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Clark v. Kanawha County Board of Education

Supreme Court of West Virginia

May 9, 2018

CARL CLARK, Plaintiff Below, Petitioner
v.
KANAWHA COUNTY BOARD OF EDUCATION, Defendant Below, Respondent

          Kanawha County No. 15-C-1470

          MEMORANDUM DECISION

         The petitioner herein and plaintiff below, Carl Clark ("Coach Clark"), by counsel, Richard W. Walters and Todd A. Mount, appeals an order entered June 13, 2017, by the Circuit Court of Kanawha County. By that order, the circuit court granted judgment as a matter of law pursuant to Rule 50 of the West Virginia Rules of Civil Procedure to respondent herein and defendant below, Kanawha CountyBoard of Education ("the Board"). The Board is represented by Charles R. Bailey, James W. Marshall, III, and Unaiza Riaz. On appeal to this Court, Coach Clark contends that he submitted ample evidence upon which a reasonable jury could conclude that the actions of the Board in posting a vacancy for the position of head coach of the Capital High School boys' basketball team and thereafter failing to re-hire Coach Clark were motivated by age discrimination.

         Upon our thorough and considered review of the assignments of error, the parties' arguments, the appendix record, and the pertinent authorities, we find that the circuit court committed no error in the order dismissing the action against the Board. Consequently, we affirm the circuit court's June 13, 2017, order. Because this case does not present a new or substantial question of law, and for the reasons set forth herein, we find the issuance of a memorandum decision is appropriate pursuant to Rule 21(c) of the West Virginia Rules of Appellate Procedure.

         Coach Clark was a respected athletic coach and certified teacher in the Kanawha County public school system. He began his career as a teacher and coach employed by the Board in 1971. By 1977, Coach Clark was teaching and successfully coaching girls' and boys' basketball at Stonewall Jackson High School. In 1989, he began teaching and coaching at newly consolidated Capital High School (Capital High). Initially, he was the assistant boys' basketball coach and the head coach for the girl's basketball team. Ultimately, Coach Clark became head coach for the Capital High boys' basketball team; a position he filled for some twenty-one years. During that period, the team won state titles as well as numerous regional and sectional championships. Coach Clark also won numerous awards for his coaching achievements.

         In 2014, recognizing the toll that the dual positions of teaching and coaching had taken on his family, Coach Clark, wanting to spend more time with his family, made the decision to retire from teaching. He discussed his situation with then long-time Charleston High principal Clinton Giles and represented that he wanted to continue as head coach for the boys' basketball team. Principal Giles apparently agreed that Coach Clark could continue as head coach for the 2014-2015 season even if he retired as a teacher. This agreement was made despite a requirement that employed teachers have a right of first refusal to coaching positions.

         Following Coach Clark's October 1, 2014, retirement from teaching, principal Giles did not declare the position of head coach for the boys' basketball team vacant and did not post the position for applicants. On November 7, 2014, Coach Clark signed an Extra-Curricular Assignment Agreement ("Agreement") with the Board to serve in the position at a rate of compensation of $2, 500.00 for the 2014-2015 school year. The season was successful with nineteen wins and four losses, a sectional championship win, and a regional championship win. Additionally, Coach Clark was named Coach of the Year of the Mountain State Conference and by the Charleston Gazette-Mail newspaper.

         In January 2015, in the middle of the basketball season, principal Giles unexpectedly resigned. David Miller became the acting principal. The basketball season ended on March 10, 2015, and Coach Clark received his compensation for the completion of his duties pursuant to the Agreement. Coach Clark informed both acting principal Miller and athletic director Cody Clay that he wanted to continue coaching and requested that any new principal be so informed.

         Mr. Clay, having been hired as the athletic director in August 2014, was relatively new to the position of athletic director. Previously, Mr. Clay relied on principal Giles for decisions regarding the posting of, and hiring for, coaching positions. In the absence of principal Giles, in the spring of 2015, Mr. Clay contacted the Board's human resources department for guidance on posting and filling coaching positions for the 2015-2016 school year. Given the cumbersome, time-consuming requirements for posting, interviewing, recommending, and subsequent approval by the Board, Mr. Claywas preparing for the next athletic seasons. Mr. Clay was advised by human resources that any position not held by a full-time teacher had to be posted as available. After compiling a list of all coaching positions that needed to be posted, Mr. Clay again contacted the human resources office and confirmed that all coaching positions held by non-teachers in 2014-2015, including retired teachers, had to be posted as available. There were multiple coaches in the category of retired or non-teacher. Mr. Clay prepared the list of vacancies for posting and it was submitted to human resources. The list included the boys' head basketball coach position and twelve other coaching positions at Capitol High.

         From April 24, 2015, through April 30, 2015, the boys' head coach position, together with the twelve other coaching positions at Capital High, and nine other coaching positions in the county system, were posted on the Board's Job Vacancy Hotline. Upon posting the position, acting principal Miller and Mr. Clay telephoned Coach Clark to advise him that the position was posted and that he needed to submit an application for the position. Coach Clark immediately completed and submitted the online application on April 24, 2015.

         In the meantime, during the last week of April, the Board hired Larry Bailey to serve as the principal at Capital High. Upon assuming his position, principal Bailey was confronted with the task of filling teaching, service personnel, and coaching vacancies. He learned that seven applicants had applied for the boys' basketball head coach position. Principal Bailey contacted his supervisor to obtain advice on how to proceed. He was told to interview all the applicants for the position. He selected a committee to sit in on the interviews and assist in the hiring decision. The committee consisted of Mr. Clay, assistant principal Matthew Shock, and assistant principal Abbey Stevens. The committee members were all under the age of forty.

         The interviews were held during the week of May 18, 2015. Prior to the interviews, the committee was provided with only the names of the applicants. No other information was provided. Mr. Clay prepared a list of ten questions to ask each of the interviewees. The questions were prepared in advance of knowing who the applicants were and were based upon a general hypothetical applicant. The list was provided to each of the committee members. Each applicant was asked the ten questions during the course of the interview. There was no deviation and no follow-up questioning. The first question contained three parts. First, "[w]hat are your career goals as a basketball Coach?" Second, "[w]here do you see yourself in five years?" Third, "[w]hat kind of commitment can you give us if you were given this position?"

         The committee was operating with the understanding and instruction that the position had to be offered to a currently employed certified professional educator if one applied for the position. Thus, an applicant such as Matthew Greene, a then-current teacher at Capitol High, had a right of first refusal for a coaching position. Mr. Greene came to the interview with a resume and prepared portfolio materials outlining his ideas for the program and was enthusiastic about the possibility of coaching. On the other hand, Coach Clark was terse and took the approach in the interview, without elaborating, that his record spoke for itself. Coach Clark felt "degraded" by the interview process. He did not believe he should have to "sell" himself. Coach Clark felt that the composition of the committee and the nature of the first questions meant that the process was "stacked against him."

         Following the interviews, the committee agreed to offer the position to Mr. Greene as a currently employed certified teacher at Capital High. Had Mr. Greene refused the offer, the next in line for the position would have been Ron Beatty who was a long-term currently employed certified professional educator at another school in the county and who had served for years as an assistant coach of the Capital High boys' basketball team with Coach Clark. In the event that Mr. Beatty refused an offer, the committee may have wanted to offer the position to Pat McGinnis, a long-time teacher and coach who had impressed the committee, but who informed the committee that he was retired as a teacher. In any event, under the rules in place at the time, Coach Clark could not have been offered the position unless both Mr. Greene and Mr. Beatty first declined an offer.

         On June 1, 2015, principal Bailey submitted a request to hire Capital High teacher Mr. Greene to be the head coach of the Capital High boys' basketball team. Mr. Greene was thirty-five-years-old. The request was formally approved by the Board at its scheduled meeting on June 8, 2015. The approval of the request was done by the Board at the same time it approved seven other coaching assignments for Capital High and thirty-two other coaching positions at high schools and middle schools throughout the county, including head and assistant girls' and boys' basketball coaching positions. Additionally, the record reflects that in April and May 2015, hundreds of coaching positions from around the county were posted. The record establishes that the newly hired coaches for the Capital High boys' basketball team for the 2015-2016 season were under the age of forty. The record is silent as to the ages for those individuals in other coaching positions at Capitol High and for those individuals who were part of the applicant pools.

         On May 21, 2015, subsequent to interviewing for the coaching position, Coach Clark applied to become a substitute teacher. The record is undeveloped regarding whether the committee was informed of the substitute teaching application. The application was approved by the Board on June 8, 2015, in the same personnel agenda setting that approved Mr. Greene and forty others for coaching positions. Coach Clark has not filled a substitute teaching position. At some point, when no employed teacher applied for the position, principal Bailey called Coach Clark and offered him the position of assistant basketball coach of the boys' team. Coach Clark had applied online for the assistant coach ...


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