During the 2007-2008 school year, Ms. Kimble was employed as a cook and cheerleading coach at a high school. In December 2007, she took the cheerleaders on an overnight Christmas party held in a cabin located outside the county. The trip was not approved as was required by district policy. When administration learned about the trip, Ms. Kimble was instructed that all future out-of-county trips must have prior approval.
The following year, Ms. Kimble worked as a cook at an elementary school and as the cheerleading coach at the same high school at which she had coached the prior year. In December 2008, Ms. Kimble took the cheerleaders to the same cabin for another overnight Christmas party. Ms. Kimble and a parent went as "chaperones" but Ms. Kimble did not seek or obtain approval for the trip.
During the party, Ms. Kimble was photographed in the hot tub, surrounded by several female cheerleaders. Although Ms. Kimble was clothed, most of the girls were topless. All of the girls were minors.
Ms. Kimble posted several photos of the party on her MySpace page, although the girls were fully clothed in all of the pictures that she posted. To one of the photos, in which the girls were wearing Santa Claus hats, Ms. Kimble added the caption:
my girls acting like their self[sic] . . . hoes.
The photos were discovered and reported to the school and Ms. Kimble was suspended without pay. After a hearing, she was terminated from both her position as cook and as coach based on the determination that she had committed insubordination, immoral conduct, and sexual harassment.
Ms. Kimble challenged the termination. An administrative law judge overturned the board's decision to terminate her from her position as cook. The board appealed and the circuit court affirmed the finding of the ALJ. The board appealed to the state's highest court, which reversed, siding with the board and finding the termination lawful.
As the grounds for its opinion, the state's Supreme Court held that Ms. Kimble had been insubordinate by ignoring the directive and policy to first obtain permission from the school prior to taking students on any out-of-county trip. That was the easy part.
The more difficult part (at least for the ALJ and the lower court), was the finding that Ms. Kimble had, indeed, engaged in immoral conduct by:
sitting in a hot tub surrounded, literally, by several topless female students.
The court also found that calling your minor students "hoes" also is relevant to the immorality question.
Finally, the court rejected Ms. Kimble's argument that she could not be disciplined for conduct that occurred off duty. This argument is a favorite among plaintiff-employees everywhere but always a loser. The conduct was within the scope of Ms. Kimble's employment--she, as cheerleading coach, took cheerleaders on an authorized trip outside the county, was photographed with several of them topless, and then called them "hoes" on her MySpace page.
The fact that she was not on duty at the time of these acts does not serve as a defense. This case serves as yet another example of how off-duty conduct can (and should) serve as a basis for discipline and/or termination. When an employee engages in conduct off-duty that undermines or interferes with his or her ability to effectively carry out his or her job duties, discipline is appropriate . . . and lawful. The same rule applies when the conduct is carried out in cyberspace, particularly on social-media sites.
On the most basic level, it's difficult to imagine that the parents of the female students would appreciate their daughters being called "hoes" by anyone but especially not by their cheerleading coach.
Kanawha County Bd. of Ed. v. Kimble, No. 13-0810, 2014 W. Va. LEXIS 584 (W. Va. May 30, 2014) [an enhanced version of this opinion is available to lexis.com subscribers].
Read more Labor and Employment Law insights from Margaret (Molly) DiBianca in the Delaware Employment Law Blog.
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