DAVID L. JONES,
Grievant,
v.
BRAXTON COUNTY BOARD OF EDUCATION,
Respondent.
Grievant, David L. Jones, filed this grievance directly to Level IV pursuant to
W. Va.
Code § 18A-2-8, challenging his termination by the Braxton County Board of Education
("BCBOE" or "Board"), on June 27, 2000. A pretermination hearing was held before the
Board on June 26, 2000, at which time the Board, by a 3-2 vote, approved the
recommendation of Superintendent Paul Armstrong to terminate Grievant's employment.
On June 30, 2000, Grievant filed this grievance. His Statement of Grievance reads:
Grievant, David Jones' June 27, 2000 termination from the Braxton County
Board of Education School System was not in accordance with West Virginia
law, promigated (sic) rules and/or policies of Braxton County Board of
Education; the allegations, which led to the termination are false or incorrect
and, even if assuming arguendo they are true, do not support a finding of
termination.
The Relief Sought was to be "reinstated; awarded back pay, if any, plus interest;
and be compensated for any loss of benefits during the pendency of this appeal; removal
of any record of this discipline from any personnel records or other records; attorney fees
and expenses."
After several continuances, a Level IV hearing was held on August 18, 2000 and
October 12, 2000.
(See footnote 1)
The case was to become mature for decision on November 20, 2000. However, since Grievant's attorney requested to place new evidence in the record through
an affidavit, as well as an article on complaint investigations, submitted with his fact/law
proposals, the case did not become mature for decision until November 29, 2000, after
receipt of BCBOE's response/objection to Grievant's request.
(See footnote 2)
Issues and Arguments
Respondent contends it has proven the charges against the Grievant, and that the
investigation followed the required process outlined in its sexual harassment policy.
Further, BCBOE notes that because Grievant was suspended for one month in May 1999,
for the same type of behavior, he was on notice that these type of remarks constituted
sexual harassment and would not be tolerated. Respondent notes Grievant's prior
suspension was upheld by this Grievance Board.
(See footnote 3)
Grievant makes two arguments. One, he did not do the things of which he is
accused, and in the alternative, if he did do them they were not intentional and should not
result in the harsh penalty of termination. Grievant also asserts the investigation was
flawed, and the Board's vote did not follow the required procedures.
In reply to Grievant's arguments about the investigation and the termination vote,
Respondent demonstrated the process followed for the investigation comported with theprocedure outlined in the Sexual Harassment Policy, and it placed into evidence the rules
and policy for newly elected Board members.
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 by the Board as a math teacher at Braxton County High
School.
2 During the 1997-98 school year, BCBOE adopted a sexual harassment
policy. Sexual harassment training is required of all Board employees on a yearly basis,
and Grievant has completed this training several times. Prior to the start of the 1999 -
2000 school year, all Braxton County High School teachers received staff development.
A portion of this time was dedicated to a review of the Sexual Harassment Policy. Grievant
was in attendance.
3. Grievant was suspended without pay for the remainder of the school year on
May 6, 1998, for alleged "immoral conduct" in violation of the Board's Sexual Harassment
Policy, specifically for making "lewd sexual comments" in the classroom. These remarks
were ones that could be called double entendres or comments which could be taken two
ways. Although Grievant's remarks were found not to intend to cause discomfort for the
students, and were meant to be jokes, they were inappropriate and suggestive of sexual
content. 4. Grievant received a pre-suspension hearing on May 19, 1998, and this
suspension was affirmed. The suspension was grieved and denied by this Grievance
Board. See n. 2, infra.
5. Prior to the start of the 1999 - 2000 school year, some parents knew about
Grievant's suspension, the reasons for it, and were worried about their children being
placed in Grievant's classroom. K.F. discussed the issue with her mother, and K.F. told
her mother she did not think there would be any problems as Grievant had been told not
to act that way any more. K.F.'s mother agreed to allow K.F. to take Grievant's math class.
6. The Braxton County Classroom Teacher Job Description identifies behavior
expected of all teachers. Among other anticipated behaviors, teachers are expected to:
1) foster a classroom climate conducive to learning; 2) communicate effectively with
students; 3) follow established school discipline procedures; 4) establish procedures and
rules that enhance learning; 5) treat students in a fair and equitable manner; 6) create an
environment that supports learning; 7) adhere to established laws, policies, rules, and
regulations; and 8) interact appropriately with students. Resp. Ex. No. 12, at Level IV.
7. In a letter dated June 6, 2000, Superintendent Armstrong informed Grievant
he would recommend his termination for making inappropriate remarks in math class "that
had sexual connotations/innuendoes"; failing to enforce the Sexual Harassment Policy
when a male student made an inappropriate remark to a female student; and using the
word "nigger" in the presence of fellow employees. 8. On June 26 - 27, 2000, a pretermination hearing was held by BCBOE with
testimony taken and arguments made.
(See footnote 4)
Grievant was represented by legal counsel.
9. During the pretermination hearing, the newly elected members listened to
the evidence and went into executive session to discuss the matter after the presentation
of evidence. Although the members did participate in this discussion, they did not vote
when BCBOE returned to regular session. This type of participation has been the past
practice of BCBOE, and it is set forth in Policy BBB which states: "the electee shall be
invited to attend Board meetings and participate in its discussions." Resp. Ex. No. 16, at
Level IV. If the pretermination hearing had not been completed prior to the end of the June
26, 2000 Board meeting, the rest of the hearing would have been held before the new
members.
10. During the school year, K.F. complained to her parents that Grievant
occasionally made statements in class that embarrassed her or made her feel
uncomfortable.
(See footnote 5)
She also described the situations as "yucky" or "gross". Although her
mother wanted to discuss the situation with the principal, K.F. asked her mother to please
not go to school to complain. K.F.'s mother acquiesced with K.F.'s request. K.F. told her
mother about the incidents described in Findings of Fact 11 - 13 closely in time to their
occurrence. 11. One time K.F. dropped her pencil. When she bent over to pick it up, another
student, R.D., told K.F. she had nice jeans on. Grievant stated, "Yes, she does fill them
out nicely." K.F. was embarrassed by this remark. Test. of K.F., H.B., K.F.'s mother, R.D.
at Level IV Hearing.
12. Another time K.F. asked for help with a math problem. Grievant went to her
desk to offer assistance, and while he was there he leaned closely toward K.F. and
breathed on her neck. When K.F. asked him what he was doing, he told her he was
"admiring her scent." He then explained his wife could not wear perfume as she had
allergies to various chemicals. K.F. thought this remark was "gross". Another student who
overheard the remark thought this statement was "disgusting". Test. K.F., H.B. at Level
IV Hearing. See n. 8, supra.
13. One time after Grievant had explained a long way to work a math problem,
he then stated he would now show the students the short cut. K.F. stated she felt like she
was speaking for the whole class when she said she liked the long, slow way better than
the short, quick way. Grievant stated. "I'm sure you do, but lets get back on track." This
remark embarrassed K.F. Test. of K.F., H.B., Grievant at Level IV Hearing.
14. Some students were having trouble with fractions, and E.W. asked which of
the numbers went on top. Grievant stated "the prettier, younger ones went on top."
15. Grievant told the class, when he was talking about a test, "He could whip it
out and have it ready in ten minutes." He then stated that it was that type of remark that
had gotten him in trouble before. R.D. interpreted this remark to also refer to Grievant's
private parts. 16. Grievant has difficulty explaining math concepts to the class. Many students
had poor grades, were failing, or had given up. They did not like to ask questions in class
because Grievant frequently made fun of them, and answered their questions with ,"Duh."
The students referred to this as "being duhhed." The majority of the students believed
Grievant had favorites, and treated the girls better than the boys. Grievant told the class
they were "stupid".
17. E.W. complained R.D. had called her a whore, and asked Grievant if she
could file a sexual harassment complaint. Grievant did not believe she really wanted to
file one as she and R.D. were friends. He told her the forms were in the principal's office.
Grievant did not talk to R.D. about his behavior.
(See footnote 6)
18. Contrary to Grievant's testimony, he did not send R.D. to the office for the
same type of behavior within the classroom later in the semester. He did send R.D. to
detention on November 30, 1999, for disruptive behavior outside the classroom.
19. K.F. usually makes "decent" grades, at least "C's", and has high scores on
the required standardized testing in math and language. Her parents have told her that
sports, in which she was very active, come second to her studies, and if she received bad
grades, she may not be allowed to participate in outside activities.
20. On December 16, 1999, Grievant caught K.F. cheating on a math test. He
took her out in the hall and called another teacher out into the hall to witness the answers
written on K.F.'s arm. The students in these classes observed these events. K.F. thenwent to the office against Grievant's wishes to report her cheating behavior and to call her
mother. While she was there she tearfully told the school secretary, Nancy Herndon, who
is a friend of her mother's, about cheating on the test, and the behavior of Grievant that
had bothered her.
21. K.F.'s mother arranged to meet with Grievant's principal, Mr. Lambert, on the
next day, December 17, 1999. She reported that K.F. had been telling her for some time
that Grievant made her feel dumb when she asked questions in class, and Grievant had
said things that made her feel uncomfortable. The comments she discussed were about
K.F.'s filling out her jeans, the long, slow way, the perfume incident, and the question about
fractions. When Grievant entered this conversation, he denied intentionally making K.F.
feel stupid and stated K.F. did not pay attention in class. Resp. Ex. No. 5, at Level IV.
22. K.F.'s father met with Principal Lambert and Ms. Parmer
(See footnote 7)
on December 20,
1999. He noted his daughter had complained about Grievant's behavior since the first of
the year, and she felt like Grievant made fun of her when she asked questions. He also
reported K.F. felt uncomfortable with inappropriate and suggestive remarks. Grievant then
joined the discussion and stated his remarks had been taken out of context and noted
K.F.'s father had not talked to all the students. Resp. Ex. No. 5, at Level IV.
23. On December 21, 1999, after seeking permission from her mother, E.W. was
interviewed by Ms. Turner, the school counselor, and Ms. Parmer. E.W. reported R.D. had
made "rude" remarks about her "tits", and Grievant winked at her and stated he couldn'tdo anything. E.W. also repeated Grievant made demeaning statements when students
asked questions. She also stated Grievant said "really mean things to K.F. "
24. In late December or early January, Ms. Morna Greene, the Title IX
Coordinator was asked to investigate the complaints made by K.F. and E.W. She received
a report from the school principal with statements from students and parents. Since the
complaints only came from one class, Ms. Greene decided to interview all seventeen
students in the class separately.
25. The first step in the investigation was to talk to the complaining students.
Next, Ms. Greene, with Ms. Turner's input, formulated a list of questions to be asked of
each student.
26. All students in Grievant's fourth period Algebra class were asked the same
questions on January 5, 2000. The first question dealt with general course data. The next
three questions were:
2. Can you briefly tell me about the course?
3. Have you ever felt uncomfortable in Mr. Jones' classroom because of
comments that were of a sexual nature?
4. Have you observed students in Mr. Jones' class making comments or
gestures that were of a sexual nature?
27. In response to Question 2, most students indicated they were having difficulty
in the class, did not understand the material, and received little help from Grievant when
they asked questions because he did not explain the material well. Several students noted
Grievant made them feel stupid when they asked questions, and many reported they were
failing the class. 28. In response to Question 3, half of the students indicated they had felt
uncomfortable in Grievant's class because of sexual comments. Student also reported
being uncomfortable about the remarks Grievant made to K.F., and did not want to be
around Grievant. Beside the examples given above, one student reported Grievant said
working math problems was like stripping, you always put on and take off your clothes the
same way.
29. In response to Question 4, many of the students stated they had not seen
sexual comment or gestures from other students. Interestingly, five students answered this
question by indicating Grievant "picked on" K.F. and made comments that indicated she
was not smart. Several of the students reported the incident when R.D. called E.W. a
name.
30. On January 10, 2000, after Ms. Greene completed the student interviews,
she detailed the information she had received to Grievant and asked to meet with him to
discuss the data.
31. On January 10, 2000, Grievant met with Ms. Greene and denied the
allegations of the students, and he stated the issues that were raised were from the prior
year. He declined to submit anything in writing.
32. On January 13, 2000, Grievant again contacted Ms. Greene to reaffirm he
did not wish to submit anything in writing, but wanted to deny again all the students'
complaints.
33. In her final report on the sexual harassment complaint Ms. Greene found the
allegations were substantiated, and she recommended Grievant's termination as this wasthe second incident of sexual harassment. Ms. Greene followed the proscribed steps
briefly outlined in the Sexual Harassment Policy in conducting the investigation and writing
her report.
34. Later, Ms. Greene also investigated the "N" word incident. This complaint
was substantiated, and Grievant did not deny that he used this word.
(See footnote 8)
35. By letter dated June 6, 2000, Superintendent Armstrong notified Grievant he
was suspended immediately, with pay, until the meeting of BCBOE on June 26, 2000. He
noted the two investigations by Ms. Greene. One to do with sexual harassment during the
fall semester, and the other with the use of the word "nigger" on April 5, 2000. Both
investigations found the allegations were proven. The use of the racial slur was not found
to constitute a racially hostile environment since it was an isolated event, but the use of
this term was found to be "very inappropriate and will not be tolerated." Superintendent
Armstrong noted he would recommend Grievant's termination at the BCBOE meeting.
36. At the June 26, 2000 Board meeting, a pretermination hearing was
conducted and after deliberation, the Board voted 3 - 2 to terminate Grievant.
37. In the seventh and eighth grade, K.F. and R.D. were frequently admonished
in math class for using language with sexual connotations. Their teacher, Ms. Donna
Combs, disciplined K.F. and R.D. within the classroom setting for their inappropriate
remarks. Ms. Combs noted she believed it was her responsibility to deal with sexual
harassment when she observed it in the classroom setting. 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 not
met its burden. Id.; See Adkins v. Smith, 142 W. Va. 772, 98 S.E.2d 712 (1957); Burchell
v. Bd. of Trustees/Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).
The issues raised by this grievance will be addressed one at a time.
I. Credibility
The first issue to address is credibility. Although some facts pertinent to this matter
are not in dispute, the description of the specific events which generated this disciplinaryaction presented by Respondent's witnesses was different from Grievant's testimony
regarding the same events. An Administrative Law Judge is charged with assessing the
credibility of the witnesses that appear before her. See Lanehart v. Logan County Bd. of
Educ., Docket No. 95-23-235 (Dec. 29, 1995); Perdue v. Dep't of Health and Human
Resources/Huntington State Hosp., Docket No. 93-HHR-050 (Feb. 4, 1993). In these
circumstances, where the existence or nonexistence of certain material facts hinges on
witness credibility, detailed findings of fact and explicit credibility determinations are
required. Maxey v. McDowell County Bd. of Educ., Docket No. 97-33-208 (Apr. 30, 1998);
Hurley v. Logan County Bd. of Educ., Docket No. 97-23-394 (Dec. 11, 1997). See Pine
v. W. Va. Dep't of Health & Human Resources, Docket No. 95-HHR-066 (May 12, 1995).
See also Harper v. Dep't of the Navy, 33 M.S.P.R. 490 (1987). "The fact that [some of] this
testimony is offered in written form does not alter this responsibility." Browning v. Mingo
County Bd. of Educ., Docket No. 96-29-154 (Sept. 30, 1996).
The United States Merit Systems Protection Board Handbook ("MSPB Handbook")
is helpful in setting out factors to examine when assessing credibility. Harold J. Asher and
William C. Jackson, Representing the Agency before the United States Merit Systems
Protection Board 152-53 (1984). Some factors to consider in assessing a witness's
testimony are the witness's: 1) demeanor; 2) opportunity or capacity to perceive and
communicate; 3) reputation for honesty; 4) attitude toward the action; and 5) admission of
untruthfulness. Id. Additionally, the administrative law judge should consider 1) the
presence or absence of bias, interest, or motive; 2) the consistency of prior statements;3) the existence or nonexistence of any fact testified to by the witness; and 4) the
plausibility of the witness's information. Id.
The student witnesses were capable of perceiving and communicating, and their
accounts were plausible and consistent with their prior statements, and when they talked
with Ms. Greene and Ms. Turner.
(See footnote 9)
Students who testified at both the pre-suspension
hearing and the Level IV hearing gave consistent testimony.
The students' accounts of the various incidents varied on specific points, as is
typical of eyewitness testimony, but the witnesses who said they saw anything agreed on
the key points of what happened, and what Grievant did. The undersigned Administrative
Law Judge had an opportunity to observe these witnesses, and found no problem with
their demeanor. There was no discussion of the witnesses's honesty or lack thereof.
These teenagers were clear about what they saw and did not see, and what they did and
did not remember. Some of the students were clearly uncomfortable in the hearing setting,
and with the topic of discussion. However, they answered the questions clearly. The
undersigned Administrative Law Judge finds their testimony of all the student witnesses
to be credible. This would include those who reported hearing and seeing various
inappropriate remarks and actions, as well as those who saw nothing.
(See footnote 10)
Grievant clearly brought out that K.F. had a reason for bias, as she was caught
cheating right before she informed the school authorities of Grievant's sexual harassment.
This fact would carry more weight if it were not for the following factors: 1) K.F. had
complained all semester about Grievant's behavior toward her, and these complaints were
confirmed by her parents and other students; 2) K.F. was the one to first inform her mother
of her cheating; and 3) other students confirmed the fact that K.F. was sexual harassed
and/or "picked on" by Grievant in the classroom setting. Accordingly, the undersigned
Administrative Law Judge finds K.F. testimony to be credible as it was consistent with prior
statements and testimony, confirmed by her parents and other student witnesses, and in
part, supported by statements from Grievant.
Grievant also questioned the credibility and ability of Ms. Greene, and the method
by which she conducted the investigation. The undersigned Administrative Law Judge saw
no evidence that Ms. Greene was prejudiced against Grievant, or was other than truthful
in what she observed and reported from the students.
As for Grievant, the undersigned Administrative Law Judge believes Grievant did
not intend to actually sexually harass these students, and perhaps he said things that he
thought were clever and/or entertaining. The undersigned Administrative Law Judge does
not find Grievant to be credible when he states he did not say the remarks attributed to
him. Additionally, Grievant did somewhat confirm he made some of the remarks attributed
to him. He noted that, at times, he told students they "smelled good". He also testified that
after R.D. made the jean comment, he said, "That may or may not be true but let's get back
to work." He noted at Level IV hearing that he probably should not have made thiscomment. Further, the undersigned Administrative Law Judge does not find Grievant
believable when he tries to place the blame on the students, and states they were the ones
making remarks, and he was only trying to get their attention back on track.
II. Hearsay
Respondent, in addition to the testimony of three student witnesses, submitted
written statements from the rest of the students in Grievant's Algebra class.
(See footnote 11)
These
statements are obviously hearsay, but relevant hearsay is admissible in administrative
hearings. See W. Va. Code §18-29-6. The key questions are whether these statements
are credible, and what weight, if any, to give this testimony.
In Borninkhof v. Department of Justice, 5 MSBP 150 (1981), the Merit Systems
Protection Board identified several factors that affect the weight hearsay evidence should
be accorded. These factors are: 1) the availability of persons with first hand knowledge
to testify at the hearings; 2) whether the declarants' out of court statements were in writing,
signed, or in affidavit form; 3) the agency's explanation for failing to obtain signed or sworn
statements; 4) whether the declarants were disinterested witnesses to the events, and
whether the statements were routinely made; 5) the consistency of the declarants'
accounts with other information, other witnesses, other statements, and the statement
itself; 6) whether collaboration for these statements can be found in agency records; 7) the
absence of contradictory evidence; and 8) the credibility of the declarants when they made
their statements. Id.; Perdue, supra; Seddon v. W. Va. Dep't of Health/Kanawha-
Charleston Health Dep't, Docket No. 90-8-115 (June 8, 1990). All students were asked the same questions, and their answers were written down
word for word for the most part. Some said they saw nothing, some said they did not pay
attention in class, and quite a few of the students confirmed some of the statements made
by K.F., and noted that at times Grievant made them feel uncomfortable or said something
off color. Quite a few noted Grievant seemed to "pick" on K.F., and he told her she was
"not smart."
In reviewing the Borninkhof factors to assess what weight to give this hearsay, the
above information was examined. The undersigned Administrative Law Judge finds these
written statements should be given some weight as they were basically consistent and
corroborate each other. The credibility of these individual declarants was not attacked.
III. Merits of the case
W. Va. Code §18A-2-8 identifies the types of action that can result in disciplinary
action and provides, in pertinent part:
Notwithstanding any other provisions of law, a board 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 or a
plea of nolo contendere to a felony charge. A charge of unsatisfactory
performance shall not be made except as the result of an employee
performance evaluation pursuant to section twelve of this article.
The next issue to decide is whether Grievant's behavior substantiates the charges
against him. The undersigned Administrative Law Judge finds the behavior of Grievant
can be viewed under the following charges of W. Va. Code § 18A-2-8: immorality and
insubordination.
A. Immorality
The term "immorality' in W. Va. Code § 18A-2-8 connotes conduct "not in conformity
with accepted principles of right and wrong behavior; contrary to the moral code of the
community; wicked; especially not in conformity with the acceptable standards of
acceptable sexual behavior." Golden v. Bd. of Educ., 169 W. Va. 63, 285 S.E.2d 665
(1981). Conduct which constitutes prohibited sexual harassment is included within the
proscription against immorality in W. Va. Code § 18A-2-8. Harry v. Marion County Bd. of
Educ., 203 W.Va. 64, 506 S.E.2d 319 (1998). Further, "[m]isconduct by a school
employee which can be characterized as sexual harassment can constitute a basis for the
termination of the offending employee's employment." Id. at Syl. Pt. 2. See Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993); Bradley v. Cabell County Bd. of Educ., Docket
No. 99-06-150 (Sept. 9, 1999); Laneheart v. Logan County Bd. of Educ., Docket No. 97-
23-088 (June 13, 1997).
At the time of the alleged incidents, BCBOE had adopted a Sexual Harassment
Policy. Resp. Ex. No. 8, at Level IV. This Policy closely follows the State Board of
Education Policy and indicates sexual harassment is prohibited as it adversely effects the
learning environment of students. The Policy notes sexual harassment can take many
forms, and includes verbal harassment, sexual words with demeaning implications,
unwelcome words directed at individual because of his/her gender, and verbal comments
about an individual's body. The Policy notes sexual harassment can interfere with an
individual's education and can create a hostile, intimidating, and offensive environment.
The undersigned Administrative Law Judge is persuaded that the events describedby many of the students, in general, and K.F. and H.B. and E.W., in particular, accurately
portray Grievant's conduct. The comments described unquestionably represent remarks
which a reasonable teenager would find offensive, demeaning, or embarrassing, and which
would tend to interfere with their work, studies, or comfort level in the school setting.
While Grievant may not have intended this result, Grievant's intentions are unimportant.
He made remarks in poor taste which had sexual connotations and singled out one fifteen
year old female in particular to harass. It is unclear why Grievant choose to torment K.F.,
and it is unfortunate she did not allow her parents to intervene in this situation sooner.
Additionally, Grievant's remarks to other students and the class in general were
inappropriate. Saying he could "whip it out and have it ready in ten minutes" is like
pouring oil on a fire when said with a leer and/or a wink in front of teenagers. Grievant
clearly knew what he was doing in this situation because he followed this remark with the
statement that it was that kind of comment that had gotten him in trouble in the past. This
particular situation either demonstrates Grievant's inability to learn from his past mistakes,
or his failure to realize the seriousness of his prior behavior and previous suspension.
As previously discussed, conduct which involves prohibited sexual harassment also
constitutes immorality as defined under W. Va. Code § 18A-2-8. Willis v. Jefferson County
Bd. of Educ., Docket No. 96-19-230 (Oct. 28, 1998). See Harry, supra. Such conduct is
prohibited by BCBOE's Sexual Harassment Policy. Further, Grievant's conduct was shown
to be intentional, not inadvertent, accidental, or resulting from a simple misunderstanding.
See Bradley, supra; Burns v. McGregor Elec. Indus., 955 F.2d 559 (8th Cir. 1992); Wilson
v. Wayne County, 856 F. Supp. 1254 (M.D. 1994). Additionally, the conduct Grievantexhibited in this grievance was the same conduct he had previously been directed to
cease. BCBOE has demonstrated by a preponderance of the credible evidence that
Grievant engaged in the acts charged, and which led to his termination. BCBOE has also
proven this conduct constitutes sexual harassment and immorality. Harry, supra.
B. Insubordination
Grievant's behavior can also be viewed as insubordination. 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). 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). (Cf. Rogliano v.
Fayette County Bd. of Educ., Docket No. 94-10-164 (Oct. 25, 1994), where it was
determined that "Grievant was given ample opportunity and notice that disciplinary action
would be taken against him . . . ."). "Employees are expected to respect authority and do
not have the unfettered discretion to disobey or ignore clear instructions." Reynolds v.
Kanawha-Charleston Health Dep't, Docket No. 90-H-128 (Aug. 8, 1990).
Grievant knew what type of behavior was and was not expected of him in regard to
his interactions with the students in his charge. The prior suspension he received clearly
notified Grievant what types of actions were inappropriate and unacceptable and wouldnot be allowed. Grievant's decision to disregard the explicit directions given to him
constitutes insubordination. Thus, BCBOE has established Grievant knowingly violated
its policies, his supervisor's directions, and was insubordinate. BCBOE has also
demonstrated that Grievant's conduct was insubordinate because it involved a deliberate
violation of BCBOE's Sexual Harassment Policy.
The undersigned Administrative Law Judge also finds Grievant should have dealt
with R.D.'s remarks to E.W. when this situation was brought to his attention. As reflected
in the teacher's Job Description and Ms. Combs testimony, it is the responsibility of the
classroom teacher to enforce policies and maintain an appropriate classroom atmosphere
conducive to learning.
IV. Investigation
Although Grievant argued the investigation was flawed, he did not prove this
accusation. The Sexual Harassment Policy outlines the process to follow during an
investigation. These steps were followed.
(See footnote 12)
Resp. Ex. No. 8, at Level IV at 5, 6. The
undersigned Administrative Law Judge did not find Ms. Greene's investigation to be
inappropriate, incorrect, or flawed. See Findings of Fact 24 - 26, 30, 31, 33, 34, infra.
V. Mitigation/Severity of Penalty
The argument that Grievant's termination is excessive given the facts of the
situation, is an affirmative defense, and Grievant bears the burden of demonstrating thepenalty 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; 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 a
case 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. Considerable deference is afforded the employer's
assessment of the seriousness of the employee's conduct and the prospects forrehabilitation." 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 v. Cabell County Bd. of
Educ., Docket No. 97-06-150 (Oct. 31, 1997).
In assessing the above-cited factors and considering the proper standard of review,
the undersigned Administrative Law Judge finds, Grievant knew his actions were against
BCBOE's Policy and the expected behavior of a teacher. Grievant was warned these
types of actions were inappropriate. Respondent demonstrated Grievant continued to
violate the Policy and expectations even after he received a suspension. Thus, mitigation
is not appropriate in this situation.
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. Insubordination and immorality are among the causes listed in W. Va. Code
§18A-2-8 for which an education employee may be disciplined. See Rovello v. Lewis
County Bd. of Educ., 181 W. Va. 122, 381 S.E.2d 237 (1989); Beverlin v. Bd. of Educ.,
158 W. Va. 1067, 216 S.E.2d 554 (1975); Woo v. Putnam County Bd. of Educ., Docket
No. 93-40-420 (June 2, 1994), aff'd 202 W. Va. 409, 504 S.E.2d 644 (1998); Jones v.
Mingo County Bd. of Educ., Docket No. 95-29-151 (Aug. 24, 1995).
4. Immorality connotes conduct which is "not in conformity with accepted
principles of right and wrong behavior; contrary to the moral code of the community;
wicked, especially, not in conformance with the acceptable standards of proper sexual
behavior," as defined in Webster's Dictionary. Golden v. Bd. of Educ., 169 W. Va. 63, 285
S.E.2d 665 (1981). Accord, Rosenburg v. Nicholas County Bd. of Educ., Docket No. 34-
86-125-1 (Aug. 4, 1986).
5. BCBOE properly determined Grievant's behavior constituted acts of
immorality under W. Va. Code § 18A-2-8.
6. A county board of education may properly discipline an employee who
violates the board's sexual harassment policy, and sexual harassment "may be considered
as a species" of immorality. Harry v. Marion County Bd. of Educ., 203 W. Va. 64, 506
S.E.2d 319 (1998); Willis v. Jefferson County Bd. of Educ., Docket No. 96-19-230 (Oct.
28, 1998).
7. "Misconduct by a school employee which can be characterized as sexual
harassment can constitute a basis for the termination of the offending employee's
employment." Harry, supra. 8. BCBOE has met its burden of proof by a preponderence of the evidence and
demonstrated Grievant is guilty of immorality and sexual harassment.
9. Insubordination includes "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).
10. "Insubordination encompasses more than an explicit order and refusal to
carry it out. It may also involve a flagrant or willful disregard for implied directions of an
employer." Nicholson, supra; Sexton v. Marshall Univ., Docket No. BOR2-88-029-4
(May 20, 1988), aff'd 182 W. Va. 294, 387 S.E.2d 529 (1989).
11. In order to establish insubordination, the employer must demonstrate that the
employee's failure to comply with a directive 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).
12. "Employees are expected to respect authority and do not have the unfettered
discretion to disobey or ignore clear instructions." Reynolds v. Kanawha-Charleston
Health Dep't, Docket No. 90-H-128 (Aug. 8, 1990), citing Meads v. Veterans Admin., 36
M.S.P.R. 574 (1988); Daniel v. U.S. Postal Serv., 16 M.S.P.R. 486 (1983); Davis v.
Smithsonian Inst., 13 M.S.P.R. 77 (1983). 13. BCBOE properly determined Grievant's conduct, which directly contravened
multiple provisions in its policy prohibiting sexual harassment, constituted insubordination
under W. Va. Code § 18A-2-8.
(See footnote 13)
Id.
14. The investigation conducted by Ms. Greene followed the appropriate
guidelines set forth in the Sexual Harassment Policy.
15. An allegation that a particular disciplinary measure is disproportionate to the
offense proven, or otherwise arbitrary and capricious, is an affirmative defense and the
grievant bears the burden of demonstrating that the penalty was clearly excessive, or
reflects an abuse of the employer's discretion, or an inherent disproportion between the
offense and the personnel action. Conner v. Barbour County Bd. of Educ., Docket No. 94-
01-394 (Jan. 31, 1995). See Martin v. W. Va. Fire Comm'n, Docket No. 89-SFC-145 (Aug.
8, 1989).
16. 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). 17. Given the fact that Grievant was clearly informed of the applicable policies,
and was placed on notice that his behavior was unacceptable, the penalty is not
disproportionate or excessive nor is the penalty arbitrary and capricious. See Lanehart,
supra; Bailey v. Logan County Bd. of Educ., Docket No. 93-23-383 (June 23, 1994); Bell
v. Kanawha County Bd. of Educ., Docket No. 91-20-005 (Apr. 16, 1991).
Accordingly, this grievance is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County. Any
such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code
§ 18-29-7. Neither the West Virginia Education and State Employees Grievance Board
nor any of its Administrative Law Judges is a party to such appeal, and should not be so
named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve
a copy of the appeal petition upon the Grievance Board. The appealing party must also
provide the Board with the civil action number so that the record can be prepared and
properly transmitted to the appropriate circuit court.
___________________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: December 29, 2000
Footnote: 1 1 Grievant was by attorney Todd Twyman, and Respondent was represented by
its attorney Kimberly Croyle.
Footnote: 2 The Board's objection to the submission of this additional material is sustained.
Additional evidence cannot be submitted after the close of testimony over the object of the
other party that has not had the right to respond to the additional material or cross-
examine the witness.
Footnote: 3 Grievant appealed this Decision to the Kanawha County Circuit Court, and an
Order was issued on December 1, 2000, affirming that Decision by the administrative law
judge.
Footnote: 4 This meeting started on June 26, 2000, but did not end until after midnight.
Footnote: 5 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: 6 When this information was elicited during the student interviews, R.D. was
cautioned about his inappropriate behavior by the school counselor. This counseling was
determined to be the appropriate action for the offense.
Footnote: 7 The record does not reflect the title of this employee.
Footnote: 8 There was little testimony submitted by the parties on this incident, but the use of
the word was established.
Footnote: 9 One student witness called by Grievant had originally stated she had not observed
any sexual harassment when interviewed by Ms. Greene. At Level IV, she testified she
did observe the "scent' incident, thought it was odd, and it made her feel uncomfortable.
Footnote: 10 The student witnesses at Level IV who reported no inappropriate remarks stated
they did not hear everything that was said in the classroom and noted they were not
present every day. One student witness stated she did not pay attention to much of
anything that went on in this class.
Footnote: 11 Grievant also called student witnesses to testify.
Footnote: 12 Grievant attempted to say he did not know he was accused of sexual harassment
until the letter of termination. Since Grievant was called in to speak to K.F.'s parents the
day after the complaint in December, and since Grievant was given a copy of Ms. Greene's
report and asked for a response in January, this statement is not credible.
Footnote: 13 BCBOE did not label this behavior as such, but did prove Grievant knowingly
violated the Sexual Harassment Policy of which he was aware.