DOUGLAS W. TENNANT,

      Grievant,

v.                                                      DOCKET NO. 00-24-217

MARION COUNTY BOARD OF EDUCATION,

      Respondent.

DECISION

      Douglas W. Tennant (“Grievant”) initiated this proceeding on March 9, 2000, challenging the denial of benefits from Respondent's personal leave bank. He requests reimbursement of benefits from the leave bank, restoration and payment of three personal leave days, and interest on all monetary sums. The grievance was denied at level one on March 21, 2000. A level two hearing was held on May 10, 2000, followed by a written decision, denying the grievance, dated May 16, 2000. Level three consideration was bypassed, and Grievant appealed to level four on June 23, 2000. A level four hearing was held in this Grievance Board's office in Morgantown, West Virginia, on September 15, 2000. Grievant was represented by counsel, John E. Roush, and Respondent was represented by counsel, Stephen R. Brooks. This matter became mature for consideration upon receipt of the parties' fact/law proposals on October 18, 2000.
      The following findings of fact are made from a preponderance of the credible evidence of record.

Findings of Fact

      1.      Grievant is regularly employed by Respondent as a bus operator.
      2.      Grievant was absent from work from November 8, 1999, through January 31,2000, due to surgery for a torn rotator cuff.   (See footnote 1) 
      3.      Grievant is a voluntary participant in Respondent's Personal Illness Bank (“PIB”). The PIB was established to enable employees to donate leave days, which can then be used by participating employees suffering from long-term injuries or illnesses who have exhausted their own accumulated leave time.
      4.      Effective August 16, 1999, Respondent's PIB policy was amended to state as follows:

Policy 1.25232 (August 16, 1999) (Emphasis in original).
      5.      The PIB policy also requires that any request for donated sick days must be submitted on a “Personal Illness Bank Physician's Statement form”.
      6.      Respondent determined that Grievant had exhausted all of his accrued sick leave as of November 22, 1999. He was paid for ½ day of sick leave on that date.
      7.      Due to the Thanksgiving holiday, the third consecutive non-paid day after Grievant had exhausted his sick leave was December 1, 1999.
      8.      Under the terms of Respondent's PIB policy, the last day upon which Grievant could have applied for donated leave was January 27, 20000
      9.      On January 28, 2000, Grievant inquired at Respondent's payroll office as towhy his paycheck was substantially smaller than expected ($27.00). Upon being informed that he had exhausted his leave and would have to apply for donated leave, Grievant submitted a physician's slip which stated the dates he was unable to work and the diagnosis of torn rotator cuff and surgery.
      10.      When Grievant submitted the physician's slip on January 28, 2000, he was informed that he would have to submit a donated leave request on the specified PIB form.       11.      Grievant provided the PIB physician's statement to his doctor on January 28, 2000. He submitted it to Respondent after it was completed by his physician on February 7, 2000.
      12.      The PIB committee refused Grievant's request for donated leave, because it was not submitted within thirty days, as required by the policy.
      13.      Because Grievant was “off payroll” for approximately 38 days between December of 1999 and January of 2000, Respondent determined that he had not “earned” all 15 of the personal leave days with which employees are credited at the beginning of each school year. Grievant was required to reimburse Respondent for three of those days.
      14.      The PIB policy and changes thereto are distributed to principals and supervisors for posting in schools and bus garages. It is also available in Respondent's policy manual.
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.
      Grievant has made several arguments in support of his contention that he should have been granted leave from the PIB. First, he contends that, pursuant to State Board of Education Policy 5300, the PIB policy was required to be made available to all affected employees, especially when significant changes were made. He testified that he was never provided with a copy of the 1999 amendments regarding the 30-day application requirement, so he assumed he could wait until he returned to work to apply for donated leave. Second, Grievant argues that, although the PIB policy states that an employee must apply for leave within thirty days of becoming eligible--i.e. having zero leave days and three consecutive non-paid days--the policy does not require him to apply within thirty days of “initial” eligibility. Thus, according to Grievant's argument, he was just as eligible for donated leave on December 7, 1999, and thirty working days from that date was February 7, 2000, the date upon which Grievant filed the proper forms. Finally, Grievant contends that Respondent did not have authority to take three of his leave days, because he was still under contract with the Board, but in non-pay status.
      Respondent contends that Policy 5300 does not apply to the PIB policy, because it is a voluntary policy, which is not applicable to all employees. At any rate, Respondent argues that the policy was distributed and made available to employees, as required by the provisions of Policy 5300, Section 2.8, which states that "[a]ll official and enforceable personnel policies must be written and made available to every employee of each county board of education." See Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977); Conner v. Barbour County Bd. of Educ., Docket No. 93-01-246 (Apr. 28, 1994). Whether or not the PIB policy is a “personnel policy” within the meaning of Policy 5300, it was in this case“made available” to affected employees. Policy 5300 does not necessarily require that policies be individually distributed to employees, and Respondent's assistant superintendent testified that it was distributed for posting at the bus garage. Grievant testified only that he was not personally provided a copy of the amended policy, but he did not state that it was never posted at the bus garage. Moreover, the PIB policy was readily available from the central office or from any member of the PIB committee, with whom Grievant was admittedly acquainted. Therefore, Grievant has not proven by a preponderance of the evidence that Respondent did not make the PIB policy available to all employees, so this would not excuse him from complying with its requirements.
      W. Va. Code § 18A-4-10 ¶5 states "[a] county board of education may establish a personal leave bank" and, if it chooses to do so, "[s]uch personal leave bank shall be established and operated pursuant to rules adopted by the county board." The purpose of such banks is to provide income to active employees who have used all their leave time and are still absent from work due to an accident or an injury. Id. In the instant case, Respondent's policy sets forth strict requirements regarding the application process. Because Grievant did not supply a completed physician's statement form within the required time period, Respondent contends that he is simply not eligible to receive donated leave under the policy.
      Respondent's interpretation of its own policy is entitled to deference unless shown to be clearly wrong or arbitrary and capricious. Stevens v. Mason County Bd. of Educ., Docket No. 96-26-397 (Mar. 12, 1998). 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 judgment for that of the PIBcommittee. See generally, Harrison v. Ginsberg, 286 S.E.2d 276 (W. Va. 1982). Generally, an action is arbitrary and capricious if it did not rely on factors that were intended to be considered, entirely ignored important aspects of the problem or situation, 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). The burden of proof is on Grievant to demonstrate the decision to not grant him leave was arbitrary and capricious.
      It is clearly within Respondent's discretion, under the authority granted pursuant to W. Va. Code § 18A-4-10, to establish policies regarding the administration of its PIB. As explained by Respondent's witnesses, the thirty-day limitation was necessary, because employees were waiting until the end of a given year, then submitting requests for donated leave for small time periods during which they were absent throughout the year, causing an administrative nightmare for the PIB committee. This was not the purpose of the PIB, which is designed to help employees who must be absent on a long-term basis. Additionally, the physician's form was placed in the policy as a requirement, because various physicians submitted all manner of forms, which did not always contain information helpful to the committee in making its decisions. Neither of these requirements is beyond the authority granted by the statute.
      The undersigned finds that Respondent's decision to deny Grievant donated leave under its PIB policy was neither clearly wrong nor arbitrary and capricious. Although it does seem somewhat harsh for Grievant to find out “after the fact” that he was going tohave to repay Respondent for nearly 1 ½ months of wages,   (See footnote 2)  he simply did not comply with the terms of the policy. As a member of the PIB, it is incumbent upon an employee to become well-acquainted with current policies regarding donated leave, especially when a serious injury or illness occurs. Grievant's failure to update himself on the policy's requirements does not excuse him from complying with its terms.
      The final issue to be addressed is Grievant's contention that Respondent has erroneously determined that he was only entitled to earn 12 days of leave, due to his being in non-pay status in December and January. Respondent contends that, pursuant to W. Va. Code § 18A-4-10, an employee must be in pay status to accrue leave. The relevant portion of that statute states that, “[a]t the beginning of the employment term, any full-time employee . . . shall be entitled annually to at least one and one-half days personal leave for each employment month or major fraction thereof in the employee's employment term.” Further, W. Va. Code § 18A-4-10 provides as follows:

There is no dispute that, as a 200-day employee, Grievant would normally have been entitled to 15 leave days.
      This Grievance Board has consistently held that an employee who is off work due to a work-related injury and receiving workers' compensation benefits remains activelyemployed by the board of education and continues to accrue personal leave days. Sanders v. Monongalia County Bd. of Educ., Docket No. 92-30-368 (May 10, 1993); Beverly v. Wyoming County Bd. of Educ., Docket No. 91-55-408 (Jan. 23, 1992); Thomas v. Boone County Bd. of Educ., Docket No. 03-88-087 (Oct. 18, 1988); Aftanas v. Brooke County Bd. of Educ., Docket No. 05-87-295-3 (Jan. 29, 1988). However, Respondent contends that, because this was not a work-related injury, Grievant is not entitled to his leave days pursuant to this line of Grievance Board decisions.
      There is simply no language in W. Va. Code § 18A-4-10 to support Respondent's contention. On the contrary, the statutory language is quite clear in stating that "a regular full-time employee who is absent from assigned duties due to accident" continues to accrue personal leave days although his leave of absence obviously requires the use of and compensation for the leave. Thomas, supra. Therefore, Grievant is entitled to reimbursement for the three leave days which were taken away from him for the 1999-2000 school year.
      Consistent with the foregoing, the following conclusions of law are appropriate.
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.      Policy 5300, Section 2.8, states that "[a]ll official and enforceable personnel policies must be written and made available to every employee of each county board ofeducation." See Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977); Conner v. Barbour County Bd. of Educ., Docket No. 93-01-246 (Apr. 28, 1994).
      3.      Grievant has failed to prove by a preponderance of the evidence that any violation of Policy 5300 occurred with regard to Respondent's Personal Illness Bank policy.
      4.      “A county board of education may establish a personal leave bank" and, if it chooses to do so, "[s]uch personal leave bank shall be established and operated pursuant to rules adopted by the county board." W. Va. Code § 18A-4-10 ¶5.
      5.      Grievant has failed to prove by a preponderance of the evidence that the PIB committee's decision to deny him donated leave benefits was clearly wrong, arbitrary and capricious, or an abuse of Respondent's statutory discretion.
      6.      Pursuant to the provisions of W. Va. Code 18A-4-10, all regularly employed school employees are entitled to fifteen (15) personal leave days per school year, and any employee who is absent because of illness or injury must accordingly be compensated for those days. Thomas v. Boone County Bd. of Educ., Docket No. 03-88-087 (Oct. 18, 1988); See White v. Mingo County Bd. of Educ., Docket No. 96-29-115 (June 4, 1996).
      7.      Grievant has proven by a preponderance of the evidence that Respondent violated the provisions of W. Va. Code 18A-4-10 by taking away three of his personal leave days for the 1999-2000 school year.

      Accordingly, this grievance is GRANTED IN PART, and Respondent is directed to pay Grievant for three personal leave days, plus interest at the statutory rate. All other requested relief is DENIED.
      Any party may appeal this Decision to the Circuit Court of Kanawha County or the Circuit Court of Marion 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:      October 27, 2000                         _______________________________                                                 DENISE M. SPATAFORE
                                                Administrative Law Judge


Footnote: 1
      This was not a work-related injury.
Footnote: 2
      Respondent calculates sick leave on a monthly basis, so Grievant received pay for December and the first half of January before it was discovered that he had used all his accrued leave.