PHYLLIS MORRIS,

                  Grievant,

      v.

DOCKET NO. 00-20-227

KANAWHA COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievant, Phyllis Morris, filed this grievance against her employer, the Kanawha County Board of Education (“Board”) on April 13, 2000:


      The grievance was denied at level one by Grievant's immediate supervisor, Donna Thomas, on April 13, 2000. A level two hearing was scheduled and held on June 26, 2000, and the grievance was denied by Grievance Evaluator Lisa West on July 11, 2000. Grievant by-passed level three and appealed to level four on July 19, 2000, and a hearing was held on September 13, 2000. This case became mature for decision on October 9, 2000, the deadline for the parties' submissions of proposed findings of fact and conclusions of law. Grievant was represented by John E. Roush, Esq., West VirginiaSchool Service Personnel Association, and the Board was represented by James Withrow, Esq.
SUMMARY OF EVIDENCE

LII Evaluator's Exhibits

Ex. 1 -      All grievance forms.

LIV Grievant's Exhibits

Ex. 1 -


Testimony

      Grievant testified in her own behalf. The Board presented no witnesses.

FINDINGS OF FACT

      I find, by a preponderance of the evidence, the following facts.
      1.      Grievant has been employed by the Board for approximately 24 years, and at the time this grievance was filed, was employed as a regular school bus operator.   (See footnote 1) 
      2.      Grievant has also worked for a number of years as a Painter during the summer.
      3.      The Board employed Jimmy Mize as a regular Painter. In the late summer of 1999, Mr. Mize became physically unable to perform his duties as Painter. Mr. Mize was retrained to perform another service job within the school system. Eventually, in the spring of 2000, Mr. Mize transferred into a Locksmith position.
                                                                        4.      While Mr. Mize was being retrained, the Board called in Roger Strickland near the end of October, 1999 to substitute for Mr. Mize in the Painter's position, and this position was not advertised.
      5.      The Board did not post Mr. Mize's Painter position after he had been absent from the position for thirty (30) days. Instead, Mr. Strickland continued to work in the position.
      6.      Grievant knew of Mr. Mize's problem, and had been watching the postings in anticipation that Mr. Mize's position would be posted.
      7.      In late winter, early spring 2000, Grievant was awarded another Painter's position (not Mr. Mize's) on a long-term substitute basis. However, the regular employee returned to work before Grievant entered into the duties of that position.   (See footnote 2) 
      8.      On or about April 10, 2000, Grievant learned that Mr. Strickland was “substituting” for Mr. Mize.
      9.       10.      When Mr. Mize completed his retraining for the Locksmith classification, and assumed a Locksmith position, his Painter's position was advertised. By coincidence, another Painter's position became vacant and was advertised during this same time period.      11.      Grievant applied for and was awarded one of the vacant Painter's positions on July 3, 2000.   (See footnote 3) 
DISCUSSION

      As this is not a disciplinary grievance, Grievant bears the burden of proving the allegations in her grievance by a preponderance of the evidence. Grievant alleges the Board violated W. Va. Code §§ 18A-4-8b and 18A-4-15(2) when it failed to post the Painter position held by Mr. Mize after he had been absent from that position for thirty (30) days.
      The Board responds that, because Mr. Mize was in a retraining program, there was no requirement to post the position pursuant to W. Va. Code § 18A-4-15(2), because Mr. Mize was not a leave of absence. The Board further contends that, even if the position should have been posted after thirty days, Grievant has failed to prove she would have been the most senior applicant for the position. Finally, the Board asserts that, if Grievant is awarded the Painter position, she is limited to back pay for the period from fifteen days prior to filing the grievance up to July 3, 2000, when she was awarded the permanent Painter's position.
      W. Va. Code § 18A-4-15 provides, in pertinent part, the following regarding employment of substitute service personnel:

      W. Va. Code §§ 18A-4-8b and 18A-4-15 require a county board to post all vacancies which occur as a result of an employee being on a leave of absence for more than 30 days. It is not necessary for the employee to formally request a leave of absence in order for these statutory provisions to be triggered. Adkins v. Lincoln County Bd. of Educ., Docket No. 97-22-272 (Aug. 25, 1997); Livingood v. Mingo County Bd. of Educ., Docket No. 95-39-413 (May 8, 1996); Eagle v. Marion County Bd. of Educ., Docket No. 94-24-226 (Nov. 23, 1994); Lambert v. Lincoln County Bd. of Educ., Docket No. 93-22-547 (Sept. 29, 1994); Hensley v. Mingo County Bd. of Educ., Docket No. 93-29-037 (July 6, 1994); Stutler v. Wood County Bd. of Educ., Docket No. 54-86-333-3 (Aug. 20, 1987).   (See footnote 4) 
      Grievant's theory relies on a determination that Mr. Mize's absence from his Painter position was a “leave of absence”, and that the hiring of a long-term substitute required posting and filling pursuant to W. Va. Code § 18A-4-8b. The Board, however, correctly points out that Mr. Mize was not on a “leave of absence” from his employment with the Board, but rather, had been relieved of his Painter duties and was being retrained for another service position within the school system. Mr. Mize was, at all times, still working and receiving on-the-job training. Thus, the selection of a substitute for the Painter positionfalls within subsection (3) of Code Section 18A-4-15. It is, therefore, unnecessary to address the Board's other arguments in defense of this grievance.
CONCLUSIONS OF LAW

      1.      W. Va. Code § 18A-4-15 provides, in pertinent part, the following regarding employment of substitute service personnel:

      2.      W. Va. Code §§ 18A-4-8b and 18A-4-15 require a county board to post all vacancies which occur as a result of an employee being on a leave of absence for more than 30 days. It is not necessary for the employee to formally request a leave of absence in order for these statutory provisions to be triggered. Adkins v. Lincoln County Bd. of Educ., Docket No. 97-22-272 (Aug. 25, 1997); Livingood v. Mingo County Bd. of Educ., Docket No. 95-39-413 (May 8, 1996); Eagle v. Marion County Bd. of Educ., Docket No. 94- 24-226 (Nov. 23, 1994); Lambert v. Lincoln County Bd. of Educ., Docket No. 93-22-547 (Sept. 29, 1994); Hensley v. Mingo County Bd. of Educ., Docket No. 93-29-037 (July 6, 1994); Stutler v. Wood County Bd. of Educ., Docket No. 54-86-333-3 (Aug. 20, 1987).      3.      The “vacancy” in this case, caused by Mr. Mize's being relieved of his Painter duties while undergoing retraining for another service position within the school system, was not a “leave of absence” as set forth in W. Va. Code § 18A-4-15(2), requiring posting after thirty days and filling according to W. Va. Code § 18A-4-8b.
      4.      Mr. Mize was authorized by the Board to be absent from duties without loss of pay while he received training for another service position. The selection of a substitute in that situation fell within subsection (3) of Section 18A-4-15, and did not require posting and filling pursuant to Code Section 18A-4-8b.

      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: November 16, 2000


Footnote: 1
      Grievant subsequently bid on, and received, a Painter's position with the Board.
Footnote: 2
      Grievant held the classification title of Painter as she had worked as a Painter at least one previous summer. Consequently, she did not have to take and pass the competency test for Painter.
Footnote: 3
      One of the other applicants for this position actually had more seniority than Grievant, but failed the competency test.
Footnote: 4
      Code Section 18A-4-15(2) was amended by the Legislature effective July 1, 2000.