MARLYN NELSON,
Grievant,
v. Docket No. 99-45-461
SUMMERS COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
This grievance was filed by Grievant Marlyn Nelson, a teacher's aide, against
Respondent Summers County Board of Education ("SBOE"), when she was not selected
for the posted position of Autism Mentor/Aide at Hinton Elementary School. Grievant
alleges as the most senior applicant, she should have been selected for the position, but
SBOE
awarded this vacancy to another applicant on the basis that the Grievant is
physically unable to perform the potential lifting requirements for the
position. Grievant disputes this contention and alleges a violation of West
Virginia Code § 18A-4-8b.
As relief she seeks instatement into the position, back pay with interest and seniority to the
date the position was filled, and benefits to which she would have been entitled had she
been placed in the position.
(See footnote 1)
The following Findings of Fact necessary to the Decision reached, are made based
upon the evidence presented at the Level II hearing, and the joint stipulations of fact
submitted at Level IV.
Findings of Fact
1. Grievant has been employed by SBOE as an aide since 1994. In October
1997, she was injured on the job as a result of lifting a child, and did not return to work
until August 1998. During the 1998-99 school year, she was employed as a one-half time
bus monitor aide. In that position she rode a school bus and assisted two special needs
children, as well as assisting with the other children on the bus as necessary. One of the
special needs children had autistic tendencies, and the other had seizures. As a bus
monitor aide she was responsible for lifting children in need of assistance if necessary.
2. On May 18, 1999, SBOE posted a vacancy for a full-time Autism Mentor at
Hinton Elementary School. The posting did not indicate any particular physical ability was
needed.
3. The Autism Mentor would be required to work with two small boys with
autistic tendencies. One of these boys rode the school bus on which Grievant was anaide. Both boys are able to walk, both are under 4 feet tall, and each weighs between 40
and 60 pounds.
4. Grievant applied for the position, and was the most senior applicant.
5. On June 30, 1999, Superintendent Charles R. Rodes wrote to Grievant
asking her to obtain a letter from her doctor stating she was physically able to perform the
duties of Autism Mentor. The letter stated, [t]his position does require lifting of students.
6. At Grievant's request, her physician wrote a letter to Superintendent Rodes
stating,
I do not know the job requirements of this position. Admittedly, I would be
concerned about her being placed in a position that would potentially
compromise her previously injured right shoulder. . . . She continues to have
some pain and tenderness, as well as slightly limited range of motion, of the
right shoulder. For this reason, I would be hesitant to put her in a position
that might require heavy lifting. If she [Grievant] can be guaranteed that no
heavy physical demands would be placed on the right upper extremity
(specifically the shoulder), she should be able to do any other type of work.
7. After receiving the letter from Grievant's physician, SBOE reposted the
position. Grievant applied again. Grievant was again the most senior applicant. SBOE
selected Debra Meadows for the position. Grievant was not selected because
Superintendent Rodes did not believe she was physically able to perform the duties of the
position.
8. Grievant's performance evaluations would not have prevented her
employment in the position.
9. None of the applicants for the position, including Grievant and the successful
applicant, holds certification as an Autism Mentor.
Discussion
Grievant bears the burden of proving the allegations of her grievance by a
preponderance of the evidence.
Conner v. Mingo County Bd. of Educ., Docket No. 95-29-
476 (Mar. 28, 1996).
W. Va. Code § 18A-4-8b ¶ 1 provides:
A county board shall make decisions affecting promotions and the 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 [§18A-4-8] of this article, on the basis of seniority,
qualifications and evaluation of past service.
The parties do not dispute that, but for her physical limitations, Grievant was entitled by
statute to placement in the Autism Mentor position as the most senior applicant. Grievant
does not dispute that SBOE has the authority to eliminate her from consideration for the
position if she is not physically capable of performing the duties of the position. She
believes she is physically able to perform the duties of the position. She felt that, because
the job would not require frequent heavy lifting, she could perform the duties of the position
despite her injury. She noted that neither child weighs more than 60 pounds, both are able
to walk without assistance, and she has worked with one of the children on the bus.
Respondent pointed to State Board of Education Policy 5314.01, related to Autism
Mentors, at § 3, Standards and Experience, which establishes as one of the standards of
an Autism Mentor, [p]hysical ability and stamina necessary to complete all job tasks,
including tasks related to ensuring student safety. It is the responsibility of the board of
education to verify that this standard is met, and Respondent argued it had determined
Grievant did not meet this standard. Grievant's injury resulted from lifting a student. Workers' Compensation has
awarded her one percent permanent partial disability. She has pending a claim for a
seven percent award. She testified that she still has pain in her right shoulder, but it only
causes her a problem when she lifts something. Although she could not state how much
weight she has been able to lift, she stated she cannot carry a load of wood into her home,
and doing housework sometimes aggravates the problem, and she has to pace her work.
She testified she cannot lift dead weight, or perform repetitive lifting as would be required
to assist a child in a wheelchair.
Nonetheless, Grievant stated she could help a child up off the floor who falls, and
is able to assist a child in the bathroom. She stated she is responsible as a bus monitor
aide for lifting if a child needs help, although she has not had to do so. She testified that
the child on her bus who had seizures weighed around 200 pounds. When she would
have a seizure on the bus, Grievant had to push her back into position on the bus, and the
child would then lean against Grievant's shoulder.
Because of his concern about Grievant's physical ability, Superintendent Rodes
requested a doctor's statement that Grievant could perform the duties of the position, and
he was not satisfied from the statement she provided that she could do so. Superintendent
Rodes testified that while there may be some lifting involved in the job, he was concerned
that the children might try to run away, and Grievant would not be physically able to
restrain a kicking, flailing, 40 to 60 pound child. He felt restraining such a child would be
physically harder than lifting dead weight, although he based this upon his personal
observations and beliefs, and not upon any particular experience with autistic children. While Grievant testified she had at times been required to restrain the child with autistic
tendencies who rode her school bus, he was in a seat belt on the bus, and sat confined
between Grievant and the window. It was only when he had gotten out of the seat belt and
tried to get around her, or gotten past her, that she had to restrain him. The two children
in the classroom would not be confined as the student on the bus was.
There is no doubt that Grievant suffers from physical limitations. Although Grievant
may have a different view of her limitations, her doctor's statement provides the best
guidance on those limitations. In response to Superintendent's Rodes' statement that the
job requires lifting of students, he responded that Grievant cannot do heavy lifting. He
went on to state that no heavy physical demands can be placed on her right shoulder.
Certainly the position will place physical demands on Grievant when either or both of the
boys requires restraint or lifting, which not surprisingly gave Superintendent Rodes cause
for concern. The statement provided by Grievant's doctor does not provide assurance that
she is physically able to perform the duties of the position. It left Superintendent Rodes
with concerns as to whether Grievant was physically capable of restraining the two boys
in difficult situations. The undersigned cannot say that Superintendent's Rodes' concerns
were unjustified.
While Grievant pointed to her duties as a bus monitor aide, the fact that she would
have to lift children if necessary in that position also, and that she had to restrain the child
with autistic tendencies under different circumstances, does not mean she is physically
capable of performing the duties of the Autism Mentor; rather, the undersigned wonders
whether SBOE should have placed her in the bus monitor aide position in the first place. The fact that it did so once does not mean it should take the risk to her and the children
here also. Grievant has not proven she was physically capable of performing the duties
of the position, and therefore, SBOE was not required to place her in the position.
The following Conclusions of Law support the Decision reached.
Conclusions of Law
1. The burden of proof is upon Grievant to prove the elements of her grievance
by a preponderance of the evidence.
Conner v. Mingo County Bd. of Educ., Docket No.
95-29-476 (Mar. 28, 1996).
2. Grievant did not demonstrate she was physically capable of performing the
duties of an Autism Mentor in a manner which would not compromise the safety of the
children or aggravate her injury, and she therefore was not entitled to placement in the
position.
Accordingly, this grievance is DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County or to
the Circuit Court of Summers 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 Grievance Board with the civil action
number so that the record can be prepared and transmitted to the circuit court.
BRENDA L. GOULD
Administrative Law Judge
Dated: April 7, 2000
Footnote: 1