As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving his 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.
A preponderance of the evidence is evidence which is 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 proven is more probable than not. It may not
be determined by the number of witnesses, but by the greater weight of all evidencepresented, which means that such factors as opportunity for knowledge, information
possessed, and manner of testifying determines the weight accorded to testimony rather
than the greater number of witnesses.
See Black's Law Dictionary 1344-45 (4th ed. 1968);
Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997). Where the
evidence equally supports both sides, the party with the burden of proof has not met its
obligation to establish a fact by a preponderance of the evidence.
Fox v. Bd. of Directors,
Docket No. 99-BOD-008 (June 18, 1999).
See Leichliter v. W. Va. Dep't of Health &
Human Resources, Docket No. 92-HHR-486 (May 17, 1993).
Although a number of facts and circumstances surrounding these grievances are
not disputed, the testimony of some witnesses regarding certain events and conversations
was directly contradictory. In such situations, it is necessary for an administrative law
judge to assess the credibility of each witness, in order to ascertain which version of the
facts is more credible.
See Hall v. W. Va. Dep't of Transp., Docket No. 96-DOH-433 (Sept.
12, 1997). Some factors to consider in assessing the credibility of a witness include the
witness' demeanor, opportunity or capacity to perceive and communicate, reputation for
honesty, attitude toward the action, and admission of untruthfulness. Additionally, the trier
of fact should consider the presence or absence of bias, interest, or motive, the
consistency of prior statements, the existence or nonexistence of any fact testified to by
the witness, and the plausibility of the witness' information.
Haddox v. Mason County Bd.
of Educ., Docket No. 98-26-283 (Nov. 30, 1998).
See Perdue v. Dep't of Health & Human
Resources, Docket No. 93-HHR-050 (Feb. 4, 1994).
See generally, Harold J. Asher and
William C. Jackson,
Representing the Agency before the United States Merit SystemsProtection Bd. 152-53 (1984). Although the undersigned was unable to observe the
demeanor of several witnesses who appeared only at the Level II hearings, the remaining
factors provide an ample basis to evaluate the credibility of their testimony.
See Williams
v. Kanawha County Bd. of Educ., Docket No. 98-20-321 (Oct. 20, 1999);
Reynolds v.
W. Va. Dep't of Admin., Docket No. 99-ADMN-049 (Sept. 1, 1999).
Based upon the foregoing standards for assessing conflicting evidence, the
evidence presented in this contentious dispute will be discussed in some detail. Grievant
is employed by WVSC as a tenured Assistant Professor in its Community and Technical
College. In addition, he serves as the Program Director for the Marketing Program in the
Business Studies Department. Grievant holds a Bachelor of Science Degree in
Mathematics, with a minor in Economics. He also holds a Master of Business
Administration Degree with an emphasis in Marketing. He had extensive experience in
sales and marketing before he began teaching in the Management and Computer Systems
Department at West Virginia Institute of Technology. L II Hearing II Tr at 12.
(See footnote 3)
After
teaching for eight years at West Virginia Institute of Technology, Grievant was hired by
WVSC in approximately 1992.
(See footnote 4)
Grievant's immediate supervisor is Charlotte Finney, Program Chair for Business
Studies, and Program Director for Office Administration, in WVSC's Community and
Technical College. Ms. Finney has been Grievant's supervisor for approximately six years.
Dr. Torri Lilly is Assistant Provost in the Community and Technical College. Dr. Lilly is
Grievant's second-level supervisor. Dr. George Bilicic is Provost of WVSC's Community
and Technical College. In that capacity, he serves as Grievant's third-level supervisor.
Dr. Bilicic was Provost when Grievant was hired from the faculty at West Virginia Institute
of Technology.
Prior to the 1996-97 academic year, Grievant's tenure at WVSC was largely
uneventful. However, there were certain indications that Grievant did not relate to his
students as well as his WVSC peers. All faculty members at WVSC are evaluated by their
students in each class near the end of the semester.
(See footnote 5)
This is accomplished by completing
a standard form which includes numerical ratings in various categories, as well as an
opportunity for candid, and anonymous, written comments. The forms are tabulated by the
school's computer center, and the results are provided to the faculty member through their
chain of supervision.
Dr. Lilly testified that, beginning with the first time Grievant received his student
evaluations, he came to her to discuss the evaluations, ostensibly to obtain her advice and
guidance on what he could do to improve his teaching. According to Dr. Lilly, Grievant's
student evaluations have generally been below average for faculty in the Community andTechnical College. Dr. Lilly met with Grievant to discuss evaluations on several occasions,
normally at his request. None of these meetings was documented, as she was simply
providing constructive advice, not attempting to correct specific objectionable behavior.
Ms. Finney recalled that she first counseled Grievant on his student evaluations in
the spring of 1997. This discussion resulted from student evaluations which were
rendered during the fall 1996 semester. Although the overall ratings for the other faculty
members in the department were above the college average (4.4 on a scale of 1 to 5), she
observed that Grievant's overall rating was consistently not only below average, but the
lowest in the department. As required by WVSC policy, Ms. Finney observed at least one
of Grievant's classes annually. During these observations, she never noticed any
problems with Grievant's classroom management or teaching methods. Dr. Lilly also
observed Grievant's classroom teaching on at least one occasion, without noting any
problems. Indeed, she recalled his presentation as being fine. Nonetheless, Ms. Finney
did not recommend Grievant for merit pay in 1997 because his overall student evaluation
of 4.1 had been the lowest in the department.
On June 14, 1996, Dr. Bilicic met with five students from Grievant's Business Math
104 class who submitted complaints regarding Grievant's classroom conduct and behavior
during the summer term. L II Hearing I Tr at 54; L II Hearing II Tr at 167-68; Ex 14 at L II
Hearing I. Dr. Bilicic discussed the students' complaints with Grievant on June 16, 1996,
and asked Grievant to provide a written reply. Grievant responded in writing on June 17,
1996, presenting his side of the story. Ex 14 at L II Hearing I. No further action was taken.
Dr. Bilicic had previously seen some negative narrative comments on Grievant's studentevaluations. However, this incident, which involved student complaints that Grievant was
variously unprepared, rude, flippant, and indifferent to their individual situations, was the
first instance where a problem with Grievant's teaching performance was directly
addressed.
(See footnote 6)
L II Hearing I Tr at 54.
In any event, this student complaint involved nothing more than a minor skirmish
when compared to the dispute which subsequently arose between Grievant and one of his
students, Lisa Kerr, during the spring 1997 semester. What will hereinafter be referred to
as the Kerr incident emanated from a team presentation by Ms. Kerr and two classmates,
Charles Saunders and Forrest Blevins, in Grievant's Sales class. This presentation was
essentially intended to simulate a sales presentation to a group of buyers, simulated by
the remaining students in the classroom. The presentation did not go well, primarily
because the students rehearsed their presentation in another location, instead of their
regular classroom. After Ms. Kerr complained about Grievant's unduly harsh critique of
their classroom presentation and the allegedly unfair grades they received for their efforts,
(See footnote 7)
Ms. Finney conducted an investigation in April 1997 to determine just what happened. Ms.
Finney talked to the three students involved,
(See footnote 8)
as well as a number of their classmates who
were present during the presentation and critique. Ms. Finney prepared a written report
to Grievant dated April 7, 1997, containing her findings. The pertinent portion of that
correspondence states as follows:
From what I gathered from the team members, lots of things went wrong.
Their presentation couldn't be seen without having the lights out; the
presenters couldn't see their script with the lights out; and the slides didn't
always correspond with the script. One team member said it was a disaster.
It is unfortunate that so many hours went into the development of the
computer slides and then the actual presentation went so far awry.
Besides speaking with the team members, I have also spoken with some
students who were present. Although your critique was pretty much on
target, it is sometimes difficult for students to receive strong comments
without being offended. Unfortunately, the critique caused a great deal of
discussion outside the classroom, and some attempt was apparently made
to organize a student protest. I have, I think, resolved this issue.
G Ex D at L IV.
Ms. Finney offered the students an opportunity to make their presentation to her,
and let her evaluate their work, but the students declined this offer. She expected the
situation to be resolved, but it would not go away, primarily because Ms. Kerr continued
to pursue the matter, and Grievant would not recede from his position that the grade he
had given her was appropriate for a bungled presentation. Ms. Finney later heardadditional complaints from students who indicated that Grievant's critique, particularly as
it related to Ms. Kerr, was unduly harsh, but these complaints were never documented.
She received other, related, student complaints about Grievant's unpredictable classroom
behavior, alleging that, without warning, he sometimes transformed from a fair and
pleasant individual to an intolerant and arbitrary taskmaster or bully. It does not appear
that Grievant was asked to respond to any of these undocumented complaints. Indeed,
it is very possible that some of these complaints were solicited and encouraged by Ms.
Kerr.
Apparently, none of the student complaints regarding Grievant's teaching or
classroom policies were given much credence prior to the Kerr incident. Ms. Finney
testified that, in the fall of 1996, she encouraged Ms. Kerr to pursue dual Associate's
degrees in Office Administration and Marketing. Ms. Finney demonstrated little concern
for Grievant's student evaluations to date, or any student complaints she had received to
that point, as she made no significant effort to dissuade Ms. Kerr from taking three classes
from Grievant during the following semester in order to complete both degrees.
Dr. Dolores Taylor is a WVSC Professor who teaches classes in Business Studies
and Office Administration in the Community and Technical College. She recalled that,
beginning in early 1997, students began coming to her with complaints about some of
Grievant's teaching policies. These complaints primarily originated with students who had
previously taken her classes. Dr. Taylor discussed the initial complaints with Grievant,
because he had solicited feedback from her when they first started working together atWVSC. However, she found Grievant unreceptive to her efforts to discuss these matters.
Thereafter, she referred most of the complaints to Ms. Finney or Dr. Bilicic.
Prior to the fall of 1996, Ms. Kerr had taken one or more classes taught by Dr.
Taylor. Dr. Taylor described her as a very hard working student who made significant
progress in overcoming a number of disadvantages as a non-traditional student who
entered the community college program with a GED certificate, rather than a high school
diploma. In late 1996, Ms. Kerr approached Dr. Taylor, announcing her plans to obtain a
double major. In order to accomplish this, she would be taking three courses from
Grievant the following semester. Although Dr. Taylor had not yet started receiving the
stream of complaints regarding Grievant, she counseled Ms. Kerr against taking three
classes from the same instructor. At that point, Ms. Kerr was taking two classes from
Grievant, Advertising I and Sales I. L II Hearing I Tr at 87. Ms. Kerr told Dr. Taylor, I like
Mr. Skeens and Mr. Skeens likes me. L II Hearing III Tr at 138; Taylor testimony at L IV.
After Grievant refused to revise her grade in Sales, Ms. Kerr engaged in a
concerted effort to steer students away from Marketing, advising her peers not to sign up
for any classes taught by Grievant. Grievant was not the only faculty member to run afoul
of Ms. Kerr. Edith Worrells, faculty advisor to Phi Theta Kappa, an academic honorary for
community college students, testified at Level IV that after Lisa Kerr became President of
this organization, Ms. Kerr became disaffected with her leadership, and attempted to
obtain the appointment of another person as faculty advisor. Ms. Kerr's proposed
candidate was not a member of the Community and Technical College faculty, and wastherefore ineligible to serve in that capacity. Ms. Worrells also recalled hearing Ms. Kerr
denigrating Grievant's teaching ability.
Grievant heard rumors that his colleague, Dr. Taylor, was helping to organize a
student boycott of his classes. However, Dr. Taylor credibly denied organizing any sort
of boycott. Indeed, she advised the students not to participate in any activities which could
get them in trouble with the school administration. L II Hearing I Tr at 101-02.
Nonetheless, she was obviously sympathetic with students who had bad experiences in
one of Grievant's classes, particularly Ms. Kerr, and saw no problem with Ms. Kerr
encouraging her peers to avoid Grievant as an instructor.
Like Ms. Finney, Dr. Bilicic attempted to work out a compromise solution between
Grievant and Ms. Kerr, but received minimal cooperation from either party. On April 22,
1997, Dr. Bilicic invited Grievant to join him and Max Harbert, Executive Director of
Continuing Education and Extension Services (CEES) in the Community & Technical
College at WVSC, for dinner at the Dunbar Plaza Lounge. Dr. Bilicic apparently intended
to meet with Grievant in an informal setting in an effort to defuse the dispute between
Grievant and Ms. Kerr, and give Grievant some pointers on how to avoid unnecessary
student complaints. In the course of coaching Grievant on how to handle these
situations, Dr. Bilicic explained his philosophy of grading to Grievant. When Dr. Bilicic told
Grievant that his policy was to give the benefit of the doubt to the student when there was
any question about what grade was appropriate, or bump the grade up, and Grievant
should follow this policy in dealing with Ms. Kerr, Grievant interpreted this as Dr. Bilicic
telling him to change Ms. Kerr's grade. Instead of clearing the air, this meeting only served to polarize the positions of
Grievant and Dr. Bilicic. Indeed, Grievant thought the entire meeting was nothing more
than an effort by Dr. Bilicic to intimidate and threaten him, forcing him to retreat from his
position on Ms. Kerr's grade. Mr. Harbert, who was a credible and forthright witness on
this and other matters, confirmed that the meeting was essentially an effort to advise
Grievant on what he could do to defuse an explosive situation. Nonetheless, he observed
that Grievant perceived the meeting as coercive.
The Dunbar Plaza meeting was followed by another meeting between Grievant and
Dr. Bilicic, this one held in Dr. Bilicic's office at Dr. Bilicic's request. Grievant brought
William Kreber, an Associate Professor in WVSC's Community and Technical College,
who teaches computer-aided drafting, to the meeting as his witness. Dr. Bilicic was not
expecting Mr. Kreber at the meeting, and kept referring to him as Mr. Witness. During
the meeting, Grievant focused on attempting to have Dr. Bilicic confirm, in front of his
witness, that he had told Grievant to raise Ms. Kerr's grade. Although it was apparent to
Mr. Kreber that Dr. Bilicic resented his presence, as indicated by his Mr. Witness
comments, Mr. Kreber was not intimidated.
Mr. Kreber recalled that, during the meeting, Grievant repeatedly asked Dr. Bilicic
to confirm that he had previously told Grievant to raise a student's grade. According to Mr.
Kreber, Dr. Bilicic told Grievant that he had simply explained his grading philosophy, which
involves giving the benefit of any doubt regarding the appropriate grade in the student'sfavor.
(See footnote 9)
L II Hearing I Tr at 32. Although Dr. Bilicic attempted to address other issues
during the meeting, Grievant kept returning to the question of whether he had been
instructed to raise the grade of one particular student.
Mr. Kreber further recalled Dr. Bilicic telling Grievant that the Lisa Kerr incident was
not the first complaint he had received regarding Grievant's teaching practices. Several
matters were discussed during the course of that meeting. Mr. Kreber particularly recalled
Dr. Bilicic noting a complaint about Grievant locking the classroom doors to prevent
latecomers from entering. In addition, Grievant had demanded that a student produce a
receipt from a garage after the student missed a test or a quiz due to an alleged
automobile breakdown.
On the morning following the meeting with Dr. Bilicic, Grievant met with Mr. Kreber
and Ms. Finney in an effort to verify what had been said during the previous meeting with
Dr. Bilicic.
(See footnote 10)
Mr. Kreber and Grievant were unable to agree on exactly what was said,
although they generally agreed on the issues discussed. During this second meeting, Mr.
Kreber repeated the suggestion he privately made to Grievant earlier that morning,
encouraging him to seek assistance from WVSC's Employee Assistance Program. Ms.
Finney similarly advised Grievant that he should seek such assistance to deal with his
explosions. Eventually, Dr. Lilly also recommended to Grievant that he seek counseling
through the Employee Assistance Program, when he was having a problem meeting arequirement to complete a program review for the Marketing Program. None of these
recommendations were documented.
Another student, Chris Cavender, who is visually impaired, came forward at the
Level II hearing, and complained about insensitive treatment by Grievant during the spring
1997 semester. Mr. Cavender testified that Ms. Kerr, who voluntarily served as his note
taker in Marketing I, assisted him in preparing his student evaluation on Grievant's
teaching in that class. L II Hearing I Tr at 51. Ms. Kerr denied assisting Mr. Cavender in
preparing this evaluation. L II Hearing I Tr at 98.
Subsequent to the Kerr incident, Grievant became embroiled in a minor dispute with
Cindy Winters. Ms. Winters is employed by Regional Education Service Agency III as
Program Director for Orientation to Nontraditional Occupations for Women (ONOW), a
course she teaches at the Putnam Technical Center in Putnam County. This program
strives to find non-traditional employment for females who are not working outside the
home. Many students who participate in the program go on to attend college at WVSC on
a full or part-time basis.
In the spring of 1997, Ms. Winters called Bertela Montgomery, a Counselor in the
Community and Technical College, to ask about Grievant's teaching and the Marketing
Program at WVSC, as she was not personally familiar with Grievant. L II Hearing II Tr at
108. Ms. Montgomery testified that Ms. Winters told her Ms. Kerr had come to her telling
her about problems with the Marketing Program, based primarily upon her classroom
experiences with Grievant. Ms. Montgomery assured Ms. Winters that the WVSC
Marketing Program was a good one, and she spoke favorably of Grievant. Ms.Montgomery apparently mentioned this phone conversation to Dr. Bilicic. Within a day of
that conversation, Dr. Bilicic called Ms. Winters, and provided additional positive
assurances regarding the quality of the Marketing Program at WVSC. L II Hearing II Tr
at 108-10.
Shortly after her conversations with Ms. Montgomery and Dr. Bilicic, Ms. Winters
made an appointment for three students in the ONOW program who were interested in
marketing careers to meet with Grievant. According to Ms. Winters, the students returned
from that meeting with a very negative impression of Grievant and WVSC's Marketing
Program. The students related to Ms. Winters that when one of them asked Grievant if the
women graduates of the program were successful in finding employment, Grievant told
them that one woman was working at Hooters while another was employed at Pizza Hut.
L II Hearing II Tr at 109. Ms. Winters and the students were generally appalled by
Grievant's attitude.
Grievant called Ms. Winters the following day to find out what her students had told
her about their meeting. L II Hearing II Tr at 110. When Ms. Winters described the
students' negative impressions, Grievant suggested to Ms. Winters that she was working
with Ms. Kerr to disparage him and his program. Ms. Winters considered Grievant's
conversation and demeanor to be unreasonably negative and completely unprofessional.
Based upon this conversation, the students' reported experience in meeting with Grievant,
and Ms. Kerr's description of her experience as a student in Grievant's class, Ms. Winters
no longer recommends the Marketing Program at WVSC to students in the ONOW
Program. In addition to the ongoing dispute over Ms. Kerr's classroom presentation, and the
clash with Ms. Winters, another issue arose when Grievant heard that Ms. Kerr had
threatened to kill him. This information was provided to Grievant by Shane Thurman, a
student who took five classes from Grievant and has since graduated. Mr. Thurman
testified at Level IV, generally describing Grievant's teaching methods as fair and effective.
Mr. Thurman's testimony was consistent with testimony presented by Charles Saunders,
who had at least four classes from Grievant before graduating with an Associate's degree
in Marketing. Although Mr. Saunders was one of the students on Ms. Kerr's team during
the botched presentation, he testified at Level II that he would rate Grievant in the top 10
percent of his teachers at WVSC.
(See footnote 11)
L II Hearing III Tr at 13-15.
Mr. Thurman was not in the class when Ms. Kerr's team presentation fizzled and
she and her teammates were severely critiqued. However, he was present in a model
classroom area on April 24, 1997, when he overheard Ms. Kerr speaking loudly to two
other students about Grievant, saying I will kill, and calling Grievant a bastard and
scumbag. Mr. Thurman made notes of Ms. Kerr's conversation, and reported her
statements to Grievant.
Grievant went to Gilbert Flores, WVSC's Chief of Campus Security, and reported
Ms. Kerr's threat as related by Mr. Thurman. Grievant also reported Ms. Kerr's threat to
Dr. Bilicic. Mr. Thurman was never questioned about this reported incident by Mr. Floresor any other WVSC authorities. Thurman testimony at L IV. Grievant subsequently
advised Dr. Bilicic that he was fearful of attending the upcoming graduation, as he believed
Ms. Kerr, or some of her unspecified supporters, might follow through on this threat, and
attempt to harm him.
All WVSC faculty members are required to attend graduation ceremonies at the end
of each semester. Ex 1B at L II Hearing III. Dr. Bilicic testified that he checked with some
people who were more familiar with Ms. Kerr than him. Based upon these conversations,
he concluded that if Ms. Kerr made such a threat, she was highly unlikely to follow through.
He also spoke with Mr. Flores, who assured him that it would be safe for Grievant to
appear at the WVSC graduation ceremonies. He noted that Grievant had approached him
approximately one year earlier, indicating that a tenant from one of his rental properties
had threatened him. Nothing ever came of this threat, so far as Dr. Bilicic could see, and
he therefore concluded that Grievant was manufacturing or grossly exaggerating the Kerr
death threat.
Grievant did not appear at the May 1997 graduation ceremony. Dr. Bilicic wrote to
Grievant on May 29, 1997, noting this unexcused absence represented a failure to meet
one of his specific contractual requirements. Ex 21at L II Hearing I. Grievant's only
reason for absenting himself from the May 1997 graduation was his fear that Ms. Kerr, or
someone in her behalf, would do him bodily harm. Beyond noting in correspondence that
Grievant had not been excused from attending, Dr. Bilicic took no other action against
Grievant for this incident. Previously, on December 18, 1995, Dr. Bilicic sent a letter to Grievant and six other
faculty members in the Community and Technical College, asking them to explain their
absence at the December 1995 graduation ceremony. Grievant submitted a written
response to Dr. Bilicic indicating that he had taken his mother to an urgent care clinic, and
to a pharmacy to fill a prescription, on the morning of graduation, and was not able to get
to WVSC in time for the ceremony. Ex 11a at L II Hearing I. Apparently, this explanation
was not disputed, as this incident was not mentioned in the letter noting Grievant's 1997
absence.
Julia Russell is employed by WVSC in the Community & Technical College
Provost's Office as an Administrative Secretary. She is also Grievant's sister. On May 14,
1997, she observed Dr. Bilicic come out of Dr. Lilly's office. He approached Ms. Russell's
desk, and told her that he did not tell Grievant to change Ms. Kerr's grade, and if Grievant
told her that, he is a liar. Dr. Bilicic also indicated that he did not believe Ms. Kerr was
going to kill Grievant. Dr. Bilicic further stated to Ms. Russell, If you give Lisa [Ms. Kerr]
enough rope, she will hang herself. Carmelita McKemy, a secretarial employee in the
Provost's office, verified part of Ms. Russell's testimony, including Dr. Bilicic's comments
concerning Grievant.
Subsequent to this conversation, Dr. Bilicic asked WVSC's Director of Human
Resources, Barbara Rowell, to transfer Ms. Russell to another secretarial position on
campus, seemingly because he perceived a conflict of interest had arisen since Grievant
had begun disputing his handling of the Kerr incident. G Exs A & B at L IV. Despite Dr.Bilicic's request, Ms. Russell was not transferred. As of the Level IV hearing, Ms. Russell
had not been disciplined for any alleged misconduct.
On May 16, 1997, Dr. Bilicic wrote to Grievant, recommending that he contact the
Employee Assistance Program for professional counseling based upon the apparent
stress he had encountered with a particular student (Ms. Kerr) during that semester. L
II Hearing I Tr at 57, 60. Dr. Bilicic attached a number of documents describing and
explaining the various services available to WVSC faculty and staff through the Employee
Assistance Program. Ex 19 at L II Hearing I. This recommendation was consistent with
earlier observations by Dr. Lilly, Ms. Finney, Mr. Harbert, Dr. Taylor, and Mr. Kreber, that
Grievant might benefit from professional counseling services available at WVSC.
When Grievant's annual report was not received on time at the end of the spring
1997 semester, Dr. Lilly reported this discrepancy to Dr. Bilicic, along with other overdue
annual reports. Dr. Lilly wrote letters to Grievant and several other faculty members,
including Mr. Harbert, setting a new deadline for the overdue reports. Ex 12 at L II Hearing
I; L II Hearing II Tr at 31. As of June 2, 1997, all annual reports had been received, except
for Grievant's report on the Marketing Program, and Mr. Harbert's report on Occupational
Development. Dr. Lilly spoke to Mr. Harbert who assured her he would have his report
completed by the following day. Mr. Harbert completed the report as promised.
When Dr. Lilly spoke to Grievant about his overdue report, he told her that he did
not know when he would get the report completed, because he had other priorities at the
moment. After this response was relayed to Dr. Bilicic, and Mr. Harbert's report was
received, Dr. Bilicic wrote a letter to WVSC President Carter on June 19, 1997, noting thatGrievant was not meeting one of his specific contractual requirements by failing to
complete his annual report. Dr. Bilicic recommended that Grievant's teaching contract for
1997-98 be withheld until he completed the report. Ex 10 at L II Hearing I. President
Carter did not accept this recommendation. Grievant finally submitted the report in August
1997.
CEES Executive Director Harbert recalled that Grievant taught the first of four
modules on leadership and supervision for the West Virginia Municipal League in 1996.
During that course, there were several complaints regarding Grievant's attendance policies
and teaching methods. Ultimately, the organization decided against having WVSC provide
the three remaining modules. Grievant had been selected to teach this particular module
because only 6 WVSC faculty members were trained and certified to teach this Zenger-
Miller Training System, and he had previously given a Zenger-Miller presentation for
CEES to another group that was favorably received. L II Hearing II Tr at 22; Harbert
testimony at L IV.
Before all of the evaluations came back from the leadership module and the
cancellation of the remaining modules was received, Grievant was selected to teach a
CEES management course for a new client, Accordia National, in January 1997. Mr.
Harbert also received a number of verbal complaints from students in this course regarding
Grievant's attendance policies. Accordia's Human Resources Manager, Mr. Boggs,
likewise complained to Mr. Harbert regarding Grievant's dealings with the students. L II
Hearing III Tr at 167. Mr. Harbert discussed these complaints with Grievant, as well aswith Dr. Bilicic. He also made Mark Davis, Assistant Director of CEES at WVSC, aware
of the complaints.
Since the Accordia program in 1997, Mr. Harbert has excluded Grievant from
teaching any additional CEES offerings, although he was academically qualified to teach
several courses. Mr. Harbert explained that CEES operates in a competitive environment,
where the same programs can be taught by other colleges or private companies. If
instructors are not well received by their students, they are not invited to teach any further
offerings. He also observed that the students who attend these programs have not been
receptive to the restrictive attendance policies Grievant brings to these courses from his
undergraduate classes. L II Hearing III Tr at 161-62.
Mark Davis, Assistant Director of CEES in the Community and Technical College,
testified that WVSC conducts 25 to 30 outreach courses each semester, and another 5
to 15 such courses during the summer. He noted that the instructors who teach these
courses are evaluated by the students in essentially the same manner as regular WVSC
faculty teaching regular classes on campus. Davis testimony at L IV. He also emphasized
that the organizations and businesses that sign up for these special courses are more
particular about receiving quality instruction. L II Hearing II Tr at 119; L II Hearing III at
147.
In August 1997, Ms. Finney received a request from Grievant that he be permitted
to teach an overload class during the fall semester. A normal teaching load for WVSC
faculty is 12 credit hours per semester. L II Hearing II Tr at 19. This overload would
require Grievant to teach 15 hours that semester. Ms. Finney was reminded by Dr. Lillyto look for part-time or adjunct faculty before the request would be approved. According
to Ms. Finney, the standard policy at WVSC is to find a part-time faculty member to teach
a class, assigning an overload to a current full-time faculty member as a last resort. Dr.
Lilly confirmed Ms. Finney's testimony regarding WVSC's overload policy. However, Dr.
Lilly and Dr. Bilicic also observed that they did not want a faculty member who was
receiving unfavorable student evaluations in his classes to be teaching even more
students by taking on an overload class. L II Hearing II Tr at 21; Lilly Testimony at L IV.
Although Grievant was subsequently approved to teach an overload course for the Spring
1998 semester, Dr. Bilicic has indicated that he will not approve any additional overload
courses until Grievant's teaching performance improves.
Ms. Finney found another person who was qualified to teach the overload course
for the fall 1997 semester, and Grievant was not permitted to teach the course. G Ex E at
L IV. When full-time faculty are approved to teach an overload course, they receive
additional pay, $1125 for a three-hour course taught over a 15-week period. Another
faculty member in the same college, Mr. Summers, was approved for an overload class
during the same semester when Grievant's request for an overload was denied. In
addition, Mr. Summers was selected to teach an off-campus class for CEES that semester,
effectively assigning him a double-overload.
Grievant noted that the person who taught the overload course he had requested
to teach was qualified to teach the overload course Mr. Summers taught. Thus, Grievant
contends that person should have been assigned the overload course Mr. Summerstaught. Had that occurred, Grievant could have been given an overload instead of Mr.
Summers.
While it appears that the adjunct faculty member could have taught either course,
she was best qualified to teach the overload course that Grievant requested. Further,
there was no evidence of any policy, rule or regulation which requires WVSC to make
overload assignments under the terms Grievant's argument suggests. Ms. Finney
specifically noted that the person hired to teach the overload course was not willing to
teach more than one course.
Mark Stotler, Program Review and Planning Coordinator in the Office of Academic
Affairs for the State University and College Systems of West Virginia, explained that the
predecessor governing body of higher education, the Board of Regents, discouraged
schools and colleges from awarding overload assignments to current faculty members
unless absolutely necessary. However, neither the Board of Regents nor the successor
Board of Directors/Board of Trustees has ever adopted a written policy on this subject.
Nonetheless, some colleges, such as WVSC, continue to follow the practice, and still
obtain approval from the Chancellor for all overload assignments. G Ex C; R Ex 1 at L IV.
W. Va. Code § 18-29-2(m) defines "discrimination" to mean "any differences in the
treatment of employees unless such differences are related to the actual job responsibili
ties of the employees or agreed to in writing by the employees." Similarly, W. Va. Code
§ 18-29-2(o) defines "favoritism" to mean "unfair treatment of an employee as
demonstrated by preferential, exceptional or advantageous treatment of another or otheremployees." In order to establish a prima facie case of discrimination or favoritism under
W. Va. Code §§ 18-29-2(m) and (o), a grievant must demonstrate the following:
(a) that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that the other employee(s) have been given advantage or treated with
preference in a significant manner not similarly afforded him; and,
(c) that the difference in treatment has caused a substantial inequity to him,
and that there is no known or apparent justification for this difference.
Byrd v. Cabell County Bd. of Educ., Docket No. 96-06-316 (May 23, 1997);
McFarland v.
Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996).
See Prince v.
Wayne County Bd. of Educ., Docket Nos. 90-50-281/296/296/311 (Jan. 28, 1991);
Steele
v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
Once a grievant establishes a
prima facie case of discrimination under
W. Va. Code
§ 18-29-2(m), or favoritism under
W. Va. Code § 18-29-2(o), the employer is provided an
opportunity to articulate legitimate, non-discriminatory reasons for its actions.
Steele,
supra. Thereafter, the grievant may show that the offered reasons are pretextual.
Deal
v. Mason County Bd. of Educ., Docket No. 96-26-106 (Aug. 30, 1996).
See Tex. Dep't of
Community Affairs v. Burdine, 450 U.S. 248 (1981);
Frank's Shoe Store v. W. Va. Human
Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986);
Conner v. Barbour County Bd. of
Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
Grievant established by a preponderance of the evidence that similarly situated
faculty members in WVSC's Community and Technical College have been awarded
overload classes while he has been excluded from teaching such classes, even though heis academically qualified to teach them. Grievant similarly established that he has been
excluded from teaching various off-campus and outreach courses offered through
WVSC's CEES, while other similarly situated faculty in the Community and Technical
College continue to be offered the opportunity to teach such offerings. Thus, Grievant has
established a
prima facie case of discrimination in regard to his exclusion from these
benefits. Accordingly, the burden of persuasion falls upon WVSC to establish a legitimate,
job-related reason for this different treatment of Grievant.
With regard to overload classes, a preponderance of the evidence indicates that
overload classes are not favored at WVSC. Ms. Finney credibly explained that there has
been a long-standing practice of seeking adjunct faculty to teach overload classes, and
such classes are assigned to full-time faculty only when no other qualified person is
available, and a class with 10 or more students enrolled would have to be canceled. Even
though the Board of Directors has no written policy on this subject, WVSC continues to
send overload assignments to the Chancellor for approval each semester. R Ex 1 at L IV.
Moreover, with regard to the August 1997 overload request, Ms. Finney's actions
in obtaining an adjunct faculty member to teach the course Grievant was proposing to
teach as an overload was generally consistent with this practice. Although one of
Grievant's faculty peers was approved to teach an overload that same semester, a
preponderance of the evidence indicates that this was primarily due to the fact that no
qualified adjunct was readily available who could teach the course at the time WVSC
needed, rather than any favorable treatment of Mr. Summers. Moreover, there was noevidence that Mr. Summers had received evaluations that were below the college average,
or that he had been the subject of any student complaints during the previous semester.
Dr. Lilly and Dr. Bilicic further indicated that they would not approve overload
classes for Grievant until his teaching performance improves. Although it would be
beneficial to define in concrete and understandable terms exactly what improvements
Grievant must make in order to resume being eligible for overload assignments, the
evaluations and complaints regarding Grievant's teaching that WVSC administrators had
received up to the point of that decision provide a job-related basis for their determination.
Likewise, Grievant's inability to complete his annual report on time in 1997 supports Dr.
Bilicic's contention that Grievant should not be awarded additional teaching assignments
when he cannot fulfill some of the basic requirements of his teaching contract.
It should be noted that WVSC's evidence supporting Dr. Bilicic's decision on
overloads is not limited to the Kerr incident and one or two student complaints, such as Mr.
Cavender's, who may have come forward at Ms. Kerr's urging. Ms. Finney and Dr. Lilly
credibly testified that they had spoken with Grievant concerning his overall student
evaluations and various negative comments included in those evaluations on multiple
occasions. This Grievance Board has previously recognized that despite their arguable
shortcomings, student evaluation scores constitute an accepted method for evaluating
teaching performance.
Turman v. Bd. of Trustees, Docket No. 99-BOT-199 (Nov. 8, 1999).
See Jiminez v. Mary Washington College, 57 F.3d 369 (4th Cir. 1995). Moreover, at least
one group of summer school students complained to Dr. Bilicic about Grievant's teaching
tactics months before the Kerr incident. Finally, the persistent complaints from adultstudents attending Grievant's off-campus workshops and outreach courses appear to have
arisen completely independent of the Kerr incident.
Nonetheless, in determining that WVSC presented legitimate reasons for the
actions taken in regard to offering or awarding overload courses and CEES offerings to
Grievant, the undersigned has given no weight to Dr. Bilicic's determination that Grievant
had no basis for requesting to be excused from attending the May 1997 graduation
because of an alleged death threat. The undersigned found Mr. Thurman's testimony
regarding this matter to be clear and uncontroverted. There was no motive established
for this former student to fabricate a claim involving Ms. Kerr. Mr. Thurman appeared
genuinely concerned that any student would go around speaking publicly about a faculty
member in such a manner.
Of course, Ms. Kerr denied, under oath, having made such a statement. Given her
testimony at Level IV, and in previous Level II hearings, the undersigned is persuaded that
Ms. Kerr did, in fact, make such a statement in anger. Her testimony on another issue,
when she stated she did not help Mr. Cavender prepare his student evaluation in
Grievant's class, was directly contradicted by Respondent's witness, Mr. Cavender. In
addition, a Phi Beta Kappa WVSC student, Marian Kraynie, testified that Ms. Kerr claimed
to have missed a quiz in Grievant's class because she was hemorrhaging, when Ms.
Kraynie heard her telling other students she had been attending a Job Fair that same
morning.
(See footnote 12)
L II Hearing III Tr at 19, 23-24. Ms. Kraynie, a working mother who attendedWVSC on a part-time basis, further observed Ms. Kerr's disrespectful and disruptive
behavior during Grievant's Marketing class in the spring of 1997. L II Hearing III Tr at 25-
29.
Moreover, Ms. Kerr's animosity toward Grievant clearly goes beyond a simple
disagreement over a grade for a presentation, and concern about arbitrary attendance
policies. It is clear that Ms. Kerr was extremely frustrated by Grievant's response to her
presentation. She admits telling Grievant, you might as well put a knife through my back
when he told her she would receive a D for the project. L II Hearing II Tr at 92. Ms.
Finney testified at Level II that, based upon her dealings with Ms. Kerr, it was possible
that she would have made such a threat against Grievant. L II Hearing II Tr at 74. Ms.
Kerr's overall demeanor and attitude, as observed by the undersigned, was consistent with
someone who would make the comments described by Mr. Thurman.
(See footnote 13)
Neither Dr. Bilicic nor Mr. Flores from Campus Security spoke to Mr. Thurman. Dr.
Bilicic apparently determined that Grievant was simply crying wolf, because he had
expressed concern about a year earlier that one of his tenants was threatening to kill him.
However, Dr. Bilicic did speak to other WVSC employees who were more familiar with Ms.
Kerr to determine if there was any likelihood that she would follow through on such a
threat. He was assured that Ms. Kerr was not someone who would do anything violent. Dr. Bilicic also conferred with Mr. Flores to verify that there would be adequate security at
the graduation ceremony to assure Grievant's safety.
However, the undersigned does not find that Dr. Bilicic properly communicated his
findings to Grievant prior to the graduation ceremony, so as to allay Grievant's concerns
for his safety. Likewise, there was no evidence that Mr. Flores had any further dealings
with Grievant after receiving the initial complaint, assuring Grievant that any potential
threat posed by Ms. Kerr could be handled by security personnel present for graduation.
Therefore, Grievant's failure to attend graduation, while unexcused, is not a significant
basis to conclude that he should be excluded from teaching overload classes or CEES
outreach programs.
In regards to CEES outreach courses, the undersigned found the testimony of Mr.
Harbert and Mr. Davis regarding the competitive nature of these offerings to be credible
and persuasive. Their testimony established that WVSC does not simply award teaching
assignments for these programs to warm bodies. Although any WVSC faculty member
with the appropriate teaching credentials and experience may be given an opportunity to
teach one of these classes, if they are not perceived as effective by the students and the
client paying for the program, that instructor will not be invited to present any more
courses. Although Grievant may be academically qualified to teach various outreach
offerings, his track record in the two most recent programs, as described by Mr. Harbert,
provides a proper, job-related reason for excluding Grievant from the pool of faculty
members considered for these assignments. Accordingly, WVSC has established
legitimate, job-related reasons for treating Grievant differently from other faculty membersin regard to assigning overload courses and teaching outreach courses offered through
CEES, and Grievant did not establish that these reasons were a mere pretext for improper
discrimination.
See Frank's Shoe Store,
supra.
Harassment is defined by
W. Va. Code § 18-29-2(n) as "repeated or continual
disturbance, irritation or annoyance of an employee which would be contrary to the
demeanor expected by law, policy or profession." Because the statute speaks of repeated
or continual acts, this Grievance Board has determined that more than a single deviation
from accepted demeanor is required to violate this provision.
Thompson v. Bd. of
Trustees, Docket No. 96-BOT-097 (Dec. 31, 1996).
See Eagle v. Marion County Bd. of
Educ., Docket No. 94-24-226 (Nov. 23, 1994);
Jackson v. Fayette County Bd. of Educ.,
Docket No. 94-10-029 (May 18, 1994).
Dr. Bilicic's comments about Grievant to Ms. Russell on May 14, as credibly
corroborated by Ms. McKemy, arguably constituted a deviation from the demeanor
expected from someone in Dr. Bilicic's position. However, Grievant was not present and
it was not established that Dr. Bilicic was speaking to Ms. Russell with the intention that
his comments be relayed directly to Grievant. Although this conversation indicates that
there was some animosity toward Grievant on this one particular issue, it does not rise to
the level covered by the statutory definition of harassment.
Grievant also claims WVSC administrators took certain actions against him in
reprisal or retaliation for conduct which is protected under the grievance procedure statute.
Reprisal is defined by
W. Va. Code § 18-29-2(p) as "retaliation of an employer or agent
toward a grievant or any other participant in the grievance procedure either for an allegedinjury itself or any lawful attempt to address it." A grievant claiming retaliation may
establish a
prima facie case of reprisal by presenting evidence as follows:
(1) that he/she engaged in protected activity, e.g., filing a grievance;
(2) that he/she was subsequently treated in an adverse manner by
the employer or an agent;
(3) that the employer's official or agent had actual or constructive
knowledge that the employee engaged in the protected activity; and
(4) that there was a causal connection (consisting of an inference of
a retaliatory motive) between the protected activity and the adverse
treatment.
Gruen v. Bd. of Directors, Docket No. 95-BOD-281 (Mar. 6, 1997);
Conner,
supra.
See
Frank's Shoe Store,
supra;
Fasce v. Bd. of Directors, Docket No. 94-BOD-1072 (Sept. 13,
1995);
Fareydoon-Nezhad v. W. Va. Bd. of Trustees at Marshall Univ., Docket No. 94-
BOT-088 (Sept. 19, 1994). Of course, if a grievant makes out a
prima facie case of
reprisal, the employer may rebut the presumption of retaliation by offering legitimate,
nonretaliatory reasons for its action.
Conner,
supra.
See Mace v. Pizza Hut, Inc., 180
W. Va. 469, 377 S.E.2d 461 (1988);
Shepherdstown Vol. Fire Dept. v. W. Va. Human
Rights Comm'n, 172 W. Va. 627, 309 S.E.2d 342 (1983);
Webb v. Mason County Bd. of
Educ., Docket No. 89-26-56 (Sept. 29, 1989).
Grievant established a
prima facie case of reprisal by demonstrating that, since he
filed the first of these three grievances against WVSC and Dr. Bilicic, he has been
excluded from teaching outreach courses for CEES, and was only permitted to teach one
overload course during the spring 1998 semester, being otherwise excluded from teaching
such courses. However, for the same reasons previously discussed in analyzingGrievant's discrimination contentions, WVSC has presented legitimate, non-retaliatory
reasons for the actions taken. Although there is clearly animosity between Dr. Bilicic and
Grievant, and some of that animosity has been generated by Grievant's use of the
grievance process, WVSC has demonstrated by a preponderance of the evidence that the
decisions to limit Grievant's teaching duties would have been made in the same way,
whether or not Grievant participated in any form of grievance activity.
Although Grievant failed to establish that WVSC, through Dr. Bilicic or any other
administrators, violated any specific law, rule, regulation or policy through its treatment of
Grievant, it is apparent that Grievant and Dr. Bilicic have engaged in a scorched earth
policy toward each other in the course of these grievances, trading aspersions over a wide
assortment of differences. Because it is extremely difficult to restore a collegial working
relationship appropriate to a professional academic environment once animosities have
percolated to the levels reflected in this grievance, WVSC is encouraged to consider
reassigning Grievant to another department where he will not be supervised by Dr. Bilicic.
Consistent with the foregoing discussion, the following Findings of Fact and
Conclusions of Law are made in this matter.
1. Grievant is employed by Respondent Board of Trustees, West Virginia State
College (WVSC), in its Community and Technical College component.
2. Dr. George Bilicic is Provost of WVSC's Community and Technical College.
In that capacity, he acts as Grievant's third-level supervisor. 3. Dr. Torri Lilly is Assistant Provost of WVSC's Community and Technical
College. Dr. Lilly functions as Grievant's second-level supervisor.
4. Charlotte Finney is Program Chair for Business Studies and Program
Director for Office Administration in the Community and Technical College. Ms. Finney
has been Grievant's immediate supervisor for the past six years.
5. Grievant holds a Bachelor of Science Degree in Mathematics, with a minor
in Economics. He also holds a Master of Business Administration Degree with an
emphasis in Marketing. He had extensive experience in sales and marketing prior to
entering the academic field.
6. Grievant was hired by WVSC sometime around 1992 after teaching eight
years at the West Virginia Institute of Technology.
7. Grievant is a tenured Assistant Professor with additional responsibility as
Chair of the Marketing Program of the Business Studies Department in the Community and
Technical College.
8. All faculty members at WVSC are evaluated near the end of the semester by
the students in their classes. Because Grievant is tenured, he is evaluated by his students
only one semester each academic year.
9. Since Grievant began teaching at WVSC his student evaluations have
generally been below the average for faculty teaching in the Community and Technical
College. 10. Prior to 1997, Grievant informally discussed his student evaluations with Dr.
Lilly on a number of occasions. Grievant solicited suggestions for improving his teaching
performance and Dr. Lilly provided various forms of assistance.
11. Grievant's student evaluations prior to 1997 included various negative
narrative comments. Such comments are not unusual in student evaluations, and none
of these comments were documented as a matter of significant concern to Grievant's
supervisors.
12. On June 14, 1996, Dr. Bilicic met with a delegation of five students from
Grievant's Business Math 104 class which was being taught during the summer term. The
students had a variety of complaints regarding Grievant's teaching performance, including
allegations that he was unprepared, rude, flippant, and indifferent to their individual
circumstances. Dr. Bilicic discussed these complaints with Grievant on June 16, 1996, and
Grievant submitted a written response on June 17, 1996, generally denying most of the
allegations. Ex 14 at L II Hearing I. Dr. Bilicic took no further action on this matter.
13. During the spring semester in 1997, a team of students, Lisa Kerr, Forrest
Blevins, and Charles Saunders, made an oral presentation in Grievant's Sales class. The
presentation involved a series of slides prepared on a computer using Power Point
software which was projected to the class. The presentation was not delivered as the
students had planned because the audience could not see the slides with the lights on,
and the presenters were unable to read their notes or text with the lights out.
14. Ms. Kerr described the presentation as a big flop. L II Hearing I Tr at 77.
The other two students told Ms. Finney that anything that could go wrong, went wrong. L II Hearing I Tr at 39. Another student told Ms. Finney the presentation was a disaster.
G Ex D at L IV.
15. Grievant's oral critique of the presentation before the class was
uncomplimentary, encouraging other class members to add similar disparaging comments.
16. After Ms. Kerr learned that her grade for the presentation was a D, she went
to Ms. Finney, complaining that her grade was unfair. In addition, she noted her
disagreement with a number of Grievant's teaching strategies, particularly his methodology
for enforcing his attendance policies. According to Ms. Kerr, in addition to expecting that
students prepare for class by reading the material, attend class regularly, and arrive
promptly for class, Grievant reinforced these expectations by giving quizzes at the
beginning of class. She further alleged that Grievant threatened to withhold study guides
which he voluntarily prepared for the students, unless class attendance improved, and
reading assignments were completed. Ms. Kerr considered it grossly unfair to withhold
study guides from all students, including students who prepared for class and attended
regularly, simply because their peers were lax in preparation, attendance, or punctuality.
17. Ms. Finney investigated Ms. Kerr's complaint regarding the classroom
presentation in Sales, by interviewing the three students who gave the presentation, and
some of their classmates who attended that class. She sent a memo to Grievant regarding
the complaint and her investigation, noting that 'it is sometimes difficult for students to
receive strong comments without being offended. G Ex D at L IV.
18. Ms. Finney offered the students an opportunity to present their presentation
to her and let her evaluate their work. The students declined this offer. 19. Ms. Finney believed the complaint had been resolved, but Ms. Kerr, who was
taking three separate classes from Grievant that semester, proceeded to pursue the issue,
encouraging other students to voice their complaints regarding Grievant's teaching.
20. Ms. Kerr also complained to a former instructor in the Business Studies
Department, Dr. Dolores Taylor, who had become a close friend and unofficial advisor.
Ms. Kerr encouraged other WVSC students to avoid Grievant's classes and the Marketing
Program. Although Dr. Taylor sympathized with Ms. Kerr's situation, she advised Ms. Kerr
to submit her complaints to Ms. Finney or Dr. Bilicic. She did not lead or assist Ms. Kerr
in organizing a boycott of Grievant's classes.
21. On April 22, 1997, Grievant met informally with Dr. Bilicic and Max Harbert,
Executive Director of Continuing Education and Extension Services (CEES) in WVSC's
Community & Technical College. This meeting was conducted in the Dunbar Plaza
Lounge at Dr. Bilicic's invitation. Dr. Bilicic and Mr. Harbert intended to use this meeting
as an opportunity to coach Grievant on his teaching performance, and suggested
strategies for avoiding student complaints. However, after Dr. Bilicic explained his
personal grading policy, which included giving the student the benefit of any doubt
regarding the appropriate grade, and telling Grievant that if he had any doubt about Ms.
Kerr's grade, he would bump the grade up to the next level, the meeting largely revolved
around whether Dr. Bilicic was ordering Grievant to change a student's grade.
22. Shortly after the Dunbar Plaza meeting, when Dr. Bilicic requested Grievant
to meet with him. Grievant brought along William Kreber, an Associate Professor in
another department of WVSC's Community & Technical College as a witness. Duringthis meeting, Grievant repeatedly attempted to obtain Dr. Bilicic's admission that he had
instructed Grievant to raise a student's grade while Dr. Bilicic persisted in assuring
Grievant that his comments were misunderstood. Dr. Bilicic was resentful of Mr. Kreber's
attendance at the meeting, and repeatedly referred to Mr. Kreber as Mr. Witness.
23. During the meeting with Grievant, Dr. Bilicic, and Mr. Kreber, Dr. Bilicic
attempted to discuss other student complaints with Grievant, but Grievant kept returning
to the issue of changing Ms. Kerr's grade.
24. On the morning following the meeting between Grievant, Dr. Bilicic and Mr.
Kreber, Grievant met with Mr. Kreber and Ms. Finney to discuss what was said during the
previous meeting. Grievant and Mr. Kreber were unable to agree on everything that was
said, and Grievant acted frustrated because Mr. Kreber did not recall the conversation the
same way he did. Mr. Kreber suggested to Grievant that he seek assistance through
WVSC's Employee Assistance Program.
25. Ms. Cindy Winters is employed by Regional Education Service Agency III as
Program Director for a Nontraditional Occupations for Women (ONOW) course which she
teaches in Putnam County. Ms. Winters no longer recommends the Marketing Program
to her ONOW students, because three ONOW students who met with Grievant to discuss
the Marketing Program in WVSC's Community & Technical College reported back,
indicating Grievant gave examples of successful women graduate placements as Hooters
and Pizza Hut, and Grievant was rude and unprofessional to her during a follow-up phone
conversation which Grievant initiated on the day following the student meeting. 26. On April 24, 1997, a student in one of Grievant's classes, Shane Thurman,
overheard Ms. Kerr angrily speaking with other students calling Grievant a bastard and
scumbag and stating I will kill, or words to that effect, in reference to Grievant.
27. Mr. Thurman took notes of this conversation and went to Grievant to report
what he had overheard. Grievant took this conversation as a threat to his physical safety
and reported it to Gilbert Flores, WVSC's Chief of Campus Security and Dr. Bilicic.
28. Dr. Bilicic spoke to other administrators who were more familiar with Ms. Kerr,
and concluded that Ms. Kerr was unlikely to follow up on such a threat, if she made such
a threat. He also spoke to Mr. Flores, who assured him that Grievant would be safe on
campus to attend the WVSC graduation. Neither Dr. Bilicic nor Mr. Flores spoke to Mr.
Thurman or Ms. Kerr.
29. All WVSC faculty are required to attend graduation ceremonies. Grievant
did not attend WVSC's May 1997 graduation ceremony, claiming he was still in fear for his
personal safety due to Ms. Kerr's threat that the student overheard.
30. On May 16, 1997, Dr. Bilicic wrote to Grievant, recommending that he contact
the Employee Assistance Program for professional counseling. In making this
recommendation, Dr. Bilicic was formally following through on similar recommendations
that had been informally conveyed to Grievant by Dr. Lilly, Ms. Finney, Mr. Harbert, Mr.
Kreber, and Dr. Taylor, and he was attempting to act in Grievant's best interests.
31. At the end of the spring 1997 semester, Grievant was one of several faculty
members in the Community & Technical College who had not submitted their annual
reports by the established deadline. Dr. Lilly communicated with Grievant and the othertardy faculty members, setting a new deadline. By June 2, 1997, all except Grievant and
Mr. Harbert had submitted their required reports. When Dr. Lilly contacted Mr. Harbert,
he promised to have his report in by the following day, and he met this new deadline.
When Dr. Lilly contacted Grievant, he was unable to say when he would complete the
report, and indicated to her that he had other priorities at that time.
32. After Dr. Lilly reported to Dr. Bilicic that Grievant was the only Program
Director who had not submitted their annual report, Dr. Bilicic wrote to WVSC President
Carter on June 19, 1997, recommending that Grievant's contract for the following
academic year be withheld unless and until the report was completed. President Carter
did not follow this recommendation, and Grievant submitted his report in August 1997.
33. Since being employed by WVSC, Grievant has delivered several off-campus
courses and programs for CEES. After courses Grievant presented in 1996 and 1997
received unfavorable comments in student critiques, and generated complaints from
several attending students, as well as the employers paying WVSC for the presentations,
Mr. Harbert ceased recommending Grievant to teach any CEES programs.
34. Grievant is academically qualified to teach numerous CEES programs that
have been presented since 1997. CEES competes with other educational institutions and
organizations for this outreach business, and does not invite back otherwise qualified
faculty whose presentations are not well received by the students attending the program
or the entity paying WVSC to present the program.
35. WVSC awards overload teaching assignments to regular full-time faculty
on a voluntary basis when no qualified adjunct or part-time instructors are available toteach the course. An overload involves teaching more than 12 hours of classes per
semester. Full-time faculty receive extra pay when they teach an overload. Consistent
with this practice, Grievant was not selected to teach an overload class for the fall 1997
semester, but was selected to teach an overload for the spring 1998 semester.
36. Since the spring 1998 semester, Dr. Bilicic has refused to consider Grievant
for any overload assignments based upon student complaints regarding his teaching,
Grievant's student evaluations, which are lower than his peers, and Grievant's failure to
meet his obligations, such as not completing his 1997 annual report within a reasonable
time after the established deadline.
CONCLUSIONS OF LAW
1. As this grievance does not involve a disciplinary matter, Grievant has the
burden of proving his 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. Discrimination is defined in
W. Va. Code § 18-29-2(m) as "any differences
in the treatment of employees unless such differences are related to the actual job
responsibilities of the employees or agreed to in writing by the employees."
3. In order to establish a
prima facie case of discrimination under
W. Va. Code
§ 18-29-2(m), a grievant must demonstrate the following:
(a) that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his employer in a manner
that the other employee(s) has/have not, in a significant particular;
(c) that such differences were unrelated to actual job responsibilities of the
grievant and/or the other employee(s) and were not agreed to by the
grievant in writing.
Kirchner v. W. Va. Dep't of Educ., Docket No. 94-DOE-569 (Sept. 26, 1995);
Steele v.
Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
See Flint v. Harrison
County Bd. of Educ., No. 25898 (W. Va. Sup. Ct. of Appeals Dec. 10, 1999);
Martin v.
Randolph County Bd. of Educ., 195 W. Va. 297, 465 S.E.2d 399 (1995).
4. Once a grievant establishes a
prima facie case of discrimination, the
employer can then offer a legitimate reason to substantiate its actions. Thereafter, the
grievant may show that the offered reasons are pretextual.
Deal v. Mason County Bd. of
Educ., Docket No. 96-26-106 (Aug. 30, 1996).
See Tex. Dep't of Community Affairs v.
Burdine, 450 U.S. 248 (1981);
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178
W. Va. 53, 365 S.E.2d 251 (1986).
5. Although Grievant established a
prima facie case of discrimination in regard
to his exclusion from teaching overload classes for WVSC's Community & Technical
College or teaching outreach courses for CEES, WVSC established legitimate, job-related
reasons for these actions. 6. Harassment is defined by
W. Va. Code § 18-29-2(n) as "repeated or
continual disturbance, irritation or annoyance of an employee which would be contrary to
the demeanor expected by law, policy or profession."
7. Inasmuch as a preponderance of the evidence demonstrates that none of Dr.
Bilicic's actions in these matters when dealing with Grievant in person or in writing was
"contrary to the demeanor expected by law, policy or profession," Grievant failed to
demonstrate that he was the victim of harassment as defined in
W. Va. Code § 18-29-2(n).
See Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995);
Eagle v. Marion County Bd. of Educ., Docket No. 94-24-226 (Nov. 23, 1994).
8. Reprisal is defined as "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 address it."
W. Va. Code § 18-29-2(p). A grievant claiming retaliation
may establish a
prima facie case of reprisal by presenting evidence as follows:
(1) that he/she engaged in protected activity,
e.g., filing a grievance;
(2) that he/she was subsequently treated in an adverse manner by the
employer or an agent;
(3) that the employer's official or agent had actual or constructive knowledge
that the employee engaged in the protected activity; and
(4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment.
Conner,
supra.
See Frank's Shoe Store,
supra.
9. Although Grievant established a
prima facie case of retaliation prohibited by
W. Va. Code § 18-29-2(p) in regard to his exclusion from overload and outreach courses,WVSC established by a preponderance of the evidence that these actions were taken for
legitimate, job-related reasons.
10. Grievant failed to establish that he was denied merit pay in violation of any
applicable law, policy, rule, or regulation.
Accordingly, this grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha 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.
LEWIS G. BREWER
ADMINISTRATIVE LAW JUDGE
Dated: May 23, 2000
Footnote: 1