DIANE LOGAR,
Grievant,
v. Docket No. 00-30-218
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
Diane Logar (Grievant) initiated this proceeding on February 8, 2000, alleging:
[T[hat her building principal has acted in an arbitrary and capricious manner
by removing her from the seventh grade team and by forcing her to switch
schedules with another teacher. She maintains that these actions are part
of a continuous pattern of harassment.
Grievant did not specify any requested relief. The grievance was denied at level one on
February 17, 2000. A level two hearing was held on April 6, 2000, and on May 4, 2000.
The grievance was denied at that level in a written decision dated June 16, 2000. Level
three consideration was waived, and Grievant appealed to level four on June 27, 2000.
The parties agreed to submit this matter for a decision based upon the record developed
below, and this grievance became mature for consideration upon receipt of the lower level
record on August 24, 2000.
(See footnote 1)
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant is employed by Respondent as a classroom teacher at Cheat Lake
Middle School.
2. Cheat Lake Middle School utilizes a team approach, which involves having
all of the teachers in each grade meet each day to discuss curriculum, student needs, and
administrative matters. The team approach is designed to enable teachers to coordinate
their efforts and provide students an integrated curriculum.
3. Due to complaints from the other members of Grievant's team, Principal Ken
Wolfe notified her, on October 12, 1999, that she should no longer attend team meetings.
4. Through a series of written communications, beginning on October 12, 1999,
Grievant demanded that she be allowed to attend team meetings and requested meetings
with Mr. Wolfe to discuss that issue.
5. In a memorandum dated October 21, 1999, Mr. Wolfe advised Grievant that
she could use the grievance procedure if she was unhappy with his decision to remove her
from team meetings.
6. Grievant and Mr. Wolfe met on October 28, 1999, and discussed Grievant's
new assignment for the time period during which team meetings were held, because she
would not be attending the meetings, as directed by Mr. Wolfe. Grievant did not mention
a grievance during that meeting.
7. On December 14, 1999, Grievant wrote Mr. Wolfe a lengthy letter, discussing
his continuous policy and practice of interference with [her] ability to carry out [her] duties
over the past five years. She demanded that several specific pieces of correspondence
from Mr. Wolfe be expunged from school records, that she be reinstated to the seventhgrade team, that her class size be made equitable, that the leader of her team be selected
on a rotating schedule, and that Mr. Wolfe's practice of sending harassing memoranda
cease as of today.
8. In response to Grievant's December 14, 1999, letter, Mr. Wolfe responded
to her demands by advising her that she would swap two class periods with another
seventh grade teacher, beginning with the second semester after Christmas break. He
refused to allow her to attend team meetings, and advised her that she would be given
daily notes from the meetings. Finally, Mr. Wolfe advised Grievant to follow proper
procedures regarding personnel issues in the future. Mr. Wolfe's memorandum was dated
December 21, 1999.
9. During her level two testimony, Grievant discussed several specific incidents
of alleged harassment by Mr. Wolfe which had occurred since 1996, culminating with her
removal from team meetings in October of 1999.
10. Grievant did not initiate a grievance regarding Mr. Wolfe's alleged
harassment, her schedule change, and her removal from team meetings until February 8,
2000.
11. Grievant has provided no explanation for her delay in filing this grievance.
Discussion
At the level two hearing, Respondent argued that this grievance was not timely filed.
The burden of proof is on the party asserting that a grievance was not timely filed to prove
this affirmative defense by a preponderance of the evidence.
Hale and Brown v. MingoCounty Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996). If the respondent meets this
burden, the grievant may then attempt to demonstrate that she should be excused from
filing within the statutory timelines.
Kessler v. W. Va. Dept. of Transp., Docket No.
96-DOH-445 (July 29, 1997);
Higginbotham v. W. Va. Dept. of Public Safety, Docket No.
97-DPS-018 (Mar. 31, 1997);
Sayre v. Mason County Health Dept., Docket No.
95-MCHD-435 (Dec. 29, 1995),
aff'd, Circuit Court of Mason County, No. 96-C-02 (June
17, 1996).
See Ball v. Kanawha County Bd. of Educ., Docket No. 94-20-384 (Mar. 13,
1995);
Woods v. Fairmont State College, Docket No. 93-BOD-157 (Jan. 31, 1994);
Jack
v. W. Va. Div. of Human Serv., Docket No. 90-DHS-524 (May 14, 1991).
W. Va. Code §
18-29-3(a) provides, in pertinent part:
A grievance must be filed within the times specified in section four of this
article and shall be processed as rapidly as possible. . . . Provided, That the
specified time limits may be extended by mutual written agreement and shall
be extended whenever a grievant is not working because of such
circumstances as provided for in section ten, article four, chapter eighteen-a
of this code. Any assertion by the employer that the filing of the grievance
at level one was untimely must be asserted by the employer on behalf of the
employer at or before the level two hearing.
W. Va. Code § 18-29-4(a) requires that:
Before a grievance is filed and within fifteen days following the occurrence
of the event upon which the grievance is based, or within fifteen days of the
date on which the event became known to the grievant or within fifteen days
of the most recent occurrence of a continuing practice giving rise to a
grievance, the grievant or the designated representative shall schedule a
conference with the immediate supervisor to discuss the nature of the
grievance and the action, redress or other remedy sought.
Clearly, this grievance is untimely. Grievant has sought to establish that Mr. Wolfe
has subjected her to repeated harassment over the past four years. However, she hascited no specific incident of alleged harassment which has occurred since the October,
1999, removal of her from team meetings. Although Grievant and Mr. Wolfe met on
October 28 to discuss her new schedule after her removal from team meetings, she did not
mention a grievance at any time before February 8, 2000. Grievant has also challenged
her schedule change, of which she was notified in Mr. Wolfe's December 21, 1999,
memorandum. That change took effect with the new semester in early January, 2000.
Grievant did not initiate this grievance within fifteen days of the occurrence of either of
these events, and she has provided no explanation for her delay in filing this grievance.
Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law
1. The burden of proof is on the party asserting that a grievance was not timely
filed to prove this affirmative defense by a preponderance of the evidence.
Hale and
Brown v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996).
2. A grievance must be initiated within fifteen days of the occurrence upon
which it is based.
W. Va. Code § 18-29-4(a).
3. If the employer proves that the grievance is untimely, the grievant may
provide reasons why she should be excused from filing within the statutory timelines.
Kessler v. W. Va. Dept. of Transp., Docket No. 96-DOH-445 (July 29, 1997);
Higginbotham
v. W. Va. Dept. of Public Safety, Docket No. 97-DPS-018 (Mar. 31, 1997);
Sayre v. Mason
County Health Dept., Docket No. 95-MCHD-435 (Dec. 29, 1995),
aff'd, Circuit Court of
Mason County, No. 96-C-02 (June 17, 1996).
4. Grievant failed to initiate this grievance in a timely fashion and has providedno excuse for her delay in filing.
Accordingly, this grievance is DISMISSED.
Any party may appeal this Decision to the Circuit Court of Kanawha County or the
Circuit Court of Mongalia 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 22, 2000 _______________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1