The Opinion of the Court was delivered PER CURIAM.
JUSTICE BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion.
The appellant herein and petitioner below, the Kanawha County Board of Education (hereinafter referred to as the Board), appeals an order entered December 13, 2004, by the Circuit Court of Kanawha County. By the terms of that order, the circuit court affirmed a Level IV decision by the West Virginia Education and State Employees Grievance Board (hereinafter referred to as the Grievance Board), which reversed the Board's prior termination of the appellee herein and respondent below, Johnny Sloan (hereinafter referred to as Mr. Sloan), upon findings that he had engaged in three acts of sexual harassment and immorality against a fellow employee. Upholding the Grievance Board's decision, the circuit court reinstated Mr. Sloan to his previous position as a custodian, with all attendant benefits including back pay and seniority, but suspended him for three days without pay commensurate with the three instances of immoral conduct he was found to have committed against a coworker. On appeal to this Court, the Board contends that the circuit court erred by upholding the Grievance Board's ruling. Upon a review of the parties' arguments, the record submitted for appellate consideration, and the pertinent authorities, we affirm in part that portion of the circuit court's December 13, 2004, order which found that Mr. Sloan had committed immoral conduct rather than sexual harassment vis-a-vis Ms. Akers. We further reverse in part that portion of the circuit court's order which adopted the Grievance Board's recommendation that Mr. Sloan should be reinstated to his employment less a three-day unpaid suspension and instead find that reinstatement less a six-month unpaid suspension is the more appropriate discipline in this case. Finally, we remand this matter for further proceedings consistent with this opinion.
decision of the hearing examiner [of the West Virginia Education and State Employees
Grievance Board] shall be final upon the parties and shall be enforceable in
circuit court: Provided, That either party may appeal to the circuit court of
the county in which the grievance occurred on the grounds that the hearing examiner's
decision (1) was contrary to law or lawfully adopted rule, regulation or written
policy of the chief administrator or governing board, (2) exceeded the hearing
examiner's statutory authority, (3) was the result of fraud or deceit, (4) was
clearly wrong in view of the reliable, probative and substantial evidence on
the whole record, or (5) was arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion. . . .
. . . . The court may reverse, vacate or modify the decision of the hearing examiner or may remand the grievance to the chief administrator of the institution for further proceedings.
In this regard, we have interpreted this standard to require a multi-faceted method of review:
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). Thus,
[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. Syllabus Point 1, Randolph County Board of Education v. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989).
Syl. pt. 1, Martin v. Randolph County Bd. of Educ., 195 W. Va.
297, 465 S.E.2d 399 (1995). Mindful of these standards, we proceed to consider
the parties' arguments.
[i]mmorality is an imprecise word which means different things to different people, but in essence it also connotes conduct not in conformity with accepted principles of right and wrong behavior; contrary to the moral code of the community; wicked; especially, not in conformity with the acceptable standards of proper sexual behavior. Webster's New Twentieth Century Dictionary Unabridged 910 (2d ed. 1979).
Golden v. Board of Educ. of the County of Harrison, 169 W. Va.
63, 67, 285 S.E.2d 665, 668 (1981). Immorality encompasses within its ambit
sexual harassment, which we have considered [to be] a species of
immorality. Harry v. Marion County Bd. of Educ., 203 W. Va. 64,
67, 506 S.E.2d 319, 322 (1998).
Specifically, sexual harassment is defined in the State Board of Education's Racial, Sexual, Religious/Ethnic Harassment and Violence Policy, in relevant part, as follows:
. . . [s]exual harassment consists
of unwelcome sexual advances, requests for sexual favors, sexually motivated
physical conduct or other verbal or physical conduct or communication of a sexual
. . . .
that conduct or communication has the purpose or effect of substantially or unreasonably interfering with an individual's employment . . . or creating an intimidating, hostile or offensive employment . . . environment.
W. Va. C.S.R. §§ 126-18-4.1, 126-18-4.1.3 (1997). (See
It goes without saying that Mr. Sloan's propositions to Ms. Akers satisfy the definition of immorality this Court earlier set forth in Golden. See 169 W. Va. at 67, 285 S.E.2d at 668. Not only were Mr. Sloan's comments inappropriate given that he made them to a coworker in a workplace setting, but they undoubtedly were not in conformity with the acceptable standards of proper sexual behavior. Id. (internal quotations and citation omitted). More unclear, however, is whether Mr. Sloan's statements amounted to sexual harassment.
In order to find that Mr. Sloan's conduct constituted sexual harassment, he first must be found to have made the statements in question. See W. Va. C.S.R. § 126-18- 4.1. The fact that Mr. Sloan made the above-described statements is not disputed, and he has repeatedly admitted to having made the statements at issue. Additionally, however, a determination of the existence of sexual harassment also requires a finding that Mr. Sloan's conduct or communication ha[d] the purpose or effect of substantially or unreasonably interfering with an individual's [Ms. Akers'] employment . . . or creating an intimidating, hostile or offensive employment . . . environment. W. Va. C.S.R. § 126-18-4.1.3. Whether the comments created such an environment, however, has not been established by the record presented to us for appellate consideration.
During the Grievance Board proceedings, the Board presented no additional evidence (See footnote 13) and tendered no witnesses, not even the complainant Ms. Akers, to testify as to the substantial or unreasonabl[e] interfer[ence], W. Va. C.S.R. § 126-18-4.1.3, Mr. Sloan's comments had upon Ms. Akers' employment at Bridgeview. Nor did the Board prove that the encounters between Mr. Sloan and Ms. Akers created an intimidating, hostile or offensive employment . . . environment, id., for Ms. Akers. To the contrary, the numerous character witnesses presented by Mr. Sloan indicated that, rather than ending their friendship after Mr. Sloan had made these various propositions, Ms. Akers continued to leave her assigned work station in the cafeteria in order to go to Mr. Sloan's work area to converse with him on a daily basis during the lunch hour and that such interactions continued until the last day of the 2001-2002 school year. Neither did any of these witnesses indicate that they noticed a change in the relationship between Mr. Sloan and Ms. Akers, and they consistently testified that Ms. Akers was friendly with Mr. Sloan and laughed and joked with him. Based upon this evidence, and the absolute lack of evidence from the Board, from Ms. Akers or from any other source, to the contrary, it is clear that the circuit court properly upheld the Grievance Board's decision finding that the Board had failed to sustain its burden of proof and concluding that Mr. Sloan's actions constituted immoral conduct but did not rise to the level of sexual harassment. Therefore, we affirm the circuit court's ruling in this regard.
. . . a board [of education]
may suspend or dismiss any person in its employment at any time for: Immorality
. . . . The charges shall be stated in writing 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 provisions
of article twenty-nine [§§ 18-29-1 et seq.], chapter eighteen
of the code of West Virginia, one thousand nine hundred thirty- one, as amended
. . . .Cf. Syl. pt. 2, Harry v. Marion County Bd. of Educ., 203
W. Va. 64, 506 S.E.2d 319 (Misconduct by a school employee which can
be characterized as sexual harassment can constitute a basis for the termination
of the offending employee's employment.). Nevertheless, a board of education
must act reasonably in imposing such discipline. The authority of a county
board of education to dismiss a[n employee] 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, in
part, Beverlin v. Board of Educ. of the County of Lewis, 158 W. Va.
1067, 216 S.E.2d 554 (1975).
In the course of the Grievance Board proceedings, Mr. Sloan presented evidence suggesting that the Board's decision to terminate his employment was disproportionate to the discipline it had imposed upon Mr. Cooper, a similarly-situated school employee, for actions he had committed also during the 2001-2002 school year. Summarizing the other employee's conduct, and comparing it to Mr. Sloan's misdeeds, the Grievance Board observed as follows:
Grievant [Mr. Sloan] was an outstanding 27 year service employee, with no prior discipline, who propositioned a female co-worker who left her work station everyday and stood close to him, telling him about her personal problems, joking, touching him, and asking him to loan her money, for 30 minutes at a time; and then Grievant admitted to his actions, and apologized. Grievant's coworkers testified as to what a supportive, good co-worker he was. Mr. Cooper was a satisfactory service employee, who stalked a female co-worker, stole items from her purse, and lied about what had happened while under oath. (See footnote 14) Mr. Cooper and Grievant are similarly situated in terms of their employment responsibilities. When one considers all the circumstances, which is what a board of education is supposed to do when deciding on an employee's livelihood, it is difficult to understand how Grievant's employment could be terminated. It is even more difficult to understand how KBOE could terminate Grievant's employment, yet reinstate Mr. Cooper. Certainly Mr. Cooper would seem to be more of a threat to his co-workers in the future than Grievant. . . .
(Footnote added). When compared with Mr. Cooper's improper behavior, the Grievance
Board determined that Mr. Sloan's actions posed a much lesser threat both to
the affected employee, i.e., Ms. Akers, and to the school community
at large. We agree with this assessment of the Board's recent disciplinary
decisions and agree that when compared with Mr. Cooper, Mr. Sloan's punishment
was unreasonable and disproportionate to the nature of his offense.
To further mitigate the punishment imposed upon Mr. Sloan, the Grievance Board took note of his twenty-seven year record of exemplary service, his outstanding job performance evaluations, and his lack of a prior disciplinary record, as well as his admission of the illicit comments he made to Ms. Akers, his truthfulness and cooperation throughout the disciplinary proceedings, his remorse for his actions, and his apologies therefor. Taking into account such factors to mitigate a punishment previously imposed upon a school board employee pursuant to W. Va. Code § 18A-2-8 is not without precedent. For example, in Rovello v. Lewis County Board of Education, 181 W. Va. 122, 381 S.E.2d 237 (1989) (per curiam), the employee, Mr. Rovello, was accused of seeking reimbursement for extraneous travel expenses. In short, Mr. Rovello had received approval to attend a professional conference and had asked a companion to accompany him on this trip. Upon his return, however, Mr. Rovello listed the entirety of his expenses on his request for reimbursement, including those attributable to his companion, rather than just seeking reimbursement for his own expenses. At the time of these events, Mr. Rovello was under the impression that his companion's expenses were also reimbursable insofar as the governing board of education did not have a clear policy in place to govern such requests and because his predecessor had successfully requested reimbursement for such expenses. Upon consideration of the immoral conduct, however, the Board recommended dismissal of Mr. Rovello, which recommendation was upheld by the Grievance Board and the circuit court. In mitigation of the sanction of dismissal previously imposed, this Court considered that Mr. Rovello had demonstrated, among other things, that he had rendered approximately twenty-five years of meritorious service and that he was not acting wilfully at the time of the infraction. Id., 181 W. Va. at 126, 381 S.E.2d at 241. Determining that Mr. Rovello's prior discipline for this incident should be reduced, we additionally credited the isolated nature of the [employee's] offense, his otherwise sterling record of long service, and the minimal harm to the school system. Id. Ultimately, this Court concluded that, despite Mr. Rovello's wrongful conduct, rather than being terminated, he should be reinstated, but without back pay and without reimbursement for expenses in prosecuting this matter, so long as he reimburses the Lewis County Board of Education for the expenses which he improperly charged to the Board.
Considering all of the facts and circumstances surrounding the improper comments Mr. Sloan made to Ms. Akers, the nature of the offenses committed by Mr. Cooper and the resulting punishment the Board imposed upon him, and the other mitigating factors demonstrated by Mr. Sloan, we agree with the circuit court and the Grievance Board that the Board's dismissal of Mr. Sloan was too harsh a penalty for the instances of immorality he has been found to have committed. Nonetheless, neither do we agree with the recommendation of the Grievance Board, which was upheld by the circuit court, to reinstate Mr. Sloan to his employment less a three-day unpaid suspension commensurate with the three occurrences of immoral conduct. Rather, we believe that given the egregious nature of the comments, both in terms of their overall inappropriateness and the environment in which they were communicated in which the ever-attentive ears of young school children could have easily heard and absorbed such lewd statements, a six-month unpaid suspension is the more appropriate discipline for Mr. Sloan in this case. Accordingly, we reverse that portion of the circuit court's order upholding the recommended three-day unpaid suspension and, instead, impose a six-month unpaid suspension. We further remand this matter to the circuit court for further proceedings consistent with the imposition of this revised discipline.