Burkey v. Marshall Cty. Bd. of Ed., Civ.A. No. 78-0012-W(H).

• Citation: 513 F. Supp. 1084
• Decision Date: 20 May 1981
• Docket Number: Civ.A. No. 78-0012-W(H).
• Parties: Linda V. BURKEY, Plaintiff, v. MARSHALL COUNTY BOARD OF EDUCATION et al., Defendants.
• Court: U.S. District Court — Northern District of West Virginia

513 F. Supp. 1084

Linda V. BURKEY, Plaintiff, v. MARSHALL COUNTY BOARD OF EDUCATION et al., Defendants.

Civ.A. No. 78-0012-W(H).

United States District Court, N. D. West Virginia, Wheeling Division.

March 16, 1981.

On Motion to Amend May 20, 1981.

COPYRIGHT MATERIAL OMITTED

Michael P. Malakoff, Louise R. Malakoff, Richard A. Finberg, Berger, Kapetan & Malakoff, Pittsburgh, Pa., Franklin D. Cleckley, Morgantown, W. Va., R. Lawrence Dessem, Washington, D. C., for plaintiff.

Paul T. Tucker, Bachmann, Hess, Bachmann & Garden, Wheeling, W. Va., for defendants Haskins, Eaton and Lydon.

Mark A. Karl, Moundsville, W. Va., for defendants Barger, Anderson, Cassis, Dobbs, Logston and Gould.

MEMORANDUM ORDER CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW

HADEN, District Judge.

I. PLAINTIFF LINDA V. BURKEY

1. Plaintiff, Linda V. Burkey, "Burkey" is a woman and a citizen of the United States and a resident of the State of West Virginia.

2. Mrs. Burkey is a 1970 graduate of West Liberty State College, where she was a member of four different school athletic teams, including girls' basketball, volleyball, softball and field hockey. Since her graduation from college, Mrs. Burkey has played independent league softball and coached girls' softball in a recreational league. In 1976 Mrs. Burkey received a masters degree in physical education from West Virginia University and thereafter she completed fifteen additional graduate credit hours beyond her masters degree.

3. Since July 1, 1970, to date, Burkey has been employed as a teacher by the Defendant Marshall County Board of Education "the Board". After successfully completing a three school year probationary period, Mrs. Burkey achieved tenure within the Marshall County School District and has taught since the 1973-74 school year under a continuing contract with the Board. She has a permanent teaching certificate from the state of West Virginia. From 1971 until her transfer to the Washington Lands Elementary School in 1976, she coached girls' basketball at Moundsville Junior High School. Coaching appointments or contracts are made on a one school year basis and no teacher employed by the Board achieves tenure as a coach.

4. Prior to the 1971-72 school year no interscholastic sports program existed for girls at any of the junior high schools within the Marshall County School District. Opportunity to coach such sports was, therefore, limited to male teachers and opportunity to compete was limited to boys. During the 1971-72 school year Linda Burkey was responsible for forming an interscholastic girls' basketball team at Moundsville Junior High School. She continued to coach this team in the 1972-73, 1973-74, 1974-75, and 1975-76, school years, during which time her teams won thirty-one games, lost four and forfeited one game. On March 24, 1975, the Moundsville City Council passed a unanimous resolution congratulating her for coaching the team to the 1975 county championship. Plaintiff's Exhibit No. 5.

5. During her employment in the Marshall County School District, Mrs. Burkey has received written letters of recommendation from three principals who have directly supervised her work. These letters, from Defendant Robert Eaton (letter of January 3, 1973), David Gill (letter of May 27, 1977), and James Loew (letter of December 22, 1978), were uniformly favorable and described Mrs. Burkey as an "excellent teacher". Plaintiff's Exhibits Nos. 2, 3 and 4.

II. DEFENDANTS

6. Defendant, Marshall County Board of Education, is ultimately responsible for the supervision and control of the Marshall County School District and the employment of its personnel.

7. Defendants Joseph E. Cassis, Chester H. Dobbs and George H. Logston are members of the Marshall County Board of Education, which Board exercises and has exercised ultimate authority over personnel matters pertaining to Mrs. Burkey and other employees of the Marshall County School District. These Defendants have been members of the Board since its hiring of Mrs. Burkey on July 1, 1970.

8. Defendant James Sherrill Wilson is a member of the Defendant board and has been a member of the Board since January 1, 1979.

9. Defendant Charles Barger is a member of the Defendant Board and has been a member of the Board since January 1, 1977.

10. Defendant Jack C. Gould was a member of the Defendant Board from the date of Linda Burkey's hiring by the Board on July 1, 1970, until December 31, 1976.

11. Defendant Carl L. Anderson was a member of the Defendant Board from the date of Linda Burkey's hiring by the Board on July 1, 1970, until December 31, 1978.

12. Defendant Donald A. Haskins is and has been Superintendent of the Marshall County Board of Education since July 1, 1972.

13. Defendant Robert R. Eaton is and has been Assistant Superintendent of the Marshall County Board of Education since July 1, 1972.

14. In those capacities, Haskins and Eaton were responsible for recommending and approving the transfer of Burkey as a teacher from Moundsville Junior High School to Washington Lands Elementary School and the termination of Burkey from her coaching position at Moundsville Junior High School at the conclusion of the 1975-76 school year.

15. The Defendant James P. Lydon is and has been Principal of Moundsville Junior High School since July 1, 1972. In that capacity he was responsible for initiating the recommendation for transfer of Burkey as a teacher from Moundsville Junior High School and her removal or termination from her coaching position.

16. All Defendants were sued in their official capacities and as individuals.¹

III. DEFENDANTS' SCHOOL ATHLETIC POLICIES

17. Prior to the 1973-74 school year women were not paid for coaching girls' junior high school athletics, although males were paid $380 for coaching boys' junior high school athletics. See Plaintiff's Exhibit Nos. 12A, 12B and 51.

18. In the 1973-74 through 1975-76 school year all women coaches of girls' junior high school sports, save one,² were uniformly paid one-half (½) of the salary which male coaches of comparable or identical boys' junior high school sports were paid. Two men who coached girls' junior high school sports were paid at the same salary level as women coaches of girls sports were paid.

19. Prior to October, 1973, no official policies existed for the administration of girls' interscholastic athletic programs in the Marshall County Schools. The "Policies Governing Marshall County Junior High School Athletic Programs", Plaintiff's Exhibit No. 7, were approved by the Board in June, 1969, but were explicitly limited to boys' interscholastic athletics.

20. In October, 1973, the Defendant Board adopted a statement of "Policies of Marshall County Girls Athletic Program." Plaintiff's Exhibit No. 9. These policies governed only girls' athletics at junior and senior high schools within the Marshall County School District during the 1973-74 school year, while boys' athletics at junior high schools within the District were governed during that school year by the "Governing Policies of Marshall County Junior High Athletic Programs," as revised July 11, 1973. Plaintiff's Exhibit No. 8. These separate governing documents explicitly established the following differences between boys' and girls' junior high school interscholastic athletics:

(a) There was an athletic director for boys' but not for girls' interscholastic athletics;

(b) Only female faculty members could coach girls' athletics;

(c) Girls' sports were limited to one coach per sport, while there was no such restriction upon the number of coaches per boys' sports;

(d) Girls' junior high athletic teams were to include girls from the seventh, eighth, and ninth grades, while there were separate boys' athletic teams for each grade level at each junior high school;

(e) Girls' junior high school athletic teams could not play teams from outside Marshall County, while boys' teams were not so restricted;

(f) There was a limit placed upon the maximum number of games which the girls' teams could play, but no such limit was placed upon the number of games the boys' teams could play;

(g) The coaches of ninth grade boys' athletics were given the discretion to play or not play any team member in a particular game, while the coaches of girls' sports were required to permit each team member to play in every game; and

(h) An upper limit was placed upon the number of girls who could participate on girls' teams, while no such limit was set as to the size of boys' teams.

21. Defendants' statement of "Policies Marshall County Girls Athletic Program" was revised on June 25, 1974. Plaintiff's Exhibit No. 10. The "revised" policies perpetuated substantially all of the inequalities set forth in Paragraph 20, above.

22. In the 1975-76 school year Defendants abolished the separate policy statements for girls' and boys' sports and consolidated the school district's athletic policies into a document entitled "Policies Marshall County Athletic Program." Plaintiff's Exhibit No. 11.

23. Despite this consolidation of policy statement, female coaches of junior high school athletics, including Linda Burkey, were still uniformly paid one-half (½) of the salary that male coaches were paid to coach identical or comparable sports during the 1975-76 school year.

IV. PLAINTIFF'S ATTEMPTS TO RESOLVE HER SEX DISCRIMINATION COMPLAINTS WITHIN THE SCHOOL SYSTEM

24. On September 11, 1973, after discussing their concerns with Carl F. Norman, their principal, Linda Burkey, Linda Campbell and Victoria Lavenski, the women physical education teachers at Moundsville Junior High School, wrote a letter to Defendant Haskins concerning the payment of women coaches of girls' athletics at Moundsville Junior High School. See Plaintiff's Exhibit No. 13. Defendant Haskins ignored the requested action and made no response to the letter.

25. On April 1, 1974, Mrs. Burkey and Mrs. Campbell filed a grievance with the Defendant Board challenging the...