Jason A. Poling
Tyson & Tyson Grafton Law Office, PLLC
Huntington, West Virginia Winfield, West Virginia
Attorney for the Appellant Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. A final order of the hearing examiner for
the West Virginia Educational Employees Grievance Board, made pursuant to
W.Va.Code, 18-29-1, et seq. (1985), and based upon findings of fact,
should not be reversed unless clearly wrong. Syl. Pt. 1, Randolph
County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).
2. The authority of a county board of education
to dismiss a teacher under W.Va.Code 1931, 18A-2-8, as amended, must
be based upon the just causes listed therein and must be exercised reasonably,
not arbitrarily or capriciously. Syl. Pt. 3, Beverlin v. Board of
Education of Lewis County, 158 W.Va. 1067, 216 S.E.2d 554 (1975).
3. The authority of a county board of education
to suspend a teacher under W.Va.Code, 18A-2-8  must be based
upon the causes listed therein and must be exercised reasonably, not arbitrarily
or capriciously. Syl. Pt. 2, Parham v. Raleigh County Bd. of Educ.,
192 W.Va. 540, 453 S.E.2d 374 (1994).
4. Grievance rulings involve a combination
of both deferential and plenary review. Since a reviewing court is obligated
to give deference to factual findings rendered by an administrative law judge,
a circuit court is not permitted to substitute its judgment for that of the
hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference.
Plenary review is conducted as to the conclusions of law and application of
law to the facts, which are reviewed de novo. Syl. Pt. 1, Cahill
v. Mercer County Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).
This is an appeal by Carol Graham (hereinafter Appellant)
from a June 29, 2001, order of the Circuit Court of Kanawha County upholding
a September 30, 1999, decision of the West Virginia Education and State Employee's
Grievance Board (hereinafter Grievance Board). The administrative
law judge for the Grievance Board found that the Putnam County Board of Education
(hereinafter Board of Education) had properly suspended the Appellant,
with pay, upon a finding of insubordination, willful neglect of duty, and
breach of confidentiality. The administrative law judge further found that
although the Appellant had presented a prima facie case of reprisal, the Board
had provided a legitimate, non-pretextual reason for its actions. Having thoroughly
reviewed the record and the arguments of counsel, we affirm the decision of
the lower court.
The Appellant then closed and, perhaps, locked her
office door and continued the meeting with the substitute teacher.
(See footnote 2) Mr.
Faulkner reappeared sometime later
(See footnote 3) and used his key to enter the Appellant's
office, requesting an explanation for the Appellant's delay. The substitute
teacher exited the office, and the Appellant thereafter departed in an agitated manner.
(See footnote 4) The Appellant then reported to the classroom
in which the student was being restrained to determine whether she could be
of any assistance. When Mr. Opperman responded that the Appellant's help would
not be necessary, she returned to Mr. Faulkner and asked why he had insisted
that she be present with the disorderly student. Mr. Faulkner informed the
Appellant that he needed her to witness the situation. The Appellant then
returned to the classroom and acted as a witness until the student's parent
Upon returning to her own office, the Appellant cleaned out her desk with the
intention of not returning after spring break, which was scheduled for the following week.
Later that evening, the Appellant received a call from a friend requesting special attention for
her grandchild who had begun classes at West Teays Elementary. During the conversation, the
Appellant discussed the day's events but did not mention the name of the disorderly child.
When that friend later spoke with her son, she learned that the disorderly child at West Teays
Elementary had been her grandson. The child's father contacted Mr. Faulkner regarding the grandmother's conversation with the Appellant, under the impression that the Appellant had
released confidential information regarding the child.
The following week was spring break; thus, school was not in session. Upon
returning to duty after spring break, Mr. Faulkner contacted Mr. Bob Hull, Director of Early
Childhood Education, and Dr. Sam Sentelle, Superintendent of Putnam County Schools,
regarding the Appellant's actions. During these conversations, Mr. Faulkner was directed to
prepare a letter detailing the incident.
On April 26, 1999, the Appellant filed a grievance
against Mr. Faulkner, alleging harassment based upon Mr. Faulkner's angry
entrance to her office.
(See footnote 5) On May 7, 1999, Mr. Faulkner sent a letter
to Dr. Sentelle outlining the events of April 2, 1999, and requesting that
the Appellant be disciplined for her conduct. A letter was also provided to
the Appellant, dated May 10, 1999, explaining the charges against her and
the fact that suspension would be recommended to the Board. The Appellant
sent her husband and a union representative to the May 17, 1999, meeting of
the Putnam County Board of Education. Neither spoke on the Appellant's behalf
during the meeting or requested any opportunity to present additional
matters for consideration. The Board of Education voted to suspend the Appellant, and the
Appellant was informed of this decision by letter dated May 19, 1999.
The Appellant filed a grievance with the Grievance Board, alleging that the
suspension decision should be overturned and that the suspension constituted a reprisal for her
allegations of harassment against Mr. Faulkner. By decision dated September 30, 1999, the
Grievance Board found that the Putnam County Board of Education properly suspended the
Appellant upon a finding of insubordination, willful neglect of duty, and breach of
confidentiality. Additionally, the Grievance Board found that Putnam County had provided a
legitimate, non-pretextual reason for its actions and that its actions were not in retaliation for
the Appellant's claims against Mr. Faulkner. The Circuit Court of Kanawha County upheld the
Grievance Board's decision by order dated June 29, 2001. The Appellant now appeals to this
Further, it is undisputed that the charges against the Appellant were presented
in writing to the Appellant well in advance of the two days prior to the Board's consideration
on May 17, 1999, as required by West Virginia Code § 18A-2-8. Based upon the Appellant's
actual notice, we find that minimal due process requirements have been satisfied, despite the
Appellant's arguments to the contrary. As this Court found in Beverlin, due process
requirements are satisfied where the individual in question was accorded actual notice, a
meaningful (albeit unsuccessful) hearing, the opportunity to confront his accusers, assistance
of counsel and the availabilities of remedies for review. In that regard, he cannot ask for more. 158 W. Va. at 1072, 216 S.E.2d at 557.
(See footnote 7) We
have consistently stated 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 Service Comm'n, 175
W. Va. 279, 283, 332 S.E.2d 579, 583 (1985). For example, even where the termination
of employment was involved, this Court in Board of Education of the County
of Mercer v. Wirt, 192 W. Va. 568, 453 S.E.2d 402 (1994), decided that
a full adversarial hearing was not necessary. The employee is entitled
to a written notice of the charges, an explanation of the evidence, and an
opportunity to respond prior to Board action. Id. at 575, 453
S.E.2d at 409.
(See footnote 8)
Similarly, in Meckley v. Kanawha County Board of Education, 181 W. Va. 657, 383 S.E.2d 839 (1989), an elementary school teacher's pattern of refusing to attend PTA and faculty meetings, as well as her refusal to issue student report cards, was deemed sufficient to sustain her dismissal based on insubordination and willful neglect of duty, regardless of whether teacher's attendance at those meetings was mandatory. 181 W. Va. at 658-61, 383 S.E.2d at 840-43. In Fox v. Board of Education, 160 W. Va. 668, 236 S.E.2d 243 (1977), this Court found that although dismissal was too severe a penalty for missing a parent-teacher conference, the teacher could be disciplined. The Court explained:
We do not attempt to formulate a comprehensive
definition of wilful neglect of duty that would reasonably
support a teacher's permanent dismissal. A continuing course of
lesser infractions may well, when viewed in the aggregate, be
sufficient. And we may envision a single act of malfeasance,
whereby severe consequences are generated, that merits a
160 W.Va. at 672, 236 S.E.2d at 246.
In Butts v. Higher Education Interim Governing Board/Shepherd College,
2002 WL 1334483 (W.Va. 2002), this Court recognized that case law which defines
'insubordination' in the college or public school context is rather meager. 2002 WL at *2.
This Court examined the issue of insubordination in the context of teachers in higher education
[F]or there to be insubordination, the following must be present: (a) an employee must refuse to obey an order (or rule or regulation); (b) the refusal must be wilful; and (c) the order (or rule or regulation) must be reasonable and valid. This proposition is supported by the many cases cited in the annotation.
Id.; see also Board of Educ. v. Harris, 578 N.E.2d 1244, 1252 (Ill. App. 1 Dist. 1991) (continued refusal to accept classroom assignment constituted insubordination); Childs v. Roane County Bd. of Educ., 929 S.W.2d 364, 365-66 (Tenn. App. 1996) (insubordination finding supported where teacher did not control her classroom and maintained questionable grading methods).
In the present case, despite differences in recollection regarding whether the
Appellant intentionally locked her office door and the extent of her expression of aggravation
as she finally left her office and walked toward the classroom as requested by the principal, the
record clearly reflects that the Appellant seriously questioned the authority of her supervisor
when assistance was first requested, refused to respond to the request for some period of time,
signified her dissatisfaction with her supervisor's insistence in an unprofessional manner, and
openly expressed defiance to her supervisory authority, both toward Mr. Faulkner personally
and in the presence of other personnel.
Review of cases in which the facts are vigorously contested is challenging. In
this arduous process, this Court must be guided by definitive principles of appellate review.
In Parham, for example, this Court encountered the contention that the hearing examiner's
findings of fact were incorrect with regard to whether a teacher acted in self-defense when he
struck a student. We recognized the limitation in our review, explaining that [i]t has been our
traditional rule that evidentiary findings made at an administrative hearing should not be
reversed unless they are clearly wrong. 192 W. Va. 543, 453 S.E.2d at 377. In examining the
disputed facts, we noted, While the facts concerning Mr. Parham's motives for striking C.B.
were disputed, the testimony of Mr. Spicer and of Mr. Parham himself reveal that there was
substantial, reliable and probative evidence justifying the hearing examiner's finding that Mr.
Parham did not strike C.B. in self-defense. Id. at 544, 453 S.E.2d at 378. We recognized that
while Mr. Parham testified to his version of the facts, based upon the entire record, the
hearing examiner was entitled to conclude otherwise. Id.
Likewise, in the present case, the parties presented
extensive and often conflicting evidence regarding the events of April 2,
1999, and the Appellant's behavior toward her supervisor. The Appellant disputed
the allegations of misconduct, insubordination, and breach of confidentiality.
(See footnote 9) In
fact, the record is replete with disputed facts. It is not our domain to replace
the administrative law judge's factual findings with the conclusions this
Court might have reached had it served as a fact-finding body and an evaluator
of the credibility of the witnesses. The clearly erroneous standard does not entitle a reviewing court to reverse the finder
of fact simply because it may have decided the case differently....
Indeed, if the lower tribunal's conclusion is plausible when
viewing the evidence in its entirety, the appellate court may not
reverse even if it would have weighed the evidence differently[.]
Board of Educ. of County of Mercer v. Wirt, 192 W.Va. at 578-79, 453 S.E.2d at 412-13 (citing Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)) (footnotes omitted). As this Court articulated in syllabus point one of Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000),
Grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.
208 W. Va. at 177-78, 539 S.E.2d at 437-38 (emphasis supplied). Based upon the appropriate standard for this Court's review, we conclude that absent a showing of clear error, which in this Court's opinion has not been presented here, the administrative law judge's factual findings must stand.
Our law is clear that an employee may establish a prima facie case of retaliation,
but once the employer articulates a legitimate, non-discriminatory reason for its action, the
burden returns to the employee. An employer rebuts the presumption of retaliatory action by
offering credible evidence of legitimate nondiscriminatory reasons for its actions. . . . Mace
v. Pizza Hut, Inc., 180 W.Va. 469, 472, 377 S.E.2d 461, 464 (1988). Should the employer
succeed in rebutting the presumption, the employee then has the opportunity to prove by a
preponderance of the evidence that the reasons offered by the employer for discharge were
merely a pretext for unlawful discrimination. West Virginia Dept. of Natural Resources v.
Myers, 191 W.Va. 72, 76, 443 S.E.2d 229, 233 (1994).
Our review of the record reveals no evidence that the decision of suspension
with pay was to any degree based upon the Appellant's filing of her allegations against Mr.
Faulkner. We consequently find no reason to disturb the administrative law judge's findings
of fact with regard to the retaliation claim.