Maynard, Justice, dissenting:
I wonder just what a teacher has to do to be insubordinate in West Virginia
schools today. Apparently, threatening to shoot or kill the principal is not enough. Throwing
an observation form on the floor and stomping on it is not enough either. Nor is repeatedly
refusing to sign that form.
I dissent in this case because, unlike the majority, I believe that Mrs. Maxey's
termination was based on “insubordination” and not “performance.” The majority states that
“the insubordination claim was derivative of the original performance issue.” However, the
record shows otherwise.
As mentioned hereinabove, Mrs. Maxey demonstrated an ongoing and
persistent course of insubordination throughout the school year which culminated with the
events that occurred on March 7, 1997. In particular, Mrs. Maxey was insubordinate when
she refused to sign the teacher observation forms presented to her by her principal, Mr.
Spencer. She was also insubordinate when she threw one of the observation forms on the
floor and stomped on it. She was further insubordinate at the conference which occurred on
March 7, 1997.
At the March 7, 1997 conference, Mrs. Maxey again flatly refused to sign the
observation forms even though she was advised that serious consequences could result from
her failure to do so. She also made inappropriate comments to her supervisors throughout
the conference, the most egregious of which was the comment to Mr. Spencer, as reported
by at least two of those present, that she “should have blown [his] head off with a shotgun.”
Mrs. Maxey maintains that she actually said, “Mr. Spencer, had I shot you, I would have been
in less trouble. I would have been over in jail and the taxpayers would have been supporting
me and I wouldn't have been worried about my employment.” Even if one believes Mrs.
Maxey's version of what she said, it is still very violent, chilling, and threatening.
Furthermore, it is certainly language that simply has no place in our schools.
Given these facts, I believe the McDowell County Board of Education acted
reasonably in terminating Mrs. Maxey's employment for insubordination. While I understand
that Mrs. Maxey is a veteran of the McDowell County school system and has a record of
excellent evaluations, her experience does not excuse her conduct. It is an unfortunate fact
that in today's world, the possibility of shootings in the workplace and in our schools has
become a frightening reality. Mrs. Maxey's comment that she should have shot Mr. Spencer
in the head cannot be excused or overlooked, especially in light of her other repeated acts of
gross insubordination. W.Va. Code § 18A-2-8 (1990) provides that a teacher may be
dismissed at any time for insubordination. In that instance, Policy 5300 does not apply.
For the reasons stated above, I would affirm the circuit court's order which
upholds the termination of Mrs. Maxey's employment by the McDowell County Board of
Education. Thus, I dissent from the majority's opinion in this case.
The majority has remanded this case for a hearing to determine whether Mrs.
Maxey's conduct is “correctable” under a feasible improvement plan. In the event that Mrs.
Maxey's actions are “found correctable” and she is allowed to return to the classroom, the
majority has ordered that she be granted back pay. Without a doubt, I believe Mrs. Maxey
will be reinstated. Consequently, she will be handsomely rewarded for her violent
misconduct and gross insubordination. In fact, assuming Mrs. Maxey was making more than
$30,000 annually, she will probably be awarded more than $180,000 in back pay for the six
years she has been out of the classroom. Is this how we should handle such conduct? I don't
think so.