CHERYL PAULEY,
Grievant,
v.
DOCKET NO. 99-20-462
KANAWHA COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Cheryl Pauley, filed this grievance against her employer, the Kanawha
County Board of Education (Board) on November 1, 1999:
Grievant, a regularly employed cook, has been suspended without
pay for 20 days on the grounds of alleged sexual harassment. Grievant
alleges the following:
1.
A violation of West Virginia Code § 18A-2-8.
2.
The Respondent has violated the Grievant's due process
rights due to the failure to timely affirm or reject the
superintendent's recommendation; and by the reopening of the
evidentiary record by the Respondent over Grievant's
objection in order to present additional witnesses solicited by
the principal at Chandler Elementary.
3.
Grievant did not violate the Respondent's sexual harassment
policy and that this policy is void on the basis of vagueness.
4.
That the Respondent has imposed a more severe penalty
upon the Grievant than has been imposed upon other
employees in violation of the sexual harassment policy.
Grievant seeks the removal of any and all references to this
suspension from all records maintained by the Respondent and/or its agents.
Grievant also seeks reimbursement of all wages, benefits and seniority lost
as a result of this suspension and interest on all monetary sums.
Grievant appealed her suspension directly to level four in accordance with
W. Va.
Code § 18A-2-8. A level four hearing was conducted on December 10, 1999, to
supplement the record established in Grievant's pre-disciplinary hearing before the Board.
The pre-disciplinary hearing was conducted on July 12, July 19, and September 10, 1999.
(See footnote 1)
The grievance became mature for decision on January 24, 2000, the deadline for the
parties' submission of proposed findings of fact and conclusions of law. The Board was
represented by James Withrow, Esq., and Grievant was represented by John E. Roush,
Esq., West Virginia School Service Personnel Association.
SUMMARY OF EVIDENCE
Board Exhibits (July 12, 1999 Pre-disciplinary hearing - Vol. I)
(See footnote 2)
Ex. 1 -
June 3, 1999 letter from Johnny Ferrara to Cheryl Pauley.
Ex. 2 -
June 1, 1999 letter from Johnny Ferrara and Christy Nobles to Barry Bowe.
Ex. 3 -
Big Bear receipt dated June 2, 1999.
Ex. 4 -
Kanawha County Board of Education Policy Manual, Sexual Harassment.
Ex. 5 -
Kanawha County Schools Staff Development Workshop Title: Sexual Harassment,
dated December 4, 1998.
Board Exhibits (September 10, 1999 Pre-disciplinary hearing - Vol III).
Ex. 1 -
September 2, 1999 letter from James W. Withrow to Cheryl Pauley.
Ex. 2 -
September 3, 1999 letter from James W. Withrow to Cheryl Pauley.
Joint Exhibit (Level four hearing)
Ex. 1 -
Summary of Sexual Harassment Complaints in Kanawha County from 1997-1999.
Board Exhibits (Level four hearing)
Ex. 1 -
December 1, 1998 memorandum from Karen Simon to Billy Boggess.
Ex. 2 -
October 22, 1998 memorandum from Karen Simon to Billy Boggess.
Testimony
The Board presented the testimony of Gary Hendricks, Linda DuVal, Christy Nobles,
John Ferrara, Carol Greene, Francine Thalheimer, Jean White, Rosie Schofield, Ruth
Lockhart, Kathy Jo Thompson, Barry Bowe, Sarah Blount, and Beverly Lawrence.
Grievant testified in her own behalf, and presented the testimony of Mildred O. Haley,
Cynthia Martin, Billy Boggess, and Karen P. Williams.
PROCEDURAL BACKGROUND
Grievant was notified of the initial charges against her by letter dated June 9, 1999,
from Superintendent Ron Duerring. In this letter the Superintendent informed Grievant she
was suspended with pay effective June 7, 1999, on the basis of nine allegations. The
charges related to failure of Grievant to perform her job duties in an appropriate manner
and of violating the Board's sexual harassment policy by making inappropriate comments
about her principal and a teacher at her school. The allegations concerning the
inappropriate comments quickly became the focus of the complaint against Grievant, and
while some evidence was taken about Grievant's failure to properly perform her job, the
bulk of the evidence and the ultimate punishment was a result of her inappropriate
remarks. A pre-disciplinary hearing on the charges against Grievant was held on July 12,
1999, and July 19, 1999.
Subsequently, additional evidence of a similar nature relating to Grievant's conduct
came to the attention of Superintendent Ron Duerring, and a second notice of charges andhearing was sent to Grievant on September 2 and 3, 1999. A hearing on the additional
charges was held on September 10, 1999, over Grievant's objection. On September 23,
1999, Hearing Examiner Hillary Cowan issued a memorandum to Superintendent Duerring
recommending that Grievant be suspended without pay, issued a formal reprimand, and
be ordered to receive additional training and counseling on the Board's sexual harassment
policy. Superintendent Duerring accepted Ms. Cowan's recommendation, and on
September 28, 1999, he notified Grievant that she was suspended without pay effective
October 4 through October 29, 1999, a period of twenty (20) employment days. The letter
also served as a written reprimand, and Grievant was ordered to receive additional training
and counseling as suggested by Ms. Cowan. The Board ratified the Superintendent's
recommendation and notified Grievant of its decision by letter dated October 22, 1999.
FINDINGS OF FACT
1. Grievant is employed by the Board as a cook. For the four years prior to
filing this grievance, she has been assigned to Chandler Elementary School (Chandler).
2. Grievant attended staff development on sexual harassment on December 4,
1998, which addressed, among other things, same sex relationships.
3. During the spring of 1999, the principal at Chandler, Barry Bowe, began
receiving complaints concerning Grievant's behavior, particularly relating to providing food
services for the Head Start program. 4. On May 27, 1999, the Head Start program sponsored a luncheon with its
CASE
(See footnote 3)
partner. The adults who attended the luncheon were provided their meals for free.
5. Sometime in late May, 1999, Christy Nobles, the Head Start aide, was told
by Grievant that the Head Start students were not allowed to have food from the salad bar.
Grievant also told her that adults in the Head Start program had to pay for their meals. LII
Tr., pp. 35-36. Ms. Nobles discussed this situation with Linda DuVal, the Director of the
Head Start program.
6. On June 1, 1999, Francine Thalheimer, a counselor at Chandler, noticed
there were no large salad bowls on the salad bar. She asked Grievant for a salad bowl,
and Grievant told her she could not have one, because the bowls in stock were the last
ones and they needed to last through the end of the year and the beginning of the next
term. LII Tr., p. 67. Ruth Lockhart, a substitute cook, told Principal Bowe about this
encounter, and he confirmed it with Ms. Thalheimer.
7. Principal Bowe looked into this matter and found there were approximately
1,000 large salad bowls in storage.
8. On June 1, 1999, a substitute cook was called in to work with Grievant. Jean
White, the substitute, worked all day on June 1, 1999. At the end of the day, Grievant told
her to report to work the next day at 6:00 a.m., and that she would make sure the school
secretary knew Ms. White would be working that day. 9. That evening, Ms. White received a call to report to another substitute job
on June 2, 1999. She was unsure whether she should report to that job or go to Chandler.
At approximately 6:10 a.m. on June 2, Ms. White called Grievant to ask her whether she
should report to work, and Grievant answered in the affirmative.
10. Ms. White got to Chandler about 7:30 and Grievant told her everything was
already done, and instructed Ms. White to help with the fish sticks she was preparing.
Grievant was upset with Ms. White for not reporting to work at 6:00 a.m. as directed.
11. Ms. White was concerned about Grievant's behavior, and went to Principal
Bowe around 8:30 or 9:00 a.m. She told Principal Bowe about her confusion regarding the
two substitute jobs, and that Grievant had told her everything was already done. Principal
Bowe told Ms. White she could leave, and that she would be paid for the entire day.
12. In the meantime, Grievant found that Ms. White had left the school, and went
to the school secretary, Rosie Schofield, to tell her not to pay Ms. White. Ms. Schofield
told her Principal Bowe had already directed her to pay Ms. White for the entire day.
13. Also on June 1, 1999, the Head Start teacher, Johnny Ferrara, and the aide,
Ms. Nobles, wrote a letter to Principal Bowe detailing concerns they had with Grievant's
behavior and work performance in relation to the Head Start program. Mr. Ferrara and Ms.
Nobles indicated that these incidents were the culmination of increased hostility by
Grievant toward the Head Start program.
14. A couple of weeks prior to June 2, 1999, Carol Greene, a teacher at
Chandler, told Grievant she would be taking her students on a field trip on June 2, and
would need lunches made up for them. On June 2, Ms. Greene reminded Grievant of thefield trip. Grievant replied that she needed to get bread to make the sandwiches, and
asked Ms. Greene to go purchase the bread. Following a discussion about whether it was
appropriate for Ms. Greene to buy the bread, Ms. Greene went to Big Bear and bought two
loaves of bread.
15. Ms. Greene turned in the receipt for the bread to Ms. Schofield, and told
Principal Bowe what had happened. He was shocked at Grievant's behavior, and
instructed Ms. Greene to document the event.
16. As a result of these incidents, Principal Bowe had a conference with Grievant
on June 2, 1999, at which time he informed her she could seek help from the school's
employee assistance program. Grievant declined this offer.
17. On June 3, 1999, Grievant called Gary Hendricks, Director of Child Nutrition,
and told him about the complaints which had been made against her. Grievant told Mr.
Hendricks that adults and parent volunteers with the Head Start program had been eating
for free at Chandler. Since the school year was almost over, Mr. Hendricks suggested
they talk about this matter in July, once the new school year began.
(See footnote 4)
18. During this conversation, Grievant said something to the effect that, Barry's
boyfriend came in and gets to eat free. Mr. Hendricks took this a reference to a
relationship between Principal Bowe and Johnny Ferrara.
19. Mr. Hendricks talked to Principal Bowe on June 3, 1999, and asked him
whether parent volunteers and adults were eating for free in the Head Start program. Principal Bowe told Mr. Hendricks that he had interpreted the Head Start regulations to
allow parent volunteers to eat free. Mr. Hendricks informed him that this was not correct.
20. Principal Bowe talked to Johnny Ferrara that same day about this matter.
Mr. Ferrara followed up this conversation with a memorandum to Grievant informing her
that three (3) free meals had been provided to adults, and that the school would be
reimbursed for those meals. PH Vol. 1, Ex. 1.
21. Ruth Lockhart, a substitute cook at Chandler, overheard Grievant's telephone
conversation with Gary Hendricks. Rose Schofield, the school secretary, asked Ms.
Lockhart what Grievant and Mr. Hendricks were talking about. Ms. Lockhart told her
Grievant said Principal Bowe and Johnny Ferrara were lovers.
22. Kathy Jo Thompson, a substitute custodian, heard Grievant refer to Principal
Bowe and Mr. Ferrara as butt buddies.
23. Rose Schofield heard Grievant comment that Principal Bowe was nice as
long as you don't mess with his boyfriend.
24. Sarah Blount, a behavior disorder aide, heard Grievant refer to Principal
Bowe as a faggot.
25. Beverly Lawrence, a special education aide, heard Grievant say, I don't
have to do anything that faggot says. Grievant was alone in the kitchen and did not know
Ms. Lawrence had come into the kitchen when she said this. Grievant was venting alone,
or so she thought.
26. On June 4, 1999, Principal Bowe learned that Grievant had talked to Mr.
Hendricks and Sue McCracken, the President of the Kanawha County School ServicePersonnel Association. He also heard that Grievant was spreading rumors about him,
although the record does not indicate exactly how he found this out, or who told him.
27. On that Friday, June 4, 1999, Principal Bowe wrote a letter to Superintendent
Ron Duerring reporting what he had heard from employees at Chandler regarding
Grievant's alleged comments, and asking for guidance. Superintendent Duerring
consulted with Bill Courtney, Director of Personnel, and determined that Grievant should
be suspended with pay, and communicated that to Principal Bowe.
28. On Sunday, June 6, 1999, Principal Bowe called Grievant at home and told
her she was being suspended with pay, effective June 7, 1999, through the end of the
school year.
29. Principal Bowe reported Grievant's conduct to Carolyn Cloer, the Title IX
Hearing Examiner.
30. Mildred Haley, retired Head Start aide, and Cynthia Martin, speech language
pathologist, have never heard Grievant call Principal Bowe or Mr. Ferrara any derogatory
names, or make reference to a romantic relationship between them.
31. Ruth Lockhart, the substitute cook, gossiped continually about everybody
and everything, and used negative terminology regarding Principal Bowe and Mr. Ferrara.
Several staff members commented that Mr. Ferrara got special treatment from Principal
Bowe, including Ruth Lockhart, Rose Schofield, and Mary Ellis, a kindergarten teacher.
As indicated above, the charges relating to Grievant's uncooperative attitude and
work performance were not the focus of the Board's ultimate decision to discipline her. It
was the alleged comments she made about Principal Bowe and Mr. Ferrara which were
the subject of the suspensions with and without pay. Therefore, the issue here is whether
the Board has proven by a preponderance of the evidence the charges against Grievant,
which include immorality, insubordination, and violation of the Board's Sexual Harassment
Policy.
Grievant alleges she was denied due process by the Board. She further denies she
engaged in name-calling, and denies spreading rumors about Mr. Bowe and Mr. Ferrara.
She contends another employee at Chandler, Ruth Lockhart, is the one who engaged in
gossip and rumors attributed to Grievant. Grievant contends her twenty-day suspension
without pay is a disproportionate punishment to the alleged offense. Finally, Grievant
contends she did not violate the Board's Sexual Harassment Policy, or in the alternative,
that it is too vague to support the disciplinary action taken against her.
DISCUSSION
Before addressing the charges against Grievant, her argument that her due process
rights were violated will be addressed. Following a conversation with Superintendent
Duerring, Principal Bowe called Grievant on Sunday, June 6, 1999, and informed her she
was being suspended with pay, effective June 7, 1999. Two days later, on June 9, 1999,
Superintendent Duerring issued a letter to Grievant notifying her of the charges against
her. Grievant remained on suspension with pay until her pre-disciplinary hearing was heldon July 12 and 19, 1999. Following the close of the hearing, Grievant remained on
suspension with pay, pending the decision of the Hearing Examiner. No decision was
forthcoming from the Hearing Examiner, and two months later, on September 2, 1999,
Grievant was informed the hearing was being reopened to allow the Board to present
additional witnesses. Over Grievant's objection, the hearing was reopened on September
10, 1999, and the Hearing Examiner finally issued her recommendation on September 23,
1999. Thereafter, the Superintendent recommended to the Board that Grievant be
suspended without pay for twenty days, and the Board accepted that recommendation on
September 28, 1999. Grievant was suspended without pay from October 4 through
October 29, 1999. All told, Grievant had been suspended from her employment for a
period of over four months, twenty days of which was without pay.
(See footnote 5)
Grievant contends she was denied her due process rights in several regards. First,
she alleges there has been no showing that her immediate removal from the school by
Principal Bowe was warranted by the facts in this grievance. Grievant further alleges
there was no legitimate reason for the Board to require her to remain on suspension, albeit
with pay, for a period of three months, pending the final decision of the Board to suspend
her, yet again, without pay for twenty additional days.
An employee has a recognized entitlement or property interest not only in the right
to continued employment but also in the right to receive his or her benefits and pay.
Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 20, 100 S. Ct. 2457, 1566, 56L.Ed. 2d 30, ___ (1978). "[S]chool employees have a property interest in continued
uninterrupted employment and due process safeguards must be provided when a county
board of education seeks to deprive employees of that interest."
Knauff v. Kanawha
County Bd. of Educ., Docket No. 20-88-095 (Jan. 10, 1989). The West Virginia Supreme
Court in
Board of Education of the County of Mercer v. Wirt, 192 W. Va. 568, 453 S.E.2d
402 (1994), determined what due process is required to
terminate a continuing contract
of employment. However, the due process rights afforded an individual for less than a
termination, or "a temporary deprivation of rights may not require as large a measure of
procedural due process protection as a permanent deprivation.
Waite v. Civil Serv.
Comm'n, 161 W. Va. 154, 241 S.E.2d 164 (1978) (citing
North v. Bd. of Regents, 160 W.
Va. 248, 233 S.E.2d 411 (1977)). Prior to a thirty-day suspension without pay, Waite, a
civil service employee, had a sufficient property interest to require notice of the charges
and an opportunity to present her side of the story to the decision-maker.
Waite at 170.
Further, the West Virginia Supreme Court of Appeals has recognized that "due process
is a flexible concept, and that the specific procedural safeguards to be accorded an
individual facing a deprivation of constitutionally protected rights depends on the
circumstances of the particular case."
Buskirk v. Civil Serv. Comm'n, 175 W. Va. 279, 332
S.E.2d 579 (1985) (citing
Clark v. W. Va. Bd. of Regents, 166 W. Va. 702, 279 S.E.2d 169,
175 (1981)).
In determining "what process is constitutionally due," the United States Supreme
Court, in
Gilbert v. Homar, 520 U.S. 924 (1997), enunciated three factors to be balanced:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest." Matthews v. Eldridge,
424 U.S. 319, 335 (1976). See also, e.g., [FDIC v. ] Mallen, [486 U.S. 230,
242 (1988)] . . . ; Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982).
The West Virginia Supreme Court of Appeals has found these factors to be "germane to
a selection of an appropriate procedure under our [West Virginia Constitution] Due
Process Clause," and applied these factors in
Waite,
supra. The Court also found in
Waite, discussing the
de minimus concept espoused in
Goss v. Lopez, 419 U.S. 565
(1975), that a ten-day suspension without pay was not such a minimal deprivation that no
due process procedure need be afforded.
Accordingly, a tenured employee is entitled to a pre-suspension hearing, not a full
adversarial hearing, and an opportunity to respond to the charges, when the suspension
is without pay.
Buskirk at Syl. Pt. 3.
An employee is also entitled to written notice of the
charges and an explanation of the evidence.
Wirt,
supra. In other words, a pre-
suspension hearing, explanation of the evidence, and an opportunity to respond is all the
due process that the Board was required to provide.
Id. at Syl. Pt. 3;
See W. Va. Code
§18A-2-8.
However, an exception to the requirement that a pretermination hearing must be
conducted has been recognized when it can be found that the government's interest at
stake in ridding itself of an ineffective or untrustworthy public employee and its need for
quick action outweighs that employee's private interests.
See Barry v. Barchi, 443 U.S.
55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979);
Hughes v. Whitmer, 714 F.2d 1407 (8th Cir.1983),
cert. denied, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984). These cases
dealt with pretermination suspensions without pay, and not dismissals, and these holdings
have been brought into question by the Supreme Court's statement in
Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed. 2d 494 (1985), that in those
situations where the employer perceives a significant hazard in keeping the employee on
the job, it can avoid the problem by suspending with pay.
Loudermill, p. 545.
It is not the rule that every public employee has a right to a pre-deprivation hearing
in all circumstances.
See,
D'Acquisto v. Washington, 650 F.Supp. 594, 613 (N.D.Ill.
1986). In fact, the Supreme Court had upheld various administrative decisions depriving
one of a property right without a pre-deprivation hearing prior to deciding
Loudermill.
See
D'Acquisto, pp. 612-13, citing,
Goss,
supra (school may suspend dangerous or disruptive
student without prior hearing);
Phillips v. Commissioner, 283 U.S. 589, 51 S.Ct. 608, 75
L.Ed.2d 1289 (1931)(post-deprivation procedures for tax disputes justified by government
need for revenue);
Barchi,
supra (horse trainer's license suspended after showing of
probable cause that horse had been drugged). This line of cases establishes what can
best be called an emergency exception to the presumption that a pre-deprivation hearing
must be conducted in all circumstances before a property right may be suspended or
removed.
While it is clear what due process must be afforded an employee who is suspended
without pay, it appears the same is not required when an employee is suspended with pay.
In
Loudermill,
supra, the Court observed that, in those situations where the employer
perceives a significant hazard in keeping the employee on the job, it can avoid the problem[of pre-deprivation due process] by suspending with pay.
See also Gilbert,
supra. Thus,
the Court recognizes that a suspension with pay does not implicate an employee's due
process rights, because there is no deprivation of property, i.e., the employee is still
receiving a salary. Therefore, in this instance, Grievant was not denied due process when
she was initially suspended with pay effective June 7, 1999.
The next due process issue is whether the post-deprivation hearing was sufficient
and prompt. The blanket rule which can be recognized in dealing with suspensions
without pay is that if a pre-deprivation hearing is not held then a prompt post-deprivation
hearing must be held so that the employee is given his minimum procedural rights.
See,
Loudermill, at note 7, citing
Ewing v. Mytinger v. Casselberry, Inc., 339 U.S. 594, 70 S.Ct.
870, 94 L.Ed.2d 1008 (1950);
North American Cold Storage Co. v. Chicago, 211 U.S. 306,
29 S.Ct. 101, 53 L.Ed.2d 195 (1908);
See also,
Barry, 443 U.S. at 66;
Goss, 419 U.S. at
582-583. Further, prompt has been interpreted consistent with the term's common usage
and a delay of only a few days has been found to be too long to protect one's rights.
D'Acquisto, p. 614, citing
Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321
(1979);
Mitchell v. W.T. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).
W. Va. Code § 18A-2-7 provides an employee statutory protections, as well, which
provide that [a] superintendent's authority to suspend school personnel shall be
temporary only pending a hearing upon charges filed by the superintendent with the board
of education and such period of suspension shall not exceed thirty days unless extended
by order of the board. This provision is generally interpreted to grant the superintendent
additional authority to temporarily suspend an employee under circumstances whichrequire his or her immediate withdrawal from service until such time that the Board can
review the matter.
See Allison v. Kanawha County Bd. of Educ., Docket No. 20-86-273-1
(Dec. 30, 1986).
Again, in this case, Grievant was suspended with pay, and the rule that a post-
deprivation be prompt has more flexibility. However, that does not permit an employer to
impose an open-ended suspension, and the Board's actions, while not rising to a violation
of Grievant's constitutional due process rights, did exceed the Superintendent's statutory
authority under
W. Va. Code § 18A-4-7a. First, the Board articulated no reason why
Grievant had to be removed from Chandler immediately without benefit of notice and
hearing. Grievant did not engage in behavior which posed a threat to herself or others.
Grievant was gossiping and name-calling, not making threats. The Board was not justified
in suspending Grievant immediately from her employment, even with pay, and then
extending that suspension for three months, given the facts in this case. While Grievant
continued to receive her salary, benefits, and seniority, and has not shown she was
deprived of any right or interest, other than the right to work, clearly, this was not a
vacation for Grievant, as the Board contends. Grievant knew, and her co-workers knew,
that she was being punished for her actions, and the length of her absence undoubtedly
contributed to the notoriety of her conduct among her co-workers.
Second, the post-deprivation hearing before the Board was scheduled for July 12,
1999, approximately one month following Grievant's initial suspension with pay. Grievant
requested another day for hearing, and the post-deprivation hearing concluded on July 19,
1999. If that had been the end of this saga, the undersigned could not find that a delayof one month was too long, given Grievant was suspended with pay. However, following
the close of the hearing on July 19, 1999, no decision from the Hearing Examiner was
forthcoming, and the Board has offered no explanation for this delay. Further, the Board
offered no evidence that it had taken official action to extend the 30-day statutory limit of
the Superintendent's authority to suspend the grievant.
W. Va. Code § 18A-2-7. On
September 2, 1999, Grievant received a notice from Board counsel that the hearing was
being reopened to allow additional testimony. It is clear from the record of that proceeding
that Principal Bowe had spent considerable time soliciting additional testimony against
Grievant. Over Grievant's objection, the hearing re-commenced on September 10, 1999,
and the Hearing Examiner finally issued her recommendation on September 23, 1999.
(See footnote 6)
Thereafter, the Board voted to suspend Grievant without pay on September 28, 1999, for
a period of twenty days commencing October 4, 1999.
The Board contends that, since the suspension was with pay, it was not a
disciplinary action requiring notice and an opportunity to be heard promptly, because
Grievant suffered no deprivation of income. While it has been recognized in
Loudermill
that an employer can avoid the due process problem by suspending an employee
withpay, it is highly unlikely that the Court intended to give employers carte blanche to
suspend employees indefinitely while they proceed to build their case against them.
Nevertheless, I find that Grievant's pre-disciplinary hearing was initiated promptly following
her suspension and no constitutional due process violations can be found. However, the
Board's action in holding the Hearing Examiner's decision and then reopening the hearing
for additional evidence was seriously prejudicial to Grievant and resulted in the delay of
her return to work. Because Grievant was not deprived of any concrete right, the
undersigned is limited in her ability to make Grievant whole. However, I will take into
account the Board's actions in this matter when analyzing Grievant's mitigation claim.
Turning now to the merits of the grievance, the Board has charged Grievant with
immorality, insubordination, and violation of its Sexual Harassment Policy. Grievant
denies she engaged in the conduct attributed to her.
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. ofEduc., 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 authority of a county board of education to discipline an employee must be
based upon one or more of the causes listed in
W. Va. Code § 18A-2-8, as amended, and
must be exercised reasonably, not arbitrarily or capriciously.
Bell v. Kanawha County Bd.
of Educ., Docket No. 91-20-005 (Apr. 16, 1991).
See Beverlin v. Bd. of Educ., 158 W. Va.
1067, 216 S.E.2d 554 (1975).
W. Va Code § 18A-2-8 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 contendre to a felony charge. A charge of unsatisfactory
performance shall not be made except as the result of an employee
evaluation pursuant to section twelve of this article.
Superintendent Duerring's letter of September 28, 1999, charged Grievant with
inappropriate conduct toward your principal and co-workers while employed at Chandler.
In addition, Superintendent Duerring informed Grievant that, [y]our comments violated
Board Regulation 40.01 and any subsequent violation will result in termination of
employment. Board Regulation 40.01 is the Board's Sexual Harassment Policy. While
not specifically identified in the Superintendent's letter, the Board contends in its ProposedFindings of Fact and Conclusions of Law that Grievant's conduct amounts to immorality
and insubordination, both causes under
W. Va. Code § 18A-2-8 for which an education
employee may be disciplined.
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).
See Rovello v. Lewis
County Bd. of Educ., 181 W. Va. 122, 381 S.E.2d 237 (1989).
See also Jones v. Mingo
County Bd. of Educ., Docket No. 95-29-151 (Aug. 24, 1995).
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.
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). The West Virginia Supreme
Court of Appeals in
Harry v. Marion County Bd. of Educ., 203 W. Va. 64, 506 S.E.2d 319
(1998), held that,
[b]y proscribing comments of a sexual nature and sexually-harassing
conduct in its sexual harassment policy, the Board of Education . . . has
reiterated that immorality, as contemplated by W. Va. Code § 18A-2-8, is
inappropriate, and by authorizing termination for such conduct, the policy
has tracked what is authorized by W. Va. Code § 18A-2-8. In essence, the
Court concludes that the portion of the Board's policy authorizing termination
for violation of the policy conforms to, and is appropriate under, W. Va. Code
§ 18A-2-8.
Therefore, a county board of education may properly discipline an employee for
immorality who violates the board's sexual harassment policy.
Harry,
supra;
Willis v.
Jefferson County Bd. of Educ., Docket No. 96-19-230 (Oct. 28, 1998). Insubordination includes willful failure or refusal to obey reasonable orders of a
superior entitled to give such order.
Riddle v. Bd. of Educ., 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). 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's alleged failure to conform with the Sexual Harassment Policy forms the basis
for the insubordination charge.
The Board's Sexual Harassment Policy defines sexual harassment as:
Unwelcome sexual advances, requests for sexual favors, and other verbal
or physical contact of a sexual nature constitute sexual harassment when:
(1) submission to or rejection of such conduct is made either explicitly or
implicitly a term or condition of an individual's employment or is exchanged
for job benefits; (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions affecting such
individual; or (3) such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an intimidating
hostile or offensive working environment.
Examples of sexually harassing behavior are:
Sexually suggestive or obscene letters or notes; sexual rumors or name
calling; unwelcome touching, grabbing or punching; inappropriate comments
about one's body; dirty jokes or stories; dehumanizing graffiti; display of
suggestive pictures, cartoons or objects; threats or demands for sexual
favors; and, assault or attempted assault which is gender based.
The Policy provides that an investigation will promptly follow any complaints of a violation
of this policy:
All complaints will be promptly and thoroughly investigated. A written report
of the investigation and its findings will be prepared and submitted to the
Title IX Coordinator. Absent exceptional circumstances, the investigation
shall be completed and a report submitted within ten (10) school days.
Finally, the Policy provides that, [i]f the results of the investigation support disciplinary
action, steps will be taken, which may include reprimand, suspension or termination of
employment. PH Vol. I, Board Ex. 4.
The Board provided numerous witnesses who testified to remarks they heard
Grievant make regarding Principal Bowe and/or Mr. Ferrara. Grievant denies making the
comments attributed to her. Therefore, a determination of credibility of Grievant and the
witnesses is necessary to the resolution of this grievance.
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). "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 System 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'stestimony 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 preponderance of the evidence establishes that Grievant made the comments
attributed to her by the various witnesses called by the Board. Grievant offered no reason
why these witnesses would lie or fabricate stories about her, nor did the witnesses have
any apparent bias or ill will towards Grievant. Further, Grievant's admission that she may
have referred to Mr. Ferrara as a faggot while venting alone in the kitchen, supports the
evidence that Grievant is capable of using such language, and indeed, did use this and
other remarks of a derogatory nature when referring to Principal Bowe and Mr. Ferrara.
However, it is evident from the record that Grievant was not alone and that other
employees engaged in gossip and rumor-spreading with respect to Principal Bowe and Mr.
Ferrara. Indeed, while there is at least one other male teacher at Chandler besides Mr.
Ferrara, there was no question that the references to Principal Bowe's boyfriend and
lover were directed to Mr. Ferrara by all of the witnesses. Therefore, the Board has
proven its charge of insubordination, as Grievant engaged in name-calling and spread
rumors of a sexual nature, which is prohibited by the Board's Sexual Harassment Policy.
However, the undersigned does not agree with the Board that this name-calling
rises to the level of conduct required to constitute sexual harassment under its Policy. TheBoard relies on a recent West Virginia Supreme Court of Appeals case to support its
theory that name-calling, even outside the presence of the victim, can rise to the level of
sexual harassment. In
Fairmont Speciality Services v. W. Va. Human Rights Commission,
No. 25335, 1999 W. Va. LEXIS 113 (July 16, 1999), the Supreme Court, in Syllabus Point
3, held that:
The aggravated nature of discriminatory conduct, together with its
frequency and severity, are factors to be considered in assessing the
efficacy of an employer's response to such conduct. Instances of
aggravated discriminatory conduct in the workplace, where words or actions
on their face clearly denigrate another human being on the basis of race,
ancestry, gender, or other unlawful classification, and which are clearly
unacceptable in a civilized society, are unlawful under the West Virginia
Human Rights Act, West Virginia Code §§ 5-11-1 to -20 (1999), and in
violation of the public policy of this State. When such instances of
aggravated discriminatory conduct occur, the employer must take swift and
decisive action to eliminate such conduct from the workplace.
In that case, Fairmont Specialty Services was found liable for the actions of a
worker, Fluharty, in creating a pervasive and hostile work environment towards another
worker, Voyle. Specifically, Fluharty, over the course of two years, repeatedly called Voyle
a bitch or Mexican bitch to her face. The Court found that the term bitch, by itself,
has overtones of gender discrimination, another form of unlawful discrimination under the
West Virginia Human Rights Act, and that Voyle was subjected to unlawful discrimination
based upon her being female. The Court found that Fairmont Specialty did not take
prompt and remedial action to stop the harassment, and thus was liable under the West
Virginia Human Rights Act for Fluharty's actions.
While this Grievance Board does not have jurisdiction to determine liability for
claims that arise under the West Virginia Human Rights Act,
the Grievance Board'sauthority to provide relief to employees for discrimination, favoritism, and harassment, as
those terms are defined in
W. Va. Code § 29-6A-2, includes jurisdiction to remedy
discrimination that would also violate the Human Rights Act.
Owen v. Wood County Bd.
of Educ., Docket No. 97-54-537 (May 18, 1998);
Bowman v. W. Va. Educ. Broadcasting
Auth., Docket No. 96-EBA-464 (July 3, 1997).
The Board contends that the terms butt buddies, lovers, and faggot, as used
by Grievant, subjected Principal Bowe and Johnny Ferrara to unlawful discrimination under
its Sexual Harassment Policy, much the same as the term bitch subjected Ms. Voyle to
unlawful discrimination in
Fairmont Speciality Services,
supra.
With respect to the Board's
policy, just saying that some type of conduct constitutes sexual harassment does not
necessarily make it so. In this case, Grievant's comments about Principal Bowe and Mr.
Ferrara, while undoubtedly derogatory and terribly offensive, did not rise to the level of
what has come to be recognized as sexual harassment. As the United States Supreme
Court has made clear, Title VII does not prohibit all verbal or physical harassment in the
workplace.
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 140 L.Ed.2d 201,
118 S.Ct. 998 (1998). As Justice Scalia explained in the context of a same gender sexual
harassment claim,
We have never held that workplace harassment, even harassment
between men and women, is automatically discrimination because of sex
merely because the words used have sexual content or connotations. The
critical issue, Title VII's text indicates, is whether members of one sex are
exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed.
523 U.S. at 80 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17,
25, 126 L.Ed.2d 295, 114 S.Ct. 367 (1993)); see also Quick v. DonaldsonCo., 895 F.Supp. 1288, 1296 (S.D. Iowa 1995), judgment rev'd on other
grounds, 90 F.3d 1372 (8th Cir. 1996)(observing that while under Title VII,
employers have an affirmative duty to maintain a working 'environment free
of discriminatory intimidation, ridicule, and insult[,]' they do not have a
corresponding affirmative duty to maintain a working environment free of all
non-discriminatory juvenile mischief and immature behavior)(quoting Meritor
Savings Bank v. Vinson, 477 U.S. 57, 65, 91 L.Ed.2d 49, 106 S.Ct. 2399
(1986)). Both the Commission and the majority fail to grasp the fact that
harassment that is actionable requires disadvantageous terms or conditions
of employment. Harris, 519 U.S. at 25 (Ginsberg, J., concurring).
See Fairmont Specialty Services,
supra. (J. Davis, dissenting).
The Board's policy specifically defines sexual harassment to include conduct
which has the purpose or effect of unreasonably interfering with an individual's work
performance or creating an intimidating hostile or offensive working environment. The
Board has made no showing that Grievant's conduct had the purpose or effect of
unreasonably interfering with Principal Bowe's work performance, or that it created an
intimidating hostile or offensive working environment for Principal Bowe.
While there is no argument that such comments could serve to undermine Principal
Bowe's authority at Chandler, that type of conduct is more properly encompassed in the
charge of insubordination against Grievant. The Board has failed to show that Principal
Bowe or Mr. Ferrara were subject to disadvantageous terms or conditions of employment.
Indeed, the fact that Principal Bowe suspended Grievant immediately upon learning of the
name-calling shows that he was not disadvantaged at all. Therefore, the Board has failed
to prove that Grievant's conduct of name-calling and spreading rumors constituted sexual
harassment under its Policy, and therefore, the Board has failed to support the charge of
immorality against Grievant. With regard to Grievant's suspension, she argues her discipline is too severe and
should be mitigated. The undersigned may mitigate the discipline imposed if the penalty
assessed is clearly excessive or clearly disproportionate to the offense. Factors to be
considered in this analysis include the employee's past disciplinary record, the clarity of
notice to the employee of the rule violated, whether the employee was warned about the
conduct, and mitigating circumstances.
Knuckles/Burdette v. W. Va. State College, Docket
No. 99-BOD-123/131 (Sept. 28, 1999);
Jarvis v. W. Va. Dep't of Health and Human
Resources, Docket No. 97-HHR-318 (July 22, 1999);
Stewart v. W. Va. Alcohol Beverage
Control Comm'n, Docket No. 91-ABCC-137 (Sept. 19, 1991).
No evidence was introduced of any prior disciplinary actions against Grievant, who
has been employed by the Board for approximately 10 years. Grievant was a good worker,
and she had received a satisfactory evaluation from Principal Bowe in the Spring of 1999.
Concluding that Grievant engaged in offensive gossip not rising to the level of sexual
harassment, a three-month suspension with pay, followed by a twenty-day suspension
without pay is excessive and disproportionate to the offense. Grievant had never been
counseled, warned or reprimanded about this type of behavior before. Moreover, the
length of Grievant's punishment was seriously delayed by the Board, with no explanation
as to why the Hearing Examiner did not issue a decision following the close of the July 12,
1999, hearing. Needless to say, Grievant was highly prejudiced by this delay, both in
terms of punishment and in ability to defend herself.
The undersigned finds it is just and equitable to mitigate Grievant's punishment.
Obviously, there is nothing which can be done to replace the three months Grievant wasoff work, as she continued to receive her salary, benefits, and seniority. However, I find
that a twenty day suspension without pay, a very serious and significant punishment, is
excessive for Grievant's gossiping. I find that a more reasonable punishment for
Grievant's offense is a three day suspension without pay, additional training on sexual
harassment and conduct in the workplace, and a letter of reprimand reflecting the three-
day suspension be placed in her personnel file.
CONCLUSIONS OF LAW
1. The employer must establish the charges in a disciplinary matter by a
preponderance of the evidence.
W. Va. Code § 18-29-6;
Froats v. Hancock County Bd.
of Educ., Docket No. 91-15-159 (Aug. 15, 1991);
Landy v. Raleigh County Bd. of Educ.,
Docket No. 89-41-232 (Dec. 14, 1989).
2. The Board's Sexual Harassment Policy defines sexual harassment as:
Unwelcome sexual advances, requests for sexual favors, and other verbal
or physical contact of a sexual nature constitute sexual harassment when (1)
submission to or rejection of such conduct is made either explicitly or
implicitly a term or condition of an individual's employment or is exchanged
for job benefits; (2) submission to or rejection of such conduct by an
individual is used as the basis for employment decisions affecting such
individual; or (3) such conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or creating an intimidating
hostile or offensive working environment.
3. Misconduct by a school employee which can be characterized as sexual
harassment can constitute the basis for termination of the offending employee's
employment. By proscribing comments of a sexual nature and sexually-harassing conduct
in its sexual harassment policy, the county school board reiterates that immorality, ascontemplated by
W. Va. Code § 18A-2-8, is inappropriate.
Harry v. Marion County Bd. of
Educ., 203 W. Va. 64, 506 S.E.2d 319 (1998).
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 conformity 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. Insubordination includes willful failure or refusal to obey reasonable orders
of a superior entitled to give such order.
Riddle v. Bd. of Directors, Docket No. 93-BOD-
309 (May 31, 1994);
Webb v. Mason County Bd. of Educ., Docket No. 26-89-004 (May 1,
1989).
6. The Board has established that Grievant's conduct in spreading sexual
rumors and gossip constituted acts of insubordination under
W. Va. Code § 18A-2-8.
7. The Board has failed to establish that Grievant's conduct had the purpose
or effect of unreasonably interfering with an individual's work performance or [created] an
intimidating hostile or offensive working environment.
8. Therefore, the Board has failed to establish that Grievant's conduct
constituted sexual harassment as described and defined in its Sexual Harassment Policy,
and thus, the Board has failed to establish that Grievant's conduct is encompassed by the
immorality charge. 9. The superintendent's authority to suspend school personnel shall be
temporary only pending a hearing upon charges filed by the superintendent with the board
of education and such period of suspension shall not exceed thirty days unless extended
by order of the board.
W. Va. Code § 18A-2-7.
10. It is not necessary for a pre-termination hearing to be a full adversarial
evidentiary hearing; however, an employee is entitled to written notice of the charges, an
explanation of the evidence, and an opportunity to respond prior to a board of education's
decision to discipline the employee.
Bd. of Educ. v. Wirt, 192 W. Va. 568, 453 S.E.2d 402
(1994).
11. An exception to the requirement that a pretermination hearing must be
conducted has been recognized when it can be found that the government's interest at
stake in ridding itself of an ineffective or untrustworthy employee and its need for quick
action outweighs that employee's private interests.
See Barry v. Barchi, 443 U.S. 55, 99
S.Ct. 2642, 61 L.Ed. 2d 365 (1979);
Hughes v. Whitmer, 714 F.2d 1407 (8th Cir. 193),
cert.
denied, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed. 2d 680 (1984). Additionally, the due
process problem can be avoided by suspending an employee with pay.
See Loudermill,
supra;
Gilbert,
supra.
12. The Board did not demonstrate any reason why Grievant had to be removed
immediately from her school while awaiting her pre disciplinary hearing, nor is there any
evidence the board ordered Grievant's suspension with pay to exceed thirty days, in
violation of
W. Va. Code § 18A-2-7. The delay of over three months between Grievant'soriginal suspension and a recommendation being made to the Board violated Grievant's
statutory procedural rights.
W. Va. Code § 18A-2-8.
13. An administrative law judge may mitigate the discipline imposed if the penalty
assessed is clearly excessive or clearly disproportionate to the offense. Factors to be
considered in this analysis include the employee's past disciplinary record, the clarity of
notice to the employee of the rule violated, whether the employee was warned about the
conduct, and mitigating circumstances.
Knuckles/Burdette v. W. Va. State College, Docket
No. 99-BOD-123/131 (Sept. 28, 1999);
Jarvis v. W. Va. Dept. of Health and Human
Resources, Docket No. 97-HHR-318 (July 22, 1999);
Stewart v. W. Va. Alcohol Beverage
Control Comm'n, Docket No. 91-ABCC-137 (Sept. 19, 1991).
14. Four months suspension, twenty days of which was without pay, was clearly
excessive and disproportionate to the proven offense of insubordination, given Grievant's
10-year employment history with the Board, with no apparent prior disciplinary actions, and
the fact that this was the first offense of gossiping for Grievant.
Accordingly, this grievance is
GRANTED IN PART and
DENIED IN PART. The
Board is hereby
ORDERED to remove the existing suspension letter or letters from
Grievant's personnel file, and to replace that with a letter indicating that Grievant engaged
in name-calling and spread rumors, which is prohibited by the Board's Sexual Harassment
Policy, for which she
served a three-day suspension without pay, was ordered to attend
additional training on sexual harassment and conduct in the workplace, and received a
letter of reprimand reflecting the three-day suspension. The Board is further
ORDEREDto compensate Grievant for the remaining 17 days she was suspended without pay, along
with any benefits, seniority and interest to which she is entitled.
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.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: February 29, 2000
Footnote: 1