Watkins v. McDowell County Board of Education

729 S.E.2d 822, 229 W. Va. 500, 2012 WL 2226446, 2012 W. Va. LEXIS 302
CourtWest Virginia Supreme Court
DecidedJune 14, 2012
DocketNo. 11-0420
StatusPublished
Cited by3 cases

This text of 729 S.E.2d 822 (Watkins v. McDowell County Board of Education) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Watkins v. McDowell County Board of Education, 729 S.E.2d 822, 229 W. Va. 500, 2012 WL 2226446, 2012 W. Va. LEXIS 302 (W. Va. 2012).

Opinion

PER CURIAM:

Appellant Lola Melinda Watkins appeals a final order entered February 9, 2011, in the Circuit Court of Kanawha County, which affirmed a decision by the Administrative Law Judge (“ALJ”) of the West Virginia Public Employees Grievance Board denying Appellant’s grievance of her termination from employment as a teacher.

Upon careful review of the briefs and argument of counsel, the joint appendix of the parties and the applicable legal authority, this Court affirms the February 9, 2011, final order of the circuit court.

I. Factual and Procedural History

On March 6, 2008, Appellant was employed by the McDowell County Board of Education as a sixth grade science teacher at War Annex. That morning, Appellant sent one of [503]*503her students, J.B.1, to the assistant principal’s office due to his disruptive behaviour in her classroom.2 Upon arriving at the office of Assistant Principal Cheryl Cruey, he called his home and informed his aunt and caretaker, Clarice Bailey (“Ms. Bailey”), her sister and his father3 that he had been “biffed” from Appellant’s classroom. Shortly thereafter, the three arrived at the school and met with Assistant Principal Cruey. During the course of the meeting, they expressed their concern that, in their view, Appellant singled out J.B. and treated him unfairly.4

Eventually, Appellant joined the meeting in Assistant Principal Cruey’s office. When the conversation became heated, Assistant Principal Cruey adjourned the meeting and indicated that the parties could set up another meeting at another time. Assistant Principal Cruey directed Appellant to return to her classroom and Ms. Bailey to leave the building. The events that next transpired are much disputed by the parties.

Appellant left Assistant Principal Cruey’s office first and Ms. Bailey followed her into the hallway. In a statement written by Appellant immediately following the incident, she stated, inter alia, that

As I walked out of the office, Ms. Bailey followed me and began to push me. She stated, “You better remember. I know where you live.” She hit her body into mine and knocked me off balance. I yelled for someone to call the police. Ms. Bailey began to swing at my head. She put all of her weight into a punch at my right side of my head. She left a red mark on my ear and side of my head. I called 911.

However, at the Level III hearing before the ALJ, Appellant’s testimony regarding the altercation with Ms. Bailey was quite different. She testified that after she left Assistant Principal Cruey’s office to return to her classroom, the following occurred:

I am talking to my students as I approach the doorway. I say, “Hey, guys, how far did you get on that ... ” — and before I could say “solar panel,” I had a blow at the back of my head----it was a fist. It hit me directly, and you could feel it____ I turned around and I stated, “Why did you just hit me for? You really messed up.” There was a sign that was in a glass frame hanging on the wall right behind her. I said, “You really messed up. That was a felony,” and I pointed to the sign.5

(Footnote added)

Appellant further testified that Ms. Bailey hit her “violently and harshly” and that she

started hitting me on the right side of my face with her palm of her hand, slapping the right side of my face, including my ear all the way down to my mouth. I was yelling, “Help! She’s hitting me! Somebody call the police! Call 911! Help! She’s hitting me! Somebody call the police! Call 911! Help! She’s hitting me!” At one point [Ms. Bailey] takes her artificial nails and she cuts the white part of my eye.6 When she did that, my hands went up in a reflex.

According to Appellant, when her hands came up “in defense,” Ms. Bailey’s glasses fell off of her face. Appellant testified that she did not intend to hit Ms. Bailey.

[504]*504In stark contrast to Appellant’s version of events, Ms. Bailey testified that when they left Assistant Principal Cruey’s office, Appellant “just started screaming and hollering, I mean just like a crazy person. ‘Don’t hit me! Don’t hit me!’” According to Ms. Bailey, her sister then exited the office at which time Appellant “comes flying over, go to hitting me____ She hit me. She knocked my brown glasses off____she said, “I’m calling the police. I’m calling the police.” Ms. Bailey testified that a student identified as V.W. intervened, grabbed hold of Ms. Bailey and told her not to do anything. She further testified that “[t]he only reason I didn’t hit this lady back was because God told me to stand still.... The only reason I stood still was because V.W. grabbed me around the legs and held me, and there was all of those kids over there.... I never put my hands on her.”

Ms. Bailey’s sister, Susie Bailey, testified that she heard Appellant “screaming, ‘Stop hitting me, stop hitting me.’ I looked up. My sister was just standing there. Then I heard something go click. Her glasses had hit the floor. [Appellant] was just a-swattin’ like that (indicating). Then Clarice said, ‘My face is burning.’ I said, ‘She done scratched you.’ ” According to Susie Bailey, Appellant was saying “stop hitting me” while “she was swinging---- My sister’s like, ‘Call the police? You’re the one hitting me.’ ” Susie Bailey testified that she observed scratches on her sister’s face and stomach. She further testified that she never saw Ms. Bailey strike Appellant.

Another witness, student M.B.H., testified that she was standing in the hallway when the altercation occurred. She further testified that she saw Ms. Bailey hit Appellant in the back of the head with her fist and that she heard Appellant ask Ms. Bailey why she hit her. According to M.B.H., she then immediately returned to her class and did not tell anyone what she had just observed. We note that the ALJ made a specific finding that M.B.H.’s testimony was not reliable because, among other things, she testified that the altercation occurred during a time frame which was inconsistent with all of the other evidence in that regard. All of the other evidence demonstrated that the altercation occurred in the morning whereas M.B.H. testified that it occurred during her seventh period class, which did not begin until 1:15 p.m. The ALJ further noted that Grievant visited M.B.H.’s home in order to solicit her testimony and that M.B.H.’s version of events was suspiciously more consistent with Grievant’s hearing testimony and inconsistent with Grievant’s contemporaneous written account of the incident.

Following the altercation, Ms. Bailey reported it to the McDowell County Board of Education and obtained a warrant in McDowell County Magistrate Court for Appellant’s arrest.

By letter dated March 10, 2008, from Superintendent Suzette Cook, Appellant was advised that she was being suspended from employment with pay effective immediately “and continuing until the criminal complaint filed in the Magistrate Court of McDowell County is resolved and/or until the McDowell County Board of Education conducts its own investigation to determine whether it should take disciplinary action regardless of the outcome of the criminal complaint.” Appellant did not request a hearing with regard to her suspension.

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729 S.E.2d 822, 229 W. Va. 500, 2012 WL 2226446, 2012 W. Va. LEXIS 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watkins-v-mcdowell-county-board-of-education-wva-2012.