CHRISTA H. STEWART,
                  Grievant,

v.                                                      Docket Nos. 99-02-224/333

BERKELEY COUNTY BOARD OF EDUCATION,
                  Respondent.

D E C I S I O N

      Grievant, Christa H. Stewart, employed by the Berkeley County Board of Education (BCBOE) as a bus operator, filed a grievance directly to level four on May 28, 1999, as is permitted by W. Va. Code §18A-2-8, alleging that Respondent had suspended her in violation of W. Va. Code §§18A-2-7 and 18A-2-8. Grievant filed a second grievance on June 17 1999, alleging violations of W. Va. Code §18A-2-8 and West Virginia Board of Education Policy No. 5300, and disparate treatment, after being notified that BCBOE Superintendent Manny Arvon did not recommend that her probationary contract be renewed for the 1999-2000 school year. This grievance was denied at levels one and two. Grievant elected to by-pass consideration at level three, and advanced the matter to level four on August 13, 1999.
      Level four hearings were held in BCBOE's offices in Martinsburg at Respondent's request and with the consent of Grievant, on August 20, 1999, (suspension), and September 23, 1999, (rehiring). Grievant was represented by John E. Roush of the West Virginia School Service Personnel Association, and BCBOE was represented by Laura Lilly, Esq. The parties agreed that the grievances could be consolidated for decision, and the matter became mature with the filing of final post-hearing submissions by both parties on or before January 18, 2000.
      Background
      Grievant was first employed by BCBOE in 1993 as a substitute aide. In 1996, she became a substitute bus operator, at which time she completed “behind the wheel” training and instruction which included “Operating A School Bus”, and “Accident Procedures, Regulations and Laws”. She also completed thirty (30) hours of instruction from the “West Virginia School Bus Operator Instructional Program Manual” which included the topics “Emergency Driving Techniques” and “Accidents and Emergencies”. On or about June 15, 1998, Grievant was assigned as a regular, one-half time custodian at Hedgesville High School (HHS). Grievant held that position for three months, during which time she was absent from work twenty-three (23) days. In September 1998, Grievant was hired as a regular, full-time bus operator. In August 1998, Grievant completed a staff development session on “Bus Safety/Stress Management”, and in November 1998, a session on “Defensive Driving”. Consistent with BCBOE practice, Grievant had also completed emergency evacuation drills, the most recent of which was April 12, 1999.
      In the afternoon of April 12, 1999, Grievant collected fifty-two (52) middle and high students and was proceeding to deliver them to their homes, traveling North on Riner Shop Road. Weather conditions were clear, and the road was dry. Bus 284, driven by George Miller, was in front of Grievant, and had stopped at an underpass to allow an oncoming truck to pass. Grievant did not stop her bus, and crashed into Bus 284 while traveling twenty-five (25) to thirty-five (35) miles per hour. More than thirty (30) students were injured in the accident and taken to the hospital. Grievant also required medical attention. Damage to Bus 284 was estimated at more than $2,000.00. Grievant's bus, valued at $36,000.00 was deemed a total loss.      Videotapes running on both buses show that after the crash, Mr. Miller asked the students if they were okay, and told them to remain seated. After turning off the engine and attending to an injured student, he instructed the students to exit the bus, which they did in an orderly manner. By comparison, the videotapes show Grievant shouting to the students to “Get Out! Get Out! Get off the bus!” without assessing student injuries, damage to the bus, or conditions outside the bus.
      The accident was investigated by Trooper R.J. Copson of the West Virginia State Police, and Grievant was cited for failure to maintain control of her vehicle. She was later found guilty of this charge in the Magistrate Court of Berkeley County.
      By letter dated April 14, 1999, Grievant was notified by BCBOE Superintendent Manny Arvon that she was suspended, with pay, as a result of the accident, pending the outcome of the investigation by BCBOE's Accident Review Committee. On April 15, 1999, a representative of Navistar International, manufacturer of the bus, inspected the accident site and the brakes on Grievant's bus. In his report, the engineer noted the bus could not be started due to the damage incurred, so the air tanks were charged with shop air to make the necessary brake applications to check for brake adjustments. The brakes were found to be fully functional, and it was noted that there was no evidence of any skid marks at the accident site caused by the application of the brakes.
      On April 20, 1999, BCBOE Director of Transportation Larry Carte filed a report on behalf of the Accident Review Committee, which concluded that Grievant was unaware that Mr. Miller had stopped at the underpass until immediately prior to the impact, that she did not slow the bus by placing it in a lower gear or apply the brakes. “Given that Ms. Stewartwas well aware that the constriction in the road width created a potentially hazardous location, her complete attention should have been directed to the operation of the bus.” The Committee recommended that, at a minimum, Grievant be suspended for the remainder of the school year, with re-training and re-certification required, and/or consideration for dismissal.
      By letter of April 26, 1999, Superintendent Arvon notified Grievant that she was immediately suspended without pay for twenty (20) days for the following reasons:
An investigation by the Berkeley County Schools' Accident Review Committee found that you were at fault for a bus accident that occurred on April 12, 1999, where you rear- ended another bus and caused injuries to numerous students and property damage to both buses. The West Virginia State [P]olice cited you for failure to maintain control of your vehicle and found you at fault for the accident.

Additionally, the videotape on your bus reveals that you did not follow proper accident procedures, regulations and laws after the accident. Specifically, you failed to check on the condition of your passengers and to safely evacuate them from the bus.

Pursuant to W. Va. Code §18A-2-8, your above-referenced misconduct constitutes willful neglect of duty and insubordination.

Superintendent Arvon concluded by advising Grievant that he would request BCBOE ratify the suspension, and extend it to June 9, 1999. The recommendation was subsequently affirmed, placing Grievant on suspension the remainder of the 1998-99 school year.
      At a meeting of BCBOE on May 3, 1999, Superintendent Arvon presented a list of probationary service personnel he recommended to be rehired for the 1999-2000 school year. Grievant's name was not on the list, which was subsequently approved by BCBOE. At Grievant's request, a hearing was conducted by BCBOE on May 24, 1999, regarding the decision not to recommend her rehiring. At the conclusion of the hearing, BCBOE did not renew Grievant's contract for the 1999-2000 school year.

      Discussion
      In disciplinary matters, the employer bears the burden of proving the charges by a preponderance of the evidence. W. Va. Code §18-29-6; Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994);Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989). A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991), Leichliter v. W. Va. Dept. of Health and Human Res., Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id. BCBOE bears the burden of proving by a preponderance of the evidence that the suspension without pay was proper.      
      Further, the authority of a county board of education to discipline an employee must be based upon one or more of the causes listed in W. Va. Code §18A-2-8, and exercised reasonably, not arbitrarily or capriciously. Bell v. Kanawha County Bd. of Educ., Docket No. 91-20-005 (Apr. 16, 1991). W. Va. Code §18A-2-8 provides in pertinent part:
[A] board may suspend or dismiss any person in its employment at any time for: Immorality, incompetency, cruelty, insubordination, intemperance, willful neglect of duty, unsatisfactory performance, the conviction of a felony or a plea of nolo contendere to a felony charge.
      In his letter of April 26, 1999, Superintendent Arvon charged Grievant with willful neglect of duty and insubordination. At level four, BCBOE counsel substituted incompetence as more accurate. The Grievance Board has routinely held that in disciplinary cases, the proper focus is whether the charge of misconduct has been proven, not the label attached to the conduct. Wilkerson v. Lincoln County Bd. of Educ., Docket No. 99-22-420 (Mar. 27, 2000); Lake v. Barbour County Bd. of Educ., Docket No. 99-01- 294 (Jan. 31, 2000); Willis v. Jefferson County Bd. of Educ., Docket No. 96-19-230 (Oct. 28, 1998). BCBOE argues that Grievant caused an accident resulting in numerous injuries to students and substantial property damage, and that she failed to follow proper procedures when evacuating the bus.
      Grievant denies the charges, and asserts that the collision was due to the mechanical failure of the brakes to stop the bus. In response to BCBOE's claim that brake failure did not occur, Grievant notes the mechanic who testified to the brake failure was unaware that there was more than one way to wire the on-bus-camera and that the difference resulted in the camera functioning differently. She also suggests that the methodology of the testing of the brakes was “a bit suspect” in that the air pressure was provided by an external device which effectually put the brakes in working order before they were tested. Grievant opines that the test proved very little, and notes that no test or examination of the brakes was made on the day of the accident. Additionally, Grievant presented the testimony of several coworkers who stated that they had experienced similar brake failure.      Addressing her actions following the accident, Grievant asserts she acted in a reasonable manner. She explained that her fear of a fire made immediate evacuation of the bus her immediate priority. Grievant admits to being excited, and suggests that Mr. Miller may have handled the situation differently because he was more experienced, and knew the “noncombustible” nature of diesel engines made fire a remote possibility. He was also able to shut off the engine to his bus, alleviating any fear that the gear shift could be disengaged. Nevertheless, she contends that she acted in a reasonable and prudent manner.
      BCBOE has established by a preponderance of the evidence that Grievant was involved in an accident injuring a number of students, and causing substantial property damage. Although no testing of the brakes was made on the day of the accident, the bus had received a quarterly inspection just six (6) days earlier, on April 6, 1999. The inspection form indicates that both the service brakes and hand brake were in working order.
      Grievant offered no expert testimony to contradict the findings of the Navistar representative who inspected the brakes on April 15, 1999. The bus is equipped with air brakes, which apparently become functional when the engine is running. Because the engine could not be started after the accident, it was necessary to recharge the air tanks from an outside source. In his report, Senior Engineer Bryan Carlson noted that “[t]he push rod travels on this bus were acceptable and the brakes were in adjustment with respect to push rod travel.” He also found the brake lining thickness to be good. These findings indicate that the brakes were in good working order. Mr. Carlson furtherconfirmed the service brakes were fully functional. Grievant states that she pressed on the brakes, and they simply did not respond. The mechanical evidence indicates there was no reason for that to have happened.
      Two coworkers testified that they had experienced situations in which they pressed on the brake with no response, but after releasing the pressure and reapplying it, the brake worked. While this is intended to show that the brakes do fail from time to time, it does not establish that the brakes on Bus 263 failed on April 12, 1999.   (See footnote 1)  On the contrary, the videotape establishes the brakes were functioning just minutes prior to the accident. By her own admission, Grievant did not attempt to slow down, or stop, the bus by using the emergency brakes.
      BCBOE has also established that Grievant did not act within acceptable procedures in evacuating the bus following the accident. Although Superintendent Arvon labeled Grievant's performance as willful neglect of duty and insubordination, the contested action is more accurately characterized as "incompetency" within the contemplation of W. Va. Code §18A-2-8. "Incompetency" is defined to include "lack of ability, legal qualification, or fitness to discharge the required duty." Black's Law Dictionary 390 (Abridged 5th Ed. 1983) (emphasis added). Rogers v. Kanawha County Bd. of Educ., Docket No. 93-20-447 (Mar. 23, 1994). Certainly, Grievant's relative lack of experience can explain her response to some degree. However, Grievant had been provided training for this position,and had, in fact, completed an emergency evacuation drill that very morning. In consideration of the foregoing, BCBOE has established good cause to discipline Grievant in accordance with W. Va. Code §18A-2-8.
      Addressing Superintendent Arvon's decision not to recommend that her probationary contract be renewed, Grievant asserts that the action was in fact the termination of her employment “for cause”, therefore, BCBOE should have proceeded under the provisions of W. Va. Code §18A-2-8, and must now bear the burden of proof. Employees of county boards of education are classified as probationary the first three years of their employment. When the employee enters into the fourth contract of employment, she is granted continuing contract status. See W. Va. Code §18A-2-6. One of the benefits of continuing contract status is that the employee may not be dismissed except for one of the causes listed W. Va. Code §18A-2-8. As a probationary employee, an individual is contracted annually, and the employer may chose not to renew the contract during the probationary period.
      W. Va. Code §18A-2-8a provides in pertinent part:
The Superintendent at a meeting of the board on or before the first Monday in May of each year shall provide in writing to the board a list of all probationary teachers he recommends to be rehired for the next ensuing school year. The board shall act upon the superintendent's recommendations at that meeting in accordance with section one [18A-2-1] of this article. The board at this same meeting shall also act upon the retention of other probationary employees as provided in sections four and five . . . of this article. . . .
Any probationary teacher who receives notice that he has not been recommended for rehiring or other probationary employee who has not been re-employed within ten days after receiving the written notice request a statement of the reasonsfor not having been rehired and may request a hearing before the board . . . . At the hearing, the reasons for nonrehiring must be shown.

(Emphasis added).
      While this provision allows a county board of education considerable discretion regarding the retention of probationary personnel, the Grievance Board has held that even though a probationary employee has no property interest in her employment, a board may not refuse to rehire a probationary employee for “just any, or no cause”. However, the board need not do more than afford the employee a full and complete hearing which supports that the reasons for the action are substantive. Even if the reasons for the nonrenewal are disciplinary in nature, there is no “for cause” standard in the nonretention of probationary employees. Baker v. Hancock County Bd. of Educ., Docket No. 97-15-447 (May 5, 1998); Burrows v. Wood County Bd. of Educ., Docket No. 96-54-281 (Oct. 24, 1996); Cordray v. Wood County Bd. of Educ., Docket No. 90-54-267 (Jan. 31, 1991); Belota v. Boone County Bd. of Educ., Docket No. 90-03-252 (Nov. 30, 1990).
      Assistant Superintendent Charles Fritsch notified Grievant by certified letter dated May 5, 1999, that she was not recommended by Superintendent Arvon to be rehired for the 1999-2000 school year, and that BCBOE approved the recommended list of employees. Grievant requested, and was granted, a hearing held by BCBOE on May 24, 1999. Following the hearing, BCBOE did not renew her contract for the 1999-2000 school year. Although Superintendent Arvon certainly had reason not to recommended Grievant's rehiring, her employment was not terminated for cause. Grievant was not dismissed, but rather, her contract of employment expired and was not renewed. While Grievant would prefer to characterize this situation as a termination to shift the burden of proof, the facts simply do not support such a finding.
      When a probationary employee's contract has not been renewed, it is the employee's burden to prove by a preponderance of the evidence that her non-retention was improper by showing that she did not receive a full and complete hearing on the reasons for the non-renewal of her contract; that the evidence did not support the reasons; and/or she was denied his rights under State Board Policy 5300. Warner v. Putnam County Bd. of Educ., Docket No. 97-40-548 (June 25, 1998); Toler v. Wyoming County Bd. of Educ., Docket No. 94-55-306 (May 4,1995). Valentine v. Wood County Bd. of Educ., Docket No. 92-54-310 (Oct. 26, 1993);Goodman v. Putnam County Bd. of Educ., Docket No. 93-40-133 (July 8, 1993).
      In addition to the arguments previously addressed, Grievant asserts that she has been treated more harshly than other similarly situated employees. Specifically, Grievant states that no other bus operator has been suspended, dismissed, or suffered non-renewal of their employment, as the result of a bus accident. Grievant cites one particular accident, which occurred on May 10, 1996, as being strikingly similar to her own in that one bus struck another, and resulted in student injuries.
      Although not specifically alleged, this claim is one of discrimination. An employee seeking to establish unlawful discrimination must first establish a prima facie case under W. Va. Code §18-29-2(m) by demonstrating the following:
(a)that she is similarly situated, in a pertinent way, to one or more other employee(s);
(b)that she has, to her detriment, been treated by her employer in a manner that the other employee(s) has/have not, in a significant particular; and,

(c)that such differences were unrelated to actual job responsibilities of the grievant and/or the other employee(s) and were not agreed to by the grievant in writing.

Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Once the grievant establishes a prima facie case of discrimination, the burden shifts to the employer to demonstrate a legitimate, non-discriminatory reason to substantiate its actions. Thereafter, a grievant may show that the offered reasons are pretextual. Deal v. Mason County Bd. of Educ., Docket No. 96-26-106 (Aug. 30, 1996). See Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
      As noted by BCBOE, the facts in the earlier case differ significantly from the present matter. In the earlier case, the lead bus stopped suddenly, the driver of the second bus applied her brakes and skidded approximately twenty (20) feet prior to impact. No students were seriously injured, and the driver of twenty-two (22) years was not cited by the investigating law enforcement officer. Grievant is not similarly situated to the driver in this accident, and did not prove a prima facie case of discrimination.
      Grievant next argues that under the provisions of West Virginia Department of Education Policy 5300, any deficiencies should be brought to her attention through evaluation, and she should be given an opportunity to improve, by BCBOE instituting a corrective action in the form of training on proper procedure to follow in the event of anaccident. Policy 5300 of the Rules and Regulations of the West Virginia Board of Education requires that prior to termination, any deficiency be brought to the individual's attention through evaluation of job performance, and the employee be given an opportunity to improve her performance. Because Grievant's employment was not terminated, Policy 5300 does not apply in this case.
      Finally, Grievant argues that Superintendent Arvon's consideration of her use of leave time while employed as a custodian should not have been a factor in this matter because BCBOE has not terminated the employment of other individuals who have used considerable leave, and because she improved her attendance while a bus operator. This issue arose as a result of Superintendent Arvon's testimony that he had initially considered re-employing Grievant in another classification after the accident. However, upon review of her personnel file, he found that she had been absent twenty-three (23) out of fifty- seven (57) employment days while a custodian. Based upon her poor attendance, he determined that transfer to another classification was not warranted, and when considered with the accident, he concluded that he could not recommend that she be rehired. Grievant concedes that other employees with poor attendance records have not been rehired, but offered a number of reasons for her absences, and noted that other employees with high absenteeism have not lost their employment.
      Again, Grievant did not prove that she was similarly situated to any other employee.
In fact, she agrees that others were not rehired for the same reason. Superintendent Arvon's consideration of Grievant's total employment record was reasonable. Grievant'sassertion that the consideration of her earlier work indicated that the events of April 12, 1999, did not merit termination, is without merit.

Findings of Fact
      1.      Grievant was initially employed by BCBOE as a substitute aide in 1993. She became a substitute bus operator in 1996, and was regularly employed as a one-half time custodian at Hedgesville High School (HHS) on or about June 15, 1998. Grievant held that position until September 1998.
      2.      During her employment as a custodian, Grievant was absent from work twenty-three (23) out of fifty-seven (57) days.
      3.      In September 1998, Grievant was hired as a regular bus operator.
      4.      On April 6, 1999, Grievant's bus was subject to a quarterly inspection, and the brakes were found to be functional.
      5.      On the morning of April 12, 1999, Grievant completed two (2) emergency evacuation drills.
      6.      On April 12, 1999, during the completion of her afternoon run, Grievant was traveling twenty-five (25) to thirty-five (35) miles per hour when she crashed Bus 263 into another school bus (Bus 284) driven by George Miller. Mr. Miller's bus had been stopped at an underpass to allow an oncoming truck to pass through.
      7.      Both buses were carrying a full load of students at the time of the crash. Approximately thirty (30) students and Grievant were injured in the accident and taken tothe hospital. Bus 284 sustained over $2,000.00 in damages while Grievant's bus was deemed a total loss.
      8.      Upon impact, Mr. Miller asked the students if they were harmed, and told them to remain seated. He turned off the bus and exited through the rear emergency door, attended to an injured student, and supervised the students disembarkation in an orderly manner. Grievant screamed “Get out! Get out!” to the students on her bus, left the engine running, and exited the vehicle herself.
      9.      Following an investigation by the West Virginia State Police, Grievant was cited for failure to maintain control of her vehicle. She was later found guilty of this charge in the Magistrate Court of Berkeley County.
      10.      By letter dated April 14, 1999, Grievant was initially notified by Superintendent Arvon that she was suspended with pay as a result of the accident, pending the outcome of an investigation.
      11.      An investigation of the bus by the manufacturer on April 15, 1999, indicated that the brakes were fully functional.
      12.      Upon review of the incident, BCBOE's Accident Review Committee recommended that Grievant be suspended for the remainder of the school year with re- training and re-certification, as minimal consequences, and that dismissal should be considered.
      13.      By letter of April 26, 1999, Superintendent Arvon notified Grievant that she was immediately suspended without pay for twenty (20) days, and that he would request the Board ratify the suspension and extend it to June 9, 1999. The Board affirmed theSuperintendent's recommendation, placing Grievant on suspension the remainder of the 1998-99 school year.
      14.      BCBOE's Superintendent did not recommend that Grievant's probationary contract be renewed for the 1999-2000 school year.
      15.      BCBOE has not renewed the contracts of two other probationary employees in the last three years, at least in part due to their rate of absenteeism. However, BCBOE has renewed the contracts of numerous other employees who were absent as many or more days than Grievant.
      16.      Prior to Grievant, BCBOE has not suspended or terminated the employment of any bus operator who was involved in an accident.      
Conclusions of Law
      1.      In disciplinary matters, the employer bears the burden of proving the charges by a preponderance of the evidence. W. Va. Code §18-29-6; Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994);Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989).
      2.      The authority of a county board of education to discipline an employee must be based upon one or more of the causes listed in W. Va. Code §18A-2-8, and exercised reasonably, not arbitrarily or capriciously. Bell v. Kanawha County Bd. of Educ., Docket No. 91-20-005 (Apr. 16, 1991).
      
3.      W. Va. Code §18A-2-8 provides that a board may suspend or dismiss any person in its employment at any time for: immorality, incompetency, cruelty,insubordination, intemperance, willful neglect of duty, unsatisfactory performance, the conviction of a felony or a plea of nolo contendere to a felony charge.
      4.      In disciplinary cases, the proper focus is whether the charge of misconduct has been proven, not the label attached to the conduct. Wilkerson v. Lincoln County Bd. of Educ., Docket No. 99-22-420 (Mar. 27, 2000); Lake v. Barbour County Bd. of Educ., Docket No. 99-01-294 (Jan. 31, 2000); Willis v. Jefferson County Bd. of Educ., Docket No. 96-19-230 (Oct. 28, 1998).
      5.      BCBOE established good cause to suspend Grievant in accordance with W. Va. Code §18A-2-8.
      6.       Although a probationary employee has no property interest in her employment, a board may not refuse to rehire a probationary employee for “just any, or no cause”. However, the board need not do more than afford the employee a full and complete hearing which supports that the reasons for the action are substantive. Even if the reasons for the nonrenewal are disciplinary in nature, there is no “for cause” standard in the nonretention of probationary employees. Baker v. Hancock County Bd. of Educ., Docket No. 97-15-447 (May 5, 1998); Burrows v. Wood County Bd. of Educ., Docket No. 96-54-281 (Oct. 24, 1996); Cordray v. Wood County Bd. of Educ., Docket No. 90-54-267 (Jan. 31, 1991); Belota v. Boone County Bd. of Educ., Docket No. 90-03-252 (Nov. 30, 1990).
      7.      When a probationary employee's contract has not been renewed, it is the employee's burden to prove by a preponderance of the evidence that his non-retention was improper by showing that she did not receive a full and complete hearing on thereasons for the non-renewal of her contract; that the evidence did not support the reasons; and/or she was denied her rights under State Board Policy 5300. Warner v. Putnam County Bd. of Educ., Docket No. 97-40-548 (June 25, 1998); Toler v. Wyoming County Bd. of Educ., Docket No. 94-55-306 (May 4,1995). Goodman v. Putnam County Bd. of Educ., Docket No. 93-40-133 (July 8, 1993);Valentine v. Wood County Bd. of Educ., Docket No. 92-54-310 (Oct. 26, 1993).
      8.       An employee seeking to establish unlawful discrimination must first establish a prima facie case under W. Va. Code §18-29-2(m) by demonstrating the following:
(a)that she is similarly situated, in a pertinent way, to one or more other employee(s);

(b)that she has, to her detriment, been treated by her employer in a manner that the other employee(s) has/have not, in a significant particular; and,

(c)that such differences were unrelated to actual job responsibilities of the grievant and/or the other employee(s) and were not agreed to by the grievant in writing.

Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      9.       Grievant failed to prove that she was similarly situated to the driver in another accident, and did not prove a prima facie case of discrimination.
      10.       Policy 5300 of the Rules and Regulations of the West Virginia Board of Education requires that prior to termination, any deficiency be brought to the individual's attention through evaluation of job performance, and the employee be given an opportunity to improve her performance.       11.      Because Grievant's employment was not terminated, Policy 5300 does not apply in this case.
      12.      Grievant did not prove that she was similarly situated to any other employee who had a poor attendance record but retained their employment.
      13.       Superintendent Arvon's consideration of Grievant's total employment record in making his determination to not recommend that she be rehired was reasonable, not arbitrary and capricious.
      Accordingly, the grievance is DENIED.

Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Berkeley 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: March 31, 2000 __________________________________ SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE


Footnote: 1
      The first witness stated that she had experienced similar brake failure in 1981 and 1984 or 1985. BCBOE asserts these occurrences predate its use of air brakes. The second witness testified that she had experienced a brake failure in Spring 1999; however, BCBOE stated there was no written record of this event.