AMY ROUSH,
            Grievant,

v.                                                       Docket No. 00-26-140

MASON COUNTY BOARD OF EDUCATION,
            Respondent.

D E C I S I O N

      Grievant, Amy Roush, received a three day suspension from the Mason County Board of Education ("MCBOE" or "Board"). She grieves this action as unduly harsh and asserts her actions were not intentional. Her Statement of Grievance asserts:

      A pre-suspension hearing was held on April 10, 2000, with Grievant present, testimony taken, and Grievant given an opportunity to respond.   (See footnote 1)  After the presentation of this evidence, MCBOE voted to accept Superintendent Larry Parsons' recommendation for Grievant to receive a three day suspension. Subsequently, Grievant appealed to Level IV on April 20, 2000. A Level IV hearing was held on June 1, 2000, and the parties wished and agreed to submit the pre-suspension hearing in lieu of repeating this testimony. This case became mature for decision on July 5, 2000, after receipt of the parties' proposed findings of fact and conclusions of law.   (See footnote 2) 
Issues and Arguments

      Grievant admits she passed out magazine articles without reviewing them, but that she never intended for her sixth grade students to receive inappropriate materials. She argues the punishment she received, a three day suspension, was too severe for her actions, and states a written reprimand would be more appropriate for her mistake. At the Level IV hearing, she argued for the first time that Superintendent Larry Parsons relied illegally on her prior one day suspension to increase her punishment. In her post-hearing proposals, Grievant argued for the first time that her actions should be seen as unsatisfactory performance, and pursuant to W. Va. Code § 18A-2-8 &12, Grievant must be given notice of her deficiencies and a reasonable time to correct these deficiencies.
      Respondent argues Grievant's actions warranted the level of discipline she received. Respondent notes that if Grievant had done even a cursory review of the materials she handed to the students, she would have seen they were very inappropriate. Respondent reiterated the discipline meted out was not too severe as Grievant knew it was her duty to review materials before she distributed them. Respondent also contends Grievant's handling of the situation in the classroom was incorrect, and resulted in the student, who had shown the article to his mother, as believing he had done "something wrong." Respondent argued at Level IV, that Grievant's prior one day suspension was not considered as part of this disciplinary decision, and notes the issues of the two offenses were different. Respondent, of course, made no response to Grievant's allegation that herbehavior was unsatisfactory performance; and thus, she should be given an opportunity to correct her behavior before discipline is imposed.   (See footnote 3) 
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact

      1.      Grievant is employed as a sixth grade teacher by MCBOE at Ordnance Elementary.
      2.      As part of a planned exercise for February 28, 2000, on the use of commas, Grievant asked students to bring in magazines in which they could find examples of the various uses. Grt. Ex. No. 2, at Level IV.
      3.      Many students did not bring in their own magazines or articles. For those who did not bring their own materials, she tore articles out of the books the other students had brought. Grievant did not review any of the articles she passed out.
      4.      Grievant passed out a page from Redbook magazine to N.S.   (See footnote 4)  On one side of the page, numbered 123, the article was a continuation of an article on a female police officer. This article discussed her usual day, and discussed the officer studying "whores"; phony rape charges; one night stands; drugs buys; and the indiscriminate firing of riflesby boys. This article contained words and phrases, such as: "lovers", offers to "try the goods", "prostitutes", "shit", and "priests buy sex". Admin. Ex. No. 1.
      5.      On the second side of this page, 124, is an article entitled "Sexual Stamina". The title is in approximately four inch high, colored type. This article discusses in rather graphic detail what sexual stamina is and uses such phrases as "sustaining erections", "simple thrusting", "the foreplay [needed] to reach orgasm" and "[m]en think the longer they can stay hard, the better." Admin. Ex. No. 1.
      6.      N.S. took this magazine article home with him to complete the assignment. While at home, he asked his mother for assistance with his homework.
      7.      His mother was "totally appalled" by the content of the articles. Pre- suspension hearing at 9.
      8.      Ms. S. took her concerns and a copy of the articles to Principal Kim Neal, and he discussed it with Grievant and Ms. S. Principal Neal directed Grievant to call all the parents in this class, explain what had happened, and request the return all articles that had been sent home.
      9.      Grievant called all the parents on Thursday evening, March 2, 2000.
      10.      On Friday, March 3, 2000, Grievant discussed these events with the class. She informed the students that the student who received the article should have come to her instead of to his mother. Grievant also informed the class that the mother should have come to the teacher instead of the Principal. Grievant indicated to the students that the parent was trying "to call her a bad person and teacher." N.S. "felt mad and a little bit sad"when Grievant made these statement in class, and felt as if Grievant were criticizing both him and his mother. Test. N.S., pre-suspension hearing, at 6.
      11.      Grievant was aware on February 28, 2000, that as a teacher she had a duty to review all the materials she passed out in class to insure the content is appropriate. She also agreed the content of the articles was shocking and not appropriate for sixth graders. Grt.'s test., pre-suspension hearing, at 20 & 26.
      12.      Grievant did not believe N.S. or his mother did anything wrong, but testified she discussed the issue with her class so it would not happen again, and if anything inappropriate was passed out in class again, students would inform her.
      13.      After discussing in some detail the events described above with Grievant and her representative, Superintendent Larry Parsons recommended Grievant be suspended for three days. The letter informing Grievant of this recommendation examined the typeface and contents of the articles, noted the profanity and discussion of prostitution, and stated Grievant had been "completely indifferent to [her] responsibility to review the content of the material." The letter also stated the following:
The letter went on to note Grievant had admitted to both distributing the articles without reading them and to expressing her opinion that the student should have shown the materials to her. Admin. Ex. No. 2.
      14.      On October 16, 1997, MCBOE approved Superintendent Parsons' recommendation to suspend Grievant for one day for willful neglect of duty. Grievant had not reported to work, nor did she call in to say she was ill until well after the school day had started, and a substitute was already covering her class.
      15.      As the result of an agreement between then Assistant Superintendent George Miller, Superintendent Parsons, Grievant, and her representative, reached October 7, 1997, the report of Grievant's suspension was not placed in her personnel file, and she was allowed to take the day she had missed as her suspension day.   (See footnote 5)  The report was not placed in Grievant's file at her request because she had informed the administration she was seeking employment elsewhere.   (See footnote 6) 
      16.      Although this prior suspension was discussed when Grievant and her representative met with Superintendent Parsons about this suspension, the disciplinary action recommended for this neglect of duty was based on the facts of this specific incident.   (See footnote 7)        
Discussion

      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. of Educ., 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 notmet 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 issues raised by Grievant will be discussed one at a time.
I.      Merits of the case
      The question is whether Grievant's behavior and actions substantiate the charges against her. 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 identifies the types of action that can result in disciplinary action and provides, in pertinent part:

      The suspension letter clearly stated the specific charges against Grievant, revealed as the results of an investigation, and identified the behaviors for which she was to receive a three day suspension. The fact that these charges were not placed in the exact wording of W. Va. Code § 18A-2-8 is of no moment. The information received by Grievant was sufficient to place her on notice of the charges, and the proper focus is whether the charge of misconduct is proven, not the label attached to such conduct. Gillespie v. KanawhaCounty Bd. of Educ., Docket No. 90-20-496 (June 6, 1991), citing Russell v. Kanawha County Bd. of Educ., Docket No. 90-20-415 (Jan. 24, 1991). See Brown v. Mercer County Bd. of Educ., Docket No. 98-27-113 (July 30, 1998); Huffstutler v. Cabell County Bd. of Educ., Docket No. 97-06-150 (Oct. 31, 1997).   (See footnote 8) 
      After a review of the behavior exhibited by Grievant, the undersigned Administrative Law Judge finds Grievant's behavior falls within the definition of willful neglect of duty, as Grievant knew what behavior was required and did not respond accordingly. Respondent must prove a charge of willful neglect of duty by a preponderance of the evidence. Arbaugh v. Putnam County Bd. of Educ., Docket No. 90-40-437 (May 22, 1991). Although the West Virginia Supreme Court of Appeals has not formulated a precise definition of “willful neglect of duty”, it does encompass something more serious than incompetence and imports “a knowing and intentional act, as distinguished from a negligent act.” Bd. of Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990). Hence, to prove willful neglect of duty, the employer must establish that the employee's conduct constituted a knowing and intentional act, rather than a negligent act. Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994). See Chaddock, supra.
      MCBOE has met its burden of proof. Through her own testimony Grievant admitted she knew it was her duty to review any material to assess whether it was appropriate before she assigned it to her students. Since Grievant was aware of her duty and failedto perform it, her behavior constitutes "a knowing and intentional act." Hoover, supra. See Brown, supra.
      Additionally, Grievant's remarks indicating both the student and his mother should have come to her instead of the principal were ill-advised and unprofessional. If Grievant wants to insure nothing like this ever happens again, the correct plan of action is to review materials before passing them out to the class, not to instruct students to return offensive materials if they are again placed in a sixth grader's possession.
II.      Mitigation/Severity of Penalty
      The argument that Grievant's three day suspension is excessive given the facts of the situation, is an affirmative defense, and Grievant bears the burden of demonstrating the penalty was "clearly excessive or reflects an abuse of the agency['s] discretion or an inherent disproportion between the offense and the personnel action." Martin v. W. Va. Fire Comm'n, Docket No. 89-SFC-145 (Aug. 8, 1989).
      "When considering whether to mitigate the punishment, factors to be considered include the employee's work history and personnel evaluations; whether the penalty is clearly disproportionate to the offense proven; the penalties employed by the employer against other employees guilty of similar offenses   (See footnote 9)  ; and the clarity with which the employee was advised of prohibitions against the conduct involved." Phillips v. Summers County Bd. of Educ., Docket No. 93-45-105 (Mar. 31, 1994). See Austin v. Kanawha County Bd. of Educ., Docket No. 97-20-089 (May 5, 1997). Mitigation of a penalty is considered on acase by case basis. Conner v. Barbour County Bd. of Educ., Docket No. 95-01-031 (Sept. 29, 1995); McVay v. Wood County Bd. of Educ., Docket No. 95-54-041 (May 18, 1995). A lesser disciplinary action may be imposed when mitigating circumstances exist. Mitigating circumstances are generally defined as conditions which support a reduction in the level of discipline in the interest of fairness and objectivity, and also include consideration of an employee's long service with a history of otherwise satisfactory work performance. Pingley v. Div. of Corrections, Docket No. 95-CORR-252 (July 23, 1996).       This Grievance Board has held that "mitigation of the punishment imposed by an employer is extraordinary relief, and is granted only when there is a showing that a particular disciplinary measure is so clearly disproportionate to the employee's offense that it indicates an abuse of discretion or was arbitrary and capricious. Considerable deference is afforded the employer's assessment of the seriousness of the employee's conduct and the prospects for rehabilitation." Overbee v. Dep't of Health and Human Resources/Welch Emergency Hosp., Docket No. 96-HHR-183 (Oct. 3, 1996). Respondent has substantial discretion to determine a penalty in these types of situations, and the undersigned Administrative Law Judge will not substitute her judgement for that of the employer. Tickett v. Cabell County Bd. of Educ., Docket No. 97-06-233 (Mar. 12, 1998); Huffstutler, supra.
      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v.Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). " While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of a board of education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra.
      Given that considerable deference is afforded the employer's assessment of the seriousness of the employee's conduct and the appropriate disciplinary action, this penalty cannot be found to be excessive. Overbee, supra. While it is true that reasonable minds may differ as to the correct discipline, a three day suspension for willful neglect of duty which resulted in a sixth grader receiving sexually explicit and profane materials cannot be considered unreasonable. This initial inappropriate action was compounded by Grievant's subsequent discussion with her class about her beliefs that the student and his mother had not dealt with the situation correctly. Accordingly, the punishment will not be mitigated.       The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law

      1.      An employer must establish the charges in a disciplinary matter by a preponderance of the evidence. W. Va. Code §18-29-6; Nicholson v. Logan County Bd. of Educ., Docket No. 95-23-129 (Oct. 18, 1995); Froats v. Hancock County Bd. of Educ., Docket No. 91-15-159 (Aug. 15, 1991).
      2.      A county board of education possesses the authority to terminate an employee, but this authority cannot be exercised in an arbitrary and capricious manner. W. Va. Code §18A-2-8; See Lanehart v. Logan County Bd. of Educ., Docket No. 95-23-235 (Dec. 29, 1995).
      3.      W. Va. Code §18A-2-8 identifies the types of action that can result in disciplinary action and provides, in pertinent part:

      4.      It is not necessary for a board of education to identify an employee's offenses by the exact terms utilized in W. Va. Code § 18A-2-8, as long as the required written notice of charges specifically identifies the alleged acts of which the employee is accused.
      5.      Willful neglect of duty is one of the causes listed in W. Va. Code §18A-2-8 for which an education employee may be disciplined. See, Jones v. Mingo County Bd. ofEduc., Docket No. 95-29-151 (Aug. 24, 1995); Beverlin v. Bd. of Educ., 158 W. Va. 1067, 216 S.E.2d 554 (1975).
      6.      To prove willful neglect of duty, the employer must establish the employee's conduct constituted a knowing and intentional act, rather than a negligent act. Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994). See Bd. of Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990).
      7.      Grievant's behavior falls within the category of willful neglect of duty as she committed “a knowing and intentional act, as distinguished from a negligent act.” Chaddock, supra.
      8.      MCBOE has met its burden of proof and demonstrated Grievant was guilty of willful neglect of duty and engaged in “a knowing and intentional act" when she distributed materials to her students without first assessing the content of these articles.
      9.      When considering whether to mitigate the punishment, factors to be considered include the employee's work history and personnel evaluations; whether the penalty is clearly disproportionate to the offense proven; the penalties employed by the employer against other employees guilty of similar offenses; and the clarity with which the employee was advised of prohibitions against the conduct involved." Phillips v. Summers County Bd. of Educ., Docket No. 93-45-105 (Mar. 31, 1994). See Austin v. Kanawha County Bd. of Educ., Docket No. 97-20-089 (May 5, 1997).
      10.      "Mitigation of the punishment imposed by an employer is extraordinary relief, and is granted only when there is a showing that a particular disciplinary measure is so clearly disproportionate to the employee's offense that it indicates an abuse of discretionor was arbitrary and capricious. Considerable deference is afforded the employer's assessment of the seriousness of the employee's conduct and the prospects for rehabilitation.” Overbee v. Dep't of Health and Human Resources/Welch Emergency Hosp., Docket No. 96-HHR-183 (Oct. 3, 1996).
      11.      Respondent has substantial discretion to determine a penalty in these types of situations, and the undersigned Administrative Law Judge will not substitute her judgement for that of the employer. Tickett v. Cabell County Bd. of Educ., Docket No. 97- 06-233 (Mar. 12, 1998); Huffstutler v. Cabell County Bd. of Educ., Docket No. 97-06-150 (Oct. 31, 1997).
      12.      The correct standard to apply when assessing whether a punishment should be mitigated is the arbitrary and capricious standard.
      13.      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing ArlingtonHosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). " While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of a board of education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra.
      14.      While Grievant established she had good evaluations, she failed to establish MCBOE's decision to give her a three day suspension for her willful neglect of duty was so excessive as to require the undersigned Administrative Law Judge to decrease the penalty.
      Accordingly, this grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Cabell County. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 18-29-7. Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

                                     ___________________________________
                                                 JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: August 28, 2000.


Footnote: 1
      Exhibits from the pre-suspension hearing will be denoted as Admin. Ex. No. ---.
Footnote: 2
      Grievant was represented by Steve Angel from the West Virginia Federation of Teachers, and MCBOE was represented by Attorney Greg Bailey. Mr. Bailey elected not to submit these proposals.
Footnote: 3
      Grievant's conduct and the subsequent disciplinary action will not be viewed as unsatisfactory performance as the charges against Grievant were not made "as the result of an employee evaluation pursuant to [W. Va. Code § 18A-2-12]."
Footnote: 4
      In keeping with prior decision of this Grievance Board, minors and their parents will be identified only by their initials. See Jones v. Preston County Bd. of Educ., Docket No. 99-39-017 (Mar. 16, 1999).
Footnote: 5
      This agreement is memorialized by a handwritten, draft letter dated October 13, 1997. There was no copy of a typed copy in the file, and Grievant could not remember if she received a copy of this agreement.
Footnote: 6
      This file and report were placed in a disciplinary file kept separate and apart and stored in Assistant Superintendent Miller's office.
Footnote: 7
      The parties discussed at some length the issue of whether Grievant was given a three day suspension this time because her prior suspension had been for one day andthis suspension must be longer to be progressive. The testimony at Level IV indicated Grievant's prior suspension had been discussed at the conference held before Grievant's suspension. The testimony on this issue at Level IV was conflicting, but all remembered the prior suspension had been discussed. Dr. Parsons said it did not effect his decision, and Grievant stated this suspension was for three days to be progressive. Dr. Parsons' testimony at the pre-suspension hearing was clear. When question by the Board, he responded he did not believe the prior suspension should be examined at this pre- suspension hearing, as the two incidents were unrelated, and the prior suspension had not effected this recommendation to MCBOE.
Footnote: 8
      MCBOE stated it was not necessary for it to label the charges, as it was up to the courts and the Grievance Board to identify them pursuant to W. Va. Code § 18A-2-8.

Footnote: 9
      Little evidence was submitted as to similar offenses and their punishment. Information was submitted that an inappropriate article was given to a student and turned in right away. There was no information about the details or consequences of this action.