ROBERT WAYBRIGHT,
Grievant,
v. Docket No. 00-51-072
WEBSTER COUNTY BOARD
OF EDUCATION,
Respondent.
DECISION
Robert Waybright (Grievant) initiated two separate grievances on October 18,
1999. Grievant is seeking full day wages for part-time summer positions he held in the
summers of 1997 and 1999. Second, he challenges the posting of two aide positions, and
seeks as relief to have the positions reposted as autism mentor positions. The grievances
were denied at level one on October 19, 1999. Level two hearings were held on
November 15, 1999, followed by denials of the grievances.
(See footnote 1)
Level three consideration was
waived, and Grievant jointly appealed both grievances to level four on February 24, 2000.
After several continuances granted for good cause shown, a level four hearing was held
before the undersigned in the Grievance Board's office in Elkins, West Virginia, on
September 27, 2000. Grievant was represented by counsel, John E. Roush, and
Respondent was represented by counsel, Basil R. Legg, Jr. This matter became mature
for consideration upon receipt of the parties' fact/law proposals on November 14, 2000.
The following findings of fact are made from a preponderance of the evidence ofrecord.
Findings of Fact
1. Grievant has been employed by Respondent since 1985 as a classroom
aide. Grievant also holds the classification of Autism Mentor, having been certified and
serving in that classification in recent years.
(See footnote 2)
2. Grievant served in an aide position during summer school sessions in 1997,
1998, and 1999. Grievant worked two days per week, approximately four hours per day.
In 1997 and 1998, he was paid an hourly wage for the exact time he worked, based upon
his normal salary.
(See footnote 3)
3. On July 29, 1999, Respondent posted two vacancies for full-time aides, one
at Webster Springs Elementary School and the other at Glade Elementary School. The
posting did not describe the positions in detail, nor did it mention the type of children the
aides would be assisting. Both positions entailed assisting an autistic child.
4. Grievant did not apply for either of the posted aide positions.
5. Charlene Bicknell received the position at Webster Springs Elementary
School. Although she works with an autistic child, Ms. Bicknell is classified and paid as
an aide, not as an Autism Mentor. She is not certified as an Autism Mentor.
6. Donna Davis received the position at Glade Elementary School and also is
assigned to an autistic child. Prior to being placed in this position, Ms. Davis was certifiedas an Autism Mentor, but had not worked in that job classification. Since she began
working in the position at Glade Elementary School, Ms. Davis has been classified and
compensated as an Autism Mentor.
7. Grievant received his final paycheck for the 1999 summer session on August
31, 1999. He knew throughout his summer employment in 1997, 1998, and 1999 that he
was being paid an hourly wage, rather than full day pay.
8. Grievant was absent from work for medical reasons on September 2 and 3,
1999. He was also absent the entire week of September 13 through 17, 1999, because
of the death of his father.
9. Grievant knew that both Ms. Bicknell and Ms. Davis would be working with
autistic children prior to the beginning of the 1999-2000 school year. He did not became
aware that Ms. Davis was being compensated and classified as an Autism Mentor until
September 7, 1999, when he received a copy of the county seniority list.
10. Grievant testified that he requested and received an informal conference on
both of these grievances when he returned to work on September 20, 1999.
11. Grievant received a response from his supervisor on both grievances on
October 18, 1999, and he filed his written level one grievances on that day.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving his claims 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 CountyBd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988).
See W. Va. Code § 18-29-6.
Respondent contends that neither of these grievances was initiated within the time limits
specified in
W. Va. Code § 18-29-4(a) which states in pertinent part:
(1) 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. . . .
(2) The immediate supervisor shall respond to the grievance within
ten days of the conference.
(3) Within ten days of receipt of the response from the immediate
supervisor following the informal conference, a written grievance may be
filed with said supervisor[.]
A timeliness defense is an affirmative defense which the employer must establish
by a preponderance of the evidence.
Lowry v. W. Va. Dep't of Educ., Docket No.
96-DOE-130 (Dec. 26, 1996);
Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315
(Jan. 25, 1996). The time period for filing a grievance ordinarily begins to run when the
employee is unequivocally notified of the decision being challenged.
Kessler v. W. Va.
Dep't of Transp., Docket No. 96-DOH-445 (July 28, 1997).
See Rose v. Raleigh County
Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566 (1997).
In the instant case, Grievant contends that both claims were timely filed. First,
regarding his summer pay grievance, Grievant argues that he initiated it within fifteen
working days of the last occurrence of this continuing practice, i.e. the receipt of his
paycheck on August 31, 1999. Grievant also notes that the time limits set forth in theabove statute are specifically extended when an employee is absent due to accident,
sickness, [or] death in the immediately family.
W. Va. Code §§ 18-29-3(a), 18A-4-10.
This Grievance Board has consistently recognized that, in accordance with
Martin
v. Randolph County Board of Education, 195 W. Va. 297, 465 S.E.2d 399 (1995), salary
disputes alleging pay disparity are continuing violations, which may be grieved within
fifteen days of the most recent occurrence, i.e. the issuance of a paycheck.
See Haddox
v. Mason County Bd. of Educ., Docket No. 98-26-283 (Nov. 30, 1998);
Casto v. Kanawha
County Bd. of Educ., Docket No. 95-20-567 (May 30, 1996). Grievant initiated this claim
within six working days of receipt of his paycheck on August 31, 1999, so it is timely.
As to the grievance regarding the two aide positions, Respondent contends that
Grievant was required to file this grievance as soon as he became aware that both
positions involved working with autistic children, which occurred in August of 1999.
However, Grievant did not discover that the position awarded to Ms. Davis actually
became an Autism Mentor position until September 7, 1999. Once again, this grievance
was filed within the statutory time limit, excluding the days Grievant was not working due
to death and illness. Both grievances are timely filed. The merits of each grievance will
be discussed separately.
Summer Pay
Grievant argues that, although he only worked approximately four hours per day in
his summer position, he is entitled to full day wages. He based this contention upon a
portion of
W. Va. Code §18A-4-8a which provides that "the minimum monthly pay for each
employee whose employment is for a period of three and one-half hours a day shall be atleast the amounts indicated in the 'state minimum pay scale grade[.]'" In turn,
W. Va. Code
§ 18-5-39 provides that [t]he salary of a summer employee shall be in accordance with
the salary schedule of [regular employees]. . . and persons employed in those positions
are entitled to all rights, privileges and benefits provided in . . . [§18A-4-8a]. Accordingly,
Grievant believes that these provisions intend to provide part-time summer employees who
work more than 3½ hours with full day pay.
The exact argument Grievant is presenting in this case was addressed in this
Grievance Board's decision in
McMillen/Colvin v. Hancock County Bd. of Educ., Docket
Nos. 93-15-366/467 (May 20, 1994). As stated in that decision, the portion of
W. Va. Code
§ 18A-4-8a relied upon does not support Grievant's position, because it merely indicates
that a determination of full-time or part-time employment for salary purposes pertains to
the term of a service employee's contracted regular employment, not summer school
employment. Accordingly, Grievant cannot be granted full day wages for half day work
pursuant to the statutes cited.
Aide Positions
As a preliminary matter, Respondent contends that Grievant does not have standing
to contest the filling of these positions, because he did not apply for either position.
However, as Grievant has pointed out, he did not apply because they were posted as
regular aide positions, for which he would not have received any increase in salary. If they
had been posted as Autism Mentor positions, which command a higher rate of pay, he
would have been more likely to apply. If a position is wrongly posted, a grievant who did
not apply does indeed have standing, because he has suffered harm by being denied theopportunity of being considered for the position.
Taylor-Hurley v. Mingo County Bd. of
Educ., Docket No. 96-29-265 (Apr. 28, 1997).
Respondent argues that, although both of these positions required an aide to work
with an autistic child, it was not required to use an Autism Mentor in either position, unless
required by the child's IEP (and it was not for these children). Autism Mentor is defined
by
W. Va. Code § 18A-4-8 as personnel who work with autistic students and who meet
standards and experience to be determined by the state board[.] Respondent is correct
in its statement that a regular classroom aide could be assigned to work with an autistic
child, if no particular expertise is required for working with that child. Therefore, as to the
position ultimately awarded to Ms. Bicknell, Grievant has failed to establish that it was
improperly posted as an aide position.
However, the fact remains that Ms. Davis' position, although posted as an aide
position, became an Autism Mentor position when she was placed in it. Respondent's
argument that the position was only upgraded because of Ms. Davis' certification does
not excuse its failure to properly post the position.
W. Va. Code §18A-4-8 places a
burden on county boards of education to see that the duties of a particular service position
coincide with the classification and paygrade to which it is assigned.
Robinson v. Nicholas
County Bd. of Educ., Docket No. 93-34-197 (Mar. 25, 1994). Simply stated, the statute
requires the board to call the position what it is.
Gosnell v. Raleigh County Bd. of Educ.,
Docket No. 94-41-112 (Apr. 21, 1995). As was held in
Taylor,
supra, when a board of
education posts a vacant position, it must call the position what it is pursuant to the
required duties of that position. Obviously, Respondent would not have changed Ms.Davis' classification and pay grade at the beginning of the 1999-2000 school year unless
this action was necessitated by the duties of her new position. Accordingly, as Grievant
has requested, her position must be reposted as an Autism Mentor position, so that all
properly qualified applicants may have the opportunity to apply.
Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law
1. In a non-disciplinary matter, Grievant has the burden of proving his claims
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. An employee must initiate a grievance within fifteen days of the occurrence
of the event grieved, or within fifteen days of the discovery of that event or the most recent
occurrence of a continuing practice.
W. Va. Code § 18-29-4(a).
3. A timeliness defense is an affirmative defense which the employer must
establish by a preponderance of the evidence.
Lowry v. W. Va. Dep't of Educ., Docket No.
96-DOE-130 (Dec. 26, 1996);
Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315
(Jan. 25, 1996).
4. The time limits set forth in
W. Va. Code § 18-29-4(a) are specifically
extended when an employee is absent due to accident, sickness, [or] death in the
immediately family.
W. Va. Code §§ 18-29-3(a), 18A-4-10.
5. Grievant initiated both of the instant claims within the statutory time period. 6. A determination of full-time or part-time employment for salary purposes
pursuant to
W. Va. Code § 18A-4-8a pertains to the term of a service employee's
contracted regular employment, not summer school employment.
McMillen/Colvin v.
Hancock County Bd. of Educ., Docket Nos. 93-15-366/467 (May 20, 1994).
7. Grievant is not entitled to full day wages for his summer employment in 1997
and 1999.
8. If a position is wrongly posted, a grievant who did not apply has standing,
because he has suffered harm by being denied the opportunity of being considered for the
position.
Taylor-Hurley v. Mingo County Bd. of Educ., Docket No. 96-29-265 (Apr. 28,
1997).
9.
W. Va. Code §18A-4-8 places a burden on county boards of education to
see that the duties of a particular service position coincide with the classification and
paygrade to which it is assigned.
Robinson v. Nicholas County Bd. of Educ., Docket No.
93-34-197 (Mar. 25, 1994). Simply stated, the statute requires the board to call the
position what it is.
Gosnell v. Raleigh County Bd. of Educ., Docket No. 94-41-112 (Apr.
21, 1995).
10. Grievant has proven by a preponderance of the evidence that the aide
position awarded to Donna Davis should have been posted as an Autism Mentor position.
Accordingly, this grievance is GRANTED, IN PART, and DENIED, IN PART.
Respondent is hereby ORDERED to repost the subject position as an Autism Mentor
position. Should it be determined that Grievant would have been the successful applicantfor the Autism Mentor position, he shall be compensated for any back pay and benefits,
plus interest, he would have received if originally placed in the position.
Any party may appeal this Decision to the Circuit Court of Kanawha County or the
Circuit Court of Webster 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: November 22, 2000 _______________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1