her. It was the alleged comments she made about Principal Bowe and Mr. Ferrara which were the subject of the suspensions with and without pay. Therefore, the issue here is whether the Board has proven by a preponderance of the evidence the charges against Grievant, which include immorality, insubordination, and violation of the Board's Sexual Harassment Policy.
      Grievant alleges she was denied due process by the Board. She further denies she engaged in name-calling, and denies spreading rumors about Mr. Bowe and Mr. Ferrara. She contends another employee at Chandler, Ruth Lockhart, is the one who engaged in gossip and rumors attributed to Grievant. Grievant contends her twenty-day suspension without pay is a disproportionate punishment to the alleged offense. Finally, Grievant contends she did not violate the Board's Sexual Harassment Policy, or in the alternative, that it is too vague to support the disciplinary action taken against her.
DISCUSSION

      Before addressing the charges against Grievant, her argument that her due process rights were violated will be addressed. Following a conversation with Superintendent Duerring, Principal Bowe called Grievant on Sunday, June 6, 1999, and informed her she was being suspended with pay, effective June 7, 1999. Two days later, on June 9, 1999, Superintendent Duerring issued a letter to Grievant notifying her of the charges against her. Grievant remained on suspension with pay until her pre-disciplinary hearing was heldon July 12 and 19, 1999. Following the close of the hearing, Grievant remained on suspension with pay, pending the decision of the Hearing Examiner. No decision was forthcoming from the Hearing Examiner, and two months later, on September 2, 1999, Grievant was informed the hearing was being reopened to allow the Board to present additional witnesses. Over Grievant's objection, the hearing was reopened on September 10, 1999, and the Hearing Examiner finally issued her recommendation on September 23, 1999. Thereafter, the Superintendent recommended to the Board that Grievant be suspended without pay for twenty days, and the Board accepted that recommendation on September 28, 1999. Grievant was suspended without pay from October 4 through October 29, 1999. All told, Grievant had been suspended from her employment for a period of over four months, twenty days of which was without pay.   (See footnote 5) 
      Grievant contends she was denied her due process rights in several regards. First, she alleges there has been no showing that her immediate removal from the school by Principal Bowe was warranted by the facts in this grievance. Grievant further alleges there was no legitimate reason for the Board to require her to remain on suspension, albeit with pay, for a period of three months, pending the final decision of the Board to suspend her, yet again, without pay for twenty additional days.
      An employee has a recognized entitlement or property interest not only in the right to continued employment but also in the right to receive his or her benefits and pay. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 20, 100 S. Ct. 2457, 1566, 56L.Ed. 2d 30, ___ (1978). "[S]chool employees have a property interest in continued uninterrupted employment and due process safeguards must be provided when a county board of education seeks to deprive employees of that interest." Knauff v. Kanawha County Bd. of Educ., Docket No. 20-88-095 (Jan. 10, 1989). The West Virginia Supreme Court in Board of Education of the County of Mercer v. Wirt, 192 W. Va. 568, 453 S.E.2d 402 (1994), determined what due process is required to terminate a continuing contract of employment. However, the due process rights afforded an individual for less than a termination, or "a temporary deprivation of rights may not require as large a measure of procedural due process protection as a permanent deprivation.” Waite v. Civil Serv. Comm'n, 161 W. Va. 154, 241 S.E.2d 164 (1978) (citing North v. Bd. of Regents, 160 W. Va. 248, 233 S.E.2d 411 (1977)). Prior to a thirty-day suspension without pay, Waite, a civil service employee, had a sufficient property interest to require notice of the charges and an opportunity to present her side of the story to the decision-maker. Waite at 170. Further, the West Virginia Supreme Court of Appeals has recognized that "due process is a flexible concept, and that the specific procedural safeguards to be accorded an individual facing a deprivation of constitutionally protected rights depends on the circumstances of the particular case." Buskirk v. Civil Serv. Comm'n, 175 W. Va. 279, 332 S.E.2d 579 (1985) (citing Clark v. W. Va. Bd. of Regents, 166 W. Va. 702, 279 S.E.2d 169, 175 (1981)).
      In determining "what process is constitutionally due," the United States Supreme Court, in Gilbert v. Homar, 520 U.S. 924 (1997), enunciated three factors to be balanced: The West Virginia Supreme Court of Appeals has found these factors to be "germane to a selection of an appropriate procedure under our [West Virginia Constitution] Due Process Clause," and applied these factors in Waite, supra. The Court also found in Waite, discussing the de minimus concept espoused in Goss v. Lopez, 419 U.S. 565 (1975), that a ten-day suspension without pay was not such a minimal deprivation that no due process procedure need be afforded.
      Accordingly, a tenured employee is entitled to a pre-suspension hearing, not a full adversarial hearing, and an opportunity to respond to the charges, when the suspension is without pay. Buskirk at Syl. Pt. 3. An employee is also entitled to written notice of the charges and an explanation of the evidence. Wirt, supra. In other words, a pre- suspension hearing, explanation of the evidence, and an opportunity to respond is all the due process that the Board was required to provide. Id. at Syl. Pt. 3; See W. Va. Code §18A-2-8.
      However, an exception to the requirement that a pretermination hearing must be conducted has been recognized when it can be found that the government's interest at stake in ridding itself of an ineffective or untrustworthy public employee and its need for quick action outweighs that employee's private interests. See Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979); Hughes v. Whitmer, 714 F.2d 1407 (8th Cir.1983), cert. denied, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984). These cases dealt with pretermination suspensions without pay, and not dismissals, and these holdings have been brought into question by the Supreme Court's statement in Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed. 2d 494 (1985), that “in those situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay.” Loudermill, p. 545.
      It is not the rule that every public employee has a right to a pre-deprivation hearing in all circumstances. See, D'Acquisto v. Washington, 650 F.Supp. 594, 613 (N.D.Ill. 1986). In fact, the Supreme Court had upheld various administrative decisions depriving one of a property right without a pre-deprivation hearing prior to deciding Loudermill. See D'Acquisto, pp. 612-13, citing, Goss, supra (school may suspend dangerous or disruptive student without prior hearing); Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed.2d 1289 (1931)(post-deprivation procedures for tax disputes justified by government need for revenue); Barchi, supra (horse trainer's license suspended after showing of probable cause that horse had been drugged). This line of cases establishes what can best be called an emergency exception to the presumption that a pre-deprivation hearing must be conducted in all circumstances before a property right may be suspended or removed.
      While it is clear what due process must be afforded an employee who is suspended without pay, it appears the same is not required when an employee is suspended with pay. In Loudermill, supra, the Court observed that, “in those situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem[of pre-deprivation due process] by suspending with pay.” See also Gilbert, supra. Thus, the Court recognizes that a suspension with pay does not implicate an employee's due process rights, because there is no deprivation of property, i.e., the employee is still receiving a salary. Therefore, in this instance, Grievant was not denied due process when she was initially suspended with pay effective June 7, 1999.
      The next due process issue is whether the post-deprivation hearing was sufficient and prompt. The blanket rule which can be recognized in dealing with suspensions without pay is that if a pre-deprivation hearing is not held then a prompt post-deprivation hearing must be held so that the employee is given his minimum procedural rights. See, Loudermill, at note 7, citing Ewing v. Mytinger v. Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed.2d 1008 (1950); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed.2d 195 (1908); See also, Barry, 443 U.S. at 66; Goss, 419 U.S. at 582-583. Further, “prompt” has been interpreted consistent with the term's common usage and a delay of only a few days has been found to be too long to protect one's rights. D'Acquisto, p. 614, citing Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); Mitchell v. W.T. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).
      W. Va. Code § 18A-2-7 provides an employee statutory protections, as well, which provide that “[a] superintendent's authority to suspend school personnel shall be temporary only pending a hearing upon charges filed by the superintendent with the board of education and such period of suspension shall not exceed thirty days unless extended by order of the board.” This provision is generally interpreted to grant the superintendent additional authority to temporarily suspend an employee under circumstances whichrequire his or her immediate withdrawal from service until such time that the Board can review the matter. See Allison v. Kanawha County Bd. of Educ., Docket No. 20-86-273-1 (Dec. 30, 1986).
      Again, in this case, Grievant was suspended with pay, and the rule that a post- deprivation be prompt has more flexibility. However, that does not permit an employer to impose an open-ended suspension, and the Board's actions, while not rising to a violation of Grievant's constitutional due process rights, did exceed the Superintendent's statutory authority under W. Va. Code § 18A-4-7a. First, the Board articulated no reason why Grievant had to be removed from Chandler immediately without benefit of notice and hearing. Grievant did not engage in behavior which posed a threat to herself or others. Grievant was gossiping and name-calling, not making threats. The Board was not justified in suspending Grievant immediately from her employment, even with pay, and then extending that suspension for three months, given the facts in this case. While Grievant continued to receive her salary, benefits, and seniority, and has not shown she was deprived of any right or interest, other than the right to work, clearly, this was not a “vacation” for Grievant, as the Board contends. Grievant knew, and her co-workers knew, that she was being punished for her actions, and the length of her absence undoubtedly contributed to the notoriety of her conduct among her co-workers.
      Second, the post-deprivation hearing before the Board was scheduled for July 12, 1999, approximately one month following Grievant's initial suspension with pay. Grievant requested another day for hearing, and the post-deprivation hearing concluded on July 19, 1999. If that had been the end of this saga, the undersigned could not find that a delayof one month was too long, given Grievant was suspended with pay. However, following the close of the hearing on July 19, 1999, no decision from the Hearing Examiner was forthcoming, and the Board has offered no explanation for this delay. Further, the Board offered no evidence that it had taken official action to extend the 30-day statutory limit of the Superintendent's authority to suspend the grievant. W. Va. Code § 18A-2-7. On September 2, 1999, Grievant received a notice from Board counsel that the hearing was being reopened to allow additional testimony. It is clear from the record of that proceeding that Principal Bowe had spent considerable time soliciting additional testimony against Grievant. Over Grievant's objection, the hearing re-commenced on September 10, 1999, and the Hearing Examiner finally issued her recommendation on September 23, 1999.   (See footnote 6)  Thereafter, the Board voted to suspend Grievant without pay on September 28, 1999, for a period of twenty days commencing October 4, 1999.
      The Board contends that, since the suspension was with pay, it was not a disciplinary action requiring notice and an opportunity to be heard promptly, because Grievant suffered no deprivation of income. While it has been recognized in Loudermill that an employer can avoid the due process “problem” by suspending an employee withpay, it is highly unlikely that the Court intended to give employers carte blanche to suspend employees indefinitely while they proceed to build their case against them. Nevertheless, I find that Grievant's pre-disciplinary hearing was initiated promptly following her suspension and no constitutional due process violations can be found. However, the Board's action in holding the Hearing Examiner's decision and then reopening the hearing for additional evidence was seriously prejudicial to Grievant and resulted in the delay of her return to work. Because Grievant was not deprived of any concrete right, the undersigned is limited in her ability to make Grievant whole. However, I will take into account the Board's actions in this matter when analyzing Grievant's mitigation claim.
      Turning now to the merits of the grievance, the Board has charged Grievant with immorality, insubordination, and violation of its Sexual Harassment Policy. Grievant denies she engaged in the conduct attributed to her.
      In disciplinary matters, the employer bears the burden of establishing the charges by a preponderance of the evidence. W. Va. Code §18-29-6; Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994); Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989). "A preponderance of the evidence is evidence 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. It may not be determined by the number of the witnesses, but by the greater weight of the evidence, which does not necessarily mean the greater number of witnesses, but the opportunity for knowledge, information possessed, and manner of testifying[; this] determines the weight of the testimony." Petry v. Kanawha County Bd. ofEduc., Docket No. 96-20-380 (Mar. 18, 1997). See Black's Law Dictionary, 5th ed. at 1064. In other words, "[t]he preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not." Leichliter v. W. Va. Dep't of Health and Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, the employer has not met its burden. Id.; See Adkins v. Smith, 142 W. Va. 772, 98 S.E.2d 712 (1957); Burchell v. Bd. of Trustees/Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).
      The authority of a county board of education to discipline an employee must be based upon one or more of the causes listed in W. Va. Code § 18A-2-8, as amended, and must be exercised reasonably, not arbitrarily or capriciously. Bell v. Kanawha County Bd. of Educ., Docket No. 91-20-005 (Apr. 16, 1991). See Beverlin v. Bd. of Educ., 158 W. Va. 1067, 216 S.E.2d 554 (1975). W. Va Code § 18A-2-8 provides, in pertinent part:

      Superintendent Duerring's letter of September 28, 1999, charged Grievant with “inappropriate conduct toward your principal and co-workers while employed at Chandler.” In addition, Superintendent Duerring informed Grievant that, “[y]our comments violated Board Regulation 40.01 and any subsequent violation will result in termination of employment.” Board Regulation 40.01 is the Board's Sexual Harassment Policy. While not specifically identified in the Superintendent's letter, the Board contends in its ProposedFindings of Fact and Conclusions of Law that Grievant's conduct amounts to immorality and insubordination, both causes under W. Va. Code § 18A-2-8 for which an education employee may be disciplined. Woo v. Putnam County Bd. of Educ., Docket No. 93-40-420 (June 2, 1994), aff'd 202 W. Va. 409, 504 S.E.2d 644 (1998). See Rovello v. Lewis County Bd. of Educ., 181 W. Va. 122, 381 S.E.2d 237 (1989). See also Jones v. Mingo County Bd. of Educ., Docket No. 95-29-151 (Aug. 24, 1995).
      Immorality connotes conduct which is “not in conformity with accepted principles of right and wrong behavior; contrary to the moral code of the community; wicked, especially, not in conformance with the acceptable standards of proper sexual behavior.” Golden v. Bd. of Educ., 169 W. Va. 63, 285 S.E.2d 665 (1981). Accord, Rosenburg v. Nicholas County Bd. of Educ., Docket No. 34-86-125-1 (Aug. 4, 1986). The West Virginia Supreme Court of Appeals in Harry v. Marion County Bd. of Educ., 203 W. Va. 64, 506 S.E.2d 319 (1998), held that,

      Therefore, a county board of education may properly discipline an employee for immorality who violates the board's sexual harassment policy. Harry, supra; Willis v. Jefferson County Bd. of Educ., Docket No. 96-19-230 (Oct. 28, 1998).      Insubordination includes “willful failure or refusal to obey reasonable orders of a superior entitled to give such order.” Riddle v. Bd. of Educ., Docket No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). In order to establish insubordination, an employer must demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, and the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination. Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995). “Employees are expected to respect authority and do not have the unfettered discretion to disobey or ignore clear instructions.” Reynolds v. Kanawha-Charleston Health Dep't, Docket No. 90-H-128 (Aug. 8, 1990). Grievant's alleged failure to conform with the Sexual Harassment Policy forms the basis for the insubordination charge.
      The Board's Sexual Harassment Policy defines sexual harassment as:

Examples of sexually harassing behavior are:

The Policy provides that an investigation will promptly follow any complaints of a violation of this policy:

Finally, the Policy provides that, “[i]f the results of the investigation support disciplinary action, steps will be taken, which may include reprimand, suspension or termination of employment. PH Vol. I, Board Ex. 4.
      The Board provided numerous witnesses who testified to remarks they heard Grievant make regarding Principal Bowe and/or Mr. Ferrara. Grievant denies making the comments attributed to her. Therefore, a determination of credibility of Grievant and the witnesses is necessary to the resolution of this grievance.
      An Administrative Law Judge is charged with assessing the credibility of the witnesses that appear before her. See Lanehart v. Logan County Bd. of Educ., Docket No. 95-23-235 (Dec. 29, 1995); Perdue v. Dep't of Health and Human Resources/Huntington State Hosp., Docket No. 93-HHR-050 (Feb. 4, 1993). "The fact that [some of] this testimony is offered in written form does not alter this responsibility." Browning v. Mingo County Bd. of Educ., Docket No. 96-29-154 (Sept. 30, 1996).
      The United States Merit System Protection Board Handbook ("MSPB Handbook") is helpful in setting out factors to examine when assessing credibility. Harold J. Asher and William C. Jackson, Representing the Agency before the United States Merit Systems Protection Board 152-53 (1984). Some factors to consider in assessing a witness'stestimony are the witness's: 1) demeanor; 2) opportunity or capacity to perceive and communicate; 3) reputation for honesty; 4) attitude toward the action; and 5) admission of untruthfulness. Id. Additionally, the administrative law judge should consider 1) the presence or absence of bias, interest, or motive; 2) the consistency of prior statements; 3) the existence or nonexistence of any fact testified to by the witness; and 4) the plausibility of the witness's information. Id.
      The preponderance of the evidence establishes that Grievant made the comments attributed to her by the various witnesses called by the Board. Grievant offered no reason why these witnesses would lie or fabricate stories about her, nor did the witnesses have any apparent bias or ill will towards Grievant. Further, Grievant's admission that she may have referred to Mr. Ferrara as a “faggot” while venting alone in the kitchen, supports the evidence that Grievant is capable of using such language, and indeed, did use this and other remarks of a derogatory nature when referring to Principal Bowe and Mr. Ferrara. However, it is evident from the record that Grievant was not alone and that other employees engaged in gossip and rumor-spreading with respect to Principal Bowe and Mr. Ferrara. Indeed, while there is at least one other male teacher at Chandler besides Mr. Ferrara, there was no question that the references to Principal Bowe's “boyfriend” and “lover” were directed to Mr. Ferrara by all of the witnesses. Therefore, the Board has proven its charge of insubordination, as Grievant engaged in name-calling and spread rumors of a sexual nature, which is prohibited by the Board's Sexual Harassment Policy.
      However, the undersigned does not agree with the Board that this name-calling rises to the level of conduct required to constitute sexual harassment under its Policy. TheBoard relies on a recent West Virginia Supreme Court of Appeals case to support its theory that name-calling, even outside the presence of the victim, can rise to the level of sexual harassment. In Fairmont Speciality Services v. W. Va. Human Rights Commission, No. 25335, 1999 W. Va. LEXIS 113 (July 16, 1999), the Supreme Court, in Syllabus Point 3, held that:

      In that case, Fairmont Specialty Services was found liable for the actions of a worker, Fluharty, in creating a pervasive and hostile work environment towards another worker, Voyle. Specifically, Fluharty, over the course of two years, repeatedly called Voyle a “bitch” or “Mexican bitch” to her face. The Court found that the term “bitch”, by itself, “has overtones of gender discrimination, another form of unlawful discrimination under the West Virginia Human Rights Act”, and that Voyle was subjected to unlawful discrimination based upon her being female. The Court found that Fairmont Specialty did not take prompt and remedial action to stop the harassment, and thus was liable under the West Virginia Human Rights Act for Fluharty's actions.
      While this Grievance Board does not have jurisdiction to determine liability for claims that arise under the West Virginia Human Rights Act, the Grievance Board'sauthority to provide relief to employees for discrimination, favoritism, and harassment, as those terms are defined in W. Va. Code § 29-6A-2, includes jurisdiction to remedy discrimination that would also violate the Human Rights Act. Owen v. Wood County Bd. of Educ., Docket No. 97-54-537 (May 18, 1998); Bowman v. W. Va. Educ. Broadcasting Auth., Docket No. 96-EBA-464 (July 3, 1997).
      The Board contends that the terms “butt buddies”, “lovers”, and “faggot”, as used by Grievant, subjected Principal Bowe and Johnny Ferrara to unlawful discrimination under its Sexual Harassment Policy, much the same as the term “bitch” subjected Ms. Voyle to unlawful discrimination in Fairmont Speciality Services, supra. With respect to the Board's policy, just saying that some type of conduct constitutes sexual harassment does not necessarily make it so. In this case, Grievant's comments about Principal Bowe and Mr. Ferrara, while undoubtedly derogatory and terribly offensive, did not rise to the level of what has come to be recognized as sexual harassment. As the United States Supreme Court has made clear, “Title VII does not prohibit all verbal or physical harassment in the workplace.” Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 140 L.Ed.2d 201, 118 S.Ct. 998 (1998). As Justice Scalia explained in the context of a same gender sexual harassment claim,


See Fairmont Specialty Services, supra. (J. Davis, dissenting).
      
      The Board's policy specifically defines “sexual harassment” to include conduct which has the “purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating hostile or offensive working environment.” The Board has made no showing that Grievant's conduct had the “purpose or effect” of “unreasonably interfering” with Principal Bowe's work performance, or that it created an intimidating hostile or offensive working environment for Principal Bowe.
      While there is no argument that such comments could serve to undermine Principal Bowe's authority at Chandler, that type of conduct is more properly encompassed in the charge of insubordination against Grievant. The Board has failed to show that Principal Bowe or Mr. Ferrara were subject to disadvantageous terms or conditions of employment. Indeed, the fact that Principal Bowe suspended Grievant immediately upon learning of the name-calling shows that he was not disadvantaged at all. Therefore, the Board has failed to prove that Grievant's conduct of name-calling and spreading rumors constituted sexual harassment under its Policy, and therefore, the Board has failed to support the charge of immorality against Grievant.      With regard to Grievant's suspension, she argues her discipline is too severe and should be mitigated. The undersigned may mitigate the discipline imposed if the penalty assessed is clearly excessive or clearly disproportionate to the offense. Factors to be considered in this analysis include the employee's past disciplinary record, the clarity of notice to the employee of the rule violated, whether the employee was warned about the conduct, and mitigating circumstances. Knuckles/Burdette v. W. Va. State College, Docket No. 99-BOD-123/131 (Sept. 28, 1999); Jarvis v. W. Va. Dep't of Health and Human Resources, Docket No. 97-HHR-318 (July 22, 1999); Stewart v. W. Va. Alcohol Beverage Control Comm'n, Docket No. 91-ABCC-137 (Sept. 19, 1991).
      No evidence was introduced of any prior disciplinary actions against Grievant, who has been employed by the Board for approximately 10 years. Grievant was a good worker, and she had received a satisfactory evaluation from Principal Bowe in the Spring of 1999. Concluding that Grievant engaged in offensive gossip not rising to the level of sexual harassment, a three-month suspension with pay, followed by a twenty-day suspension without pay is excessive and disproportionate to the offense. Grievant had never been counseled, warned or reprimanded about this type of behavior before. Moreover, the length of Grievant's punishment was seriously delayed by the Board, with no explanation as to why the Hearing Examiner did not issue a decision following the close of the July 12, 1999, hearing. Needless to say, Grievant was highly prejudiced by this delay, both in terms of punishment and in ability to defend herself.
      The undersigned finds it is just and equitable to mitigate Grievant's punishment. Obviously, there is nothing which can be done to replace the three months Grievant wasoff work, as she continued to receive her salary, benefits, and seniority. However, I find that a twenty day suspension without pay, a very serious and significant punishment, is excessive for Grievant's gossiping. I find that a more reasonable punishment for Grievant's offense is a three day suspension without pay, additional training on sexual harassment and conduct in the workplace, and a letter of reprimand reflecting the three- day suspension be placed in her personnel file.
CONCLUSIONS OF LAW

      1.      The employer must establish the charges in a disciplinary matter by a preponderance of the evidence. W. Va. Code § 18-29-6; Froats v. Hancock County Bd. of Educ., Docket No. 91-15-159 (Aug. 15, 1991); Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989).
      2.      The Board's Sexual Harassment Policy defines sexual harassment as:

      3.      Misconduct by a school employee which can be characterized as sexual harassment can constitute the basis for termination of the offending employee's employment. By proscribing comments of a sexual nature and sexually-harassing conduct in its sexual harassment policy, the county school board reiterates that immorality, ascontemplated by W. Va. Code § 18A-2-8, is inappropriate. Harry v. Marion County Bd. of Educ., 203 W. Va. 64, 506 S.E.2d 319 (1998).
       4.      “Immorality” connotes conduct which is “not in conformity with accepted principles of right and wrong behavior; contrary to the moral code of the community; wicked, especially, not in conformity with the acceptable standards of proper sexual behavior,” as defined in Webster's Dictionary. Golden v. Bd. of Educ., 169 W. Va. 63, 285 S.E.2d 665 (1981); Accord, Rosenburg v. Nicholas County Bd. of Educ., Docket No. 34-86- 125-1 (Aug. 4, 1986).
      5.      “Insubordination” includes “willful failure or refusal to obey reasonable orders of a superior entitled to give such order.” Riddle v. Bd. of Directors, Docket No. 93-BOD- 309 (May 31, 1994); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989).
      6.      The Board has established that Grievant's conduct in spreading sexual rumors and gossip constituted acts of insubordination under W. Va. Code § 18A-2-8.
      7.      The Board has failed to establish that Grievant's conduct had “the purpose or effect of unreasonably interfering with an individual's work performance or [created] an intimidating hostile or offensive working environment.”
      8.      Therefore, the Board has failed to establish that Grievant's conduct constituted sexual harassment as described and defined in its Sexual Harassment Policy, and thus, the Board has failed to establish that Grievant's conduct is encompassed by the immorality charge.      9.      The superintendent's authority to suspend school personnel shall be temporary only pending a hearing upon charges filed by the superintendent with the board of education and such period of suspension shall not exceed thirty days unless extended by order of the board. W. Va. Code § 18A-2-7.
      10.      It is not necessary for a pre-termination hearing to be a full adversarial evidentiary hearing; however, an employee is entitled to written notice of the charges, an explanation of the evidence, and an opportunity to respond prior to a board of education's decision to discipline the employee. Bd. of Educ. v. Wirt, 192 W. Va. 568, 453 S.E.2d 402 (1994).
      11.      An exception to the requirement that a pretermination hearing must be conducted has been recognized when it can be found that the government's interest at stake in ridding itself of an ineffective or untrustworthy employee and its need for quick action outweighs that employee's private interests. See Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed. 2d 365 (1979); Hughes v. Whitmer, 714 F.2d 1407 (8th Cir. 193), cert. denied, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed. 2d 680 (1984). Additionally, the due process problem can be avoided by suspending an employee with pay. See Loudermill, supra; Gilbert, supra.
      12.      The Board did not demonstrate any reason why Grievant had to be removed immediately from her school while awaiting her pre disciplinary hearing, nor is there any evidence the board ordered Grievant's suspension with pay to exceed thirty days, in violation of W. Va. Code § 18A-2-7. The delay of over three months between Grievant'soriginal suspension and a recommendation being made to the Board violated Grievant's statutory procedural rights. W. Va. Code § 18A-2-8.
      13.      An administrative law judge may mitigate the discipline imposed if the penalty assessed is clearly excessive or clearly disproportionate to the offense. Factors to be considered in this analysis include the employee's past disciplinary record, the clarity of notice to the employee of the rule violated, whether the employee was warned about the conduct, and mitigating circumstances. Knuckles/Burdette v. W. Va. State College, Docket No. 99-BOD-123/131 (Sept. 28, 1999); Jarvis v. W. Va. Dept. of Health and Human Resources, Docket No. 97-HHR-318 (July 22, 1999); Stewart v. W. Va. Alcohol Beverage Control Comm'n, Docket No. 91-ABCC-137 (Sept. 19, 1991).
      14.      Four months suspension, twenty days of which was without pay, was clearly excessive and disproportionate to the proven offense of insubordination, given Grievant's 10-year employment history with the Board, with no apparent prior disciplinary actions, and the fact that this was the first offense of gossiping for Grievant.
      Accordingly, this grievance is GRANTED IN PART and DENIED IN PART. The Board is hereby ORDERED to remove the existing suspension letter or letters from Grievant's personnel file, and to replace that with a letter indicating that Grievant engaged in name-calling and spread rumors, which is prohibited by the Board's Sexual Harassment Policy, for which she served a three-day suspension without pay, was ordered to attend additional training on sexual harassment and conduct in the workplace, and received a letter of reprimand reflecting the three-day suspension. The Board is further ORDEREDto compensate Grievant for the remaining 17 days she was suspended without pay, along with any benefits, seniority and interest to which she is entitled.
      Any party may appeal this decision to the Circuit Court of Kanawha 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.

                                           __________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: February 29, 2000


Footnote: 1
       Grievant and her counsel attended the September 10, 1999 hearing under protest, having objected to the Board's reopening the hearing to admit additional testimony.
Footnote: 2
       Pre-disciplinary hearing exhibits will be referred to as “PH Vol. __, Ex. __”, and level four exhibits will be referred to as “LIV Ex. __”.
Footnote: 3
       This acronym was not identified, but was explained as a cooperative effort between the school and a corporate sponsor to enhance the school's educational program.
Footnote: 4
       Chandler Elementary is in session year-round.
Footnote: 5
       In the meantime, Grievant bid on and received another position at another school, but she had not been allowed to enter into the duties of that position pending the outcome of this grievance.
Footnote: 6
       While this Grievance Board has no jurisdiction over a Board's internal predisciplinary procedures, the undersigned must note that the Board's action in reopening the hearing nearly two months after it had been allegedly closed was seriously prejudicial to Grievant. Further, the fact that the additional evidence was merely cumulative testimony to that which had gone before, strongly supports the undersigned's conclusion that the additional day of hearing was completely unnecessary. As Grievant's counsel noted in his objection to the reopening of the hearing, how long would this go on? Would the Board reopen the hearing yet again should Principal Bowe succeed in finding yet another witness willing to testify against Grievant? At some point, these hearings must be deemed final, and in this case, it should have been July 19, 1999.