IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2002 Term
Appellant Below, Appellant
BOARD OF TRUSTEES/MARSHALL UNIVERSITY,
Appellee Below, Appellee
Appeal from the Circuit Court of Cabell County
Hon. David M. Pancake
Submitted: November 6, 2002
Filed: December 2, 2002
Raymond A. Nolan, Esq.
Darrell V. McGraw, Jr.
Huntington, West Virginia Attorney General
Attorney for Appellant
Jendonnae L. Houdyschell
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
A final order of the hearing examiner for the West Virginia [Education and
State] 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. Syllabus
Point 1, Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524
In the instant case we affirm a June 4, 2001, decision of the Circuit Court of
Cabell County. That decision upheld an April 9, 1999 decision of the West Virginia
Education and State Employees Grievance Board (Grievance Board) affirming the decision
of Marshall University to deny the appellant's application for tenure.
The appellant, Antonetta Karle, became employed by the Marshall University
School of Nursing in 1992 as an instructor. She was promoted to assistant professor in 1996;
she submitted her tenure application in 1998. The application was reviewed by a faculty
affairs committee that unanimously voted to recommend denial of tenure. The committee's
recommendation was reviewed by three deans of nursing, who also recommended denial.
These recommendations were forwarded to the President of the University, who denied
tenure. The appellant appealed this denial by filing an internal grievance; this was decided
against her, and she appealed her grievance to a hearing before a Grievance Board
administrative law judge (ALJ) who issued a decision on April 19, 1999, affirming the
denial of tenure. This decision was appealed to the circuit court, which on June 14, 2001
affirmed the ALJ's decision. The instant appeal followed.
In reviewing the decision of a Grievance Board ALJ, both this Court and the
circuit court employ the same standard of review:
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.
(See footnote 1)
Syllabus Point 1, Randolph County Board of Education v. Scalia, 182 W.Va.
289, 387 S.E.2d 524 (1989). However, appellate deference in such cases is only as to matters
of fact. As to matters of law, the ALJ's findings and conclusions are reviewed de novo. See
Harry v. Marion County Bd. of Educ., 203 W.Va. 64, 66, 506 S.E.2d 319, 321 (1998).
The appellant, Ms. Karle, makes
several arguments on appeal as to why the circuit court's decision should be
reversed; these arguments and the pertinent facts are discussed hereinafter
Procedural Non-Compliance Prior to The Tenure Review Process
Appellant asserts that Marshall violated its own procedures in not conducting
either a formal annual evaluation of appellant's performance or a third-year tenure review.
Series 36 of the Procedural Rules promulgated by the University System of West Virginia
Board of Trustees addresses the appointment, promotion, tenure and non-reappointment or
dismissal of faculty. . . . 128 C.S.R. 36 § 1.1 . Section 10.1 of these rules states:
All faculty shall receive a yearly evaluation of performance directly related to
responsibilities as defined by the institution. 128 C.S.R. 36 § 10.1. . In addition, the
Marshall University Greenbook (the official University handbook) states: A formal
evaluation of progress toward tenure should be conducted during the third year of
The evidence below showed that at the end of her first semester teaching with
Marshall, appellant received a Supervisor's Evaluation, which rated her performance in five
categories: Instructor/Advising, Scholarly/Creative Activities, Service to University,
Service to Community, and Professional Goals Other Than the Above. During this
evaluation in December of 1992 the appellant was specifically encouraged to pursue a
Appellant subsequently received written evaluations for the 1993-1994, 1995-
1996, and 1997-1998 academic years. In her evaluation for the 1993-1994 evaluation period,
Lynne Welch, Dean of the School of Nursing, rated appellant's overall performance as
Satisfactory and noted that she needed improvement in the area of Scholarly/Creative
Activities. Dean Welch further noted that appellant had not presented programs or papers,
published or done research. In an evaluation for the 1995-1996 evaluation period, appellant
was again rated as overall Satisfactory, with deficiencies in the Scholarly/Creative
Activities area. During this evaluation, Dean Welch again noted that appellant needed to
pursue her doctorate and publications. It was further noted that students had complained
that she failed to keep office hours. Finally, for the evaluation period 1997-1998, Dean
Welch gave appellant an overall rating of Needs Improvement. In the evaluation, Dean
Welch noted that appellant had failed to meet with students, and that she needed to pursue
doctoral studies, research and publications. In addition, Dean Welch met with appellant
every year to evaluate the appellant's performance, at which time requirements for tenure and
appellant's deficiencies were discussed.
Marshall denies that it violated its own policy in regard to the third-year tenure
review _ which by its terms is discretionary, not mandatory. However, Marshall concedes
that it failed to conduct formal annual evaluations of appellant for the academic years 1994-
1995 and 1996-1997. It is undisputed that appellant was given a copy of the Greenbook,
containing the requirements for obtaining tenure, when she was hired.
The evidence shows that the appellant was indisputably and fully aware of the
requirements for tenure, and was advised repeatedly throughout her career of perceived
deficiencies in her progress toward tenure. Dean Welch did not recommend appellant for
tenure for the following stated reasons:
She is not outstanding in any of the categories of teaching and
advising; scholarly or creative activities or community and/or
university science. Specifically with regard to her teaching and
advising she was not available to students for advisement during
scheduled hours. We had student complaints regarding her lack
of availability. Her student evaluations are not outstanding.
Students also complained about her not being in the clinical area
With regard to scholarly and creative activities she has not
published or participated in research outside of her masters and
Her community and university services are average.
Similarly, the faculty affairs committee did not recommend appellant for tenure
based upon the lack of supporting evidence contained within the appellant's portfolio.
We conclude that any failure by the University to provide formal notice, as a
result of the missed annual evaluations, does not under these facts constitute a denial of due
process, inasmuch as the appellant had previously and repeatedly received actual notice of
her deficiencies. See, e.g., State ex rel. Mason v. Roberts, 173 W.Va. 506, 318 S.E.2d 450
(1984) (lack of formal notice did not constitute a denial of due process where licensee had
actual knowledge of suspension).
In these circumstances, the ALJ (though aware of and concerned about the
acknowledged procedural deficiencies) found that these deficienciess did not deny due
process and did not affect the outcome of appellant's tenure review. The Circuit Court of
Cabell County, in affirming the decision of the ALJ, stated:
The ALJ here clearly considered all of the relevant factors in
determining whether Marshall's failure to conduct these
evaluations was improper. There is evidence in the record to
support the ALJ's findings of fact in this regard, and her
conclusion that any error was harmless was not implausible.
Accordingly, this Court cannot find that the ALJ's decision was
clearly wrong or arbitrary and capricious.
Due Process In the Tenure Review Process
Appellant asserts that the tenure review process itself denied her due process
of law. The first inquiry is the determination of what process is due.
Indeed, the process due one subject to this highly subjective
evaluative decision [tenure] can only be the exercise of
professional judgment by those empowered to make the final
decision in a way not so manifestly arbitrary and capricious that
a reviewing court could confidently say of it that it did not in the
end involve the exercise of professional judgment. . . . This in
turn means that insuring the adequacy of process as followed in
a particular case does not require or permit a court to inquire
into the ultimate wisdom, or prudence, or informed nature of the
decision finally made. The judicial inquiry is properly only
whether the decision was made, wisely or not, by a specific
exercise of professional judgment and on the basis of factors
clearly bearing upon the appropriateness of conferring academic
Siu v. Johnson, 748 F.2d 238, 245 (4th Cir. 1984) (citations omitted).
At the Grievance Board hearing, Becky Rider, a member of the faculty affairs
committee that reviewed the appellant's tenure application, testified that she could not recall
reviewing the appellant's application and portfolio before voting to deny tenure. She also
testified that she felt the committee did not take long enough to review the appellant's
However, Professor Rider agreed that she did not know how long the
appellant's portfolio was reviewed by other committee members, two of whom testified that
they spent considerable time on the application. Professor Rider also agreed that appellant's
application was discussed at the committee meeting, and it is uncontested that all four
members present (one member was on sabbatical) participated in the discussion, before
voting unanimously to recommend against tenure. At most, Professor Rider's testimony
amounts to the fact that she herself did not read or spend enough time reviewing the
appellant's tenure portfolio.
Assuming that Professor Rider did not fulfill her obligation, the appellant has
not demonstrated how she was prejudiced by this fact. Three other members of the
committee, a majority, voted to recommend against tenure. Professor Rider herself agreed
that appellant was not an outstanding teacher and that Rider would not change her vote, even
if given more time to review the tenure application. Moreover, review by the committee was
only a first step in the tenure process. The appellant's tenure application was
independently reviewed at least three more times. Dr. Sortet, Dr. Morton, Dean Welch and
Dr. McKown all recommended against tenure, and the ultimate decision to deny tenure was
made by President Gilley. Everyone who reviewed the appellant's tenure portfolio concluded
that it did not demonstrate the required performance for an award of tenure.
We conclude that Marshall University substantially complied with the
procedure spelled out in their Greenbook for considering tenure application. The record
demonstrates that the decision to deny appellant tenure was based upon the exercise of
professional judgment and on the basis of factors bearing upon the appropriateness of
conferring academic tenure. Additionally, the ALJ concluded that appellant failed to prove
that the outcome of her tenure review would have been any different had Professor Rider
read her tenure application, and that any procedural irregularities in the process were
therefore, even if erroneous, harmless. The Circuit Court of Cabell County, in affirming the
decision of the ALJ, stated:
The ALJ here clearly considered all of the relevant factors in
determining whether the absence of one Committee member and
the dereliction of a second would have had an impact on
Marshall's decision to deny the Grievant tenure. There is
evidence in the record to support the ALJ's findings of fact in
this regard, and her conclusion that any error was harmless was
not implausible. Accordingly, this Court cannot find that the
ALJ's decision was clearly wrong or arbitrary and capricious.
Appellant's final assignment of error is that the ALJ was clearly wrong in
concluding that the appellant was not entitled to tenure. As noted above, the Greenbook
requires an applicant for tenure to demonstrate effective performance in all of the stated
categories, as well as excellence in either teaching/advising or scholarly/creative activities.
However, the appellant did not demonstrate the required excellence; she never received
higher than an overall satisfactory performance rating.
In addition, Series 36 of the Procedural Rules states that [t]enure shall not be
granted automatically, or for years of service, but shall result from action by the president of
the institution or designee following consultation with appropriate academic units. 128
C.S.R. 36 § 8.3 .
Under the clearly wrong standard, the question before the court is not
whether the tenure decisions of the University are correct; it does not sit as a 'Super-Tenure
Review Committee.' Varma v. Bloustein
, 721 F.Supp. 66, 71 (D. N.J. 1988) (citation
omitted). Appellant has no clear right to tenure, and it is the responsibility of this Court to
determine if the denial of tenure was arbitrary, capricious or clearly wrong. See State ex rel.
Norton v. Stone
, 173 W.Va. 179, 313 S.E.2d 456 (1984). The subjective decision process
by which promotion and tenure are awarded or denied must be left to the professional
judgment of those presumed to possess a special competency in making the evaluations,
unless shown to be arbitrary and capricious or clearly wrong. See Kobrin v. Univ. of Minn.
121 F.3d 408 (8th Cir. 1997); Siu v. Johnson
Juries and judges lack the credentials and the knowledge to
determine whether a group of scholars should be required to
accept into their midst for life a member of the academic
community. When a decision to grant or deny institutional
tenure has been reached, the constitutional protections against
arbitrary state action accorded by the due process clause, and
against the denial of equal treatment, guaranteed by the equal
protection clause, assure that state institutions will reach their
decisions in a procedurally fair manner and that their decisions
will be rationally based on considerations relevant to future
Levi v. University of Texas at San Antonio
, 840 F.2d 277, 282 (5th Cir. 1988).
Marshall University produced substantial evidence that appellant did not,
despite repeated admonitions, demonstrate effectiveness in the critical area of advising.
Further, Marshall University presented evidence that appellant's performance in the area of
scholarly and creative activities was inadequate.
Scholarly and creative activities are defined in the Greenbook as follows:
. . . number, quality and importance of publications and creative
productions; memberships and contributions to professional
societies; professional growth and development; scholarly
presentations and creative performances; contributions to the
professional development and achievement of colleagues, etc.
Dean Welch rated appellant's performance in this category below average. Dr.
Jane Fotos and Professor Lou Ann Hartley, who were members of the faculty affairs
committee, found no evidence of scholarly and creative activities in the portfolio outside
those required of her as a student in the Family Nurse Practitioner (FNP) program. In these
circumstances, appellant's performance in the area of scholarly and creative activities could
be seen as not even effective, much less excellent.
The principal evidence offered by appellant in the category of Scholarly and
Creative Activities was a research project on childhood obesity that was developed by
appellant in 1996 as a class project while she was a student in the FNP program. The project
was never published, and Dean Welch and Dr. Jane Fotos, a member of the faculty affairs
committee, testified that this project did not constitute scholarly research for purposes of
tenure. Appellant also produced evidence that she had made editorial suggestions to
publishers of prospective textbooks, a one-paragraph abstract of a patient pamphlet on
nocturnal enuresis, and a proposal for an adult learning workshop at the Veterans'
Administration Medical Center. However, there is no evidence that these materials or any
other of appellant's work had been published or that she had made presentations to
professional or scholarly groups.
Marshall University, as noted, presented evidence that appellant had
consistently been advised that she needed improvement in this area. Dean Welch rated
appellant's performance in this category as below average. Dr. Fotos and Professor Hartley,
members of the faculty affairs committee, found no evidence of scholarly and creative
activities in the portfolio outside those required of her as a student in the FNP program. In
these circumstances, appellant's performance in the area of scholarly and creative activities
could be seen as less than effective.
The ALJ found scant evidence of scholarly and creative activities in the
appellant's tenure portfolio _ and also that the appellant had produced none since receiving
her FNP certificate in 1996. The ALJ concluded that her performance was not even effective
in this area.
Upon review, the Circuit Court of Cabell County stated:
The ALJ clearly considered all of the relevant evidence
submitted by the parties regarding [appellant's] performance in
this area. There is substantial evidence to support her
conclusion that the [appellant] failed to demonstrate effective
performance in this area. In view of the [appellant's] failure to
even address this issue, this Court must uphold the ALJ's
findings and conclusions on this point.
It is evident from a review of the record in this case that the Circuit Court of
Cabell County carefully reviewed the decision of the ALJ, and found that there was sufficient
evidence in the record to support the ALJ's findings of fact; and that the legal conclusions
made by the ALJ were correct.
This Court recognizes that there was evidence in the record that the appellant
was highly regarded as a clinical teacher by her students, and we have no doubt that she
indeed is an accomplished clinical practitioner and teacher of nursing. We also recognize
that her teaching itself was not actually observed by those who evaluated her for tenure.
Additionally, the asserted deficiencies in her tenure review process were thoroughly explored
and ably presented in her grievance proceeding and before this Court.
These facts, however, are not dispositive of the instant case. In most instances,
as in this case, achieving academic tenure requires, in addition to effective teaching, meeting
other demanding criteria. The appellant was reasonably found to be lacking in meeting these
criteria by all of those who reviewed her application _ using a process, that while perhaps
not perfect, was fundamentally fair.
The order of the circuit court is affirmed.