DAVID JENNINGS,

                              Grievant,

v.


WYOMING COUNTY BOARD OF EDUCATION,

                              Respondent.

DECISION


      David Jennings (Grievant), is employed by Respondent, Wyoming County Board of Education (WCBE), as a bus operator. Grievant alleges that WCBE improperly issued a letter of reprimand to him for alleged insubordination and willful neglect of duty. This grievance was denied at Level I, on November 2, 1998, by Transportation Director Jimmie Graham (Graham); and at Level II, on or about May 7, 1999, by Chief Administrator James R .McGrady. Level III was bypassed pursuant to W. Va. Code § 18-29-4(c). A Level IV hearing was held on November 29, 1999, before the undersigned Administrative Law Judge, at the Grievance Board's Beckley office. Grievant was represented by John Roush, Esq., and WCBE was represented by Greg Bailey, Esq. The parties were given until January 21, 2000, to submit proposed findings of fact and conclusions of law, and this grievance became mature for decision on that date. The following Findings of Fact have been established by a preponderance of the evidence.
FINDINGS OF FACT

      1.      Grievant has been employed by WCBE as a bus driver for approximately ten years.
      2.      On September 25, 1998, Graham met with Grievant and presented him with a letter from WCBE Superintendent Frank Blackwell, suspending him for three days. See Jennings v. Wyoming County Bd. Of Educ., Docket No. 98-55-379 (Mar. 10, 1999).
      3.      Grievant became angry and slammed the door as he left the meeting.
      4.      Grievant returned to Graham later that day and refused to drive an extra- curricular bus run that he had previously agreed to drive.
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 defined as “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 proved is more probable than not.” Black's Law Dictionary (6th ed. 1991), Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      As a result of the incidents described in Findings of Fact two, three, and four, WCBE issued a letter of reprimand to Grievant for insubordination and willful neglect of duty. Grievant denies that he was insubordinate or willfully neglected his duties, and alleges that his reprimand was issued in retaliation for his filing the grievance that was the subject ofJennings v. Wyoming County Bd. Of Educ., Docket No. 98-55-379 (Mar. 10, 1999). Grievant seeks removal of the letter of reprimand from his personnel file.
      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, and must be exercised reasonably, not arbitrarily or capriciously. Parham v. Raleigh County Bd. of Educ., 192 W. Va. 540, 453 S.E.2d 374 (1994); Bell v. Kanawha County Bd. of Educ., Docket No. 91-20-005 (Apr. 16, 1991); See Beverlin v. Bd. of Educ., 158 W. Va. 1067, 216 S.E.2d 554 (1975).
      W. Va. Code § 18A-2-8 provides, in pertinent part:

      Insubordination is the "willful failure or refusal to obey reasonable orders of a superior entitled to give such order." Riddle v. Bd. of Directors, So. W. Va. Community College, Docket No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). Insubordination may also be found when an employee shows a willful disregard for the implied directions of an employer. Sexton v. Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988), citing Weber v. Buncombe County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980).
      To prove insubordination, an employer must demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, and the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination. Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995). An employer also has the right to expect subordinate personnel "to not manifest disrespect toward supervisory personnel which undermines their status, prestige, and authority . . ." McKinney v. Wyoming County Bd. of Educ., Docket No. 92-55-112 (Aug. 3, 1992)(citing In re Burton Mfg. Co., 82 L.A. 1228 (Feb. 2, 1984)).   (See footnote 1) 
      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. Williams v. Cabell County Bd. of Educ., Docket No. 95-06-325 (Oct. 31, 1996); Jones v. Mingo County Bd. of Educ., Docket No. 95-29-151 (Aug. 24, 1995); Hoover v. Lewis County Bd. of Educ., Docket No.93-21-427 (Feb. 24, 1994). Willful neglect of duty encompasses something more serious than incompetence. Bd. of Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120, 122 (1990); Sinsel v. Harrison County Bd. of Educ., Docket No.96-17-219 (Dec. 31, 1996). Willful neglect of duty may be defined as an employee's intentional and inexcusable failure to perform a work-related responsibility. Adkins v. Cabell County Bd. of Educ., Docket No. 89-06-656 (May 23, 1990).
      WCBE has proven that Grievant was guilty of willful neglect of duty and insubordination. The evidence adduced at Levels II and IV, and in particular Grievant's own credible testimony, supports this conclusion. Grievant testified that he became upset and angry when Graham informed him that he was being suspended for three days, and “possibly” slammed the door as he left the meeting. Although slamming a door is certainly a minor infraction, this Grievance Board has previously held that storming out of a meeting and slamming the door constitutes insubordination. Amar-Abrams v. Dep't of Health and Human Resources/Child Support Enforcement Div., Docket No. 96-HHR-520 (July 2, 1997). Accordingly, Grievant's slamming Graham's door represents the sort of disrespect toward supervisory personnel that constitutes insubordination. McKinney, supra.
      Grievant also confirmed that he refused to drive an extra-curricular run that he had previously committed himself to drive. This caused a hardship to WCBE, as Graham had to find a replacement driver for the run. Grievant attempted to explain his refusal by arguing that he was too upset to make the run safely, but uncontradicted evidence at Levels II and IV proved that Grievant did not offer this explanation to Graham when he told him that he would not drive. Therefore, this explanation seems nothing more than an after- the-fact justification of Grievant's refusal to drive the run. Accordingly, WCBE has proven the intentional and inexcusable failure to perform a work-related responsibility inherent in a charge of willful neglect of duty. Adkins, supra.
      Grievant has failed to establish that he was the victim of retaliation or reprisal by WCBE. “Reprisal” means the retaliation of an employer or agent toward a grievant, witness, representative or any other participant in the grievance procedure either for an alleged injury itself or any lawful attempt to address it. W. Va. Code § 29-6A-2(p).
      To establish a prima facie case of retaliation, the burden is upon a grievant to prove by a preponderance of the evidence 1) that grievant engaged in protected activity, 2) that grievant's employer was aware of the protected activity, 3) that grievant was subsequently treated in an adverse manner by the employer and (absent other evidence tending to establish a retaliatory motivation), 4) that complainant's adverse treatment followed his protected activity within such period of time that the court can infer retaliatory motivation. Frank's Shoe Store v. Human Rights Comm'n., 179 W. Va. 52, 365 S.E.2d 251 (1986), Ruby v. Ins. Comm'n. of W. Va., Docket No. 90-INS-399 (July 28, 1992).
      It is clear from the evidence in this grievance that Grievant had requested a hearing concerning the three day suspension that was the subject of Jennings, supra before he was issued the letter of reprimand that led to the instant grievance, so that WCBE was aware that he might be involved in protected grievance activity. The record also reflects that Grievant was subsequently treated in an adverse manner by being issued the letter of reprimand that led to the instant grievance. However, the undersigned is unable to infer retaliatory motivation from Grievant's letter of reprimand because of the fact that Grievant was insubordinate and wilfully neglected his duty and because the penalty, a letter of reprimand, was reasonable and proportionate to this minor offense.
      WCBE has met its burden of proof. Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
      
CONCLUSIONS OF LAW

      1.      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).
      2.      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, 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).
      3.      W. Va. Code § 18A-2-8 states that a board of education may suspend or dismiss any person in its employment at any time for immorality, incompetency, cruelty,
insubordination, intemperance, willful neglect of duty, unsatisfactory performance, the conviction of a felony or a guilty plea of nolo contendere to a felony charge.
      4.      Insubordination involves the "willful failure or refusal to obey reasonable orders of a superior entitled to give such order." Riddle v. Bd. of Directors, So. W. Va. Community College, Docket No. 93-BOD-309 (May 31, 1994); Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1, 1989). Insubordination may also be found when an employee shows a willful disregard for the implied directions of an employer. Sextonv. Marshall Univ., Docket No. BOR2-88-029-4 (May 25, 1988), citing Weber v. Buncombe County Bd. of Educ., 266 S.E.2d 42 (N.C. 1980).
      5.      In order to establish insubordination, an employer must demonstrate that a policy or directive that applied to the employee was in existence at the time of the violation, and the employee's failure to comply was sufficiently knowing and intentional to constitute the defiance of authority inherent in a charge of insubordination. Conner v. Barbour County Bd. of Educ., Docket No. 94-01-394 (Jan. 31, 1995).
      6.      To prove willful neglect of duty, an employer must establish that the employee's conduct constituted a knowing and intentional act, rather than a negligent act. Williams v. Cabell County Bd. of Educ., Docket No. 95-06-325 (Oct. 31, 1996), Jones v. Mingo County Bd. of Educ., Docket No. 95-29-151 (Aug. 24, 1995), Hoover v. Lewis County Bd. of Educ., Docket No.93-21-427 (Feb. 24, 1994).
      7.      Willful neglect of duty encompasses something more serious than incompetence. Bd. of Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120, 122 (1990); Sinsel v. Harrison County Bd. of Educ., Docket No. 96-17-219 (Dec. 31, 1996). Willful neglect of duty may be defined as an employee's intentional and inexcusable failure to perform a work-related responsibility. Adkins v. Cabell County Bd. of Educ., Docket No. 89-06-656 (May 23, 1990).
      8.      WCBE met its burden of proof and demonstrated, by a preponderance of the evidence, that Grievant was guilty of insubordination and willful neglect of duty.
      Accordingly, this grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Wyoming 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.

                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated: February 10, 2000


Footnote: 1
      1      See Maxey v. McDowell County Bd. of Educ., Docket No. 97-33-208 (Apr. 30, 1997) (Grievant held insubordinate for stomping on her evaluation and threatening to blow her principal's head off with a shotgun); Dilley v. Cabell County Bd. of Educ., Docket No. 97-06-164 (Sep. 19, 1997)(Grievant held insubordinate for falsifying student records); Sinsel v. Harrison County Bd. of Educ., Docket No. 96-17-219 (Dec. 31, 1996)(Grievant held insubordinate for grabbing, threatening, and cursing student); Thompson v. Logan County Bd. of Educ., Docket No. 95-23-127 (July 17, 1995)(Grievant held insubordinate for refusing to meet with his supervisor and refusing to acknowledge his refusal); Arbaugh v. Putnam County Bd. of Educ., Docket No. 90-40-437 (May 22, 1991)(Grievant held insubordinate for refusing to work).