JO ANNE POTTER,

                  Grievant,

      v.

DOCKET NO. 00-06-028

CABELL COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N


      Grievant, Jo Anne Potter, filed this grievance against her employer, the Cabell County Board of Education (“Board”) on October 12, 1999:
      Relief sought: To have restoration of personal release day.

By agreement of the parties, this case was heard in the first instance at level two. Following the January 7, 2000, level two hearing, Sandra Rupert, the Superintendent's designee, issued a decision on February 1, 2000, denying the grievance. Grievant by- passed level three , and appealed to level four on February 9, 2000, where the matter was submitted on the record. This matter became mature for decision on February 29, 2000, the deadline for the parties' proposed findings of fact and conclusions of law. Grievant was represented by Susan E. Hubbard, West Virginia Education Association, and the Board was represented by Howard E. Seufer, Jr., Esq., Bowles, Rice, McDavid, Graff & Love.

SUMMARY OF EVIDENCE

Joint Exhibit

Ex. 1 (1)

Ex. 1 (2) Ex. 1 (3) Ex. 1 (4) Ex. 1 (5) Ex. 1 (6) Ex. 1 (7) Ex. 1 (8) Ex. 1 (9) Ex. 1 (10) Ex. 1 (11)
Testimony

      Grievant testified in her own behalf. The Board presented the testimony of Mary Campbell, Kathy Hosaflook, and Linda Curtis.

FINDINGS OF FACT

      The material facts in this grievance are not in dispute, and are set forth in the following findings.
      1.      Grievant is Health teacher at Cabell-Midland High School, with 18 years seniority.
      2.      Bane McCracken is a Physical Education teacher at Cabell-Midland High School, as well as Department Chair of the Physical Education Department. He has 28 years seniority.
      3.      In the summer of 1999, Mr. McCracken was invited to attend a “listening session” to be conducted by the United States Department of Education. The one-day session was to be held on September 24, 1999, in Washington, D.C.      4.      After learning of the invitation, Mr. McCracken submitted on August 20, 1999, a “Request for Release Day” to attend the listening session. The request referred only to a “U.S. Dept. of Ed. forum.” It did not describe the session in any more detail. Jt. Ex. 1(2).
      5.      Mr. McCracken had told the people at the U.S. Department of Education that Grievant might also be interested in attending the conference.
      6.      Grievant received an e-mail from Connie Deshpande from the U.S. Department of Education on August 24, 1999, confirming that Mr. McCracken had recommended her for the conference, and extending an invitation for Grievant to attend. Jt. Ex. 1(6).
      7.      Grievant then submitted a “Request for Release Day” form on August 25, 1999, to attend the conference. The only information Grievant gave on the form regarding the purpose of the release request was to “attend National Forum.” Jt. Ex. 1(4).
      8.      Both Mr. McCracken and Grievant requested professional release days for the conference. A professional release day is one in which the teacher still gets paid, as opposed to a personal release day, in which the teacher is not paid.
      9.      Release forms are processed by Mary Cambpell, Director of Curriculum. Upon receiving the release requests from Mr. McCracken and Grievant, Ms. Campbell met with Kathy Hosaflook, Administrative Assistant over Secondary Schools, to discuss the requests, and to try to obtain additional information about the conference. They placed a call to the U.S. Department of Education, and learned the purpose of the session was to gather information from about 30 people across the country on topical subjects, that no decisions would be made at this session, and that no follow-up sessions were planned. Concluding that the session would not directly benefit the school system, Ms. Campbell denied the requests for professional leave.
      10.      Mr. McCracken and Grievant decided to go ahead and take personal days in order to attend the conference, once they learned their requests for professional leave had been denied.
      11.      On the eve of the conference, on September 23, 1999, Cabell-Midland Principal Flowers asked Ms. Hosaflook to reconsider the denial of Mr. McCracken's request. (Ms. Campbell was out of town or out of the office that day). He faxed her a letter dated September 4, 1999, from Judith Johnson, Acting Assistant Secretary of the U.S. Department of Education, to Mr. McCracken, personally inviting him to attend the conference. The letter provided more explicit details of the purpose and nature of the conference. Jt. Ex. 1(1). In addition, Principal Flowers reminded Ms. Hosaflook of Mr. McCracken's superb record as a physical education teacher, including winning the midwest, regional, and national physical education teacher of the year awards.
      12.      Based on this additional information, and the need for an immediate decision, Ms. Hosaflook agreed to approve Mr. McCracken for a professional leave day to attend the conference. She did not reconsider Grievant's request.
      13.      Release day requests of other teachers to attend conferences have been denied in situations where another teacher was granted a release day to attend the same conference.

CONCLUSIONS OF LAW

      1.      Because 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. Education and State Employees Grievance Bd., 156 C.S.R. 1, §4.19 (1996). Grievant has failed to meet her burden.
      2.      W. Va. Code § 18A-5-4 provides that a county board of education may approve the attendance of “any or all” teachers at educational conventions, conferences, or other professional meetings of teachers on school days when in the judgment of the superintendent it is necessary or desirable. See Orr v. Fayette County Bd. of Educ., Docket No. 96-10-400 (May 7, 1997).
      3.      The term “may” indicates the action to be discretionary rather than mandatory in nature. The county board of education has complete discretion to approve or disapprove professional leave, and teachers have no absolute entitlement to attend conventions, conferences, or other professional meetings. Id., Reynolds v. Mason County Bd. of Educ., Docket No. 26-87-204 (Mar. 28, 1988).
      4.      In order to establish a prima facie case of discrimination under W. Va. Code § 18-29-2(m), Grievant must establish:
See Toney v. Lincoln County Bd. of Educ., Docket No. 99-22-016 (Apr. 23, 1999); Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      5.      Grievant has failed to make a prima facie case of discrimination. She did not show that she was similarly situated, in a pertinent way, to Bane McCracken. Unlike Mr. McCracken, Grievant is not a physical education teacher, she is not the chair of a department, she was not a National Teacher of the Year, and she has less seniority than Mr. McCracken. Unlike Mr. McCracken, she did not ask her principal to ask school officials to reconsider her application for release time, or supply her principal with a copy of a letter from the U.S. Department of Education describing the listening session.
      Accordingly, this grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Cabell 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: March 20, 2000