BERTHA KIRK,
Grievant,
v. Docket No. 00-23-043
LOGAN COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Bertha Kirk, a substitute Cook, filed this grievance against the Logan
County Board of Education ("LBOE") in the fall of 1999, when she was not selected for a
posted position. The statement of grievance reads:
Grievant applied for a half-time cook's vacancy at Christian Elementary
School. Grievant was employed in a posted position and held regular status
for a portion of the posting period when the Christian vacancy was
advertised. This vacancy was awarded to Ronald Berry, who was also
employed in a posted cook's position at the time the Christian vacancy was
advertised. Grievant holds more regular seniority as a cook than Mr. Berry.
Grievant alleges a violation of West Virginia Code §§ 18A-4-8b,18A-4-8g
and 18A-4-15(2).
As relief, Grievant no longer seeks instatement into the Christian vacancy as she was
subsequently reemployed as a regular school cook. However, Grievant seeks wages,
benefits, regular seniority, and interest on all monetary sums retroactive to the date of the
filling of the Christian vacancy.
(See footnote 1)
The following Findings of Fact are made from the evidence presented at Level IV.
FINDINGS OF FACT
1. Grievant is employed by LBOE as a substitute Cook.
2. On October 5, 1999, LBOE posted a half-time Cook II position at Christian
Elementary School. The posting dates were from October 5 through October 11, 1999.
3. On October 5, 1999, Grievant was employed in a long-term, temporary Cook
position, which she held through Friday, October 8, 1999. Grievant had regular employee
status while in this position. On Monday, October 11, 1999, Grievant did not hold regular
employee status.
4. On October 11, 1999, Ronald Berry, also employed by LBOE as a substitute,
was employed in a long-term temporary position, and held regular employee status.
5. Both Grievant and Mr. Berry applied for the Cook II position, by depositing
their applications in a locked box set up for that purpose.
6. At 4:00 p.m. on October 11, 1999, Linda Adkins, a secretary in LBOE's
personnel office, opened the application box and removed the applications. She made a
list of applicants for the position, and determined what their employment status was as of
October 11, 1999. It has been LBOE's practice for at least three years to look to the status
of the applicants as of the closing date of the posting in determining which employee
should be awarded a position.
7. Mr. Berry was awarded the position because he held regular employee status
on October 11, 1999. Grievant has more regular seniority than Mr. Berry, and had the
position been awarded based upon the status of the applicants on October 5, 1999,
Grievant would have been awarded the position.
DISCUSSION
Grievant bears the burden of proving the elements of her grievance by a
preponderance of the evidence.
Tibbs v. Mercer County Bd. of Educ., Docket No. 96-27-074 (Oct. 31, 1996). Grievant argues that, pursuant to
W. Va. Code § 18A-4-8g, it is the
status of the applicants on the first day a position is posted which is determinative.
Alternatively, Grievant argues the appropriate date for determining applicant status is the
date the job became vacant, relying on the following language from
Roberts v. Marshall
County Board of Education, Docket No. 91-25-395 (Jan. 15, 1992): [w]hen during a
current employment term, a service vacancy is known and posted for a position which will
be available during the following school year, all of the applicants must be viewed in the
light of what their employment status will be when the job is actually available.
Respondent argued it made more sense to look at the status of the applicants on the
closing date of the posting, and that has been its practice for a long time. The issue at
hand is whether LBOE should have used October 5, October 11, or some other date as
the key date for determining the status of the applicants.
It is clear that Grievant and Mr. Berry, as substitute school service personnel, held
regular employee status only while they were serving in long-term temporary positions
which they received as a result of the posting and selection process.
Meadows v. Logan
County Bd. of Educ., Docket No. 98-23-112 (June 16, 1998);
Messer v. Mingo County Bd.
of Educ., Docket No. 93-29-497 (Aug. 1, 1994).
W. Va. Code § 18A-4-15 provides, in
pertinent part:
The substitute shall hold such position and regular employee status only
until the regular employee shall be returned to such position and the
substitute shall have and shall be accorded all rights, privileges, and
benefits pertaining to such position.
W. Va. Code § 18A-4-8b provides that the selection of an employee to fill a posted
position is to be made based upon seniority, qualifications and evaluation of past service.
However, it also gives priority to groups of employees. The group with the highest priority
is regular employees, and the status of the employee prevails over seniority.
(See footnote 2)
W. Va. Code § 18A-4-8b requires county boards of education to
consider applicants for vacant school service personnel positions in order
of priority with regularly employed personnel receiving preference over other
employees, including substitutes and employees on preferred recall. See
Harrison v. Logan County Bd. of Educ., Docket No. 95-23-459 (May 31,
1996); Martin/Holcomb v. Mason County Bd. of Educ., Docket No. 94-26-261
(Oct. 19, 1994); Messer v. Mingo County Bd. of Educ., Docket No. 93-29-479
(Aug. 1, 1994).
In each category of preference set forth in W. Va. Code § 18A-4-8b,
the criteria of seniority, qualifications, and evaluation of past service are
applied to employees in that category to determine the appropriate
candidate for a position. Hlebiczki v. Ohio County Bd. of Educ., Docket No.
97-35-037 (Sept. 30, 1997); See Cramer/Castle v. Preston County Bd. of
Educ., Docket No. 95-39-400 (Mar. 27, 1996).
Loss v. Marion County Bd. of Educ., Docket No. 97-24-413 (Jan. 30, 1998).
While
W. Va. Code § 18A-4-8b also prescribes how positions are to be posted, it
does not address the issue at hand, providing:
Boards shall be required to post and date notices of all job vacancies of
established existing or newly created positions in conspicuous working
places for all school service employees to observe for at least five working
days. The notice of the job vacancies shall include the job description, the
period of employment, the amount of pay and any benefits and other
information that is helpful to the employees to understand the particulars of
the job. After the five day minimum posting period all vacancies shall be
filled within twenty working days from the posting date notice of any job
vacancies of established existing or newly created positions.
Grievant's reference to
Roberts,
supra, is not helpful here. That case involved the
status of employees who had been reduced in force as of the end of the school year in
June. The positions at issue were posted in May of that school year, but the successful
applicants would not be placed in the positions until the following school year. Thus, in
Roberts, the posting occurred months before the positions were available. Here, the
position needed to be filled immediately. It is likely that the position was being filled by a
substitute employee until it could be posted. Thus, the reasoning which led to the
conclusions in
Roberts are not present in this case. The exact date that the position
became available is not in the record. One could further argue that the position was only
available in this instance after the closing date of the posting.
W. Va. Code § 18A-4-8g is the only statutory provision which speaks to the time
when the employee's status is to be viewed. That
Code Section provides, in pertinent part:
Service personnel who are employed in a classification category of
employment at the time when a vacancy is posted in the same classification
category of employment shall be given first opportunity to fill the vacancy.
This statutory provision was enacted in 1993, thus it was not in effect when
Roberts,
supra,
was written, and it appears to have effectively overruled that case. Even this provision,
however, does not provide the answer to the query in the instant grievance. The statute
states the key date is the time when a vacancy is posted. The vacancy was posted from
October 5 through October 11.
The undersigned finds that there is no statutory provision which addresses the issue
presented. Accordingly, a county board of education decision on the appropriate date ofthe posting period for evaluating the status of the applicants should be upheld unless
found to be arbitrary and capricious. The arbitrary and capricious standard of review
requires a searching and careful inquiry into the facts; however, the scope of review is
narrow, and the undersigned may not substitute her judgement for that of the decision-
maker.
See generally,
Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982).
Generally, an action is arbitrary and capricious if the body taking the action did not rely on
factors that were intended to be considered, entirely ignored important aspects of the
problem, explained its decision in a manner contrary to the evidence before it, or reached
a decision that is so implausible that it cannot be ascribed to a difference of view.
Bedford
County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985).
LBOE had a good reason for looking to the status of the applicants on the last day
of the posting. It had to pick a date, so it picked the closing date, the date when all the
applications were in. It is just as reasonable to look at applicant status on the last day of
the posting, as it is on the first day of the posting, and LBOE has consistently looked at the
applicants' status on the last day of the posting for at least three years. Unfortunately, in
this case Grievant was not the successful applicant, even though she had the most
seniority. However, had she by chance been serving in the position Mr. Berry held, and
he serving in hers, this method would have worked to her advantage. Had this been the
case, and LBOE been using the method suggested by Grievant, the method she suggests
would have worked against her. It is all a matter of chance, which is a result of the
statutory scheme which gives substitutes regular employee status when they are serving
in a long-term temporary position, and gives those with regular employee status priority
in filling positions regardless of seniority. The date chosen by a board of education for
determining the status of the applicants is of no importance, so long as the board of
education is consistent and does not act in an arbitrary and capricious manner.
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.
Tibbs v. Mercer County Bd. of Educ., Docket No. 96-
27-074 (Oct. 31, 1996).
2. Grievant did not demonstrate that any statutory provision requires a board
of education to look to the status of applicants for a posted position on the first day of the
posting, or that LBOE acted in an arbitrary and capricious manner.
Accordingly, this grievance is DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County or to
the Circuit Court of Logan 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: July 10, 2000
Footnote: 1