Debra Shantie v. Putnam County Board of Education
Date Filed2023-12-15
Docket22-ica-287
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
DEBRA SHANTIE, December 15, 2023
Respondent Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-287 (Cir. Ct. Kanawha Cnty. 22-AA-31)
PUTNAM COUNTY BOARD OF EDUCATION,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Debra Shantie appeals from the October 31, 2022, Final Order of the
Circuit Court of Kanawha County, which reversed the decision of the West Virginia Public
Employees Grievance Board (āGrievance Boardā). 1 Respondent Putnam County Board of
Education (āBoard of Educationā) filed its response. 2 Ms. Shantie filed a reply. The issue
on appeal is whether the circuit court erred by reinstating the Board of Educationās
termination of Ms. Shantieās employment.
This Court has jurisdiction over this appeal pursuant to West Virginia Code Ā§ 51-
11-4 (2022). After considering the partiesā arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the circuit courtās order is appropriate
under Rule 21 of the Rules of Appellate Procedure.
Ms. Shantie was employed by the Board of Education as a full-time bus operator
from April 12, 2000, until her termination on May 11, 2020. The events which led to her
termination are as follows.
All school buses in Putnam County are equipped with multiple video cameras. One
of those cameras is located behind the bus driver to record the driverās actions while they
are driving. The cameras can show the date, time, and the busās rate of speed. In early
March of 2020, Mr. Clark, Director of Transportation for Putnam County Schools, pulled
1
Because the Grievance Board decision was entered on May 16, 2022, the circuit
court retained jurisdiction over the administrative appeal. See W. Va. Code Ā§ 51-11-4
(2021) (giving this Court jurisdiction over final administrative orders entered after June 30,
2022).
2
Ms. Shantie is represented by Andrew J. Katz, Esq. The Board of Education is
represented by George āTreyā B. Morrone III, Esq., and Joshua A. Cottle, Esq.
1
some of the video recordings from Ms. Shantieās bus for review to determine if she had
overreported her hours on a timesheet. 3
Through his review, Mr. Clark discovered multiple instances between February 18,
2020, and March 3, 2020, where Ms. Shantie was observed using her cellphone while
operating her bus. Mr. Clark reported his findings, along with the recommendation of
termination to the Board of Educationās Superintendent, Mr. Hudson. By letter dated
March 10, 2020, Mr. Hudson informed Ms. Shantie that she was being placed on a paid
suspension while an investigation was completed into her cellphone use and the inaccurate
timesheets. This paid suspension was unanimously ratified by the Board of Education
during a meeting on April 6, 2020.
On April 16, 2020, Mr. Hudson met with Ms. Shantie, her union representative, and
counsel for the Board of Education regarding the investigation and to discuss potential
disciplinary action. The parties reviewed the bus camera footage showing Ms. Shantie
using her cellphone while operating her bus. During this meeting, Ms. Shantie admitted
that she knew cellphone use was prohibited but justified her conduct by stating that ā85%
of the other bus operators engage in the same or similar conduct.ā
By certified letter dated April 23, 2020, Mr. Hudson notified Ms. Shantie, in
extensive detail, that the investigation had been completed, and as a result, she was being
suspended without pay, effective immediately.
This letter stated that upon review of the bus video footage, it was determined that
Ms. Shantie had committed several policy violations while operating her bus. The dates
associated with her misconduct were identified as February 18-20, 2020, February 25,
2020, February 27-28, 2020, and March 2-3, 2020. On these dates Ms. Shantie used her
cellphone while operating her bus, several times per day, including at times when children
were present. She also failed to stop at a stop sign, failed to open the school bus door at a
railroad crossing, removed both hands from the steering wheel to fix her hair, and was
observed to be either speeding or driving left of center on multiple occasions. The letter
also stated that Ms. Shantie acknowledged this conduct during the April 16, 2020, meeting,
but attempted to diminish the seriousness of the conduct and denied that it raised any safety
issues.
3
See W. Va. Code R. Ā§ 126-92-10.23.a.1 (2020), in part:
A bus video may be reviewed at any time by the State Director, [West
Virginia Department of Education (āWVDEā)] bus inspector, WVDE
investigator, WVDE[,] and/or county attorney, county director, and the
county superintendent for reasons including but not limited to: safety
violations or misconduct, violation of policies and procedures, operator
evaluation, periodic review of student conduct, etc.
2
In his letter, Mr. Hudson also informed Ms. Shantie that each of the described
incidents violated provisions of the West Virginia Board of Education (āWVBEā) and local
Board of Education policies. Specifically, under the West Virginia School Bus
Transportation Regulations and Procedures established under West Virginia Code of State
Rules Ā§Ā§ 126-92-1 to -28 (āWVBE Policy 4336ā), Ms. Shantie was observed to have
violated: West Virginia Code of State Rules Ā§ 126-92-10.25.a (2020) (prohibiting a school
bus operatorās use of cellphones and other electronic devices while operating the bus);
West Virginia Code of State Rules Ā§ 126-92-10.25.b (2020) (prohibiting bus operator use
of cellphones while loading and unloading students); West Virginia Code of State Rules Ā§
126-92-10.6 (2020) (mandating bus operators observe all speed limits); West Virginia
Code of State Rules Ā§ 126-92-12.7 (2020) (setting forth railroad crossing protocol); and
West Virginia Code of State Rules Ā§ 126-92-21-1.j (2020) (generally stating that failure to
follow traffic laws, regulations, or ordinances while operating school bus is basis for
suspension, revocation, or non-renewal of bus operatorās certification).
Ms. Shantieās conduct was also found to have violated Board of Education Policy
9.15, which required school bus operators to comply with WVBE Policy 4366, and that
she had violated the Employee Code of Conduct as set forth under West Virginia Code of
State Rules Ā§Ā§ 126-162-1 to -6 (2002) (āWVBE Policy 5902ā) and adopted by Board of
Education Policy 4.9. WVBE Policy 5902 requires, for example, that employees
ādemonstrate responsible citizenship by maintaining a high standard of conduct, self-
control, and moral/ethical behavior,ā and to ācomply with all Federal and West Virginia
laws, policies, regulations, and procedures.ā W. Va. Code R. Ā§ 126-162-4.2.6 and -4.2.7.
According to Mr. Hudsonās letter, Ms. Shantie had previously received training regarding
these policies, including the prohibition on cellphone use. Citing these violations, Mr.
Hudson informed Ms. Shantie that at the upcoming May 11, 2020, Board of Education
meeting, he would recommend that her employment be terminated.
At the May 11, 2020, meeting, the Board of Education ratified Ms. Shantieās April
23, 2020, unpaid suspension, and voted to terminate her employment, effective
immediately. Ms. Shantieās termination was based upon her misconduct as outlined in Mr.
Hudsonās April 23, 2020, letter.
Thereafter, Ms. Shantie exercised her right to a level three hearing before the
Grievance Board. The hearing was held on November 9, 2021, and December 21, 2021.
Before the Grievance Board, the Board of Education argued that its decision to suspend,
and subsequently terminate Ms. Shantie, was proper because she violated various safety
policies, procedures, and traffic laws. It was the Board of Educationās belief that this
conduct endangered the safety of students and the public, which constituted
insubordination and willful neglect of duty under West Virginia Code Ā§ 18A-2-8(a)
(2019). 4
4
West Virginia Code Ā§ 18A-2-8(a) provides:
3
The Grievance Board issued its order on May 16, 2022. Significant to this appeal
are the Grievance Boardās findings regarding Ms. Shantieās cellphone use. On that issue,
the Grievance Board found:
The video clips establish that [Ms. Shantie] repeatedly touched her
cellphoneās screen and handled the phone throughout her runs on the days in
question. [Ms. Shantie] can be seen doing this in every video clip presented
by [the Board of Education]. [The Board of Education] has not asserted that
these clips are the only recordings from these days, or that they show [Ms.
Shantie]ās entire workday. These video clips are taken from longer
recordings. In each clip, [Ms. Shantie]ās cellphone can be seen sitting in the
bus windowsill to her left. [Ms. Shantie] is not seen talking on her cellphone
or using it to text. [The Board of Education] has asserted that in one clip [Ms.
Shantie] appears to be texting while the bus is stopped and students are
loading, but [the Grievance Board] cannot discern that from the recording. It
is undisputed that in some clips, [Ms. Shantie] can be observed with her
cellphone in hand, apparently scrolling down on its screen when the bus is
stopped and/or students are [unloaded/loaded]. However, [the Grievance
Board] cannot determine with certainty, what [Ms. Shantie] is doing on her
phone.
[Ms. Shantie] argues that she was using her phone as both a clock and a radio,
but not using the telephone and texting applications. [Ms. Shantie] explained
that she had to touch her cellphoneās screen periodically because the screen
will go dark when it is not in active use, and by touching it with her finger,
the screen lights up allowing her to see the time. [Ms. Shantie] asserts the
same is true of the radio application. A review of the clips, all of which have
audio, establishes that [Ms. Shantie] is not using her phone to call anyone or
to have conversations via any handsfree technology. It is noted that in some
of the videos, music can be heard playing in the background. [Ms. Shantie]
(a) Notwithstanding any other provisions of law, a board may suspend or
dismiss any person in its employment at any time for: Immorality,
incompetency, cruelty, insubordination, intemperance, willful neglect of
duty, unsatisfactory performance, a finding of abuse by the Department of
Health and Human Resources in accordance with Ā§ 49-1-1 et seq. of this
code, the conviction of a misdemeanor or a guilty plea or a plea of nolo
contendere to a misdemeanor charge that has a rational nexus between the
conduct and performance of the employee's job, the conviction of a felony or
a guilty plea or a plea of nolo contendere to a felony charge.
4
contends that this is not cellphone āuseā as prohibited by the policy, and if it
were, she did not know it.
Regarding Ms. Shantieās argument that the nature of her cellphone use was not
prohibited, the Grievance Board determined that the term āuseā was undefined by the
WVBE Policy 4336. The Grievance Board found that nowhere in the Policy was it stated
that cellphones are prohibited on buses, even when not in use, nor did the Policy state that
any violation would result in an automatic termination of employment. Thus, the Grievance
Board concluded that Ms. Shantieās possession of a cellphone did not violate the Policy.
Addressing WVBE Policy 4336, the Grievance Board stated:
The policies at issue are somewhat vague as to what constitutes cellphone
āuse.ā The fact that cellphones have evolved into so much more than a
telephone does not help matters. In addition to ācellular phones,ā Policy 4336
prohibits operators from using āother portable electronic devicesā while
operating their buses. Using a cellphone as a radio would seem to fit that
description, but even if it did not, [Ms. Shantie]ās actions as captured by the
bus camera, should be the main concern. From a review of the video clips, it
is obvious that [Ms. Shantie] could not keep her hands off her phone while
she was operating the bus. [Ms. Shantie] repeatedly touched her phone while
driving, and when the bus stopped, she would pick it up and use it with both
hands. [Ms. Shantie] can also be seen grabbing at her phone when it appears
poised to fall from the windowsill, and in that clip, [Ms. Shantie] goes left of
center as a result. [The Grievance Board] does not doubt that [Ms. Shantie]
was using the phone as a radio because much can be heard on the recordings.
Nor does [the Grievance Board] doubt that [Ms. Shantie] was using [her
cellphone] as a clock because the time is prominently displayed on almost all
smartphone home screens. However, no matter what [Ms. Shantie] was using
her cellphone to do, it distracted her, and it affected her driving.
Despite finding that Ms. Shantieās cellphone use distracted her driving, the
Grievance Board also found that Ms. Shantieās actions ādid not result in any injuries to
anyone, traffic accidents, damage to the bus or to other vehicles, any citations, or any
damage to property.ā After considering the evidence presented, the Grievance Board
concluded:
[The Board of Education] failed to prove by a preponderance of the evidence
that [Ms. Shantie]ās actions as described [in the April 23, 2020, letter]
constitute insubordination and willful neglect of duty. As such, [the Board of
Education]ās decision to terminate [Ms. Shantie]ās employment contract was
not justified. [The Board of Education] proved that [Ms. Shantie] violated
Policy 4336 by taking her hands off the steering wheel while operating her
bus, driving left of center, failing to follow the proper procedures for railroad
5
crossings, and for using a portable electronic device while operating her bus,
all of which are related to [Ms. Shantie]ās performance as a bus operator and
are correctable conduct. [Ms. Shantie] was entitled to an opportunity to
improve her performance before her employment contract was terminated.
[The Board of Education] failed to prove by a preponderance of the evidence
that [Ms. Shantie] exceeded the speed limit while operating her bus, that she
failed to stop at two stop signs, and that [Ms. Shantie] was texting while
operating her bus. Accordingly, this grievance is GRANTED.
The Grievance Board reinstated Ms. Shantieās employment and awarded her back
pay. The Board of Education appealed this decision to the Circuit Court of Kanawha
County. On October 31, 2022, the circuit court entered its Final Order, which reversed and
vacated the Grievance Boardās decision, denied Ms. Shantieās grievance, and affirmed her
termination.
In its order, the circuit court rejected the Grievance Boardās conclusion that Ms.
Shantie was entitled to have her employment reinstated based upon its determination that
WVBE Policy 4336 was ambiguous. Instead, the circuit court found that there was no
reason to āoverly complicate the definition of āuseā regarding a cell[phone],ā and that a
strict legal definition of the term was not required when āany individual can readily identify
when someone uses a cell[phone].ā The circuit court further found that the Grievance
Board made several findings related to its determination that Ms. Shantie did, in fact, use
her cellphone while operating the bus. This included the Grievance Boardās express finding
that Ms. Shantieās cellphone use ādistracted her, and it affected her driving.ā The circuit
court determined that the plain language of WVBE Policy 4336 clearly prohibited any
cellphone use by Ms. Shantie while operating her school bus, and that the Grievance
Boardās conclusion that Ms. Shantieās cellphone use did not violate the Policy was clearly
wrong.
The circuit court also found that the Grievance Board erred in its conclusion that
Ms. Shantieās termination was not warranted because her conduct was correctable. The
circuit court found that the Grievance Board had misinterpreted Mason Cnty. Bd. of Educ.
v. State Superintendent of Schools, 165 W. Va. 732,274 S.E.2d 435
(1980) to stand for the proposition that an individualās conduct is automatically correctable when the conduct impacts his or her professional competency. Instead, the circuit court found that Mason sets forth that when determining whether a school employeeās conduct is correctable, a reviewing court must decide āwhether [the conduct] directly and substantially affects the morals, safety, and health of the system in a permanent, non-correctable manner.ā Mason,165 W. Va. at 739
,274 S.E.2d at 439
.
On this issue, the circuit court determined that Ms. Shantieās conduct was not
correctable, and, thus, she was not entitled to an improvement plan. The circuit court
concluded that as a matter of law, an individual is not entitled to an improvement plan if
6
the offending conduct impacts the health or safety of others, and that the Grievance Board
expressly found that Ms. Shantieās cellphone use resulted in multiple instances of distracted
driving.
The circuit court found that distracted driving inherently posed a severe threat to
others, and in this case, Ms. Shantieās distracted driving threatened the health, safety, and
welfare of her bus passengers and the public. Thus, it concluded that her conduct was not
correctable, and the Board of Education could terminate her employment without first
offering an improvement plan. The circuit court also rejected the Grievance Boardās
rationale that Ms. Shantieās termination was unreasonable because there had been no
injuries or property damage due to distracted driving. Instead, the circuit court opined that
the Board of Education did not have to wait on tragedy before taking action to fulfill its
obligation to protect its students. This appeal followed.
In this appeal, we apply the following standard of review:
A party may appeal the decision of the administrative law judge on the
grounds that the decision:
(1) Is contrary to law or a lawfully adopted rule or written policy of the
employer;
(2) Exceeds the administrative law judgeās statutory authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative, and substantial
evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
W. Va. Code Ā§ 6C-2-5(b) (2007); accord W. Va. Code Ā§ 29A-5-4(g) (2021) (specifying
the standard for appellate review of administrative appeal); Syl. Pt. 1, Martin v. Barbour
Cnty. Bd. of Educ., 228 W. Va. 238,719 S.E.2d 406
(2011) (when a reviewing Grievance
Board appeal, this Court reviews a circuit courtās decision under the same standard that the
circuit court reviewed the administrative decision).
On appeal, Ms. Shantie asserts two assignments of error, and we will address each
in turn. 5 First, Ms. Shantie argues that the circuit court erred by finding no ambiguity in
5
Ms. Shantieās brief fails to contain several sections mandated by Rule 10 of our
Appellate Rules. Specifically, the brief fails to contain a cover page, table of contents, table
of authorities, assignment(s) of error, statement of the case, summary of argument, and a
statement regarding oral argument and decision. Ms. Shantieās brief largely contains
sections/headings not expressly authorized by Rule 10 and fails to cite to the appendix
record. Further, Ms. Shantieās reply brief fails to conform with the requirements for such
briefs under Rule 10(g) of our Appellate Rules. Also, the partiesā joint appendix fails to
7
the term āuseā, as used within WVBE Policy 4336. On this issue, Ms. Shantie asserts that
the circuit courtās finding that the Policy prohibits any use of a cellphone is unworkable
because under that rationale, the utilization of a cellphone as a paperweight would
constitute a āuseā, and, thus, would violate the Policy. We disagree and find that the circuit
court did not err in its finding that the Policy was unambiguous.
Under WVBE Policy 4336, ā[t]he use of ear pieces, ear buds, headsets, cellular
phones, or other portable electronic devices, even those equipped with hands-free
technology, is prohibited for operators while operating the bus and by aides while students
are present.ā W. Va. Code R. Ā§ 126-92-10.25.a. As written, we find that this Policy plainly establishes that school bus operators are prohibited from engaging in the use of any cellphone or other electronic devices while operating his or her bus. We are unpersuaded by Ms. Shantieās attempt to impute ambiguity by comparing the use of her cellphone as clock and radio to the use of a cellphone as a paperweight. As our stateās highest court has made clear, ā[a] term which is widely used[,] and which is readily comprehensible to the average person without further definition or refinement need not have a defining instruction.ā Syl. Pt. 2, State v. Bartlett,177 W. Va. 663, 664
,355 S.E.2d 913, 914
(1987).
Given this Policyās plain language, we find the term āuseā to be widely used and its
meaning to be readily comprehensible to the average person. As such, we decline to find
ambiguity in that regard.
Ms. Shantieās final assignment of error rests on whether the circuit court erred by
finding her conduct uncorrectable. Here, she argues that she was entitled to an
improvement plan because her cellphone use was correctable conduct under Mason.
According to Ms. Shantie, all she must do to correct her conduct is to abstain from any
future cellphone use while operating her bus. Ms. Shantie also believes that the circuit court
exaggerated the seriousness of her conduct given the Grievance Boardās finding that her
distracted driving did not result in any accidents or injuries. We are unpersuaded by either
argument. Upon review, we find that the circuit court properly analyzed Ms. Shantieās
conduct under Mason and determined that her conduct was not technically correctable.
West Virginia Code Ā§ 18A-2-8(a) states, in part, that ā[n]otwithstanding any other
provisions of law, a board may suspend or dismiss any person in its employment at any
time for: Immorality, incompetency, cruelty, insubordination, intemperance, willful
neglect of duty, [or] unsatisfactory performance[.]ā Pursuant to West Virginia Code Ā§ 18A-
2-8(d):
A county board of education has the duty and authority to provide a safe and
secure environment in which students may learn and prosper; therefore, it
may take necessary steps to suspend or dismiss any person in its employment
contain a table of contents as required by Rule 7(c)(3) of our Appellate Rules. All counsel
are directed to comply with the requirements of our Rules of Appellate Procedure in all
future filings with this Court.
8
at any time should the health, safety, and welfare of students be
jeopardized[,] or the learning environment of other students has been
impacted.
Further, under WVBE Policy 5300(6)(a):
Every employee is entitled to know how well he is performing his job and
should be offered the opportunity of open and honest evaluation of his
performance on a regular basis. Any decision concerning promotion,
demotion, transfer or termination of employment should be based upon such
evaluation, and not upon factors extraneous thereto. Every employee is
entitled to the opportunity of improving his job performance prior to the
terminating or transferring of his services and can only do so with assistance
of regular evaluation.
W. Va. Code R. Ā§ 126-141-2.6 (1993). 6 Addressing this policy our Supreme Court of
Appeals held:
Failure by any board of education to follow the evaluation procedure in West
Virginia Board of Education Policy No. 5300(6)(a) prohibits such board from
discharging, demoting[,] or transferring an employee for reasons having to
do with prior misconduct or incompetency that has not been called to the
attention of the employee through evaluations, and which is correctable.
Syl. Pt. 3, Trimboli v. Bd. of Educ. of Wayne Cnty., 163 W. Va. 1,254 S.E.2d 561
(1979).
The Board of Educationās performance evaluation procedure is not an issue in this
appeal. Instead, the issue before us rests solely on whether Ms. Shantieās conduct was
correctable, thereby warranting an improvement plan. In determining whether an
employeeās conduct is correctable for purposes of an improvement plan, our stateās highest
court has held:
It is not the label given to conduct which determines whether [WVBE Policy]
5300(6)(a) procedures must be followed but whether the conduct forming the
basis of dismissal involves professional incompetency and whether it directly
and substantially affects the system in a permanent, noncorrectable manner.
Mason, 165 W. Va. at 733,274 S.E.2d at 436
, syl. pt. 4. In other words, the determination
is whether āthe conduct complained of involves professional incompetency and whether it
6
This legislative rule was recently amended and recodified under West Virginia
Code of State Rules Ā§ 126-141-3.6 (2022). However, the above-cited version was in effect
at the time of Ms. Shantieās termination.
9
directly and substantially affects the morals, safety, and health of the system in a
permanent, non-correctable manner.ā Id., 165 W. Va. at 739,274 S.E.2d at 439
; see also Holland v. Bd. of Educ. of Raleigh Cnty.,174 W. Va. 393, 395
,327 S.E.2d 155, 157
(1985)
(applying WVBE Policy 5300(6)(a) and finding ā[a]s we noted in [Mason], it is the conduct
forming the basis for action and not the label placed upon such action that is
determinative.ā).
Below, the circuit court determined that Ms. Shantieās conduct was uncorrectable
because her cellphone use resulted in distracted driving and that the Grievance Board had
made the same finding regarding her cellphone use. The circuit court found that Ms.
Shantieās cellphone use created a severe threat to the health, safety, and welfare of Ms.
Shantieās passengers and the public. As a result, the circuit court concluded that Ms.
Shantie could be terminated without first receiving an improvement plan. We agree.
A county board of education has a duty to provide a safe and secure environment
for its students, and it may dismiss an employee at any time whose conduct endangers the
health, safety, and welfare of students. W. Va. Code Ā§ 18A-2-8(d). We find that this was
precisely the action the Board of Education took in this case. Here, Ms. Shantieās cellphone
use and subsequent distracted driving with children present is uncontroverted. Moreover,
Ms. Shantieās distracted driving resulted in her going left of center, speeding, failing to
stop at a stop sign, and failing to follow railroad crossing protocol. Even more troubling is
that these were not isolated incidents.
We reject Ms. Shantieās argument that she can correct her conduct by abstaining
from using her cellphone in the future. We also reject her contention that the circuit court
over-exaggerated the seriousness of her conduct. Instead, we find these arguments reflect
the same attitude and lack of concern Ms. Shantie exhibited about her conduct during her
April 16, 2020, meeting with Board of Education officials. We find that Ms. Shantieās
cellphone use clearly posed a threat to the health, safety, and welfare of her passengers and
others. We further find Ms. Shantieās conduct to be exactly the type of conduct that
ādirectly and substantially affects the morals, safety, and health of the [public school]
system in a permanent, non-correctable manner.ā Mason, 165 W. Va. at 739,274 S.E.2d at 439
. As such, we conclude that the circuit court correctly found Ms. Shantieās conduct
was uncorrectable and that it did not err by reinstating her termination.
Accordingly, we find no error and affirm the circuit courtās October 31, 2022, Final
Order.
Affirmed.
ISSUED: December 15, 2023
10
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen
11