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SCHOOL BOARD OF THE CITY OF NORFOLK v. WESCOTT


SCHOOL BOARD OF THE CITY
OF NORFOLK v. WESCOTT


September 12, 1997
Record No. 961739

SCHOOL BOARD OF THE CITY OF NORFOLK

v.

CELESTINE WESCOTT

OPINION BY JUSTICE ELIZABETH B. LACY
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Luther C. Edmonds, Judge
Present: Carrico, C.J., Compton, Stephenson,[1] Lacy,
Hassell, Keenan, and Koontz, JJ.


Celestine Wescott was employed as a security guard at Granby
High School by the School Board of the City of Norfolk (the
School Board) during the 1994-95 school year. On November 16,
1994, Michael J. Caprio, the principal of Granby High School,
suspended Wescott pending final action on his recommendation that
her employment be terminated. Following an administrative
hearing, the deputy superintendent of schools concurred in
Caprio’s recommendation and, on December 15, 1994, the School
Board approved Wescott’s termination, effective November 17,
1994.

Wescott filed a bill of complaint against the School Board
seeking reinstatement with full benefits and back pay. After an ore
tenus hearing, the trial court ruled that the action of
the School Board in discharging Wescott was arbitrary and
capricious and ordered the School Board to pay Wescott "all
back pay, allowances and benefits for the remainder of the school
year, 1994-95." We awarded the School Board an appeal and,
because we conclude that the action of the School Board was not
arbitrary or capricious and was supported by substantial
evidence, we will reverse the judgment of the trial court and
enter judgment for the School Board.

I.

Wescott had been employed as a security guard in the Norfolk
School System "on and off" for approximately 19 years.
She had been assigned to Maury High School prior to her transfer
to Granby High School in 1994. Her annual classified personnel
contract with the School Board provided that she would work
"such hours as the school board may designate and shall
perform such duties . . . as are deemed necessary"
and that the School Board could dismiss her "for just
cause."

Wescott’s annual performance reviews were favorable, although
at least two of the reviews contained comments or concerns
regarding absences from work. Wescott had been absent 13 days in
1990-91, 18.5 days in 1991-92, 22 days in 1992-93, and 49.5 days
in the 1993-94 school year. The absences were caused by family
illness, personal illness, or court appearances. The School Board
did not question Wescott’s reasons for these absences, and they
were considered "approved" absences.

James B. Slaughter, the principal while Wescott was assigned
to Maury High School, told Wescott of his concern regarding her
absences. Wescott testified that when she met with the principal,
he told her "how much he needed [her] in the building
. . . . He was very concerned about [her] father
being ill and concerned about [her] taking days out, but he knew
that [she] had to take them because [her father] was ill."
In a March 1994 letter to Wescott, Slaughter acknowledged that
"[r]egrettably" her father’s health had necessitated
some of her absences, but he again expressed his concern over her
"level of attendance" which he had discussed with her
"on several occasions." Slaughter supported Wescott’s
transfer to Granby High School in the spring of 1994.

In the fall of 1994, Michael J. Caprio became the principal of
Granby High School. Wescott had not worked for Caprio prior to
this time. On October 5, Caprio met with Wescott to discuss her
absences from work. On that date, Wescott had been absent for 7
of the 20 days school had been in session. Caprio summarized the
meeting in a letter to her in which he stated that they needed to
"get together and formulate a plan of action so that we can
assist you in improving your attendance at Granby High
School."

During a second conference on October 14, Caprio reviewed
Wescott’s attendance records for previous years with her. Wescott
testified that she explained that the reasons for all of her
prior absences were properly documented, but Caprio told her that
if she was absent one more time, she was "going to be
terminated." Apparently, no plan of action was formulated at
that meeting, but in an October 14 letter to Wescott referring to
"our conference" on that date, Caprio stated that he
hoped Wescott understood how her absences impacted her job as a
security guard, that he was pleased with her job performance, and
that, although he remained concerned over her absences to date,
"I trust that this attendance problem has been resolved at
this meeting."

When Wescott reported for work on November 16, 1994, Caprio
gave her a memorandum written by him, asked her to remove her
Granby jacket, and told her to leave the building. The memorandum
referred to the prior conferences and letters regarding Wescott’s
absences and the impact of the absences on the security program
at the school. It went on to point out that since the October 14
conference, Wescott was absent on 5 more occasions, bringing her
total absences to 12 days of the first 47 school days. Based on
this record, Caprio concluded that "no significant
improvement in your attendance has been evident." The
memorandum stated that Caprio was suspending Wescott without pay
immediately and recommending to the superintendent that she be
terminated. The memorandum also informed her that she had seven
days to contact the deputy superintendent to appeal Caprio’s
recommendation.

Wescott appealed Caprio’s recommendation, and a hearing was
held in accordance with school board policy. Wescott, her
representative Malcolm Staples, Caprio, and the head of personnel
for the school system were present at the hearing conducted by
Deputy Superintendent J. Frank Sellew. Wescott’s representative
presented documentation of her absences and argued that she
should not be discharged for excessive absenteeism. Caprio
responded that Wescott’s absences "crippled" the
security program at the school and interfered with the "safe
and ordinary conduct of the school." Caprio also stated that
Wescott had been warned about the consequences of her continued
absences.

In a letter dated November 30, 1994, Sellew informed Wescott
that he supported Caprio’s recommendation. This recommendation
was subsequently adopted by the School Board at its December 15,
1994 meeting.

II.

The standard of review which a trial court must apply in
considering a challenge to a school board’s exercise of the
supervisory authority granted it by Article VIII, Section 7 of
the Virginia Constitution is well established.

[A] school board’s decision ‘will not be disturbed by the
courts unless the board acted in bad faith, arbitrarily,
capriciously, or in abuse of its discretion, or there is no
substantial evidence to sustain its action.’

Bristol Virginia School Board v. Quarles, 235 Va. 108,
119, 366 S.E.2d 82, 89 (1988)(quoting County School Board of
Spotsylvania County v. McConnell
, 215 Va. 603, 607, 212
S.E.2d 264, 267 (1975)). In this case, the trial court set aside
the decision of the School Board on the sole ground that it was
arbitrary and capricious. This conclusion rested on the trial
court’s finding that, after the School Board "granted"
all of Wescott’s "applications for sick leave
requests," it discharged her and justified the discharge by
claiming that Wescott "abused sick leave or annual leave
policy."

A review of the record shows, however, that the School Board
neither claimed that Wescott abused the sick leave or
annual leave policy nor based its discharge decision on an abuse
of that policy.[2] The stated reason for firing
Wescott was not that she had abused her "granted" sick
leave, but that her continued "excessive absenteeism"
"compromised the security and safety of the students and
staff at Granby High School," had a "crippling
effect" on the security program, and "plac[ed] the
Norfolk School Board’s number one goal in serious jeopardy."
Furthermore, the School Board asserted that Wescott had been
warned "about the consequences of further absences" and
had shown "no significant improvement" in attendance
following discussions regarding the need for such improvement.

We turn to the record to determine whether it supports the
reasons for termination advanced by the School Board. The record
reflects that security in Norfolk’s high schools is a significant
concern to the School Board and administration. To insure an
effective security program, high schools in the system are
required to have four security guards regularly in attendance.
Continuity in the security staff is important to the success of
the security program. Wescott herself testified that security
guards were required to be familiar with the school building; to
develop a rapport with the students; and to know the students,
including those with disciplinary problems or physical or mental
conditions. Although there was a "pool" of substitute
security guards who could be contacted in the event a regular
guard was absent, the pool was limited and served all 13 schools
in the system. Deputy Superintendent Sellew testified that
"sometimes you get one and sometimes you don’t" and
that the substitute guards generally do not know the student
body. This, in Sellew’s opinion, "really does hamper the
safety and security of the operation within the school."

The record is also replete with instances where the need for
consistent attendance by security guards was explained to
Wescott. Wescott was told more than once of the impact her
absence had on the security program. School administrators told
her of their concern over her absenteeism and expressed a desire
to work with Wescott to address the problem. Caprio’s decision to
suspend Wescott and recommend her termination was made only after
at least two discussions with her in 1994, including a review of
her attendance record which showed a continuing increase in the
number of days absent each school year. During these discussions,
Wescott was informed that if she was absent one more time, she
would be terminated. Following the second discussion on October
14, she was absent an additional 5 days, bringing the total to 12
absences in the first 47 days of the 1994-95 school year.

There is nothing in the record to suggest that Wescott was
treated differently than other classified personnel employed by
the School Board. In discharging Wescott, the School Board
followed the normal procedures for appeal and review of the
principal’s recommendation.[3]

On appellate review of the trial court’s decision, we must
accept the trial court’s findings of fact as true unless they are
without support in the record. Quantum Dev. Co., Inc. v.
Luckett
, 242 Va. 159, 161, 409 S.E.2d 121, 122 (1991). Here,
the record does not support the trial court’s finding that the
School Board’s justification for terminating Wescott was that she
abused sick leave or annual leave policy; however, it does
support the School Board’s position that she was fired because,
after repeated counseling and warnings, her continued excessive
absenteeism compromised the security program at Granby High
School.

Actions are defined as arbitrary and capricious when they are
"willful and unreasonable" and taken "without
consideration or in disregard of facts or law or without
determining principle." Black’s Law Dictionary 105 (6th ed.
1990). In Johnson v. Prince William County School Board,
241 Va. 383, 404 S.E.2d 209 (1991), we noted that an act was
arbitrary and capricious if the school board "departed from
the appropriate standard in making its decision." Id.
at 389 n.9, 404 S.E.2d at 212 n.9.

Based on this record, we cannot conclude that the School
Board’s decision to discharge Wescott was arbitrary and
capricious. Under the terms of the contract of employment, the
School Board retained the right to terminate Wescott for just
cause. We conclude that the reasons given for the School Board’s
termination decision constituted just cause and that the
termination decision was supported by substantial evidence.

Accordingly, we will reverse the judgment of the trial court
and enter final judgment in favor of the School Board.

Reversed and final judgment.

 

 

FOOTNOTES:

[1] Justice Stephenson participated
in the hearing and decision of this case prior to the effective
date of his retirement on July 1, 1997.

[2] The school board’s leave
policies are not part of this record; however, in his November
16, 1994 letter to Wescott, Caprio stated that while she had
exhausted her allocated sick leave for the year as of that date,
she had one remaining day of personal leave available for the
remainder of the 1994-95 school year. We note that in her bill of
complaint, Wescott sought a determination of whether the School
Board "abrogated" its contract; however, Wescott did
not argue at trial or on appeal that, because at the time of her
dismissal, she had not exhausted the number of leave days to
which she was entitled for the 1994-95 school year, the dismissal
was a breach of contract. Cf. McConnell, 215 Va. at
603, 212 S.E.2d at 265 (teacher brought breach of contract action
against school board). Nor did she argue that dismissal prior to
her exhaustion of allocated leave was an arbitrary or capricious
act.

[3] The trial court also held that
Wescott was denied due process, and the School Board assigned
error to that holding. However, Wescott conceded on appeal that
she was not denied due process.

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