Bradlee Jordan v. Lincoln County Board of Education

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
BRADLEE JORDAN, May 22, 2023
Grievant Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-19 (Grievance Bd. No. 2022-0059-LinED)

LINCOLN COUNTY BOARD OF EDUCATION
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Bradlee Jordan appeals the July 6, 2022, decision of the West Virginia
Public Employees Grievance Board (“Grievance Board”). Respondent Lincoln County
Board of Education (“Lincoln BOE”) timely filed its response.1 Mr. Jordan did not file a
reply. On appeal, Mr. Jordan argues that the Grievance Board erred and abused its
discretion in denying his grievance that protested the termination of his employment as a
teacher with the Lincoln BOE.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the lower tribunal’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of
Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the lower tribunal’s decision is reversed.

Mr. Jordan was formerly employed at Lincoln County High School as a special
education teacher. On April 5, 2021, Mr. Jordan appeared at the central office of the
Lincoln BOE to meet with the Assistant Superintendent, Josh Brumfield, regarding an
unrelated investigation of another employee. During the meeting, Mr. Jordan volunteered
that he had brought moonshine to Lincoln County High School, provided moonshine to
another employee, and that he and another employee had “sampled” the moonshine in the
school, as well as consumed alcohol at school on multiple other occasions. Mr. Jordan was
then placed on paid administrative leave beginning April 5, 2021, and the Lincoln BOE
began an investigation. During the investigation, two mason jars were found in Mr.
Jordan’s cubicle which contained liquid that smelled of alcohol, and an additional two
empty jars that smelled of alcohol.

1
Mr. Jordan is represented by Alan L. Pritt, Esq. Lincoln County Board of
Education is represented by Leslie K. Tyree, Esq.

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The Superintendent of Lincoln County Schools, Jefferey Kelley, made several
attempts to meet with Mr. Jordan following the discovery of the mason jars, but Mr. Jordan
refused to meet with him or offer any explanation. Mr. Jordan did not appear for a
scheduled April 13, 2021, meeting with Superintendent Kelley. On April 13, 2021, Mr.
Jordan tendered a letter of resignation to counsel for Lincoln BOE. The following day,
Superintendent Kelley informed Mr. Jordan that he would recommend termination of Mr.
Jordan’s employment and would not accept his resignation. Mr. Jordan, through counsel,
advised Superintendent Kelly that he would not be attending the meeting, and asked that
his resignation be reconsidered.

Mr. Jordan received a letter dated April 20, 2021, from the Lincoln BOE which
provided notice of a “Due Process Meeting” that would be held on April 23, 2021, during
which Mr. Jordan would be provided an opportunity to explain his previous statements, as
well as the discovery of the mason jars in his cubicle. Mr. Jordan did not appear at the Due
Process Meeting. Mr. Jordan was then advised by letter dated April 29, 2021, that
Superintendent Kelly would recommend to the Lincoln BOE that his employment be
terminated. At this time, Mr. Jordan was suspended without pay pending the next Lincoln
BOE meeting. Mr. Jordan’s contract with the Lincoln BOE expired on June 10, 2021. The
Lincoln BOE met on June 15, 2021, and voted to retroactively terminate Mr. Jordan’s
employment effective June 4, 2021. Mr. Jordan was notified of his termination by a letter
dated June 16, 2021.

Mr. Jordan grieved the termination of his employment. On October 1, 2021, he
waived his grievance to a level three hearing. A level three hearing was held before the
Grievance Board on April 4, 2022. The parties submitted proposed findings of fact and
conclusions of law. The Grievance Board entered its written decision on July 6, 2021. The
Grievance Board found that the Lincoln BOE established justification for the termination
by a preponderance of the evidence, that mitigation of the termination was not warranted,
and that the Lincoln BOE established that Mr. Jordan had violated applicable provisions of
the employee code of conduct and West Virginia Code § 18A-2-8 (2022). Further, the
Grievance Board held that the Lincoln BOE’s decision to pursue discipline was not
arbitrary and capricious, or a violation of any statute, policy, or rule. The Grievance Board
upheld Mr. Jordan’s termination and this appeal followed.

Our standard of review is as follows:

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 judge’s authority;
(3) Is the result of fraud or deceit;

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(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 § 6C-2-5 (2007); accord W. Va. Code § 29A-5-4g (2021) (specifying the
standard for appellate review of an administrative appeal).

Further, the Supreme Court of Appeals of West Virginia has held that “[t]he ‘clearly
wrong’ and ‘arbitrary and capricious’ standards of review are deferential ones which
presume an agency’s actions are valid as long as the decision is supported by substantial
evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483
(1996); see also, Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177
(1996) (a reviewing court may not overturn a finding simply because it would have decided
the case differently).

On appeal, Mr. Jordan asserts two assignments of error. First, Mr. Jordan asserts
that his termination is contrary to the written policy and procedures of the Lincoln BOE
because his employment was terminated after his contract term with the Lincoln BOE
concluded on June 10, 2021. In his second assignment of error, Mr. Jordan argues that the
decision to uphold his termination was arbitrary and capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion. Mr. Jordan asserts that his
previous performance evaluations were positive, there were no prior disciplinary actions
against him, and that the Grievance Board failed to provide adequate evidence or
justification for terminating his employment.

With respect to the resignation of teachers, West Virginia Code § 18A-2-2(f) (2016)
provides that:

[a] ny classroom teacher, as defined in section one, article one of this chapter,
who desires to resign employment with a county board or request a leave of
absence, the resignation or leave of absence to become effective on or before
July 15 of the same year and after completion of the employment term, may
do so at any time during the school year by written notification of the
resignation or leave of absence. . . .

Mr. Jordan tendered his letter of resignation on April 13, 2021.2 The record
demonstrates that Mr. Jordan properly submitted his resignation to the Lincoln BOE during

2
This case is distinguishable from Bolyard v. Bd. of Educ. of Grant County, 214 W.
Va. 381, 589 S.E.2d 523 (2003), where the Supreme Court of Appeals of West Virginia
held that the petitioner had no clear right to resign and terminate her contract. In that case,
the petitioner was not subject to disciplinary action, and her resignation was submitted

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the school year. The Lincoln BOE acted improperly in refusing Mr. Jordan’s timely
resignation and in voting to terminate his employment over two months after his
resignation letter was submitted. Further, West Virginia Code § 18A-2-8 (d) contemplates
the resignation of a school employee during an investigation, and states “[a] county board
shall complete an investigation of an employee that involves evidence that the employee
may have engaged in conduct that jeopardizes the health, safety, and welfare of students,
despite the employee’s resignation from employment prior to completion of the
investigation.”

The Grievance Board’s decision to uphold Mr. Jordan’s termination despite his
timely resignation is not supported by the substantial evidence. For these reasons, we find
that the Grievance Board was clearly wrong in upholding Mr. Jordan’s termination.

Accordingly, we reverse the Grievance Board’s July 6, 2022, decision.

Reversed.

ISSUED: May 22, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen

outside of the appropriate statutory time frame under West Virginia Code § 18A-2-2(c)
after the school year had ended. Here, Mr. Jordan timely submitted his resignation, and he
did not have a contract to continue teaching for the following school year.

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