Freeman v. Fayette County Bd. of Educ.

• Decision Date: 28 June 2004
• Docket Number: No. 31641.,31641.
• Citation: 599 S.E.2d 695,215 W.Va. 272
• Parties: Peggy FREEMAN, Petitioner Below, Appellant, v. FAYETTE COUNTY BOARD OF EDUCATION, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

599 S.E.2d 695

215 W.Va. 272

Peggy FREEMAN, Petitioner Below, Appellant, v. FAYETTE COUNTY BOARD OF EDUCATION, Defendant Below, Appellee.

No. 31641.

Supreme Court of Appeals of West Virginia.

Submitted: June 9, 2004.

Filed: June 28, 2004.

C. Jane Moran, Jane Moran Law Office, Williamson, for the Appellant.

Erwin L. Conrad, Conrad & Conrad, Fayetteville, for the Appellee.

PER CURIAM.

This is an appeal by Peggy Freeman (hereinafter "Appellant") from a decision of the Circuit Court of Fayette County affirming a decision of the West Virginia Education and State Employees Grievance Board (hereinafter "Grievance Board") denying the Appellant's grievance. The Appellant's grievance had been filed based upon an alleged retaliatory discharge from her position as Associate Superintendent of the Fayette County Board of Education (hereinafter "BOE"). Upon thorough review of the briefs, record, and arguments of counsel, we find that the lower court erred in denying the Appellant's grievance. We therefore reverse the decision of the lower court and remand this matter to the Grievance Board for entry of an order granting the Appellant's grievance, reinstating her to her former position should the Appellant choose to accept reinstatement,¹ and calculating an appropriate award of back pay and attorney fees.

I. Factual and Procedural History

The Appellant has served as Associate Superintendent of the Fayette County Board of Education since July 1999.² On March 18, 2002, she filed a grievance based upon the failure of the Board to appoint her as the Interim Superintendent when the presiding Superintendent's contract expired. Three days later, on March 21, 2002, a Notice of Consideration of Transfer was provided to the Appellant by Interim Superintendent Charles Garvin. Such notice was withdrawn when the Appellant sought additional explanation of the notice. On April 30, 2002, Mr. Manuel Domingues was selected as the Superintendent effective July 1, 2002. The Appellant's first grievance proceeded to a Level IV hearing before an administrative law judge on June 26, 2002. On June 27, 2002, the Appellant received a letter from Mr. Domingues, dated June 25, 2002, informing her that her contract would be terminated as of July 1, 2002.³ On July 1, 2002, a second letter was written by Mr. Domingues to the Appellant informing her that he would recommend her removal as Associate Superintendent, subject to the BOE's approval. The July 1, 2002, letter also specified as follows: "Until your counsel's letter of June 28, 2002 (copies received today) I was unaware that you were involved in a grievance of any kind." Further, the letter informed the Appellant that the issue of her termination would be addressed during a July 15, 2002, BOE meeting. Neither the Appellant nor her counsel attended the July 15, 2002, BOE meeting.

The Appellant thereafter filed a second grievance, alleging that she had been discharged in retaliation for the filing of her first grievance and that the BOE had failed to provide her with the due process rights to which she was entitled. This retaliatory discharge grievance proceeded to a Level IV hearing on August 8, 2002.⁴ The audio tapes of that hearing, however, failed to provide a clear record of that proceeding, and the Appellant agreed to permit the administrative law judge to proceed to decision based solely upon the administrative law judge's recollection of the testimony.⁵

By order dated October 2, 2002, the administrative law judge concluded that the Appellant had established a prima facie case of retaliatory discharge. However, the administrative law judge further held that the BOE had defeated that prima facie case when "Mr. Domingues testified he had no knowledge of the other grievances ... when he decided not to renew Grievant's contract." Although the Appellant did admit that she and Mr. Domingues had not personally discussed her former grievance, the Appellant contends that Mr. Domingues did not testify at the hearing in question.⁶ The BOE did introduce the July 1, 2002, letter from Mr. Domingues indicating that he was not aware or the Appellant's prior grievance until that date.

The Appellant requested reconsideration of the administrative law judge's decision by letter dated October 4, 2002. As grounds for that request, she directed the administrative law judge's attention to the fact that although Mr. Domingues attended the August 8, 2002, hearing, neither he nor any other BOE witness testified. The administrative law judge did not respond to the Appellant's letter. The Circuit Court of Fayette County affirmed the decision of the administrative law judge.

On appeal to this Court, the Appellant claims that the administrative law judge erred in finding that the testimony of Mr. Domingues successfully rebutted her prima facie case of retaliatory discharge. The Appellant contends that the administrative law judge's decision was apparently based upon an erroneous recollection of the evidence presented at the Level IV hearing. The Appellant also asserts that because the BOE did not provide a legitimate basis for the termination, she was not granted an opportunity to cross-examine any such witness' testimony in an attempt to prove that the allegedly legitimate ground was pretextual.

II. Standard of Review

In the syllabus of Quinn v. West Virginia Northern Community College, 197 W.Va. 313, 475 S.E.2d 405 (1996), this Court explained as follows: "A final order of the hearing examiner for the West Virginia Education and State Employees Grievance Board, made pursuant to W.Va.Code, 29-6A-1, et seq. [1988], and based upon findings of fact, should not be reversed unless clearly wrong." With regard to issues of statutory application or issues of law, however, a de novo standard of review applies. As this Court explained in syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995), "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." See also Ewing v. Board of Educ. of County of Summers, 202 W.Va. 228, 503 S.E.2d 541 (1998); University of West Virginia Board of Trustees ex rel. West Virginia University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 (1996). "Although we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board, we review, de novo, questions of law." Syl. Pt. 2, Maikotter v. Univ. of W.Va. Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999).

Further, in syllabus point one of Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000), this Court observed as follows:

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.

III. Discussion

The framework for analysis of a claim of retaliatory discharge has been clearly established and utilized by this Court on multiple occasions. In the syllabus of Harless v. First National Bank, 162 W.Va. 116, 246 S.E.2d 270 (1978), this Court stated as follows:

The rule that an employer has an absolute right to discharge an at will employee must be tempered by the principle that where the employer's motivation for the discharge is to contravene some substantial public policy princip[le], then the employer may be liable to the employee for damages occasioned by this discharge.

In proving an allegation of retaliatory discharge, three phases of evidentiary investigation must be addressed. First, the employee claiming retaliation must establish a prima facie case. In syllabus point ten of Hanlon v. Chambers, 195 W.Va. 99, 464 S.E.2d 741 (1995), this Court explained:

"`In an action to redress an unlawful retaliatory discharge under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., as amended, the burden is upon the complainant to prove by a preponderance of the evidence (1) that the complainant engaged in protected activity, (2) that complainant's employer was aware of the protected activities, (3) that complainant was subsequently discharged and (absent other evidence tending to establish a retaliatory motivation), (4) that complainant's discharge followed his or her protected activities within such period of time that the court can infer retaliatory motivation.' Syl. pt. 4, Frank's Shoe Store v. West Virginia Human Rights Commission, 179 W.Va. 53, 365 S.E.2d 251 (1986)." Syl. pt. 1, Brammer v. West Virginia Human Rights Commission, 183 W.Va. 108, 394 S.E.2d 340 (1990).

Once the employee has satisfied that burden of establishing a prima facie case of retaliatory discharge, as the administrative law judge found that the Appellant had done in the present case, the burden shifts to the employer to provide a legitimate, intervening reason for the dismissal. During that second phase of the retaliatory discharge claim, an employer seeks to rebut the presumption of retaliatory action by offering "credible evidence of legitimate nondiscriminatory reasons for its actions...." Mace v. Pizza Hut, Inc., 180 W.Va. 469, 472, 377 S.E.2d 461, 464 (1988).

If the employer articulates a legitimate, non-discriminatory reason for its action, the third phase returns the burden to the employee. The employee is provided an opportunity to address the employer's allegedly legitimate basis for the adverse action and to prove that the reasons offered by the employer were merely pretextual. As this Court stated in West Virginia Department of Natural Resources v. Myers, 191 W.Va....