MATTHEW KEITH,
                  Grievant,

v.                                                      Docket No. 99-17-242

HARRISON COUNTY BOARD OF EDUCATION,
                  Respondent.

D E C I S I O N

      Grievant, Matthew Keith, employed by the Harrison County Board of Education (HCBOE) as a bus operator, initiated grievance proceedings on February 11, 1999, alleging violations of W. Va. Code §§18A-4-8b, and 18A-4-8g when a special education teacher's aide position, for which he had applied, was awarded to a substitute employee. Grievant requested instatement with back pay, restoration of personal leave, seniority, all other benefits, and interest on all monetary sums. The grievance was denied at levels one and two. HCBOE waived consideration at level three, as is permitted by W. Va. Code §18- 29-4(c), and the matter was advanced to level four on June 11, 1999. An evidentiary hearing was conducted on August 13, 1999, in the Grievance Board's Morgantown office. Grievant was represented by John E. Roush, Esq., of the West Virginia School Service Personnel Association, and HCBOE was represented by Basil R. Legg, Jr., Esq. The matter became mature for decision with the submission of proposed findings of fact and conclusions of law, filed by both parties on October 25, 1999.
      The facts of this matter are undisputed and may be set forth as the following formal findings of fact.
      Findings of Fact
      1.      Grievant was initially employed by HCBOE as a substitute bus operator in1983. In 1985 he was reassigned as a regular, full-time bus operator until 1988, when he took a three year leave of absence to join the military. Grievant returned to his position with HCBOE in September 1991, and has been employed continuously since that time.
      2.      Grievant successfully completed the state competency test for the aide classification in November 1994.
      3.       By posting dated January 25, 1999, HCBOE advertised a vacancy for a Special Education Aide II. The posting provided that the individual “must have or be willing to receive training in assistive technology, specialized procedures such as catheterization and tube feeding, lifting required, itinerant schedule, computer experience preferred.” The posting did not indicate a gender preference as a bona fide occupational qualification (BFOQ).
      4.      The aide selected to fill this position was to exclusively serve the needs of a fourteen year old female student. The student is a quadriplegic, with no ability to move below her neck. At the time of the posting, it was expected that she would require catheterization several times a day, and assistance with other feminine hygiene needs was anticipated in the near future.
      5.      Grievant was the only regular employee of HCBOE to bid on the aide position.
      6.      Grievant has completed first aid training in his capacity as a bus operator, and is additionally certified both as an Emergency Medical Technician and CPR instructor. He has one year of experience as a paid ambulance worker and does volunteer work.      7.      By letter dated February 1, 1999, the student's mother submitted a letter to HCBOE requesting that a male not be assigned as an aide to her daughter. The parent expressed a concern that assignment of a male aide to assist with catheterization and other female personal needs would not be good for her daughter “physically and emotional[ly].
      8.      The aide position was subsequently awarded to the most senior female substitute who had applied.
      9.      During February and March 1999, Grievant suffered from irritable bowel syndrome. This condition was aggravated by the motion of the bus, causing him to use approximately twenty days of sick leave.
      10.      Grievant bid on, and received, another teacher's aide position, effective April 26, 1999.
                        Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of 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.
      As a preliminary matter, in consideration of the change in circumstances due to his reassignment in April 1999, Grievant modified his requested relief at level four to back pay for the period of time when the first position was filled in February until he assumed anaide position in April, all other benefits he would have received as an aide during that period of time, including seniority, and interest. Grievant also requests reinstatement of the sick leave he used when suffering from irritable bowel syndrome, because he could have worked as an aide during that time.
      Grievant argues that HCBOE has failed to establish gender as a BFOQ in this situation. Specifically, there has been no showing that intrusion on legitimate privacy interests is an essential part of the employee's job. On the contrary, Grievant notes that the successful applicant was not called upon to perform any duties of a personal nature for the student during the period of February through April.   (See footnote 1)  Secondly, Grievant asserts that there is at least one female staff member who could perform duties of a personal nature, if and when such activities become necessary. He opines that the rearrangement of job duties to accomplish this shift in duties would not present insurmountable difficulties. Grievant concludes that the mere expression of preference by the student's mother does not establish a BFOQ for this position, therefore, under the provisions of W. Va. Code §18A-4-8b, he is entitled to the position.
      HCBOE asserts that it may utilize gender as a BFOQ if it determines, in a non- arbitrary and capricious fashion, that gender is an appropriate occupational qualification for the position in issue. Because the client to be served by this aide is a fourteen year old physically handicapped student who would require assistance with personal hygiene needs, she would suffer extreme humiliation and embarrassment if forced to receive thoseservices from a male aide. HCBOE concludes that the facts of this situation render Grievant legally ineligible for the position.
      W. Va. Code §18A-4-8b provides in pertinent part that, “[a] county board shall make decisions affecting promotions and the filling of any service personnel positions of employment or jobs . . . on the basis of seniority, qualifications and evaluation of past service.” Qualifications is defined as “holds a classification title in his category of employment . . . .” Individuals who are qualified are to be given first opportunity for promotion and filling vacancies. Additionally, applicants are to be considered in a specified order, with regularly employed service personnel to be considered first, followed by service personnel whose employment has been discontinued as the result of a reduction in force, professional personnel who held temporary service personnel jobs or positions prior to June 9, 1982, and who apply only for such temporary jobs or positions, followed by substitute service personnel. W. Va. Code §18A-4-8g provides that “[s]eniority accumulation for a regular school service employee begins on the date the employee enters upon regular employment duties pursuant to a contract . . . .”    (See footnote 2) 
      Grievant has established that he had passed the state competency test for the aide classification in November 1994, had received satisfactory performance evaluations, and was the only regular employee to apply for the position. Under normal circumstances, Grievant would have proven that he was entitled to the position. However, the lawrecognizes that in certain situations, a specific characteristic such as gender may be a BFOQ, altering the usual outcome of personnel decisions.   (See footnote 3) 
      It is well established that gender can be an appropriate BFOQ. A requirement that certain prison guards be male has been held to be a BFOQ. Dothard v. Rawlinson, 433 U.S. 321 (1977). In a more factually analogous case, a gender-based BFOQ was found to exist when female mental health workers were laid off differently than male mental health workers within the same classification. "We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one's unclothed figure from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity." Local 567 American Fed'n of State, County and Mun. Employees v. Michigan Council 25, 635 F. Supp. 1010 (E.D. Mich. 1986), (quoting York v. Story, 324 F.2d 450 (9th Cir. 1963), cert. denied, 376 U.S. 939 (1964)).
      The West Virginia Supreme Court of Appeals has approved the limitation of applicants for the position of child care worker to males when the job entailed close, intrusive supervision, including supervision of undressing and showering, of male adolescents housed in the boys' cottage of a school for delinquent children. St. John's Home for Children v. W. Va. Human Rights Comm'n., 180 W.Va. 137, 375 S.E.2d 769 (1988). The Court also found that a gender-based BFOQ existed where less senior male health service workers were retained in a reduction-in-force action, displacing more senior female health service workers, because the male employees supervised male patientsduring their dressing, bathing, and toileting. Gibson v. W. Va. Dept. of Health and Human Resources, 192 W.Va. 372, 452 S.E.2d 463 (1994).
      The Grievance Board has determined that gender can be a BFOQ in a number of instances. In Sall v. Wood County Board of Education, Docket No. 54-86-311-3 (Mar. 20, 1987), a case bearing a remarkable factual similarity to the present matter, the board posted a position for a male aide who would be assigned as caretaker of a fifteen year old quadriplegic male student. The successful applicant was to be responsible for the student's toileting, feeding, and personal hygiene. It was determined that the wishes of the parent, the advise of members of the Placement Advisory Committee, and the recommendation of several psychologists, that a male aide was deemed necessary to care for the boy's intimate and sensitive needs while at school created a BFOQ that the position be filled with a male.
      Gender has also been determined to be an acceptable BFOQ in the retention of a less senior male aide during a reduction in force in Higginbotham v. Putnam County Board of Education, Docket No. 40-88-069 (Feb. 27, 1989), and Shahan v. Preston County Board of Education, Docket No. 92-39-213 (Dec. 29, 1992). In both cases, a male aide was assigned to work with handicapped boys, and it was determined in Higginbotham that it would have been “highly inappropriate and even psychologically damaging to the boys to have their toileting done by a female aide.” Despite Grievants' assertion in Shahan that they were capable of providing the personal care needs of the students, this factor was determined not to negate gender as a BFOQ. Again, in both cases, the wishes of the parents were considered.      More recently, it was held that a board's determination to hire a less senior female applicant to provide adequate supervision in the female locker room constituted a valid BFOQ, and Grievant, a male, was not subject to gender discrimination. Rogar v. Raleigh County Bd. of Educ., Docket No. 97-41-295 (Apr. 14, 1998).
      The characterization that this personnel decision was based simply upon a gender preference by the student's mother is inaccurate. The stated preference was based upon the parent's knowledge of the personal nature of her daughter's needs and attitude regarding the situation. It is not surprising that an adolescent girl would not want her personal hygiene needs to be provided by a male.
      Grievant's argument that because the student had not yet required personal hygiene care at the time he accepted his current position rendered the BFOQ invalid, is not accepted based upon the testimony of Donna Moore, R.N., and HCBOE Health Care Coordinator. Ms. Moore testified at level four that she was familiar with the student and her health problems. She confirmed that the student had not previously been catheterized at school, due to embarrassment, but would need to have her bladder emptied several times a day during the current school year to avoid kidney failure. Ms. Moore also confirmed that the student had not yet started menstruating, but opined that it was impending. Based upon her knowledge of the student's feelings of embarrassment, and concern with controlling her appearance, Ms. Moore stated that she did not believe the student would consent to catheterization by a male.
      Grievant's claim that another female staff member could attend to the student's personal hygiene supports a finding that gender was a BFOQ in this instance. If placedin the position, Grievant could not fully function, and HCBOE would be required to assign those duties to another staff member, who would likely have to neglect her own duties to some extent while covering for Grievant. While it may be possible for HCBOE to rearrange the schedule of one or more employees to accommodate Grievant's employment, a board is not required to do so.
      Although Grievant was the only regularly employed individual to apply for the position, and his credentials are excellent for the care of a handicapped student, a BFOQ is a recognized exception to the laws cited by Grievant. In this case, the evidence supports a finding that gender was a valid BFOQ. While HCBOE erred in not posting the position as gender specific, the testimony of Ms. Moore and Robert Skidmore, HCBOE Administrative Liaison, was that it simply had been traditionally posted without reference to any special qualifications, and a male applicant had not been anticipated. Any error in the posting was harmless, in that Grievant was not deprived of an opportunity, he simply bid on a position for which he was not qualified. Based upon the finding of a valid BFOQ, Grievant has failed to prove an entitlement to the position.
      In addition to the foregoing findings of fact and discussion, it is appropriate to make the following formal conclusions of law.
Conclusions of Law
      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of 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.
      2.      The law recognizes the exception of bona fide occupational qualifications. See W. Va. Code §5-11-9.
      3.      Gender is a bona fide occupational qualification for an aide position assigned to meet the intimate needs of adolescent students. See Sall, supra; Higginbotham; supra; and Shahan, supra.
      4.      HCBOE did not err in determining that gender was a bona fide occupational qualification in this case.
      Accordingly, the grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Harrison 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 Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

Date: February 24, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE


Footnote: 1
      The record indicates that the student had undergone surgery during this time frame.
Footnote: 2
      The exact nature of this alleged violation was unclear to the undersigned.
Footnote: 3
      Although BFOQ's are generally raised under a gender discrimination argument, which Grievant does not claim, its application is appropriate to other employment related violations such as those alleged by Grievant in this matter.