Reece v. Board of Trustees/Marshall University
Annotate this Case IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
January 1998 Term
__________
No. 24153
__________
KIMBERLY D. REECE,
Petitioner Below, Appellee
v.
BOARD OF TRUSTEES/MARSHALL UNIVERSITY,
Defendant Below, Appellant
__________________________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Herman G. Canady, Jr., Judge
Civil Action No. 94-AA-266
REVERSED AND REMANDED WITH DIRECTIONS
__________________________________________________________________
Submitted: January 20, 1998
Filed: March 17, 1998
Darrell V. McGraw, Jr.
Attorney General
Mary Roberta Brandt
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellant
Rosalee Juba-Plumley
Ross & Juba
Eleanor, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS
"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 revered unless
clearly wrong." Syllabus Point 1 of Randolph County Board
of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).
Per Curiam:See footnote 1
1
This is an appeal by Marshall
University from a judgment of the Circuit Court of Kanawha County
directing Marshall University to reinstate a dismissed employee,
Kimberly D. Reece to her position at the University.See footnote 2 2 In
ordering the reinstatement, the circuit court reversed a decision
of an administrative law judge in a grievance procedure
instituted by Ms. Reece. The circuit court concluded that
Marshall University had failed to establish good cause for the
dismissal of Ms. Reece. After reviewing the issues raised, as
well as the documents filed, this Court concludes that the
Circuit Court of Kanawha County erred in reversing the decision
of the administrative law judge. The judgment of the circuit
court is, therefore, reversed, and this case is remanded with
directions that the decision of the administrative law judge be
reinstated.
In late 1992, Marshall University
hired Kimberly Reece, a single parent, to serve as an "area
coordinator" for three dormitories at the University. As an
area coordinator, Ms. Reece's role was to supervise the staff of
three dormitories and to serve as a role model for the students
who resided in the dormitories. Ms. Reece was provided with an
apartment in one of the dormitories within her area of
responsibility.
On a number of occasions, after
assuming her position, Ms. Reece was cited by her supervisors for
violating policies and rules and regulations of Marshall
University and also for failing to perform her duties in an
appropriate manner. Shortly thereafter, while on probationary
status, Ms. Reece became embroiled in a controversy, referred to
as the T-shirt incident, with the male students in the dormitory
where she lived, which incident, together with her previous
misconduct, culminated in her termination by letter dated
December 8, 1993.See
footnote 3 3
Ms. Reece filed a grievance following her
termination, and ultimately, on October 17, 1994, an
administrative law judge, after examining the extensive evidence
adduced in the case, issued a written decision affirming the
termination. Among other things, the administrative law judge
found:
During Grievant's [Ms. Reece's] first
eleven months of employment she was on probation. She was
periodically evaluated by her immediate supervisors and generally
received unfavorable ratings leading to her being given various
periods for improvement. At the beginning of June 1993, Grievant
had improved her performance to the point where she was removed
from probation.
During the period of Grievant's
probationary status, she received numerous counselings from her
supervisor. She had also received two written warnings based upon
her performance and her evaluations were typically in the range
of "meets expectations or "occasionally below
expectations."
Grievant was issued a written warning
on September 14, 1993, for having allowed an underage student to
drink beer during a party that she had hosted and also for her
recurring use of bad judgment.
* * *
Grievant was responsible for the
publication of a monthly RA Newsletter. Grievant failed to have
said publication timely produced during her tenure or to keep her
supervisor apprised of the progress she was making toward having
the newsletter published.
Grievant was given a letter of
reprimand for inappropriate and unprofessional behavior as a
result of being notified that a group of male students had a
T-shirt printed which was in questionable taste due to its
sexually explicit graphics.
The administrative law judge concluded
that the evidence showing these things established good cause for
Marshall's termination of Ms. Reece's employment.
Ms. Reece appealed the administrative
law judge's decision to the Circuit Court of Kanawha County, and,
as previously stated, the circuit court, after reviewing the
case, reversed the decision and directed that Ms. Reece be
reinstated to her position at Marshall University. The circuit
court, in concluding that reversal was appropriate, focused on
two findings of the administrative law judge, Ms. Reece's failure
to prepare the required newsletters on time and the so-called
"T-shirt" incident. The circuit court found that staff
and students upon whom Ms. Reece was dependent for articles for
the newsletter did not wish to contribute the necessary material
and that differences of opinion with the Marshall administration
precluded her from using other material. As a consequence, the
court concluded that Ms. Reece's failure to produce the
newsletter "at most constituted a mere technical violation
without wrongful intention and certainly did not rise to the
level of misconduct" which would justify termination of Ms.
Reece's employment. Relating to the T-shirt incident the court
found:
This Court finds that based upon the
evidence surrounding the t-shirt incident the petitioner's
handling of it was ineffective. Rather than handling the event in
an objective, professional manner, the petitioner took it
personally, apparently perceiving it as an act of sexual
harassment toward herself and other female staff and students.
However, this Court finds there was no wrongful intent on the
part of petitioner. She did not "incite" the staff or
students or do anything which would
endanger or potentially endanger their lives, rights or
interests. There was no policy which she could turn to as a guide
for handling this type of occurrence. Instead, she relied upon
her "best judgment", which in retrospect was not
optimal. Nevertheless, her involvement in the "t-shirt
incident" simply did not rise to the level of misconduct
justifying disciplinary action, which then led to her dismissal
and the taking away of her home, benefits and the meal tickets
upon which she and her kindergarten-age daughter depended.
Finally, the circuit court concluded:
[T]he respondent [Marshall University] has failed to meet its
burden of proving by a preponderance of the evidence that
petitioner's dismissal was for 'good cause.'
As previously indicated, Marshall
University, in the present appeal, claims that the circuit court
erred in reversing the decision of the administrative law judge
and in ordering the reinstatement of Ms. Reece.
In Syllabus Point 1 of Randolph
County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989), this Court set forth the circumstances under
which the decision of a hearing examiner in a grievance such as
the one involved in the present case should be reversed. In that
syllabus point, the Court stated:
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.
West Virginia Code § 18-29-7
establishes the grounds under which a circuit court judge may
reverse the decision of a hearing examiner in a level 4
proceeding. See Martin v. Randolph County Board of Education,
195 W.Va. 297, 465 S.E.2d 399 (1995), and Cahill v. Mercer
County Board of Education, 195 W.Va. 453, 465 S.E.2d 910
(1995). Those grounds are that the decision of the hearing
examiner (i) is contrary to the law or a lawfully adopted rule or
regulation or written policy, (ii) is made in excess of the
hearing examiner's statutory authority, (iii) is the result of
fraud or deceit, (iv) is clearly wrong in view of the reliable,
probative and substantial evidence on the whole record, or (v) is
arbitrary, capricious, or characterized by an abuse of discretion
or clearly unwarranted exercise of discretion.
An examination of the decision in the present case shows that the circuit court based its decision to reverse the hearing examiner's decision on the ground that it was clearly wrong in view of the reliable, probative, and substantial evidence on the record as a whole. It, thus, appears to this Court that the real question in this case is whether the reliable, probative, and substantial evidence supports the hearing examiner's conclusion that the dismissal of Ms. Reece by Marshall University was appropriate, or whether that evidence shows that decision was clearly wrong.
In Oakes v. West Virginia Department
of Finance and Administration 164 W.Va. 384, 264 S.E.2d 151
(1980), and in Guine v. Civil Service Commission, 149
W.Va. 461, 141 S.E.2d 364 (1965), this Court indicated that a
dismissal of a public employee in a case such as the one
presently before the Court must be for "good cause"
which, according to the Court, means "misconduct of a
substantial nature directly affecting the rights and interest of
the public". Trivial or inconsequential matters, or mere
technical violations of a statute or official duty, without
wrongful intention, are not sufficient.
The record shows that Ms. Reece worked
for Marshall University for only slightly more than a year, from
late 1992 until December 8, 1993. During her first eleven months
she was on probation, and in that period she received generally
unfavorable ratings. Only in June, 1993, approximately five
months prior to her termination, was she removed from probation.
Three months later, in September, 1993, she was given a written
warning for having allowed an underage student to drink beer in
her University apartment.See
footnote 4 4 Because of this incident, Ms. Reece
was again placed on probation--until December 15, 1993. While
this probation was in effect, she became involved in the T-shirt
incident.
In examining the propriety of the
hearing examiner's decision in this case, the circuit court
focused on whether Ms. Reece's failure to produce the newsletter
and whether her involvement in the T-shirt incident justified her
dismissal.
The record before the Court shows that
Ms. Reece was hired not only to supervise employees who worked in
the dormitories at Marshall University, but also that she was
expected to counsel the employees on dormitory problems,
including problems with students. She was required to implement
the policies and standards set by her employer, Marshall
University.
Less than three months prior to her
termination, Ms. Reece allowed an underage student to drink beer
in her apartment in the dormitory in clear violation of the
University's rules. Previously she had violated other rules. This
incident was deemed to be sufficiently serious to cause Ms. Reece
to be placed on probationary status again. Finally, her
involvement in the T-shirt incident placed her in an adversarial
and confrontational stance vis a vis the students for
whose behavior she was partially responsible.
Although certain of Ms. Reece's
violations were, in and of themselves, of a rather technical
nature, such as the keeping of a pet in the dormitory, or her use
of a fire exit in a non-emergency situation, in this Court's
view, the serving of beer to an underage student in the dormitory
was a matter of substantial concern as was her involvement in the
T-shirt incident. More importantly, the overall evidence suggests
that Ms. Reece demonstrated a pattern of being unable, or
unwilling, to conform her conduct to the rules of Marshall
University necessitating repeated unheeded counseling by her
supervisors.
The record indicates that Marshall
University had a policy authorizing dismissal of an employee for
"persistent inability to conform to the requirements of his
or her job". That policy authorized discharge when, after
repeated efforts by the University to improve performance, the
employee failed to show improvement. Specifically, the policy
stated employees may be discharged in the following cases:
No improvement in job performance or work
habits is shown within a reasonable length of time after the
supervisor has properly trained and/or appropriately disciplined
the employee (by use of oral and written warnings).
This Court believes that a public
employee's continuing inability to perform a job for which he or
she is hired, in spite of diligent and repeated efforts by the
employer to correct, counsel, and train the employee, in
accordance with a clearly established and declared policy of the
employer, constitutes conduct of a substantial nature which
directly affects the interest of the public. This misconduct will
justify termination of the employee's employment.
In view of this, this Court believes
that the hearing examiner correctly concluded that the
termination of Ms. Reece's employment was proper. The Court also
believes that in focusing only upon two incidents rather than the
overall conduct of Ms. Reece, and by ignoring evidence of serious
misconduct by the employee, the circuit court erred. As a
consequence, the judgment of the circuit court must be reversed.
The judgment of the Circuit Court of
Kanawha County is, therefore, reversed, and this case is remanded
with directions that the action of Marshall University in
terminating Ms. Reece be upheld.
Reversed
and remanded with directions.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4. (1992)
Footnote: 2 2 The appellant is technically "the University of West Virginia Board of Trustees, acting for Marshall University", but to simplify the discussion, the appellant will be referred to as Marshall University, Marshall, or the University.
Footnote: 3
3
The T-shirt incident was an uproar which erupted after male
students within Ms. Reece's area of responsibility had designed
and purchased a T-shirt for their intramural team. This T-shirt
graphically displayed a naked man and woman, in sexually
suggestive positions compounded with stereotypical sexist
imagery. When Ms. Reece learned of the creation and existence of
the shirts, she prepared and placed a poster critical of the
students' behavior outside her office, rather than personally
dealing with the offenders or taking the matter to their resident
advisor.
The posting of her sign provoked a "poster war"
within the dormitory and resulted in escalating tension.
Ultimately, Ms. Reece's supervisor requested that she remove her
sign and reminded her that she was responsible for both the male
and female students in the facilities subject to her supervision.
Ms. Reece did remove her sign.
Footnote: 4
4
Regarding this matter, Winston Baker, Ms. Reece's supervisor,
wrote her on September 14, 1993:
A then-twenty-year-old student resident, who is now
employed as a Resident Advisor, was observed assisting you in
carrying beer into your apartment and was present at a social
event you hosted there. During this social event the underage
student consumed beer that you provided. You stated that at the
time of the event the student was there as your friend, not as an
employee of this department. At that time West Virginia law did
permit a person under 21 to possess beer, but it did not permit
the distribution and consumption by a minor. Whether or not the
student's possession of beer was technically legal, we agreed
that it is not appropriate, under Marshall University's alcohol
policies, for a professional staff member to serve beer to
underage students.
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