Sexton v. Marshall University, 19088

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 182 W.Va. 294,387 S.E.2d 529
• Parties: , 58 Ed. Law Rep. 352 Charles T. SEXTON v. MARSHALL UNIVERSITY.
• Docket Number: No. 19088,19088
• Decision Date: 21 November 1989

Page 529

387 S.E.2d 529 182 W.Va. 294, 58 Ed. Law Rep. 352 Charles T. SEXTON
v.
MARSHALL UNIVERSITY. No. 19088. Supreme Court of Appeals of West Virginia. Nov. 21, 1989.

Page 530

[182 W.Va. 295] Syllabus by the Court

"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." Syllabus Point 1, Randolph County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).

Anthony F. Serreno, Sp. Asst. Atty. Gen., West Virginia Bd. of Regents, Charleston, for Marshall University.

W.J. Arceneaux, III, McIntyre, Haviland and Jordan, Charleston, for Charles T. Sexton.

PER CURIAM:

Marshall University (the University) appeals an order of the Circuit Court of Kanawha County contending that the circuit court erred in reversing the decision of the Educational Employees Grievance Board (EEGB) which upheld the discharge of Charles T. Sexton for gross insubordination. We agree, and we reverse the order of the circuit court.

Mr. Sexton was employed by the University as an electrician for approximately ten years. In a memorandum to his supervisor, Clifford Curry, dated February 2, 1988, Mr. Sexton stated that he had learned one of his coworkers was under consideration for the position of assistant supervisor of housing maintenance. Mr. Sexton listed the persons whom he believed were more qualified for the position and provided a summary of their qualifications. The name of the coworker who was allegedly being considered for the position was at the bottom of the list.

By memorandum dated February 3, 1988, Mr. Curry expressed his disapproval of Mr. Sexton's memorandum and warned him to refrain from "spreading false rumors." By letter dated February 5, 1988, Mr. Sexton replied that if Mr. Curry's memorandum was a written warning, then Mr. Sexton's letter should be considered as a request for a Level I conference pursuant to the educational employees grievance procedure. ¹ That same day, Mr. Sexton filed a grievance. Mr. Curry responded by stating that his February 3, 1988 letter was a "reaffirmation of a previous warning that [Mr. Sexton] had been given verbally" and in writing.

Mr. Curry scheduled a meeting, to which Mr. Sexton and his coworkers were invited, for February 16, 1988, apparently to discuss procedures for filling the new job position. At the beginning of the meeting, Mr. Sexton stood up and began reciting the definition of reprisal from W.Va.Code, 18-29-2(p). Raymond Welty, Acting Associate Vice President for Administration, asked Mr. Sexton to sit down so that the meeting could continue. Mr. Sexton, in a louder voice, continued to read the definition of reprisal. Mr. Welty again asked Mr. Sexton to sit down, but he refused. Mr. Welty cancelled the meeting and directed those attending to return to work.

In a letter dated February 17, 1988, Mr. Curry advised Mr. Sexton that he was being fired as a result of his actions at the meeting. ² Mr. Sexton requested a pretermination

Page 531

hearing and filed a discharge grievance with the EEGB.

After the pretermination hearing, the president of the University advised Mr. Sexton that his discharge had been upheld. A Level IV grievance hearing was conducted, and on May 25, 1988, the hearing examiner issued a final decision upholding Mr. Sexton's discharge for gross insubordination. [182 W.Va. 296] By final order dated March 23, 1989, the circuit court reversed the decision of the hearing examiner. It is from this order that the University appeals.

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