GENEVIEVE ZIRK,
Grievant,
v. Docket No. 99-MCVTC-341
JAMES RUMSEY TECHNICAL INSTITUTE,
Respondent.
Grievant, Genevieve Zirk, employed by the James Rumsey Technical Institute
(Respondent or James Rumsey) as a teacher in the Licensed Practical Nurse (LPN)
program, filed a level one grievance on July 30, 1999, in which she alleged a violation of
W. Va. Code §18A-2-7, when one of her clinical rotations was changed from the Veterans'
Administration (VA) Hospital long-term care unit, to a nursing home. Grievant requested
that she be returned to her previous schedule. The grievance was denied at levels one
and two. Grievant elected to bypass consideration at level three, as is permitted by W. Va.
Code §18-29-4(c), and advanced the matter to level four on August 23, 1999. An
evidentiary hearing was conducted at James Rumsey, at the request of the parties, on
November 2, 1999, at which time Grievant was represented by Harvey Bane, WVEA
Consultant, and Respondent was represented by counsel, David L. Joel. The grievance
became mature for decision with the submission of proposed findings of fact and
conclusions of law by both parties on or before December 2, 1999.
The following facts are derived from the evidence made a part of the record at levels
two and four, and are undisputed.
Findings of Fact
1. Grievant has been employed by James Rumsey for approximately twenty
years as an instructor in the LPN program.
2. Prior to, and during the 1998-99 school year, Grievant provided instruction
in the classroom at James Rumsey, and at rotating clinical sites, including City Hospital,
Heartland Nursing Home, Panhandle Home Health, and the VA Hospital.
3. The clinical sites are functioning medical facilities providing services to
patients. The facilities have each entered into a contract with James Rumsey to provide
clinical experiences for LPN students, with the Respondent providing qualified/certified
nursing instructors.
4. Respondent renewed its contract with the VA Hospital on August 16, 1999.
The terms of the contract provide that the agreement may be terminated at any time by
mutual consent, or by written notice by either party six months in advance of the next
rotation.
5. During the 1998-99 school year, approximately twenty-six percent of the LPN
clinical instruction was provided at the VA Hospital.
6. In July 1999, Grievant was provided a clinical schedule for the 1999-2000
school year which did not include an instructional rotation at the VA Hospital.
7. The instruction previously provided at the VA Hospital had been relocated
to an area nursing home.
8. Grievant's assignment did not change in any other manner.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving each element of 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 argues that Respondent violated
W. Va. Code §18A-2-7 when it failed to
provide her with notice and opportunity for a hearing prior to implementing her transfer.
Although she continues to provide classroom instruction from James Rumsey, and her
clinical schedule remains the same with the exception that the VA Hospital has been
replaced by a nursing home, Grievant asserts that she has been transferred due to the
substantial change in her teaching schedule, not only as to location, but the type of
instruction she will provide.
At hearing, Grievant expressed her concern that the LPN students receive training
in geriatric care, which she defined to include psychological, and sociological care of a
restorative nature. She distinguished this area from long-term care as provided by nursing
homes, in which the patients suffer chronic health problems and permanent disabilities
requiring continuous health care until they die. She notes that the nursing home facilities
are not equipped for acute care emergencies, and do not provide restorative care,
effectively limiting the students' experience to passing out medication. Grievant testified
that because only five percent of the geriatric population is institutionalized, and because
geriatrics encompasses more than long-term care, it is imperative that the students receivethe broader training available at the VA Hospital. She noted that changing the clinical
rotation to a nursing home would deprive the students of treating a diverse group of
patients, would not allow them to observe clinics, or work with physicians who are on duty
twenty-four hours a day to provide total patient care.
Respondent denies that Grievant was transferred, and asserts that the change of
one clinical site within her teaching schedule was not so substantial to trigger application
of
W. Va. Code §18A-2-7. Respondent asserts that the vast majority of its LPN graduates
in the past three years have obtained employment at nursing homes, therefore, changing
the VA Hospital rotation to a nursing home, was proper and necessary preparation for
employment in that geographic area. Although Grievant disputed the exact numbers
offered by Respondent for students who found employment in nursing homes, Mary Ann
Shakleford, Coordinator of Instruction for the LPN program (recently retired), opined that
most graduates went to long-term care institutions and nursing homes when employed.
W.Va. Code §18A-2-7 provides in pertinent part:
The superintendent, subject only to approval of the board,
shall have authority to assign, transfer, promote, demote or
suspend school personnel and to recommend their dismissal
pursuant to provisions of this chapter. However, an employee
shall be notified in writing by the superintendent on or before
the first Monday in April if he is being considered for transfer
or to be transferred, except that for the school year one
thousand nine hundred eighty-eight-eighty-nine only, the
superintendent shall have until the fourth Monday of April to
provide an employee with such written notice. Any teacher or
employee who desires to protest such proposed transfer may
request in writing a statement of the reasons for the proposed
transfer. Such statement of reasons shall be delivered to the
teacher or the employee within ten days of the receipt of the
request. Within ten days of the receipt of the statement of thereasons, the teacher or employee may make written demand
upon the superintendent for a hearing on the proposed
transfer before the county board of education. The hearing on
the proposed transfer shall be held on or before the first
Monday in May, except that for the school year one thousand
nine hundred eighty-eight-eighty-nine only, the hearing shall
be held on or before the fourth Monday in May, one thousand
nine hundred eighty-nine. At the hearing, the reasons for the
proposed transfer must be shown.
The Grievance Board has addressed the issue of what actions constitute a transfer
a number of times over the years. While certain general principles are applied consistently
therein, the outcomes essentially depended upon the particular factual circumstances of
each case. See Kidd v. Fayette County Bd. of Educ., Docket No. 89-10-452 (Dec. 14,
1989). The primary inquiry is necessarily whether or not changes in schedules are so
substantial that a teacher has been essentially transferred from one position to another.
In general, the relocation of a teacher from one school to another, or substantially altering
a teacher's subject matter assignment constitutes a transfer as contemplated by W. Va.
Code §18A-2-7. Reed v. Mason County Bd. of Educ., Docket No. 92-26-050 (Mar. 31,
1992); Pansmith v. Taylor County Bd. of Educ., Docket No. 46-86-057 (Aug. 4, 1986).
However, while that general principle was upheld in Matthews v. Preston County
Board of Education, Docket No. 39-88-239 (July 27, 1989), it was also determined that the
addition of similar duties does not constitute a transfer. Id. Previously, in Dunleavy v.
Kanawha County Board of Education, Docket No. 20-89-008 (Feb. 23, 1989), it was held
that schedule adjustments which do not include duties outside of an employee's presently
utilized area of certification, discipline or department . . . [are generally not] assignmentsamounting to a transfer . . . . Dunleavy, Conclusion of Law, No. 1, citing VanGilder v.
Mineral County Bd. of Educ., Docket No. 27-87-320-2 (June 16, 1988).
In Pansmith, supra, it was held that full-time special education teachers whose
duties as such were reduced by one-half when they were assigned kindergarten and
regular elementary classes were transferred. In Callahan v. Raleigh County Board of
Education, Docket No. 41-87-026-4 (June 2, 1987), it was concluded that a complete
change in the subject matter that a gifted children teacher would be teaching required the
application of W.Va. Code §18A-2-7. It was decided in Schafstall v. Brooke County Board
of Education, Docket No. 05-86-347-3 (Mar. 30, 1987), that the deletion of an English II
class from a language arts teacher's schedule did not constitute a transfer when the
remainder of her classes remained within her area(s) of certification. In Bumgardner v.
Ritchie County Board of Education, Docket No. 43-88-119 (Feb. 28, 1989), a previously
full-time librarian's assignment to a one-half time librarian and one-half time vocational
home economics position was deemed such a substantial change as to require notice and
an opportunity to be heard. Changes in grade assignments have also been held to be
sufficiently substantial. Gallaher v. Taylor County Bd. of Educ., Docket No. 48-87-233-2
(May 19, 1988). Finally, in Gerstner and Dotson v.Greenbrier County Board of Education,
Docket No.13-87-321-4 (March 7, 1988), it was concluded that a requirement that full-time
librarians teach one class of library science was not a transfer even though the employees
had not previously done so.
In the present case, the change in location of one of the clinical rotations, with
attendant changes in instruction, remains squarely within the parameters of the LPNprogram. While the type of experience the LPN students will receive at the nursing home
will differ from that at the VA Hospital, necessitating some alteration to Grievant's lesson
preparations, she has not demonstrated that she has been assigned significantly different
duties or responsibilities outside her presently utilized area of certification, discipline or
department. Further, Grievant's work location is essentially itinerant given that she
teaches at different medical facilities, therefore, a change in location of a clinical rotation
from the VA Hospital to a nursing home does not constitute a transfer. See Agee v.
Wayne County Bd. of Educ., Docket No. 96-50-475 (May 7, 1997).
In addition to the foregoing findings of fact and discussion, it is appropriate to
make the following formal conclusions of law.
Conclusions of Law
1. As this grievance does not involve a disciplinary matter, Grievant has the
burden of proving each element of 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.
2.
W. Va. Code §18A-2-7 requires that an employee be provided written notice
on or before the first Monday in April if she is being considered for transfer, or to be
transferred effective the following school term. Any employee who wishes to oppose the
action must also be given a hearing on the proposed transfer before the board ofeducation on or before the first Monday in May. At this hearing, the reasons for the
proposed transfer must be shown.
3. A teaching schedule adjustment, not including the assignment of duties or
responsibilities outside of a teacher's presently-utilized area of certification, discipline,
department or grade level, is not a transfer requiring application of
W.Va.Code §18A-2-7.
Dotson v. Greenbrier County Bd. of Educ., Docket No. 13-87-321-4 (March 7, 1988);
Gerstner v.Gilmer County Bd. of Educ., Docket No. 11-87-303-3 (February 17, 1988), and
Schafstall v. Brooke County Bd. of Educ., Docket No. 05-86-347-3 (March 30, 1987).
4. The relocation of a clinical rotation to meet the changing focus and needs of
the LPN program was within Grievant's assigned area, and did not constitute a transfer,
or other violation of
W.Va. Code §18A-2-7.
Accordingly, the grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Berkeley County and 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.
Date: February 29, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE