THOMAS PASCO,
Grievant,
v. Docket No. 00-35-032
OHIO COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
Thomas Pasco (Grievant) initiated this grievance on January 6, 2000, alleging he
should be reclassified from paraprofessional to classroom teacher. The grievance was
denied at level one on January 7, 2000. A level two hearing was held on January 20,
2000, and the grievance was denied at that level on January 24, 2000. Level three
consideration was bypassed, and Grievant appealed to level four on January 27, 2000.
After mediation efforts were unsuccessful, a level four hearing was held in the Grievance
Board's office in Wheeling, West Virginia, on May 22, 2000. Grievant was represented by
Owens Brown of the West Virginia Education Association, and Respondent was
represented by counsel, Kathy M. Finsley. This matter became mature for consideration
upon receipt of the parties' fact/law proposals on June 22, 2000.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant has been employed by Respondent Ohio County Board of
Education (OCBOE) since October 13, 1998, as a paraprofessional at Bridge Street
Middle School. 2. Grievant has a degree in education, and is certified by the State of West
Virginia as a paraprofessional and as a teacher, multi-subject K-8.
3. Grievant is assigned to monitor in-school suspension (ISS) at Bridge Street
Middle. Children are referred to ISS who have committed behavioral offenses that are not
severe enough for out-of-school suspension or expulsion. Students in ISS are normally
referred for one class period up to ten days, depending on their infractions.
4. Greg Ginkas is employed as a classroom teacher at Wheeling Park High
School. He is also assigned to ISS on an all-day, everyday basis.
5. Both Grievant and Mr. Ginkas perform the following specific duties each day:
_
Receive referrals of children for ISS from their teachers and
take attendance to insure that all students are present.
_
Distribute each student's assignments for the day, including
exams, as directed by the students' teachers.
_
Monitor the class of students assigned to ISS, making sure
that students are doing their work and not misbehaving.
_
Answer students' questions and assist with homework
assignments when needed.
_
Discipline students who misbehave and contact principal or
parents, if necessary.
6. Neither Grievant nor Mr. Ginkas formulate lesson plans, assign grades, or
give actual instruction.
7. Mr. Ginkas was hired in 1977 as the supervisor of ISS at Wheeling Park High
School. At that time, the paraprofessional classification did not exist. Throughout his
employment with OCBOE, Mr. Ginkas has been evaluated and compensated as a
classroom teacher.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden of
proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va.
Educ. & StateEmployees 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. OCBOE
contends that this grievance was not initiated within the time limits specified in
W. Va.
Code § 18-29-4(a)(1), which states:
Before a grievance is filed and within fifteen days following the occurrence
of the event upon which the grievance is based, or within fifteen days of the
date on which the event became known to the grievant or within fifteen days
of the most recent occurrence of a continuing practice giving rise to a
grievance, the grievant or the designated representative shall schedule a
conference with the immediate supervisor to discuss the nature of the
grievance and the action, redress or other remedy sought.
A timeliness defense is an affirmative defense which the employer must establish by a
preponderance of the evidence.
Lowry v. W. Va. Dept. of Educ., Docket No. 96-DOE-130
(Dec. 26, 1996);
Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996).
The time period for filing a grievance ordinarily begins to run when the employee is
unequivocally notified of the decision being challenged.
Kessler v. W. Va. Dept. of
Transp., Docket No. 96-DOH-445 (July 28, 1997).
See Rose v. Raleigh County Bd. of
Educ., 199 W. Va. 220, 483 S.E.2d 566 (1997).
However, misclassification is a continuing practice, and as such, a grievance may
be initiated at any time during the time the misclassification continues. Therefore, although
Grievant testified that he had known about Mr. Ginkas' position and had been thinking
about this situation for some time before filing a grievance, his misclassification claim isnot prohibited by his employer's timeliness defense. Rather, any relief to which he may be
entitled will be limited to prospective relief and to back relief from and after fifteen days
preceding the filing of the grievance. Syl. Pt. 5,
Martin v. Randolph County Bd. of Educ.,
195 W. Va. 297, 465 S.E.2d 399 (1995).
W. Va. Code § 18-29-4.
The burden of proof is upon the grievant to establish, by a preponderance of the
evidence, that he is misclassified.
See Pierantozzi v. Brooke County Bd. of Educ., Docket
No. 96-05-061 (May 31, 1996);
Porter v. Hancock County Bd. of Educ., Docket No.
95-15-493 (May 24, 1994);
Hatfield v. Mingo County Bd. of Educ., Docket No. 91-29-077
(Apr. 15, 1991). "[S]imply being required to undertake some responsibilities normally
associated with a higher classification, even regularly, does not render a grievant
misclassified,
per se."
Midkiff v. Lincoln County Bd. of Educ., Docket No. 95-22-262 (Mar.
19, 1996), citing
Hamilton v. Mingo County Bd. of Educ., Docket No. 91-29-077 (Apr. 15,
1991).
W. Va. Code §18A-4-8 requires county boards of education to "review each service
personnel employee's job classification annually and . . . reclassify all service employees
as required by such job classifications." A board of education is obligated to classify
school service personnel according to the duties performed by said employees.
Taflan v.
Hancock County Bd. of Educ., Docket No. 15-86-099-2 (Jan. 12, 1987).
Grievant contends that his alleged misclassification violates the statutory provisions
regarding uniformity of pay and prohibiting discrimination.
W. Va. Code § 18A-4-5a
requires that salary schedules for teachers be uniform throughout each county as to the
classification of training, experience, responsibility and other requirements. Grievant
contends that his misclassification as a paraprofessional and corresponding salary violatesthis provision, because he is not receiving the same salary as teachers who have the same
levels of experience, training, and responsibility as he.
W. Va. Code § 18A-4-8 defines the various classification titles for service personnel
employed by county school boards, and states that a paraprofessional is:
[A] person certified . . . to perform duties in a support capacity including, but
not limited to, facilitating in the instruction and direct or indirect supervision
of pupils under the direction of a principal, a teacher or another designated
professional educator[.]
In turn, classroom teacher is defined by
W. Va. Code § 18A-1-1 as [t]he professional
educator who has direct instructional or counseling relationship with pupils, spending the
majority of his time in this capacity.
Grievant also alleges he has been subjected to discrimination.
W. Va. Code
§18-29-2(m) defines discrimination as "differences in the treatment of employees unless
such differences are related to the actual job responsibilities of the employees or agreed
to in writing." To prove discrimination, a grievant must establish a
prima facia case which
consists of demonstrating:
(a) that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his 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 other employee(s), and were not agreed to by the grievant
in writing.
If a grievant establishes a
prima facie case, a presumption of discrimination exists, which
the respondent can rebut by presenting a legitimate, nondiscriminatory reason for theaction. However, a grievant may still prevail if he can demonstrate the reason given by the
respondent was pretextual.
Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260
(Oct. 19, 1989).
As can be seen from the statutory definitions of the classifications involved, it is
clear that it is Mr. Ginkas, not Grievant, who is misclassified. Both Grievant and Mr. Ginkas
are performing supervision of students under the direction of their teachers and principal,
and they are not involved in a direct instructional relationship with these students.
Answering occasional questions asked by students is an incidental portion of their duties
and is not required of them, and, at any rate, would be described as facilitating the
instruction of the students at their respective teachers' direction. It is abundantly clear that
the
purpose of their positions is to supervise students who are being punished, make sure
they complete their work as assigned by their teachers, and insure that they behave. They
are not employed to instruct students and teach them specific concepts in subject matter
areas, which is the function of classroom teachers.
It has been previously held by this Grievance Board that service personnel and
professional personnel are not similarly situated for purposes of comparing themselves
under the discrimination analysis. However, in this case, the fact that he is not classified
as a professional is the very basis of Grievant's claim. Nevertheless, Grievant's claims
must fail, because he has compared himself to an employee who is misclassified. The
Grievance Board's stance on this issue was recently reiterated in
Delbart v. Dept. of Health
and Human Resources, Docket No. 99-HHR-458 (Apr. 21, 2000), as follows:
If another employee is assigned to a different classification from the grievant,
but performing the same duties as the grievant, this does not mean the
grievant should be in the same classification as this other employee, as theother employee may be misclassified. The Grievance Board has held that
such a mistake does not constitute discrimination. Ritchie v. W. Va. Dept.
of Health and Human Resources, Docket No. 96-HHR-181 (May 30, 1997);
McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov.
15, 1996). The Grievance Board has consistently refused to grant the type
of relief Grievant seeks because of a mistake or a violation of a policy,
because such actions constitute ultra vires acts, and because two wrongs do
not make a right. See Guthrie v. W.Va. Dept. of Health and Human
Resources, Docket No. 95-HHR-277 (Jan. 31, 1996); Earnest and Hatfield
v. Southern W.Va. Community College, Docket Nos. 91-BOD-352/290 (Sept.
30, 1992), rev'd, Circuit Court of Kanawha County, Civil Action No. 92-AA-
296 (Apr. 23, 1993); Froats v. Hancock County Bd. of Educ., Docket No. 89-
15-414 (Dec 18, 1989). See also Roberts v. W.Va. Dept. of Transp., Docket
No. 96-DOH-017 (May 2, 1996), aff'd, Circuit Court of Kanawha County, Civil
Action No. 96-AA-72 (May 25, 1997); Gilliam v. W.Va. Dept. of Transp.,
Docket No. 96-DOH-511 (Apr. 24, 1997).
The remedy, in a situation involving a grievant's claim that others are
enjoying a higher classification and performing the same work that he
performs, is not to similarly misclassify the grievant. Akers v. W. Va. Dept.
of Tax and Revenue, 194 W. Va. 956, 460 S.E.2d 702 (1995).
Accordingly, because it is clear that Grievant is performing the duties of a
paraprofessional, he is not misclassified, and his requested relief cannot be granted.
Consistent with the foregoing, the following conclusions of law are appropriate in this
matter.
Conclusions of Law
1. In non-disciplinary matters, Grievant has the burden of proving his grievance
by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. &
StateEmployees 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. Misclassification is a continuing practice, and as such, a grievance may be
initiated at any time during the time the misclassification continues. Any relief to which thegrievant may be entitled will be limited to prospective relief and to back relief from and after
fifteen days preceding the filing of the grievance. Syl. Pt. 5,
Martin v. Randolph County Bd.
of Educ., 195 W. Va. 297, 465 S.E.2d 399 (1995).
W. Va. Code § 18-29-4.
3.
W. Va. Code §18A-4-8 requires county boards of education to "review each
service personnel employee's job classification annually and . . . reclassify all service
employees as required by such job classifications." A board of education is obligated to
classify school service personnel according to the duties performed by said employees.
Taflan v. Hancock County Bd. of Educ., Docket No. 15-86-099-2 (Jan. 12, 1987).
4. If another employee is assigned to a different classification from the grievant,
but performing the same duties as the grievant, this does not mean the grievant should be
in the same classification as this other employee, as the other employee may be
misclassified. The Grievance Board has held that such a mistake does not constitute
discrimination.
Delbart v. Dep't of Health and Human Resources, Docket No. 99-HHR-458
(Apr. 21, 2000);
Ritchie v. W. Va. Dept. of Health and Human Resources, Docket No. 96-
HHR-181 (May 30, 1997);
McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-
214 (Nov. 15, 1996).
5. The remedy, in a situation involving a grievant's claim that others are enjoying
a higher classification and performing the same work that he performs, is not to similarly
misclassify the grievant.
Akers v. W. Va. Dept. of Tax and Revenue, 194 W. Va. 956, 460
S.E.2d 702 (1995).
6. Grievant has not proven by a preponderance of the evidence that he is
misclassified as a paraprofessional, and he is not entitled to be reclassified because of the
misclassification of another employee.
Accordingly, this grievance is
DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County or the
Circuit Court of Ohio 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: June 28, 2000 _______________________________
DENISE M. SPATAFORE
Administrative Law Judge