DIANNE LOGAR,

      Grievant,

v.                                                      Docket No. 00-30-270

MONONGALIA COUNTY BOARD OF EDUCATION,

      Respondent.

DECISION

      Dianne Logar (“Grievant”) initiated this grievance on July 10, 2000, alleging that the principal at the school where she is employed as a teacher engaged in reprisal against her by distributing confidential information about her to parents at a meeting on June 12, 2000. She requests as relief the following: (1) public apology by principal for damage to her professional reputation; (2) an end to all retaliatory action by Mr. Wolfe; and (3) disciplinary action should be brought upon Mr. Wolfe. In response to the level one grievance, Principal Ken Wolfe apologized to Grievant in a letter dated July 12, 2000. Grievant appealed to level two, and a hearing was held on August 4, 2000. The grievance was denied in a written level two decision dated August 10, 2000. Level three consideration was bypassed, and Grievant appealed to level four on August 15, 2000. On September 13, 2000, the parties agreed that this matter could be submitted for a decision based upon the record developed below. This grievance was assigned to the undersigned administrative law judge on September 21, 2000.   (See footnote 1) 
      The following findings of fact are made from a preponderance of the evidence ofrecord.

Findings of Fact

      1.      Grievant is employed as a seventh grade teacher at Cheat Lake Middle School.
      2.      Grievant recently filed a grievance alleging harassment by her principal, Ken Wolfe. See Logar v. Monongalia County Bd. of Educ., Docket No. 00-30-218 (Sept. 22, 2000 (“Logar I”). The allegations involved in that grievance revolved around Grievant's removal, in October of 1999, by Mr. Wolfe from participation in “team” meetings held by the seventh grade teachers.
      3.      On June 12, 2000, Mr. Wolfe held a meeting with approximately 20 concerned parents of fifth grade students regarding the possibility of moving fifth grade classes to exterior buildings located adjacent to the main school building at Cheat Lake Middle School.
      4.      At the June 12 meeting, Mr. Wolfe distributed several letters and memorandums, authored by various groups of teachers, expressing support for the relocation of the fifth grade classes. Included in the group of letters was a letter dated June 5, 2000, from the seventh grade teachers, which stated, in part:

      5.      The June 5, 2000, letter from the seventh grade teachers also contained the statement: “[w]e continue to support your decision made at the beginning of this school year and the findings of the Level II grievance procedure.”
      6.      Grievance Evaluator Louis Hlad rendered a level two decision in Logar I on June 16, 2000, denying the grievance.
      7.      Mr. Lake's secretary had copied the documents to be distributed at the June 12 meeting, which he did not review prior to the meeting. Mr. Lake became aware that the letter regarding Grievant had been included in the documents distributed at the meeting when Grievant initiated this grievance on July 10, 2000.
      8.      Upon discovering that the letter regarding Grievant had been distributed at the meeting, Mr. Lake issued the following letter to Grievant on July 10, 2000:


Discussion

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of theW. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.
      
Grievant contends that Mr. Lake intentionally distributed the letter in an effort to damage her reputation, after she had filed a grievance against him earlier this year. W. Va. Code § 18-29-2(p) defines "reprisal" as "the retaliation of an employer or agent toward a grievant or any other participant in the grievance procedure either for an alleged injury itself or any lawful attempt to redress it." A grievant claiming retaliation may establish a prima facie case of reprisal by establishing:





Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995). See Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251 (1986); Fareydoon-Nezhad v. W. Va. Bd. of Trustees/Marshall Univ., Docket No. 94-BOT-088 (Sept. 19, 1994); Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989). If a grievant establishes a prima facie case of reprisal, the employer may rebut the presumption of retaliation raised thereby by offering legitimate, non-retaliatory reasons for its actions. See Mace v. Pizza Hut, Inc., 377 S.E.2d 461 (W.Va. 1988);Shepherdstown Vol. Fire Dept. v. W. Va. Human Rights Comm'n, 309 S.E.2d 342 (W. Va. 1983); Webb, supra.
      The evidence presented by Grievant fails to explain the required “causal connection” between her prior grievance against Mr. Lake and his alleged effort to damage her reputation with this particular group of fifth grade parents. One would think that, if Mr. Lake truly desired to harm Grievant's reputation, he would not have selected this particular audience. Nevertheless, Mr. Lake provided a rational explanation of how this letter inadvertently got distributed at the meeting. Included in the same group of documents distributed at the meeting were several other letters of similar format, all of which were signed by groups of teachers from particular grade levels. Mr. Lake testified that he had also received such a letter from the seventh grade teachers, possibly on the same day that he received the letter from them regarding Grievant. It is easy to imagine that, when Mr. Lake collected letters for the meeting, giving them to his secretary for copying, he mistakenly included the letter about Grievant.      Grievant has not proven Mr. Lake's act was intentional or motivated by retaliation.
      Although Mr. Lake has apologized to Grievant for his mistake, she contends that, in order to salvage her reputation, he must issue a public apology, at least to all of the people who were present at the June 12 meeting. While Grievant's concern for her reputation is certainly understandable, a public apology is not available as relief from this Grievance Board. Fekete v. Bd. of Trustees, 95-BOT-484 (Aug. 2, 1996); Maxey v. W. Va. Dept. of Health and Human Resources/Div. of Human Services, Docket No. 92-HHR-504 (Feb. 4, 1993); Helvey v. Workers' Compensation Fund, Docket No. 91-WCF-034 (March30, 1992). Moreover, as pointed out by Respondent, since it is unknown how many of the people at the meeting actually read the letter, calling attention to it through a public apology could actually cause Grievant more embarrassment. Accordingly, Grievant's request for a public apology must be denied.      
      Likewise, the Grievance Board is without authority, statutory or otherwise, to order that disciplinary action be taken against another employee. Coster v. W. Va. Div. of Corrections, Docket No. 98-CORR-506 (Feb. 24, 1999); Daugherty v. Bd. of Directors, Docket No. 93-BOD-295 (Apr. 27, 1994). See Daggett v. Wood County Bd. of Educ., Docket No. 91-54-497 (May 14, 1992). Accordingly, Grievant's request for disciplinary action against Mr. Lake is also denied.
      Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law

      1.      In a non-disciplinary matter, Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.
      2.      A grievant claiming retaliation under W. Va. Code § 18-29-2(p) may establish a prima facie case of reprisal by establishing:



Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995). See Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251 (1986); Fareydoon-Nezhad v. W. Va. Bd. of Trustees/Marshall Univ., Docket No. 94-BOT-088 (Sept. 19, 1994); Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989).
      3.      A public apology is not available as relief from this Grievance Board. Fekete v. Bd. of Trustees, 95-BOT-484 (Aug. 2, 1996); Maxey v. W. Va. Dept. of Health and Human Resources/Div. of Human Services, Docket No. 92-HHR-504 (Feb. 4, 1993); Helvey v. Workers' Compensation Fund, Docket No. 91-WCF-034 (March 30, 1992).
      4.      Grievant has failed to establish that the distribution of a letter regarding her at a meeting with fifth grade parents was the result of reprisal, and she is not entitled to any of the relief requested.

      Accordingly, this grievance is DENIED.

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

Date:      September 25, 2000                   _______________________________                                                 DENISE M. SPATAFORE
                                                Administrative Law Judge


Footnote: 1
      Grievant was represented by Jennifer Shope of the West Virginia Federation of Teachers, and Respondent was represented by counsel, Harry M. Rubenstein.