Trimble v. West Virginia Bd. of Directors, No. 28490.

CourtSupreme Court of West Virginia
Writing for the CourtDAVIS, Justice.
Citation549 S.E.2d 294,209 W.Va. 420
PartiesGeorge TRIMBLE, Petitioner Below, Appellant, v. WEST VIRGINIA BOARD OF DIRECTORS, Southern West Virginia Community and Technical College, Respondent Below, Appellee.
Decision Date06 April 2001
Docket NumberNo. 28490.

549 S.E.2d 294
209 W.Va.
420

George TRIMBLE, Petitioner Below, Appellant,
v.
WEST VIRGINIA BOARD OF DIRECTORS, Southern West Virginia Community and Technical College, Respondent Below, Appellee

No. 28490.

Supreme Court of Appeals of West Virginia.

Submitted March 6, 2001.

Decided April 6, 2001.

Dissenting Opinion of Justice Maynard July 6, 2001.


549 S.E.2d 296
C. Jane Moran, Law Offices of C. Jane Moran, Williamson, for the Appellant

Darrell V. McGraw, Jr., Attorney General, Connie A. Bowling, Senior Assistant Attorney General, Charleston, Bruce Ray Walker, General Counsel, Charleston, for the Appellee.

DAVIS, Justice.

George Trimble, appellant/petitioner below (hereinafter referred to as "Mr. Trimble"), appeals from a final order of the Circuit Court of Kanawha County affirming the decision

549 S.E.2d 297
of the Board of Directors of the West Virginia State College System (hereinafter referred to as "the Board")1 to dismiss Mr. Trimble from his position as a tenured, full-time assistant professor of English at the Southern West Virginia Community and Technical College, appellee/respondent below (hereinafter referred to as "the College"). Mr. Trimble was terminated for alleged insubordination. Here, Mr. Trimble contends that his termination violated his First Amendment rights to freedom of speech and assembly. Mr. Trimble also contends that he had a property interest in his employment and that because of his property interest, the College was required to utilize progressive disciplinary measures prior to considering termination of his employment. After reviewing the entire record, and the briefs and argument of counsel, the final order of the circuit court is reversed

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Trimble began his employment with the College as an Instructor in the Fall of 1978.2 He was awarded tenure and promoted to the position of assistant professor in 1984. During his employment with the College, Mr. Trimble taught Literature and English in the College's Humanities Division. Prior to 1996, Mr. Trimble engaged in no conduct that required disciplinary action against him. In fact, Mr. Trimble consistently received favorable evaluations throughout his employment with the College.

Problems began to occur in 1996. In January of 1996, the College faculty unanimously voted a vote of no confidence for the College President, Travis Kirkland. The no confidence vote was prompted by numerous changes Mr. Kirkland attempted to institute at the College. Additionally, in August 1996, Mr. Trimble was instrumental in organizing WVEA/Southern (hereinafter referred to as "WVEA"), a teacher's labor organization. Mr. Trimble became President of the organization, which a majority of the College's faculty eventually joined. In fact, WVEA was extremely critical of many policy initiatives proposed by the College.

One of the changes sought by President Kirkland was the implementation of an assessment plan known as Instructional Performance Systems Incorporated (hereinafter referred to as "IPSI"). IPSI was a computer software program used for writing course syllabi. It was designed to allow for measuring competency-based goals which could be later used to evaluate student achievement. The College faculty was first advised of the assessment plan in a memorandum issued in August 1996. A few months later, President Kirkland mandated the use of the IPSI software. President Kirkland's decision was met with faculty opposition.

The Humanities Division objected to using IPSI. The position taken by the Humanities Division was that IPSI was impractical and unworkable for their courses, although it might have relevancy for technical or vocational programs offered by the College. Therefore, Mr. Trimble opposed the use of IPSI on the grounds that it interfered with the principles of academic freedom. The position taken by Mr. Trimble was printed in a newsletter published by WVEA.

Several informational meetings were conducted by the College concerning the use of the IPSI software on the Williamson campus. Mr. Trimble failed to attend several of the meetings.3 The College sent a memo to Mr. Trimble advising him of institutional policy

549 S.E.2d 298
mandating advanced written notice of non-emergency reasons for not attending required College meetings. Mr. Trimble was further advised that "[c]ontinued non-attendance and disregard for these required meetings will result in a letter of reprimand being placed in your personnel file with additional action as needed."

As a result of opposition to the IPSI software by members of the Humanities Division, President Kirkland ordered every faculty member of the Humanities Division to prepare an IPSI-generated syllabus for a specific course by a certain deadline. Subsequently, Mr. Trimble and two other members of the Humanities Division filed a grievance challenging the mandatory use of the IPSI software.

The College advised Mr. Trimble in a memo dated March 17, 1997, that his resistance to the College's efforts to require the faculty to draft IPSI syllabi was being viewed as a "flagrant and willful disregard for directions and/or inquiries of your employer" which constitutes "insubordination". Mr. Trimble responded with a memo disputing the characterization of his actions as "insubordination".

During a Humanities Division meeting in April, 1997, Mr. Trimble and another faculty member indicated that they refused to complete a syllabus using the IPSI format pending resolution of their grievance.4 On April 14, 1997, Mr. Trimble received a letter directing him to appear in a vacant office on the College's Logan Campus at 9:00 a.m. on Wednesday, April 16, 1997, to complete a draft IPSI syllabus. Mr. Trimble failed to appear at the Logan campus on April 16, 1997.

By letter dated May 12, 1997, President Kirkland advised Mr. Trimble of the College's intention to terminate his employment, effective May 30, 1997, for insubordination. Mr. Trimble was offered the opportunity to meet with President Kirkland to rebut the charges. He never requested a meeting. Accordingly, by letter dated May 30, 1997, Mr. Trimble's employment with the College was terminated.5

Mr. Trimble filed a grievance challenging his termination. An Institutional Hearing Committee (hereinafter referred to as "IHC") conducted evidentiary hearings on September 2 and 3, 1997. On September 22, 1997, IHC issued a letter decision in favor of Mr. Trimble, concluding that there was no proof that he was insubordinate. However, President Kirkland subsequently made his own findings and upheld Mr. Trimble's termination. Mr. Trimble appealed President Kirkland's decision to the Board. A hearing examiner was appointed to conduct evidentiary hearings.

The hearing examiner issued a decision on November 18, 1998, recommending that the termination decision be upheld. The Board adopted the recommendation on January 26, 1999. Mr. Trimble then filed an appeal with the Circuit Court of Kanawha County. The circuit court affirmed the Board's decision on August 2, 2000. It is from the circuit court's ruling that Mr. Trimble now appeals.

II.

STANDARD OF REVIEW

This matter arises from an administrative grievance under 10 W. Va. CSR § 131-36-1, et seq. and W. Va.Code § 29A-5-1, et seq. As such, we have held that:

Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions or order are: "(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory

549 S.E.2d 299
authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

Syl. pt. 2, Shepherdstown Volunteer Fire Dep't. v. State ex rel. State Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d 342 (1983). Accord Syl. pt. 1, Modi v. West Virginia Bd. of Med., 195 W.Va. 230, 465 S.E.2d 230 (1995). We have also stated that "[e]videntiary findings made at an administrative hearing should not be reversed unless they are clearly wrong." Syl. pt. 1, Francis O. Day Co. v. Director, Div. of Envtl. Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994). The clearly erroneous

standard does not entitle a reviewing court to reverse the finder of fact simply because it may have decided the case differently.... Indeed, if the lower tribunal's conclusion is plausible when viewing the evidence in its entirety, the appellate court may not reverse even if it would have weighed the evidence differently[.]

Board of Educ. of County of Mercer v. Wirt, 192 W.Va. 568, 578-79, 453 S.E.2d 402, 412-13 (1994) (citing Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518, 528 (1985)) (footnotes omitted).

III.

DISCUSSION

A. First Amendment Claim

Mr. Trimble makes two arguments regarding the claim that his termination violated his rights to free speech and assembly,6 as guaranteed under the First Amendment of the United States Constitution.7 First, Mr. Trimble asserts that he was fired because of his union activities in establishing a branch of WVEA at the College. Therefore, he argues, the First Amendment protected him from being fired for such activities. Second, he contends that his refusal to cooperate with implementing the IPSI program was a protest affecting the education of his students. Likewise, he contends the First Amendment protected him from being fired for such...

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  • West Virginia Univ. Bd. of Governors v. Rodriguez, Civil Action No. 1:08-CV-41.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • February 11, 2008
    ...Board of Trustees and the Board of Directors of The State College System. See generally, Trimble v. West Virginia Bd. of Directors, 209 W.Va. 420, 549 S.E.2d 294 (2001). The Legislature replaced those two entities with (1) an Institutional Board of Governors for each higher education instit......
  • Wvu Bd. of Gov'Rs v. Wv Hi. Ed. Pol. Com'n, No. 33208.
    • United States
    • Supreme Court of West Virginia
    • May 24, 2007
    ...Board of Trustees and the Board of Directors of The State College System.2 See generally, Trimble v. West Virginia Bd. of Directors, 209 W.Va. 420, 549 S.E.2d 294 (2001). The Legislature replaced those two entities with (1) an Institutional Board of Governors for each higher education insti......
  • Sloan v. DEPT. OF HEALTH & HUMAN RES., No. 31374.
    • United States
    • Supreme Court of West Virginia
    • February 19, 2004
    ...mere technical violations of statute or official duty without wrongful intention."8 See also Trimble v. West Virginia Board of Directors, 209 W.Va. 420, 549 S.E.2d 294 (2001). In Oakes, an employee had been terminated from his civil service position as postmaster for the state capitol post ......
  • Butts v. HIGHER EDUC. INTERIM GOVERNING BD., No. 30120.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2002
    ...may legitimately form the basis for imposing sanctions upon college or public school employees. Trimble v. WV Board of Directors, 209 W.Va. 420, 549 S.E.2d 294 (2001); Sexton v. Marshall University, 182 W.Va. 294, 387 S.E.2d 529 (1989); and Meckley v. Kanawha County Board of Education, 181 ......
  • Request a trial to view additional results
5 cases
  • West Virginia Univ. Bd. of Governors v. Rodriguez, Civil Action No. 1:08-CV-41.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • February 11, 2008
    ...Board of Trustees and the Board of Directors of The State College System. See generally, Trimble v. West Virginia Bd. of Directors, 209 W.Va. 420, 549 S.E.2d 294 (2001). The Legislature replaced those two entities with (1) an Institutional Board of Governors for each higher education instit......
  • Wvu Bd. of Gov'Rs v. Wv Hi. Ed. Pol. Com'n, No. 33208.
    • United States
    • Supreme Court of West Virginia
    • May 24, 2007
    ...Board of Trustees and the Board of Directors of The State College System.2 See generally, Trimble v. West Virginia Bd. of Directors, 209 W.Va. 420, 549 S.E.2d 294 (2001). The Legislature replaced those two entities with (1) an Institutional Board of Governors for each higher education insti......
  • Sloan v. DEPT. OF HEALTH & HUMAN RES., No. 31374.
    • United States
    • Supreme Court of West Virginia
    • February 19, 2004
    ...mere technical violations of statute or official duty without wrongful intention."8 See also Trimble v. West Virginia Board of Directors, 209 W.Va. 420, 549 S.E.2d 294 (2001). In Oakes, an employee had been terminated from his civil service position as postmaster for the state capitol post ......
  • Butts v. HIGHER EDUC. INTERIM GOVERNING BD., No. 30120.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2002
    ...may legitimately form the basis for imposing sanctions upon college or public school employees. Trimble v. WV Board of Directors, 209 W.Va. 420, 549 S.E.2d 294 (2001); Sexton v. Marshall University, 182 W.Va. 294, 387 S.E.2d 529 (1989); and Meckley v. Kanawha County Board of Education, 181 ......
  • Request a trial to view additional results

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