DONALEA JONES,

                  Grievant,

      v.

DOCKET NO. 00-DOE-108

WEST VIRGINIA DEPARTMENT
OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievant, Donalea Jones, filed a grievance on or about January 10, 2000, against her employer, the West Virginia Department of Education (“Department”), as follows:


The grievance was denied at level one, and a level two hearing was held on March 10, 2000. The grievance was denied in an undated decision, by James C. Carter, Hearing Examiner. Grievant appealed to level four on March 24, 2000, and the parties agreed to submit this grievance based on the record developed at level two. This matter became mature for decision on April 15, 2000, the deadline for the parties' proposed findings of fact and conclusions of law.   (See footnote 1)  Grievant was represented by Perry Bryant, UniServ Consultant,West Virginia Education Association, and the Department was represented by Katherine L. Dooley, Esq.
SUMMARY OF EVIDENCE

Grievant's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 -
Department's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 -
Testimony

      Grievant testified in her own behalf. The Department presented the testimony of Tony Smedley.

FINDINGS OF FACT

      1.      Grievant is employed by the Department as a secretary.
      2.      Grievant was previously employed at the University of Charleston, a private institution of higher education, from December 8, 1989 through April 1992.
      3.      Sometime in November or December 1999, Grievant learned that another employee of the Department, Noretta Abston, had been given credit for years of service previously worked at the University of Charleston. Grievant checked her records and found she had not been given credit for her years at the University.      4.      Grievant requested credit for years of service at the University of Charleston by letter memorandum dated December 7, 1999, to Tony Smedley, Executive Director, Office of Human Resources. G. Ex. 2.
      5.      Mr. Smedley responded to Grievant by letter dated January 10, 2000, denying her request for credit for years of service at the University of Charleston. The letter indicates that:



G. Ex. 3. (Emphasis in original)

      6.      Mr. Smedley informed Noretta Abston, by letter dated January 10, 2000, that her years of service with the Department had been calculated incorrectly, in that she had been given credit for one year experience at the University of Charleston. Mr. Smedley further informed Ms. Abston that, “[n]ext fiscal year we will hold your years of experience at 12 years, for one year, and we will make the appropriate adjustment on your salary. This adjustment will not result in a salary decrease.” G. Ex. 4. (Emphasis in original).

DISCUSSION

      Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.
      Grievant alleges she has improperly been denied years of service credit for years worked at the University of Charleston, a private institution of higher education. The Department argues its employees are only entitled to years of service credit for work with State of West Virginia institutions. Therefore, no error was committed by denying her years of experience credit for her work at the University of Charleston. Further, the Department corrected the situation with Noretta Abston, who had inadvertently been given years of experience credit for work at the University of Charleston.
      The pertinent provision of the Employee Handbook is entitled “Attendance and Leave”, and addresses how annual leave is computed relative to years of service. Under the subsection “Years of Service”, the Handbook provides:

      According to the Department, the provision “employment in other educational positions” has been interpreted to mean experience with county boards of education, RESAs, and state supported colleges and universities. See G. Ex. 3. The rationale givenfor this interpretation is that state supported colleges and universities are supported by public tax dollars and an integral part of state retirement or medical benefits systems, while private institutions are not. G. Ex. 3.
      The Department points to the definition of “years of employment” within W. Va. Code § 18A-4-8 to further support its position. According to that Code Section, entitled, “Employment terms and class titles of service personnel; definitions”:

Department Ex. 4.
      The Department also refers to W. Va. Code § 5-5-1, et seq. for support. That section defines “employee” as “any regular full-time employee of the state or any spending unit thereof who is eligible for membership in any state retirement system of the state of West Virginia or other retirement plan authorized by the State.” Department Ex. 6.
       It is well established that a government agency's determination regarding matters within its expertise is entitled to substantial weight. Princeton Community Hosp. v. State Health Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985). See W. Va. Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993); Security Nat'l Bank v. W. Va. Bancorp, 166 W. Va. 775, 277 S.E.2d 613 (1981). Additionally, where the plain language of a policy does not compel a different result, deference must be extendedto the agency in interpreting its own policies. See Dyer v. Lincoln County Bd. of Educ., Docket No. 95-22-494 (June 28, 1996). Where the language in a policy is either ambiguous or susceptible to varying interpretations, this Grievance Board will give reasonable deference to the agency's interpretation of its own policy. See Dyer, supra; Edwards v. W. Va. Parkways Dev. and Tourism Auth., Docket No. 97-PEDTA- 420 (May 7, 1998). See generally Blankenship, supra; Princeton Community Hosp. v. State Health Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985); Jones v. Bd. of Trustees, Docket No. 94-MBOT-978 (Feb. 29, 1996); Foss v. Concord College, Docket No. 91-BOD-351 (Feb. 19, 1993). Thus, the Department's interpretation of its policy is entitled to deference by this Grievance Board, unless it is contrary to the plain meaning of the language, is inherently unreasonable, or is arbitrary and capricious. Dyer, supra. Grievant has failed to prove the Department's interpretation of its policy is arbitrary and capricious, or unreasonable.
       Grievant also contends it was arbitrary and capricious for the Department to correct the years of experience erroneously given to Nora Abston, and that the proper remedy is for the Department to treat Grievant in the same manner as Ms. Abston. However, the appropriate remedy in a case such as this is not to compensate Grievant, but rather, to correct the erroneous application of the Department's policy regarding Ms. Abston. Of course, that is not the remedy Grievant desires, but it is the appropriate remedy in this instance. See Roberts v. W. Va. Div. of Highways, 96-DOH-107 (May 2, 1996).
CONCLUSION OF LAW

      Grievant has failed to establish by a preponderance of the evidence that the Department's interpretation of its annual leave policy is unreasonable, or arbitrary and capricious, or that she is entitled to the remedy sought in this grievance.

      Accordingly, this grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 18-29-7. Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal, and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

                                           __________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: May 23, 2000


Footnote: 1
       Neither party submitted written proposals.