Present: Carrico, C.J., Compton, Stephenson, 1 Lacy, Hassell,
Keenan, and Koontz, JJ.
SCHOOL BOARD OF THE CITY OF NORFOLK
v. Record No. 961739 OPINION BY JUSTICE ELIZABETH B. LACY
September 12, 1997
CELESTINE WESCOTT
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Luther C. Edmonds, Judge
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
1
Justice Stephenson participated in the hearing and
decision of this case prior to the effective date of his
retirement on July 1, 1997.
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
2
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
3
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
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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
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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"
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.
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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
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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
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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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.
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