GREG RILEY,
Grievant,
v. Docket No. 00-06-253
CABELL COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
Greg Riley (Grievant) initiated this grievance on May 8, 2000, challenging his
reduction in force (RIF) and the calculation of his seniority. He seeks to be reinstated
to his teaching position for the 2000-2001 school year. The grievance was denied at level
one on May 18, 2000. A level two hearing was held on June 26, 2000, and the grievance
was denied at that level in a written decision dated July 24, 2000. Level three
consideration was waived, and Grievant appealed to level four on August 1, 2000. The
parties agreed to submit this grievance for a decision based upon the record developed
below, supplemented by proposed findings of fact and conclusions of law. Grievant was
represented by Susan Hubbard of the West Virginia Education Association, and
Respondent was represented by counsel, Howard E. Seufer, Jr. This matter became
mature for consideration upon receipt of the parties' fact/law proposals on August 18,
2000.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant has been employed by Respondent Cabell County Board of
Education (CCBOE) as a regular classroom teacher since 1999. He is certified to teach
Multi-Subjects K-8.
2. Grievant was assigned to Guyandotte Elementary School during the 1999-
2000 school year.
3. Because Guyandotte Elementary was opening a new school building for
1999-2000, CCBOE voted to allow the teachers to return to school two days prior to the
start of the school year in order to unpack and prepare the building for classes.
4. Grievant was issued a probationary contract of employment, commencing on
August 20, 1999, for a one-year employment term of 200 days. However, he was
compensated for working 202 days during the 1999-2000 school year.
5. Because of budgetary constraints and low student enrollment, CCBOE
decided to eliminate 19 professional positions with the start of the 2000-2001 school year.
As part of this effort, it voted to eliminate one first grade teaching position at Guyandotte
Elementary School, which was held by Elizabeth Mitchell, who had five years of seniority.
Ms. Mitchell is certified in Multi-Subjects K-8.
6. At the end of the 1999-2000 school year, CCBOE determined that 22
elementary school teachers, including Grievant, had one year of seniority. Therefore, it
conducted a tie-breaker to determine their seniority for RIF purposes. The other
teachers involved in the tie-breaker were not employed at Guyandotte Elementary, so they
had not worked the extra days that Grievant worked that year. 7. Grievant was displaced or bumped from his position by Ms. Mitchell, due
to his placement in the seniority tie-breaker and the determination that he was the least
senior teacher in the certification area Multi-Subjects K-8.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving 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.
W. Va. Code § 18A-4-7a provides that [w]henever a county board is required to
reduce the number of professional personnel in its employment, the employee with the
least amount of seniority shall be properly notified and released from employment[.]
Grievant contends that he should not have been included in the seniority tie-breaker,
because he actually had two days' more seniority than the other elementary school
teachers who were credited with one year of seniority.
(See footnote 1)
He bases his contention, in part,
on the following additional portion of
W. Va. Code § 18A-4-7a:
The seniority of classroom teachers . . . shall be determined on the
basis of the length of time the employee has been employed as a regular
full-time certified and/or licensed professional educator by the county board
of education and shall be granted in all areas that the employee is certified
and/or licensed.
Grievant also believes that the following portion of
W. Va. Code § 18A-4-7b(a) supports
his contention that he should be credited with one year and two days' seniority:
Notwithstanding any other provisions of this code to the contrary,
seniority for professional personnel . . . shall be calculated pursuant to the
provisions of [18A-4-7a] as well as the following:
* * *
(a) A professional employee shall begin to accrue seniority upon
commencement of the employee's duties.
Respondent, however, contends that Grievant is not entitled to any additional credit
for starting the school year two days early and that it was appropriate to include him in the
tie-breaker with the other teachers who had one year of seniority. It bases its contention
upon yet another portion of
W. Va. Code § 18A-4-7a, which provides:
Employment for a full employment term shall equal one year of
seniority, but no employee may accrue more than one year of seniority
during any given fiscal year. Employment for less than the full employment
term shall be prorated. A random selection system established by the
employees and approved by the board shall be used to determine the priority
if two or more employees accumulate identical seniority . . . .
(Emphasis added.)
Reading the provisions of
W. Va. Code §§ 18A-4-7a and 18A-4-7b(a)
in pari
materia,
(See footnote 2)
this Grievance Board has determined that a professional employee's seniority
is to be based upon the 'length of time the employee has been employed as a regular full-
time certified and/or licensed professional educator,' beginning on the date he/she entered
into those regular duties.
Lavoie v. Kanawha County Bd. of Educ., Docket No. 94-20-186(Jan. 31, 1995). However, a request by a professional employee for additional seniority
credit for beginning work prior to the start of the regular school term has been specifically
rejected:
It is clear from the language in [18A-4-7a] that the seniority of all
professional employees . . . is based upon their fulfillment of an actual
'employment term,' not date of hire. Moreover, if the worker had been hired
and had begun work after the beginning of the school term, the seniority for
the school year must be prorated. . . . The law simply does not permit an
employee to earn more than one year of seniority; in fact, even a twelve-
month, 261-day school worker cannot earn any more seniority than a ten-
month, 200-day worker.
Napolillo v. Marion County Bd. of Educ., Docket No. 93-24-175 (Sept. 1, 1993).
The statutory language is quite clear, and as stated in
Napolillo,
supra, professional
employees--like Grievant_are simply not entitled to earn more than one year of seniority
during any school term. Therefore, it was appropriate for Respondent to consider Grievant
tied with all of the other teachers who had one year of seniority at the conclusion of the
1999-2000 school year, and his inclusion in the tie-breaker was proper. Grievant has
provided no other legal reasoning which would lead to the conclusion that his reduction
in force was improper or illegal in any fashion.
Consistent with the foregoing, the following conclusions of law are appropriate.
Conclusions of Law
1. In non-disciplinary matters, a grievant has the burden of proving 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. ofEduc., 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. A professional employee's seniority is to be based upon the 'length of time
the employee has been employed as a regular full-time certified and/or licensed
professional educator,' beginning on the date he/she entered into those regular duties.
Lavoie v. Kanawha County Bd. of Educ., Docket No. 94-20-186 (Jan. 31, 1995).
See
W. Va. Code §§ 18A-4-7a and 18A-4-7b(a).
3. A professional employee is not entitled to earn more than one year of
seniority, even when he has begun his duties prior to the normal start of the school year.
Napolillo v. Marion County Bd. of Educ., Docket No. 93-24-175 (Sept. 1, 1993).
4. Grievant has failed to establish that his reduction in force violated any
statute, rule or policy.
Accordingly, this grievance is DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County or the
Circuit Court of Cabell 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 6, 2000 _______________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1