Mirich v. State ex rel. Bd. of Trs. of Laramie Cnty. Sch. Dist. Two

• Decision Date: 18 February 2021
• Docket Number: S-20-0134
• Citation: 481 P.3d 627
• Parties: Marvin MIRICH, Appellant (Petitioner), v. STATE of Wyoming EX REL., BOARD OF TRUSTEES OF LARAMIE COUNTY SCHOOL DISTRICT TWO and Laramie County School District Number Two, Appellee (Respondent).
• Court: Wyoming Supreme Court

481 P.3d 627

Marvin MIRICH, Appellant (Petitioner),

v.STATE of Wyoming EX REL., BOARD OF TRUSTEES OF LARAMIE COUNTY SCHOOL DISTRICT TWO and Laramie County School District Number Two, Appellee (Respondent).

S-20-0134

Supreme Court of Wyoming.

February 18, 2021

Representing Appellant: Jason M. Tangeman of Nicholas & Tangeman, LLC, Laramie, Wyoming.

Representing Appellee: Scott E. Kolpitcke of Copenhave, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

BOOMGAARDEN, Justice.

[¶1] The Board of Trustees of Laramie County School District Number Two (the Board) dismissed Marvin Mirich from his teaching contract with Laramie County School District Number Two (the District) after an incident between him and his daughter at school. At the crux of this dismissal was whether certain District policies and professional conduct standards applied to a teacher who disciplined his child—who also happened to be a student—on school grounds, during school hours. The Board concluded they do and dismissed Mr. Mirich for violating those policies and standards. The district court affirmed the dismissal. It also affirmed the Board's decision to pay Mr. Mirich only a pro-rata portion of extra-duty pay for coaching track and no bonus following his suspension with pay. Concluding that substantial evidence supports the Board's dismissal decision, but there is no Board decision on pay for this Court to review, we affirm.

ISSUES

[¶2] The dispositive issues are:

I. Does substantial evidence support the Board's decision to dismiss Mr. Mirich?

II. Is there a Board decision on extra-duty or bonus pay for this Court to review?

FACTS

[¶3] Mr. Mirich had been a full-time continuing contract teacher in the District since 1993.¹ During the 2017/2018 school year, he taught physical education and coached track at Burns Junior/Senior High School (Burns High). His daughter JM was a sophomore at Burns High and competed on the track team. The incident resulting in dismissal occurred between Mr. Mirich and JM on Friday, March 9, 2018, at Burns High, during school hours. The facts regarding that incident are not in dispute.

[¶4] The District had a four-day school week and Fridays were assigned a color—March 9 was a "Green Friday." On Green Fridays, teachers were expected to be at school from approximately 7:30 a.m. to 12:30 p.m. and in their classrooms between 8:00 and 10:00 a.m. During those two hours, students could attend school to do extra work or catch-up work.

[¶5] Mr. Mirich first saw JM in the gym shortly before 8:00 a.m. that morning. They discussed JM's poor performance on an obstacle course at track practice the night before. The conversation did not go well—JM called Mr. Mirich an "asshole" and then left for Heather Goodwine's classroom to work on the yearbook. When Mrs. Goodwine and Burns High students VD, MT, and MO saw JM in the classroom, they noticed that she seemed upset and had been crying.

[¶6] Sometime later that morning, Danna Mirich—Mr. Mirich's wife/JM's mother—received a text message from JM in which JM stated that she was mad at her father, they got in an argument, and something to the effect of "this is why I should just die." Out of concern for JM, Mrs. Mirich sent her husband a text message asking him to find out what was going on. Mr. Mirich went to Mrs. Goodwine's classroom to talk to JM. He was upset that JM had called him an "asshole" and worried that JM had suggested she would harm herself. Mr. Mirich entered Mrs. Goodwine's classroom and asked to speak with JM. JM initially refused—saying "no, you're just going to yell at me[ ]"—but eventually acquiesced.

[¶7] Video largely captured what occurred between Mr. Mirich and JM in the hallway outside Mrs. Goodwine's classroom.² Mr. Mirich, standing significantly taller than JM, looked down on her, pointed his finger in her face, and continually maneuvered himself in front of her. Mr. Mirich appeared angry. JM began walking away from Mr. Mirich.

[¶8] As JM walked away, Mr. Mirich reached out, grabbed JM by the hood of her sweatshirt, and pulled her backward. JM fell to the ground on her back side. Mr. Mirich stood over her, still pointing, and did not help her up. When JM got up, he backed her into the lockers and twice appeared to bump her back into the lockers when she attempted to move away.

[¶9] At the end of this encounter, JM pulled her sweatshirt up over her face and reentered Mrs. Goodwine's classroom. Around that time, HK entered the room and saw JM sitting on the ground crying with MO, MT, and VD gathered around her. Mrs. Goodwine left the room "to give [JM] and her friends a second."

[¶10] Later that morning, Mr. Mirich returned to the classroom and again asked to speak with JM. He and JM then went to Athletic Director (AD) Barry Ward's empty classroom. Shortly after, HK and MO left Mrs. Goodwine's room and heard yelling and profanity coming from AD Ward's room. They informed Mrs. Goodwine they could hear Mr. Mirich yelling. MO asked if they should get the principal; Mrs. Goodwine said they should.

[¶11] MO reported her concern to Principal Dishman and he went to AD Ward's room to find out what was going on. The voices from within were not as loud as earlier reported, but he observed JM had been crying. Mr. Mirich told Principal Dishman he had pulled JM down by her hood and that it would be on video. Principal Dishman returned to his office and watched the video. He conferred with District Superintendent Jon Abrams and then suspended Mr. Mirich pending an investigation.

[¶12] On April 5, 2018, Superintendent Abrams issued Mr. Mirich a "Notice of Suspension with Pay and Recommendation of Dismissal." The notice identified three statutory reasons for the recommendation: (1) neglect of duty, (2) failure to perform duties in a satisfactory manner, and (3) other good or just cause relating to the educational process. It included the following allegations relevant to this appeal:³

a. On or about March 9, 2018, while at school, you were walking down a hallway with a student, JM, who is also your daughter. As you were walking with her, you physically grabbed JM by the hood of her "hoodie", and yanked her backward, pulling her to the ground.

b. After you yanked JM to the ground, she got up, and you shoved or pushed her against the lockers in the hallway multiple times while talking to her in an aggressive, confrontational and intimidating manner.

c. Eventually, you walked away from JM, and she walked into her classroom. She was crying and visibly upset when she walked into her classroom.

d. Several minutes after JM entered her classroom, you entered her classroom, and ordered her to follow you outside the classroom. Your tone and demeanor frightened other students in the classroom. At least one student reported that she moved to a corner of the classroom because she was frightened of you.

e. After you and JM left her [classroom], she followed you down the hall, and you both entered another classroom, where you spoke to her in a loud, angry tone, and used profanities when yelling at her.

f. JM's classmates in her classroom could overhear you yelling at her, and could hear you using profanities. It frightened them enough that they went to get the principal, Mr. Dishman, to intervene.

g. After this incident, you were advised to leave the school, and that you were suspended with pay. At some point that day, you sent a text message to school board members in which you made statements about the incident, some of which misstated the facts. For example, you stated in your text message that after JM "fell backwards" you "helped her up." That statement is not true.

The notice informed Mr. Mirich that his conduct violated the District's "Harassment, Intimidation, and Bullying" and "Professional Ethics" policies, as well as the Wyoming Professional Teaching Standards Board (PTSB) "Professional Conduct Guide."

[¶13] Mr. Mirich requested a contested case hearing pursuant to Wyo. Stat. Ann. § 21-7-110(c), and the Office of Administrative Hearings (the OAH) held a three-day hearing at the end of October 2018. Thirteen witnesses testified in person and two testified by deposition. The Superintendent's witnesses included Mr. and Mrs. Mirich. In addition, VD, HK, MT, MO, and Mrs. Goodwine addressed the March 9 incident. Principal Dishman and Superintendent Abrams discussed the investigation and the basis for the dismissal recommendation. Mr. Mirich testified on his own behalf and called several witnesses to testify about his character and abilities as a teacher and coach, including his ability to reach difficult students.

[¶14] The Hearing Officer issued his "Recommended Findings of Fact, Conclusions of Law, and Order" the following month. He recommended the Board dismiss Mr. Mirich for the reasons stated in the notice. He further recommended the Board find that Mr. Mirich's conduct violated the policies and conduct guide identified in the notice. The Board adopted the Hearing Officer's recommendations in relevant part and dismissed Mr. Mirich. He petitioned the district court for review, the court affirmed, and this appeal followed.

STANDARD OF REVIEW

[¶15] "When an appeal is taken from a district court's review of an administrative agency's decision, we examine the case as if it had come directly from the agency, giving no deference to the district court's decision." Sweetwater Cty. Sch. Dist. No. One v. Goetz , 2017 WY 91, ¶ 23, 399 P.3d 1231, 1235 (Wyo. 2017) (citation omitted). Wyo. Stat. Ann. § 16-3-114(c) governs our review:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial

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