CHRISTINE MICHAEL,
            Grievant,

v.                                                       Docket No. 99-20-527

KANAWHA COUNTY BOARD OF EDUCATION,
            Respondent.

D E C I S I O N

      Grievant, Christine Michael, is employed as a teacher with the Kanawha County Board of Education ("KCBOE"). On October 26, 1999, Grievant filed the following Statement of Grievance which reads:

      This grievance was denied at Level I on November 11, 1999. Grievant appealed to Level II, and a Level II hearing was conducted on November 15, 1999. This grievance was denied at Level II on December 14, 1999. Grievant appealed to Level IV on December 21, 1999, and a Level IV hearing was held on January 25, 2000. This case became mature for decision on that date as the parties did not wish to submit proposed findings of fact and conclusions of law.   (See footnote 1) 
Issues and Arguments

      Grievant argues the coaching of both tennis teams is twice the work, and she should receive twice the pay. Respondent notes the teams practice and play their matches at the same time; thus, the amount of time Grievant must spend coaching in this set ofcircumstances is not equal to coaching two separate teams. Respondent also points out Grievant knew the conditions of the contract when she accepted it.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact

      1.      Grievant applied for and received the contract to coach both the girls' and boys' tennis teams at George Washington High School.
      2.      Grievant knew at the time she applied for these positions, that the "salar[y] for coaching both the boys and girls in one sport was 1½ the compensation of coaching either sport" as this statement is written on the top of KCBOE's "Coaching/ Extra-Curricular Assignments" sheet which identifies the compensation and pay dates for all sports. Res. Exh. 2, at Level II.
      3.      Grievant was sent a contract for her extracurricular assignment which identified Grievant's compensation for coaching the girls' and boys' teams as $1,500.00, or 1.5 times the compensation for coaching two separate teams.
      4.      Grievant signed this extracurricular assignment contract on October 25, 1999, but added the following statement on the bottom: "I do not agree with the 1.5 rule[,] if I coach both teams; I am coaching twice as many matches[,] twice as many athletes[,] twice the paperwork."
      5.      The boys' and girls' tennis team practice at the same time, the matches are conducted in the same place at the same time, and the paperwork that must be completed for each team is essentially the same.      6.      For the past seven years, KCBOE has paid coaches, who coach both the girls' and boys' team in sports that practice and have their matches at the same time, 1½ times the amount, applicable for coaching only one team in that sport.
      7.      The sports in which this practice usually occurs are track, cross-country, and tennis.
Discussion

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her 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); Toney v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997). See W. Va. Code § 18-29-6.
      W. Va. Code § 18A-4-16 controls extracurricular assignments. This Code Section reads in pertinent part:
. . .


      Grievant presented no evidence to demonstrate that any rule, regulation, past practice, or statute has been violated. It is clear KCBOE's policy on extracurricular assignment compensation does not violate the above-cited statute. Given this set of events the correct standard by which to assess KCBOE's action would be to assess if it was arbitrary and capricious or clearly wrong.
      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). "While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of a board ofeducation. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra.
      The action of KCBOE cannot be found to be arbitrary and capricious or unreasonable. While it is true that it takes more time to coach two tennis teams, it is also true that it does not take twice as much time, as the practices and meets are conducted at the same time.   (See footnote 2) 
      The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her 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); Toney v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997). See W. Va. Code § 18-29-6.
      2.      In this set of circumstances, the correct standard for assessing KCBOE's action is the arbitrary and capricious standard.
      3.      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in amanner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). "While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of a board of education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra.
      4.      KCBOE's practice of compensating certain coaches at 1.5 the normal rate when they coach two teams which practice at the same time and have other similarities is not arbitrary and capricious or unreasonable.
      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 Kanawha 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 Educationand 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.

                                     ___________________________________
                                                 JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: March 13, 2000


Footnote: 1
      Grievant represented herself, and Respondent was represented by KCBOE's Attorney James Withrow.
Footnote: 2
      The undersigned Administrative Law Judge does understand that it would take longer for two teams to complete their matches; however, it did not appear that it would in actuality take twice as long. The exhibits submitted by Grievant indicated the boys and girls play at the same time, not one group after another. Additionally, the travel time, organizational meetings, and writing the necessary handouts would not be doubled.