John W. Feuchtenberger
Kathryn Reed Bayless
Feuchtenberger & Barringer Legal Co. Bayless and McFadden, LLP
Princeton, West Virginia
Princeton, West Virginia
Attorney for the Appellant
Attorney for the Appellee
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
JUSTICE MAYNARD dissents and reserves the right to file a dissenting opinion.
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 Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).” Syl. Pt. 1,
Parham v. Raleigh County Bd. of Educ., 192 W.Va. 540, 453 S.E.2d 374 (1994).
2. “Where the issue on an appeal from the circuit court is clearly a question of
law or involving the interpretation of a statute, we apply a de novo standard of review.” Syl.
Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
3. “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).
4. “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 Educ., 158 W.Va. 1067, 216 S.E.2d 554 (1975).
5. “Failure by any board of education to follow the evaluation procedure in West
Virginia Board of Education Policy No. 5300(6)(a) prohibits such board from discharging,
demoting or transferring an employee for reasons having to do with prior misconduct or
incompetency that has not been called to the attention of the employee through evaluation, and
which is correctable.” Syl. Pt. 3, Trimboli v. Bd. of Educ., 163 W.Va. 1, 254 S.E.2d 561
(1979).
6. “The procedures specified in West Virginia Board of Education Policy No.
5300(6)(a) must be followed in every proceeding under W.Va.Code 18A-2-8 [1969] for the
dismissal of a school employee on the ground of incompetency.” Syl. Pt. 3, Mason County
Bd. of Educ. v. State Superintendent of Schools, 165 W.Va. 732, 274 S.E.2d 435 (1980).
7. “It is not the label given to conduct which determines whether § 5300(6)(a)
procedures must be followed but whether the conduct forming the basis of dismissal involves
professional incompetency and whether it directly and substantially affects the system in a
permanent, noncorrectable manner.” Syl. Pt. 4, Mason County Bd. of Educ. v. State
Superintendent of Schools, 165 W.Va. 732, 274 S.E.2d 435 (1980).
8.
“School personnel regulations and laws are to be strictly construed in favor of the employee.” Syl. Pt. 1, Morgan v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979).
9. Where it is clear that the underlying complaints regarding a teacher's conduct
relate to his or her performance as a teacher, including the relationship with supervisors, the
effect of West Virginia Board of Education Policy 5300 is to require an initial inquiry into
whether that conduct is correctable.
10.
“Unless a wrongful discharge is malicious, the wrongfully discharged employee has a duty to mitigate damages by accepting similar employment to that contemplated by his or her contract if it is available in the local area, and the actual wages received, or the wages the employee could have received at comparable employment where it is locally available, will be deducted from any back pay award; however, the burden of raising the issue of mitigation is on the employer.” Syl. Pt. 2, Mason County Bd. of Educ. v. State Superintendent of Schools, 170 W. Va. 632, 295 S.E.2d 719 (1982).
This is an appeal by Marjorie Maxey (hereinafter “Appellant”) from a March 30,
2001, order of the Circuit Court of McDowell County affirming the West Virginia Education
and State Employee's Grievance Board's (hereinafter “Grievance Board”) decision to uphold
the termination of the Appellant's employment by the McDowell County Board of Education
(hereinafter “County Board”) for insubordination. The Appellant appeals that determination,
contending that the County Board failed to show good cause for her termination and that the
Grievance Board erroneously failed to consider appropriate mitigation of the penalty of
termination. Upon thorough review of the record and arguments of counsel, this Court
reverses the lower court's decision and remands this matter for further proceedings consistent
with this opinion.
Nevertheless, Mr. Spencer had certain attachments
to the observation form (again, not in the record) which he undertook to explain
to Mrs. Maxey when he presented the observation form to her the next day,
March 4. In his testimony before the County Board, Mr. Spencer described the
criticisms listed in the attachment.
(See footnote 4) A close reading of those criticisms
indicates that they are at variance with Mr. Spencer's recorded classroom observations of Mrs.
Maxey's class conduct and that the majority of them relate either to events that occurred prior
to the March 3 observation or matters that did not occur in the classroom.
The Appellant testified that she was not provided an adequate opportunity to
discuss the criticisms prior to being asked to sign the evaluation document. She explained that
Mr. Spencer read the list to her and “he immediately jumped up, very abruptly, and said, 'I have
to go for lunch duty.'” As he walked toward the door, the Appellant testified that she began
looking over the proposed attachment listing deficiencies to attempt further discussion. The
Appellant contends that the wind from the open window blew the observation form on the floor
and she placed her foot on the paper to prevent it from blowing away. However, Mr. Spencer
maintains that the Appellant stomped on the observation form and refused to sign it. Again, the
observation form at issue here contains the comment that signing the form merely records that
the employee had an opportunity to discuss the form with the evaluator. Beyond question, the
March 4 conference did become acrimonious. Mr. Spencer concluded that Appellant had
intentionally “stomped” on the form; Appellant, for her part, testified that she asked Mr.
Spencer what he had “against myself or my family because I have nothing against you or yours.”
Appellant testified that Mr. Spencer then immediately left the room to attend lunch duty. Mr.
Spencer testified that he had indeed left for lunch duty, explaining that “I saw more
confrontation, and I tried to avoid confrontation.” Clearly, at this point, there was not mutual
trust and confidence between Mr. Spencer, as the school's principal, and Mrs. Maxey, as one
of the school's veteran teachers, and there was a substantial, perhaps mutual, inability or
unwillingness to communicate.
Mr. Spencer provided the Appellant with a clean copy of the observation
document two days later, on March 6, 1997, and the Appellant again declined to sign the
document. The Appellant testified that she was not commanded to sign the document, that Mr.
Spencer simply gave her the option to sign or not to sign. She chose not to sign, she said, since
she had not been given an adequate opportunity to discuss the allegations with Mr. Spencer.
Mr. Spencer did inform the Appellant that she would have to appear before the Board of
Education in Welch, West Virginia, if she continued to refuse to sign the document. The
Appellant replied with a comment concerning her willingness to draw Mr. Spencer a map to
Welch.
When Dr. Roberts informed the Appellant that she must sign the observation
form to prevent disciplinary action, the Appellant directed a comment toward Mr. Spencer, the
exact wording of which differs among the testimony of the various witnesses. Mr. Spencer
testified that the Appellant told him, “'I should have blown your head off with a shotgun' instead
of signing this observation.” Mr. Spencer further testified that such comment alarmed him and
that he consequently exited the meeting for approximately fifteen to twenty minutes. He
testified that upon his return to the meeting, the Appellant informed him, “[I]f I was going to
blow your head off, I would have already done it.” Mr. Spencer testified that he thereafter left
the meeting and did not return.
The Appellant testified that she actually said, “[H]ad I shot you, I would have been
in less trouble. I would have been over in the jail and the taxpayers would have been supporting
me and I wouldn't have been worried about my employment.” She acknowledged that she had
made inappropriate comments to Mr. Spencer during the meeting and explained that she was
sorry that she had made such comments, but explained that her statements were prompted by
her emotional state and her frustration with the absence of opportunity to defend herself
against Mr. Spencer's barrage of allegations. She further testified that she intended no harm
to Mr. Spencer. She testified that the statements “were off the top of my head because when
you're backed into a corner, a caged animal has to defend themself some way and that was my
outlet of letting these gentlemen know that I needed fair play. There was no harm intended.
A lot of times, I will make offhanded, deprecating comments in order to get the other person
to listen. That is a method of advertisement, is it not?” Mr. Lane testified that he remembered
only one reference to any shooting, wherein the Appellant stated, “I should have got a gun and
blown your head off.” Dr. Roberts testified that the Appellant said, “Well, I might as well have
taken a gun and shot his head off.”
Dr. Roberts also testified that the Appellant's comments prompted him to
inform the Appellant that he was going to recommend a suspension and termination of her
employment on the basis of insubordination. He explained that her behavior during the
meeting had demonstrated that the basis for Mr. Spencer's complaints against her were
legitimate. Dr. Roberts further explained that he asked his secretary to call 911, due to the
high levels of stress in the conference. A police officer arrived at the building and sat near the
closed door until the four participants exited sometime after 11:00 a.m. In the interim, Dr.
Roberts dictated and delivered a letter to Mrs. Maxey, which contains his statement of the
charges against her and includes the statement, which he later confirmed in testimony, that the
entire purpose of the meeting was to determine if Mrs. Maxey had been insubordinate. The
notice letter reads as follows:
On Friday, March 7, 1997, a conference was conducted
with you, Mr. James Spencer, Mr. Larry Lane, and myself. The
purpose of this conference was to address your behavior and
charge of insubordination in throwing your observation on the
floor, stomping it, and refusing to sign it. During this conference
you showed a great degree of intemperance including threatening
your own life and threatening to shoot Mr. Spencer in the head.
Therefore, due to continued acts of disrespect, these
specific incidents of insubordination, and your demonstrations of
intemperance you are being suspended for thirty days and
recommended for dismissal as per WV Code 18A-2-8. I intend
to make this recommendation at the McDowell County Board of
Education regular meeting scheduled for Monday, March 17.
1997.
A hearing before the McDowell County Board of
Education concerning this action will be held at the above
meeting prior to the above recommendation being made. You
may be represented by council [sic] or anyone of your choosing
if you so desire. Please confirm in writing with me by Friday,
March 14, 1997 if you plan to attend this hearing.
Mrs. Maxey described her emotional state by the end of the meeting, testifying
that she made a comment about leaving by climbing through a window and that she was so
humiliated that “rather than having my husband drug through an embarrassing situation, I would have gone out the window, the back door, the floor.” Dr. Roberts obviously
appreciated Mrs. Maxey's stress; he later testified that he called 911 after
he decided to recommend dismissal, saying: “I wasn't really concerned
with my safety. I was more concerned, probably, with hers....” In that
same vein, Appellant's husband testified that Dr. Roberts had approached him
after the meeting and had informed him that he thought the Appellant needed
psychiatric help. Mr. Maxey testified that Dr. Roberts also told him that
his wife had made threats against Mr. Spencer, but that Dr. Roberts said,
“'I'm sure that she wouldn't have.'”
Mrs.
Maxey later testified that she had been engaged in “constant psychological
counseling” and had been taking medication since the incident.
The lower court upheld the Grievance Board's determination,
by order dated March 30, 2001.
(See footnote 8) On appeal, the Appellant asserts that the
lower court erred in upholding the finding that the County Board met its burden
of showing good cause for her termination. She further contends that the County
Board failed to consider mitigation of penalty, based upon the fact that the
Appellant had maintained an extensive and commendable work performance history
with no prior record of disciplinary action and that she was emotionally distraught
over her mother's death.
(See footnote 9)
In addition to the statute quoted above, the Appellant relies upon the provisions
of West Virginia Board of Education Policy § 5300(6)(a), 9 W.Va. C.S.R. § 126-141-2.6,
which provides in pertinent part as follows:
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.
Section 2.7 further provides: “Every employee is entitled to 'due process' in matters affecting
his/her employment, transfer, demotion or promotion.”
This Court addressed the mandatory requirements of Policy 5300 in syllabus
point three of Trimboli v. Board of Education, 163 W.Va. 1, 254 S.E.2d 561 (1979), as
follows:
Failure by any board of education to follow the evaluation
procedure in West Virginia Board of Education Policy No.
5300(6)(a) prohibits such board from discharging, demoting or
transferring an employee for reasons having to do with prior
misconduct or incompetency that has not been called to the
attention of the employee through evaluation, and which is
correctable.
In Mason County Board of Education v. State Superintendent of Schools, 165 W.Va. 732,
274 S.E.2d 435 (1980), the Court elaborated upon these principles as follows:
[A] board must follow the § 5300(6)(a) procedures if the
circumstances forming the basis for suspension or discharge are
“correctable.” The factor triggering the application of the
evaluation procedure and correction period is “correctable”
conduct. What is “correctable” conduct does not lend itself to an
exact definition but must . . . be understood to mean an offense or
conduct which affects professional competency.
Id. at 739, 274 S.E.2d at 439; see also Rovello v. Lewis County Bd. of Educ., 181 W.Va. 122,
381 S.E.2d 237 (1989). In syllabus point three of Mason County, this Court explained:
“The procedures specified in West Virginia Board of Education Policy No. 5300(6)(a) must
be followed in every proceeding under W.Va.Code 18A-2-8 [1969] for the dismissal of a
school employee on the ground of incompetency.” The Court continued in syllabus point four:
“It is not the label given to conduct which determines whether § 5300(6)(a) procedures must
be followed but whether the conduct forming the basis of dismissal involves professional
incompetency and whether it directly and substantially affects the system in a permanent,
noncorrectable manner.” Mason County at 732 (emphasis supplied).
In Holland, v. Board of Education of Raleigh County, 174 W.Va. 393, 327
S.E.2d 155 (1985), this Court attempted to reconcile the statutory and policy requirements,
as they relate to charges of insubordination, reasoning as follows:
Clearly, a charge of “insubordination” is a charge of prior
misconduct. Therefore, Policy No. 5300(6)(a), as construed by
this Court in Syllabus Point 3 of Trimboli, should have been
followed. As we noted in Syllabus Point 4 of Mason County
Board of Education v. State Superintendent of Schools, supra,
it is the conduct forming the basis for action and not the label
placed on such action that is determinative. The superintendent
admitted several times at the transfer hearings before the Board
that Policy No. 5300(6)(a) was applicable, but he maintained that
its observance was the responsibility of the Board.
174 W. Va. at 395, 327 S.E.2d at 157.
The schoolhouse conference which followed the March 3, 1997, observation by
the principal and its follow-up events could be seen as a “comedy of errors” were not the
impact on the parties so serious. It is beyond cavil that the principal terminated the conference
in order to go to “lunch duty” before any meaningful discussion of the criticisms contained in
the attachment to the observation form could be had, thus relieving the teacher of any
responsibility to sign the form at that time. Assuming, arguendo, that the teacher “stomped”
on the form, such childish conduct cannot be condoned. The same can be said of the
presentation of a new, clean form two days later. No meaningful discussion of the attachment
had yet been had; the insistence by the principal that the teacher was then required to sign the
form despite the absence of a meaningful conference is just plain erroneous. Again, the
follow-up comment by the teacher that she would draw the principal a map to Welch was
wholly uncalled for. The events at the school on the next day border on the ridiculous. The
principal requests the teacher's husband to drive her to Welch, taking him from his teaching
duties at another school. The principal acknowledges that he is in “fear” and “afraid to come
to work” that morning, and had been all morning, apparently in contemplation of getting the
teacher to Welch and having a conference with her and with his superiors. It is not clear whose
professional performance was more disappointing.
Once at the meeting in Welch, the Appellant was told she had been summoned
to the Board Office for the ostensible purpose of addressing her alleged classroom and
communication deficiencies, as well as her decision not to sign the observation form. It does
not appear that a “discussion,” as that term is commonly defined, occurred concerning her
decision not to sign the observation form, or the lack of communication, or the perceived
performance inadequacies. The record does not disclose an exchange of ideas or a
responsive dialogue in which each party was provided the opportunity
to state his or her own analysis of the issues. Indeed, it appears that the
purpose of the meeting was to compel the teacher to sign the observation form,
or, in the words of Dr. Roberts, be disciplined_that is, ultimately charged
with insubordination and dismissed. Under stress, conscious of her husband
waiting in the outer office, the teacher claimed she felt like a “caged
animal,” ready to exit by a back door or even a window. Dr Roberts directed
her to sign the observation form or face discipline.
(See footnote 10)
Dr. Roberts recognized her stress sufficiently to call for police assistance,
but failed to address the issue of whether any of the teacher's bizarre conduct
could be corrected under an improvement plan.
(See footnote 11)
With regard to the most difficult part of the meeting, Appellant's comment or
comments directed toward Mr. Spencer, while certainly emotional outbursts containing
inappropriate similes, were not genuine threats to physical safety. Black's Law Dictionary
1489 (7th ed.1999) defines a “threat” as “[a] communicated intent to inflict harm or loss on another or on another's property.” An assault is “the threat to
do violence. . . .” State v, Cunningham, 160 W. Va. 582, 593,
236 S.E.2d 459, 465 (1977) (Miller, J., dissenting); see also 6
Am. Jur. 2d Assault and Battery § 94 (discussing fact that an assault must involve a
threat to cause immediate injury, rather than future injury). A comment that an individual
should have done some act in the past could not be construed as either civil or criminal assault.
See W.Va. Code § 61-2-9 (1980 ) (Repl. Vol. 2000) (defining criminal assault).
Mr. Spencer's emotional response, leaving the meeting twice, the second time,
never to return, together with his testimony that earlier in the day he was “in fear” and “afraid
to come to work” suggests that more than one person attending the meeting had issues of
emotional stability with which to deal that very well might affect job performance. Mrs.
Maxey's comments regarding being better off if she had shot Mr. Spencer were definitely
inappropriate; what followed immediately
No inquiry was undertaken, at any level of this ordeal, to ascertain why a veteran
teacher of seventeen years with an exemplary record suddenly committed acts which the Board
found intolerable and worthy of a letter of termination. Consideration was not given to any
blame to be attributed to Mr. Spencer for his limited communication skills, his distinct fear
of confrontation, or his failure to address his concerns in a more constructive posture.
Consideration was not given to the role of psychological turmoil, mental exhaustion, and recent bereavement.
(See footnote 12)
The record clearly reflects that initial confrontations between the Appellant and
her supervisor were primarily performance related and reflected personality conflict and the
absence of constructive communication. The insubordination claim was derivative of the
original performance issue. In other words, the emergence from the performance issue of a
secondary acts, allegedly constituting insubordination, cannot be held to totally eclipse the
underlying performance issues and cannot subvert the employee's right to the protections of
Policy 5300. By permitting the insubordination claim to overshadow the performance-related
issues and form an entirely separate and distinct basis for termination, the Board has simply
chosen to label the conduct as insubordination and has thwarted the purpose of Policy 5300.
As we succinctly stated in Mason County, it is not the label, but rather the conduct itself,
which determines the applicability of Policy 5300. 165 W. Va. at 732, 274 S.E.2d at 439.
We do not sanction in the least the Appellant's comments toward Mr. Spencer;
or irrational behavior such as falling to ones knees in class or parent-teacher conferences and
other such stress or anger-related conduct, nor do we believe that a teacher exhibiting
irrational behavior should remain in the classroom. However, an improvement period is
designed to address just such a problem. Policy 5300 envision that where a teacher exhibits
problematic behavior, the improvement period is the appropriate tool if the conduct can be
corrected. Only when these legitimate efforts fail is termination justified. Perhaps change
will prove impossible in this case, and the Appellant could quite possibly be subjected to
termination once again. But, that is not our question. Our task is to determine whether the law
was properly applied. It was not.
We further hold that where it is clear that the underlying complaints regarding a teacher's conduct relate to his or her performance as a teacher, including the relationship with supervisors, the effect of West Virginia Board of Education Policy 5300 is to require an initial inquiry into whether that conduct is correctable. Such inquiry is utterly absent in the present case; the question of whether this behavior was correctable is not addressed at any point in this record.
On
remand, the lower court should also address the issue of the Appellant's possible
entitlement to an award of back pay, to be calculated
by the Grievance Board. The proper amount of the award should be determined
by consideration of the Appellant's lost wages until she obtained
comparable employment; in the event it appears that she was medically unable
able to obtain comparable employment, back pay should be calculated, if at all,
only from the date that it appears that she became capable of returning to the
classroom free of the stress and anger-control issues that gave rise, at least
in part, to her conduct discussed in this opinion, all reduced by any interim
part time wages received outside the times Appellant was unavailable for work
due to her mental state.
(See footnote 13) As this Court stated in syllabus point two
of Mason County Board of Education v. State Superintendent of Schools,
170 W. Va. 632, 295 S.E.2d 719 (1982),
The limited statutory attorney fees prescribed in West Virginia Code §
18-29-8 (1992) (Repl. Vol. 1999)
(See footnote 14) should also be considered and ordered as
appropriate.
Based upon the foregoing, the final order of the Circuit Court of McDowell
County is hereby reversed, and this matter is remanded to the Grievance Board for further
evaluation consistent with this opinion.
Unless a wrongful discharge is malicious, the wrongfully
discharged employee has a duty to mitigate damages by accepting
similar employment to that contemplated by his or her contract
if it is available in the local area, and the actual wages received,
or the wages the employee could have received at comparable
employment where it is locally available, will be deducted from
any back pay award; however, the burden of raising the issue of
mitigation is on the employer.
Footnote: 2
Footnote: 3
Footnote: 4
Okay, take students assigned to the four/five split
classroom when the music teacher, Title I teacher or special
education teacher are not able to instruct or supervise students,
excessive number of students out of their seats during the
instructional day, which promotes different problems, and there
were discipline problems, and I was trying to help her with those
(4) Parent complaints about discussing everyday routine
discussions, which should be normal for parent/teacher
relationships; example, 3-4-97, Ms. Dawson did ask you about
mid-terms and for grades and she'd just seen her a few minutes
previously, (5) Don't make negative remarks to Mr. Spencer,
especially, when in the presence of students, example, 3-3-97,
promoting - - - that I was promoting a laid-back atmosphere and
private office - - - that I was - - - her class was an administrative
failure.
Footnote: 5