TRISHA RICE,
Grievant,
v. Docket No. 00-30-185
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent,
and
JENNA FETTY,
Intervenor.
Grievant, Trisha Rice, employed by the Monongalia County Board of Education
(MCBOE) as a substitute Secretary/Clerk, filed a level one grievance on January 26, 2000,
in which she alleged that she applied for a vacancy for a clerk at Cheat Lake Elementary
School. This position was awarded to Jenna Fetty by board action on January 12, 2000.
The Grievant contends that Ms. Fetty is less senior than she is and alleges a violation of
§18A-4-8b, §18A-4-8g, § 18A-4-15, and §18A-4-8. For relief, Grievant seeks instatement
into the clerical position at Cheat Lake Elementary School, wages, benefits, and seniority
retroactive to January 12, 2000 and interest on all monetary sums.
A level one decision was not made part of the lower-level record. The grievance
was denied at level two following an evidentiary hearing held on April 13, 2000. Grievant
elected to bypass consideration at level three, as is permitted by W. Va. Code §18-29-4(c),
and advanced her appeal to level four on May 30, 2000.
A level four hearing was conducted in the Grievance Board's Morgantown office on
July 11, 2000, at which time Grievant was represented by John E. Roush, Esq., of
WVSSPA, MCBOE was represented by Harry M. Rubenstein, Esq., of Kay Casto &Chaney, and Intervenor was represented by Brian Edwards, Esq. The matter became
mature for decision on August 21, 2000, the due date for final post-hearing submissions.
The essential facts of this matter are undisputed, and may be set forth as the
following formal findings of fact.
Findings of Fact
1. Grievant was first employed by MCBOE as a substitute service personnel
employee in December 1997. At that time, MCBOE administered a Secretarial, but not a
Clerical, competency test, and maintained a single seniority list for substitute Secretaries
and Clerks.
2. In September 1998, MCBOE Director of Personnel, Dr. Louis Hlad, learned
that the State Department of Education had produced a separate test for Clerks, and from
that time separate Secretarial and Clerical competency tests were administered.
3. Grievant was not notified that she needed to take the Clerical competency
test if she wished to continue substituting in that classification, but was employed as a
substitute Clerk in the Spring of 1999, and again in February 2000.
4. Intervenor successfully completed the Clerk competency test on September
30, 1998, and the Secretary competency test on September 16, 1998.
5. Intervenor was placed in a half-time clerical vacancy at Cheat Lake
Elementary School in Fall 1998. Her appointment appears to have been made by the
principal of the school, without formal approval by MCBOE.
6. As the result of a a level four decision issued in the matter of
Gyorko v.
Monongalia County Board of Education, Docket No. 99-30-188 (Aug. 1, 1999), Intervenorwas removed from the position at Cheat Lake on November 23, 1999, and returned to the
status of a substitute employee.
7. On or about January 5, 2000, Intervenor filed a claim in the Circuit Court of
Monongalia County challenging her removal from the Clerical position at Cheat Lake
Elementary School.
8. Shorty after assuming the position of Clerk, Ms. Gyorko transferred to
another position, and the Clerical assignment at Cheat Lake Elementary School was
posted from December 16, 1999, through January 6, 2000.
9. Both Grievant and Intervenor applied for the vacancy, and Intervenor was
appointed to the position by MCBOE, effective January 12, 2000.
10. By Order dated March 13, 2000, the Circuit Court of Monongalia County
ruled that Intervenor was entitled to regular seniority status from October 1, 1998, through
November 23, 1999, but further determined that her removal from the position was not
invalid. She was not awarded any relief for the period from November 23, 1999 through
January 12, 2000, nor was she awarded attorney fees.
11. Grievant attained regular employment status when she was employed by
MCBOE in March 2000 as a permanent substitute.
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. The preponderance standard generally requires proof that a reasonable person
would accept as sufficient that a contested fact is more likely true than not.
Petry v.
Kanawha County Bd. Of Educ.,
Docket No. 96-20-380 (Mar. 18, 1997). Where the
evidence equally supports both sides, the employee has not met her burden of proof.
Grievant asserts that at the time the position was posted, in December 1999, both
she and Intervenor held the status of substitute Clerk. As the substitute with the greatest
seniority, Grievant claims she was entitled to the position. MCBOE argues that Grievant
was employed as a substitute Secretary with a seniority date of December 18, 1997, while
Intervenor holds regular seniority status as a Clerk, effective October 1, 1998. Because
Intervenor held the classification title of Clerk, and
W. Va. Code §18A-4-8b(b) requires
that regularly employed service personnel are to be given first consideration when filling
vacancies, MCBOE concludes that she was entitled to the position.
W. Va. Code §18A-4-8b sets forth the procedure to be followed in filling vacancies
in service personnel positions, and states in pertinent part:
A county board of education shall make decisions
affecting promotion and filling of any service personnel
positions of employment or jobs occurring throughout the
school year that are to be performed by service personnel as
provided in section eight, article four of this chapter, on the
basis of seniority, qualifications and evaluation of past service.
Qualifications shall mean that the applicant holds a
classification title in his category of employment as provided
in this section and must be given first opportunity for promotion
and filling vacancies. Other employees then must beconsidered and shall qualify by meeting the definition of the
job title as defined in section eight, article four of this chapter,
that relates to the promotion or vacancy. If the employee so
requests, the board must show valid cause why an employee
with the most seniority is not promoted or employed in the
position for which he applies. Applicants shall be considered
in the following order:
(1) Regularly employed service personnel;
(2) Service personnel whose employment has been
discontinued in accordance with this section;
(3) Professional personnel who held temporary service
personnel jobs or positions prior to the ninth day of June, one
thousand nine hundred eighty-two, and who apply only for
such temporary jobs or positions;
(4) Substitute service personnel; and
(5) New service personnel.
Two issues must be addressed in resolving this matter. First, did Grievant hold the
classification of Clerk. Second, was Grievant entitled to the position as the substitute with
the most seniority.
It is undisputed that Grievant never took the competency test for the classification
of Clerk. However, MCBOE also does not dispute her testimony at level four that she was
advised by an employee in the Personnel office at the time she was hired that she would
be substituting in both the Secretarial and Clerical classifications. Neither does it contest
Grievant's claim that she has twice been assigned as a substitute for individuals employed
as Clerks. In fact, Grievant's testimony is supported by that of Dr. Hlad, who confirmed
that he was unaware that a competency test for Clerks existed, and were not administered
by MCBOE until September 1998. Additionally, Johnnie Hamilton, MCBOE's Coordinator
of Adult Education, and the individual who administers the competency examinations,
recalled that when he had inquired about a competency test for Clerks prior to 1998, hehad been advised by Dr. Hlad that if an individual passed the Secretarial test, he or she
more than met the requirements for the Clerk classification.
MCBOE does not represent that substitutes employed in the Secretarial
classification prior to September 1998 were ever advised that it would be necessary for
them to take the competency test if they wished to be assigned as a Clerk. Certainly, the
assignment of Grievant to Clerical positions in 1999 and 2000 demonstrates that MCBOE
considered her to be qualified to hold that classification. Therefore, Grievant must be
found to have been qualified to hold the position of Clerk. MCBOE is urged to correct this
situation, if it has not already, with any other similarly situated substitute employees at the
earliest opportunity, to avoid future grievances.
The issue of seniority is complicated by the Order of the Circuit Court. Clearly,
Grievant was employed as a substitute prior to Intervenor. However, Intervenor has been
awarded regular employee status by the Court, while Grievant has no such seniority.
Grievant's argument that the Court Order was not retroactive cannot be accepted. While
the Order contains no specific language, the award is inherently retroactive, based upon
the finding that but for lack of an official contract, Intervenor was employed from October
1998 through November 1999, as a regular employee. Further, the fact that the Court
found Intervenor's discharge in November 1999 was not improper, does not affect the
accrual of the seniority, i.e., that the Gyorko decision meant that Intervenor was never
entitled to the position in the first place, thereby negating the seniority
If, at the time the position was filled in January 2000, both Grievant and Intervenor
were substitute employees, as MCBOE argued in the matter of Fetty v. Monongalia CountyBoard of Education, Civil Action No. 00-C-10 (March. 13, 2000), Grievant, the most senior
applicant would have been entitled to the position. However, in this case, a decision
cannot be based upon MCBOE's position in January 2000, because Grievant would have
been awarded the position based upon an erroneous determination that Intervenor had no
accrued seniority as a regular employee. As previously noted, the Court Order issued in
March 2000, established that Intervenor had accrued seniority as a regular employee at
the time the position was filled.
It is well-settled by this Grievance Board that when filling service personnel
positions, the amount of regular seniority the applicants possess must be utilized to award
the position, if such seniority is present. Ellis v. Lincoln County Bd. of Educ., Docket No.
00-23-196 (September 13, 2000); Tomblin v. Lincoln County Bd. of Educ., Docket No. 00-
22-106 (July 14, 2000); Griffith v. Boone County Bd. of Educ., Docket No. 99-03-172 (Mar.
16, 2000); Brunty v. Lincoln County Bd. of Educ., Docket No. 99-22-069 (July 13, 1999);
Hall v. Mingo County Bd. of Educ., Docket No. 94-29-1110 (Sept. 29, 1995); Ferrell v.
Mingo County Bd. of Educ., Docket No. 92-45-440 (Aug. 4, 1993).
All of the cited cases involved substitute employees who applied for a regular
position, and it was held that regular seniority, if any, was to be used to determine the
outcome of the selection process. In the present matter, Intervenor had more regular
seniority than Grievant, and was properly awarded the position in January 2000.
(See footnote 1)
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 his 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. Service personnel positions are to be filled on the basis of seniority,
qualifications, and evaluations of past service.
W. Va. Code §18A-4-8b.
3. When filling service personnel positions, the amount of regular seniority the
applicants possess must be utilized to award the position, if such seniority is present.
Ellis
v. Lincoln County Bd. of Educ., Docket No. 00-23-196 (September 13, 2000);
Tomblin v.
Lincoln County Bd. of Educ., Docket No. 00-22-106 (July 14, 2000);
Griffith v. Boone
County Bd. of Educ., Docket No. 99-03-172 (Mar. 16, 2000);
Brunty v. Lincoln County Bd.
of Educ., Docket No. 99-22-069 (July 13, 1999);
Hall v. Mingo County Bd. of Educ., Docket
No. 94-29-1110 (Sept. 29, 1995);
Ferrell v. Mingo County Bd. of Educ., Docket No. 92-45-
440 (Aug. 4, 1993).
4. By Court Order, Intervenor was determined to have accrued seniority as a
regular employee, therefore she was entitled to the position of Clerk at Cheat Lake
Elementary School in January 2000. Accordingly the grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Monongalia 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: September 25, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE
Footnote: 1 W. Va. Code §18A-4-8g was amended, effective July 1, 2000, and now limits
boards of education to consideration of only substitute seniority when filling positions with
substitute applicants.