January 2003 Term
Petitioner Below, Appellant
JEFFERSON COUNTY BOARD OF EDUCATION,
Respondent Below, Appellee
Appeal from the Circuit Court of Kanawha County
Honorable Tod J. Kaufman, Judge
Civil Action No. 01-AA-101
AFFIRMED, IN PART, REVERSED, IN PART ,
AND REMANDED WITH DIRECTIONS
Submitted: February 26, 2003
Filed: April 22, 2003
John Everett Roush, Esq.|
West Virginia School Personnel
Charleston, West Virginia
Attorney for Appellant
Howard E. Seufer, Jr., Esq.|
Gregory W. Bailey, Esq.
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Attorneys for Appellee
The opinion of the Court was delivered PER CURIAM.
JUSTICES DAVIS and MAYNARD concur, in part, and dissent, in part, and reserve
the right to file a separate opinion.
1. A final order of the hearing examiner for the West Virginia Education and State Employees Grievance Board, made pursuant to W.Va. Code 29-6A-1, et seq. , and based upon findings of fact, should not be reversed unless clearly wrong. Syllabus, Quinn v. W.Va. Northern Community College, 197 W.Va. 313, 475 S.E.2d 405 (1996).
2. Although we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board, we review, de novo, questions of law. Syl. pt. 2, Maikotter v. Univ. of W.Va. Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999)
3. 'School personnel regulations and laws are to be strictly construed in favor of the employee.' Syllabus Point 1, Morgan v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979). Syl. pt. 1, Smith v. W.Va. Div. of Rehab. Services, 208 W.Va. 284, 540 S.E.2d 152 (2000).
This case is before this Court on an appeal by Patricia Wines (Appellant)
from a December 17, 2001 Order of the Circuit Court of Kanawha County. The circuit
court's order affirmed that portion of a July 9, 2001 decision by the West Virginia Education
and State Employee's Grievance Board (Grievance Board), which denied the Appellant's
grievance challenging her termination by the Board of Education of Jefferson County
(School Board) as a substitute service employee. The circuit court concluded the Appellant
was given adequate notice of her unsatisfactory work performance but that her due process
rights were violated by the School Board's failure to afford her a pre-termination hearing.
The circuit court awarded the Appellant nominal damages in the amount of one dollar. It is
from this Order that Appellant now appeals.
This Court has reviewed the petition for appeal, all matters of record and the
briefs and arguments of counsel. For the reasons discussed herein, the order of the circuit
court is affirmed, in part, reversed, in part, and remanded for proceedings consistent with this
On or about February 2, 2000, the Appellant met with the Jefferson High
School principal to discuss the improvement plan. During the meeting, the Appellant reacted
negatively, telling the principal, You're not worth my time. Based upon this insubordinate
comment, the School Board superintendent recommended to the School Board that the
Appellant be terminated from her employment as a substitute custodian at Jefferson High
By letter dated February 17, 2000, the superintendent advised Appellant of his
recommendation and that [u]ntil that time, you will remain suspended with pay. The
recommendation to terminate your contract will be made at a meeting of the [School Board]
on Tuesday, March 7, 2000 at 7:30 PM. . . . You may request a hearing before the [School
Board] and may have representation at your expense. If you plan to request a hearing, please
do so by contacting my office on or before noon on Tuesday, February 29, 2000. According
to the record in the instant case, the School Board took no action on the superintendent's
recommendation of termination on March 7, 2000. An evidentiary hearing was conducted
on April 7, 2000. After reviewing all the evidence, the School Board declined to follow the
superintendent's recommendation of termination but instead, suspended the Appellant,
without pay, for ten days.
In the meantime, the School Board appointed the Appellant to a long-term
substitute custodian position at Shepherdstown Elementary School, beginning May 2, 2000.
The Appellant was aware that the improvement plan previously imposed upon her by the
School Board during her assignment at Jefferson High School was still in effect when she
began employment at Shepherdstown Elementary School.
The principal at Shepherdstown Elementary School, Suzanne Offutt, gave the
Appellant a detailed written work schedule. Between May 25, 2000 and July 5, 2000,
Principal Offutt received several complaints from other Shepherdstown Elementary School
employees about particular instances in which the Appellant's work performance was less than satisfactory.
(See footnote 2) In addition to these reported deficiencies,
Principal Offutt personally observed specific problems with the Appellant's
custodial work, which she discussed with the Appellant on or about May 30,
2000. At the same time, Principal Offutt offered Appellant help and support.
Although Appellant appeared receptive to Principal Offutt's advice, in Principal
Offutt's opinion, Appellant's work performance did not improve.
In early June 2000, another custodian, Mr. Lemon, gave Appellant written instructions concerning the cleaning and waxing of classroom floors. Appellant, who had never been trained to wax the floors, apparently misunderstood Mr. Lemon's instructions and, as a result, did not properly clean and wax the classrooms. Principal Offutt discussed this matter with Appellant. Thereafter, on June 21, 2000, Appellant left the school building unsecured and the following day, she left cleanser on two large areas on the building floor and left scrub buckets full of water with mops in them overnight. Principal Offutt discussed these incidents with Appellant at or near the time each occurred. Again, Principal Offutt's advice to Appellant regarding how to satisfactorily perform her job appeared to be well- received. However, Principal Offutt did not observe any improvement in Appellant's job performance.
On July 3, 2000, Appellant was injured while mowing grass at Shepherdstown Elementary School. As a result of her injury, Appellant received workers' compensation benefits and, due to her injury, was not scheduled to return to work until sometime in October.
Principal Offutt had completed an evaluation of Appellant's work performance
on June 30, 2000, before Appellant sustained her injury. The evaluation indicated Appellant
failed to meet the responsibilities and performance standards for her job in eleven evaluation
areas, while satisfying the responsibilities and performance standards in two evaluation areas.
Principal Offutt also indicated on the evaluation that Appellant had not met the job
requirements and had not successfully completed her improvement plan. On July 27, 2000,
Principal Offutt discussed the evaluation with Appellant, who signed the evaluation but
indicated she disagreed with it.
In the meantime, in a letter dated July 14, 2000, from Principal Offutt to School
Board superintendent David Markoe, Principal Offutt recounted, in detail, the various
problems she had been having with Appellant, including poor working skills and work habits
and a poor attitude towards co-workers. In the letter, Principal Offutt indicated her belief
that Appellant would not be able to succeed as a substitute custodian at Shepherdstown
Elementary School. On or about July 24, 2000, Principal Offutt forwarded to Appellant a
copy of her July 14, 2000 correspondence to Superintendent Markoe.
By letter dated October 27, 2000, Gerry R. Sokol, Assistant Superintendent of
Jefferson County Schools, advised Appellant that, based upon her unsatisfactory work
performance since her initial employment assignment with Jefferson County schools, he was
recommending to Superintendent Markoe that her employment be terminated. Although the
School Board had afforded Appellant the opportunity to be heard before it acted on the
recommendation of termination in the previous disciplinary matter at Jefferson High School,
it is undisputed that Appellant was not advised of her right to such a hearing before the
School Board in the instant case.
A regular meeting of the School Board was scheduled for November 8, 2000.
Prior to that meeting, Appellant's counsel advised Superintendent Markoe that, due to a
scheduling conflict, he would be unable to attend that meeting and offered several alternate
dates when he would be available to represent Appellant's interests in the instant disciplinary
matter. Despite Appellant's counsel's clear request to be present, and despite the absence
of both Appellant and her counsel at the November 8, 2000 meeting, the School Board acted
on the superintendent's recommendation of termination and voted to remove Appellant from the substitute custodian list effective immediately.
(See footnote 3) By
letter dated November 9, 2000, the School Board notified Appellant of its
A post-termination evidentiary hearing was conducted on December 7, 2000,
during a Special Session of the School Board. At the conclusion of the hearing, the School
Board voted to uphold the superintendent's recommendation and the motion made at the
November 8, 2000 meeting, to terminate Appellant's employment as a substitute custodian.
Thereafter, on May 15, 2001, a Level IV hearing was conducted before the
Grievance Board. In a Decision entered July 9, 2001, the Administrative Law Judge found
that the School Board's failure to provide Appellant with proper notice and a hearing prior
to her termination, as required by W.Va. Code §18A-2-8, violated Appellant's procedural due
process rights. However, the Grievance Board concluded that the evidence presented proved
the procedural violation was harmless error because Appellant received a hearing and
opportunity to respond to the charges against her one month after she was dismissed.
Appellant appealed the Grievance Board Decision to the Circuit Court of
Kanawha County. See W.Va. Code §18-29-7. In that appeal, Appellant argued that the
Grievance Board erred in determining that the School Board's failure to provide Appellant
with notice and a hearing prior to her termination was harmless error. Appellant argued
further that the Grievance Board erred in holding the School Board complied with the
requirements of 126 C.S.R. §141-2.6, otherwise known as West Virginia Board of Education
Policy No. 5300 which, inter alia, entitles an employee to the right to know how well she is
performing her job and affords her the opportunity to improve her job performance before
her employment is terminated.
In an Opinion Order entered December 14, 2001, the circuit court concluded
that Appellant was given proper notice as to the reasons for her termination, but that her
procedural due process rights were violated when the School Board failed to afford her a pre-
termination hearing, pursuant to W.Va. Code §18A-2-8. The circuit court awarded Appellant
the nominal sum of one dollar in damages for this due process violation.
It is well settled that [a] final order of the hearing examiner for the West
Virginia Education and State Employees Grievance Board, made pursuant to W.Va. Code 29-
6A-1, et seq. , and based upon findings of fact, should not be reversed unless clearly
wrong. Syllabus, Quinn v. W.Va. Northern Community College, 197 W.Va. 313, 475 S.E.2d
405 (1996). Furthermore, [a]lthough we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board,
(See footnote 4) we
review, de novo, questions of law. Syl. pt. 2, Maikotter v.
Univ. of W.Va. Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999) (footnote
added). It is with these legal principles in mind that we consider the instant
Every employee is entitled to know how well he/she is performing his/her job, and should be offered the opportunity of open and honest evaluation of his/her performance on a regular basis. Any decision concerning promotion, demotion, transfer or termination of employment should be based upon such evaluation, and not upon factors extraneous thereto. Every employee is entitled to the opportunity of improving his/her job performance, prior to the terminating or transferring of his/her services, and can only do so with the assistance of regular evaluation.
Additionally, pursuant to Board of Educ. of Mercer County v. Wirt, 192 W.Va.
568, 453 S.E.2d 402 (1994), the due process requirements of W.Va. Code §18A-2-8 require
that Appellant be afforded written notice of the charges, an explanation of the evidence and
an opportunity to respond before the School Board decides to terminate her employment. Id.,
at syl. pt. 3, in pertinent part.
In essence, Appellant maintains Principal Offutt's manner of constructively
criticizing her work performance led Appellant to believe her work was progressing
satisfactorily. Thus, according to Appellant, she was not apprised of Principal Offutt's
dissatisfaction with her work performance, as required by Policy No. 5300 and W.Va. Code
§18A-2-8. See Wirt, supra.
We cannot agree with Appellant's position. A review of the record reveals that
Appellant was repeatedly advised that her work performance was viewed by other employees
and Principal Offutt as unsatisfactory. Appellant was placed on an improvement plan while
she was employed at Jefferson High School. That improvement plan remained in effect
when she began her assignment at Shepherdstown Elementary School, a fact of which
Appellant was obviously aware. While Appellant was on the improvement plan, Principal
Offutt personally observed deficiencies in Appellant's work performance and also received
various complaints about it, including Appellant's failure to clean a bathroom mess left by
a student and failure to properly clean and wax floors. Appellant also left a building window
open and air conditioning units on and the school building itself unlocked. Principal Offutt
discussed these incidents with Appellant at or near the time each occurred. Principal Offutt
also offered Appellant help and support, including advice on how to better perform her work.
Principal Offutt's kind concern for her employee aside, it is beyond cavil that Appellant was
aware that her work performance was not being viewed favorably. Thus, we hold Appellant
was afforded proper notice of her unsatisfactory work performance and that, accordingly,
the School Board complied with the requirements of Policy No. 5300 and W.Va. Code §18A-
2-8. See Wirt, supra.
In sharp contrast, in the
instant case, when Appellant was advised that a recommendation of termination
was being made to the School Board, her counsel notified the School Board that
he represented Appellant's interests but would be unable to attend the November
8, 2000 meeting. Appellant's counsel offered specific alternate dates near in
time to November 8th when he could be present. Inexplicably, the
School Board declined to accommodate Appellant's counsel's schedule and to afford
Appellant the opportunity to be heard before taking action on the superintendent's
recommendation that her employment at Shepherdstown Elementary School be terminated.
Consequently, the remaining issue in this appeal involves the School Board's
violation of Appellant's procedural due process rights, as provided for in W.Va.
Code §18A-4-15 and 18A-2-8.
It is well established that '[s]chool personnel regulations and laws are to be
strictly construed in favor of the employee.' Syllabus Point 1, Morgan v. Pizzino, 163 W.Va.
454, 256 S.E.2d 592 (1979). Syl. pt. 1, Smith v. W.Va. Div. of Rehab. Services, 208 W.Va.
284, 540 S.E.2d 152 (2000). W.Va. Code, §18-4-15(g) provides:
Substitute service employees who have worked thirty days for a school system shall have all rights pertaining to suspension, dismissal and contract renewal as is granted to regular service personnel in . . . [§§ 18A-2-6, 18A-2-7, 18A-2-8 and 18A-2-8a][.]
It is undisputed that Appellant worked more than thirty days for the School
Board, having begun her employment as a substitute custodian sometime in August 1999.
Pursuant to W.Va. Code §18A-2-15(g), therefore, Appellant is entitled to those rights
pertaining to dismissal as are granted regular service personnel under the statutory provisions
Applicable to the instant case is W.Va. Code §18A-2-8, which provides, in
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 charges shall be stated in writing [and] served upon the employee within two days of presentation of said charges to the board. The employee so affected shall be given an opportunity, within five days of receiving such written notice, to request, in writing, a level four hearing and appeals pursuant to . . . [§§18-29-1 et seq.] [.]
As indicated above, under Wirt, supra, the due process requirements of W.Va. Code §18A-2-8 require that, in addition to the notice of charges, Appellant must be afforded an opportunity to respond before the School Board decides to terminate her employment. Id., at syl. pt. 3, in pertinent part. The School Board honored these requirements when it disciplined Appellant while she was employed at Jefferson High School, advising her of her right to a hearing and, appropriately so, taking no action on the superintendent's recommendation of termination until a hearing was conducted. Indeed, following the hearing, the School Board voted not to terminate Appellant's employment as a substitute custodian at Jefferson High School.
The School Board should have acted in precisely this manner in the instant case. It should have taken no action on the superintendent's recommendation that Appellant's employment at Shepherdstown Elementary School be terminated until such time as Appellant or her counsel could be present, as they clearly requested before the November 8, 2000 School Board meeting. As this Court observed in Wirt, 'affording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays. Id, 192 W.Va. at 575, 453 S.E.2d at 409 (quoting Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 544, 105 S.Ct. 1487, 1494-95, 84 L.Ed.2d 494, 505 (1985)). Given that a post-termination hearing was conducted one month later, it is apparent that allowing Appellant to be heard prior to the School Board's vote of termination on November 8, 2000, would have imposed neither an administrative burden nor an intolerable delay. It is not at all clear why the School Board honored Appellant's due process rights in one disciplinary action, but treated these rights as an afterthought in the instant proceeding.
This Court does not view this violation as harmless error, as did the Grievance Board, nor is the nominal sum of one dollar in damages sufficient, as the circuit court concluded. While the Court recognizes Appellant's work performance left much to be desired and her termination for unsatisfactory performance was ultimately justified, we cannot condone the School Board's impertinent disregard of Appellant's right to be heard before it discharged her from its employ. As suggested above, it is not insignificant that Appellant requested a hearing before the School Board acted on the recommendation of termination, and that her request was effectively rebuffed when the School Board declined to accommodate her lawyer's schedule and held the vote in their absence. It is also meaningful that, only months earlier, the School Board conducted a pre-termination hearing in another disciplinary matter involving Appellant. (See footnote 5)
Accordingly, we reverse the circuit court's nominal damage award of one
dollar and direct, instead, that Appellant be awarded back pay for the period between the
effective date of her dismissal, November 8, 2000, and the date of her December 7, 2000
hearing before the School Board, when her employment was terminated.
Finally, we find that the School Board's violation of Appellant's due process
rights entitles her to an award of attorneys fees in the amount of $2,000.00, as authorized by
W.Va. Code, §18A-2-11.
Affirmed, in part, reversed,
in part, and remanded with