v. Docket No. 99-08-430
CLAY COUNTY BOARD OF EDUCATION,
Respondent.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Clay 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. Any appealing party must advise this office of the
intent to appeal and provide the civil action number so that the record can be prepared and
transmitted to the appropriate court.
__________________________________
Dated: February 4, 2000
On August 18 & 19, 1999, Mr. Linkinoggor called out a substitute custodian
to work at the Clay Elementary School. He did so by choosing to ignore the
seniority rights of the regularly employed custodians. RELIEF SOUGHT:
that it be put on the record that our county superintendent can't call out a
substitute custodian without first calling out the regularly employed
custodians by seniority. Also I request to be paid for both days the
substitute worked.
This grievance was filed on September 15, 1999, denied at Levels I and II, and
waived at Level III. Grievant appealed to Level IV on October 13, 1999, and a Level IV
hearing was held on November 30, 1999. This case became mature for decision on that
date as the parties elected not to file proposed findings of fact and conclusions of law.
(See footnote 2)
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
2. Grievant does not have a regular summer position with CCBOE.
3. During the Summer of 1999, Grievant was called out to work nine days of
extra-duty work. CCBOE did not call out custodians in order of seniority for this work.
4. At CES there is one full-time custodian, Jackie Boggs. While he was off for
two days, August 18 and 19, over the summer of 1999, CCBOE called a substitute, Rick
McClothin, to fill in during his absence. Mr. McClothin was called out as his name was the
next in line on a rotating substitute list.
5. Grievant was available to work the two days the substitute was called in to
work.
Grievant argues CCBOE violated W. Va. Code §§ 18A-4-8b and 18A-4-15 when it
called out a substitute custodian to replace the vacationing, full-time custodian. Grievant
maintains he should have been allowed to "step-up" into Mr. Boggs' position for these two
days. Respondent asserts it followed the correct procedure as W. Va. Code § 18A-4-15
"step-up" provisions do not apply to summer positions.
(See footnote 3)
Brown v. Lincoln County Bd. of Educ., Docket No. 97-22-407 (Apr. 28, 1998).
This case is directly on point with the case of Brown v. Lincoln County Board of
Education, Docket No. 97-22-407 (Apr. 4, 1998). There, as here, the grievant specifically
alleged the Lincoln County Board of Education violated the "step-up" provision of W. Va.
Code § 18A-4-15 when it did not hire her to fill a temporary vacancy during the summer.
Although the grievant in Brown had a regular, ten month contract and a regular summer
position, she was not employed at the time of the alleged violation. The "step-up"
provision in W. Va. Code § 18A-4-15 states as follows:
Substitutes shall be assigned in the following manner: . . . All
substitutes shall be employed on a rotating basis according to the length of
their service time until each substitute has had an opportunity to perform
similar assignments: Provided, That if there are regular service employees
employed in the same building or working station as the absent employee
and who are employed in the same classification category of employment,
such regular employees shall be first offered the opportunity to fill the
position of the absent employee on a rotating and seniority basis with the
substitute then filling the regular employee's position.
The administrative law judge in Brown noted, "[t]his provision allows an exception
to the requirement in Code § 18A-4-15 that substitutes be hired to fill temporary vacancies
caused by the absence of a regular employee, and allows regular employees within the
same classification and working station of an absent employee to 'step up' into the placeof the absent employee." Brown, supra. The administrative law judge in Brown noted
Grievant Brown "would have the Grievance Board extend the 'step up' provisions not only
to employees currently working in the same building or work station as an absent
employee, but also to those not employed", and noted "there is nothing in [W. Va. Code
§ 18A-4-15] which would support such a theory." Id. Thus, the administrative law judge
in Brown held that since the grievant was unable to demonstrate she was employed at the
time of the alleged violation, she was not excusable neglect titled to the "step-up"
provisions of W. Va. Code § 18A-4-15.
Here, as in Brown, Grievant holds the same classification as the substitute, was
employed in the same school during the regular school year, and was not employed at the
time of the substitute's placement into the position. Thus, the facts are almost identical,
and Grievant, like the grievant in Brown, is not entitled to the relief he seeks as the "step-
up" provisions in W. Va. Code § 18A-4-15 do not apply in this situation.
(See footnote 4)
The above-discussion will be supplemented by the following Conclusions of Law.
1. 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. & 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. Grievant failed to prove CCBOE violated W. Va. Code § 18A-4-15 when it
did not apply the "step-up" provisions during the summer when he was not under contract.
3. Grievant has not proven he is entitled to the relief sought as CCBOE
correctly followed the provisions in W. Va. Code § 18A-4-15 and the holding in Brown v.
Lincoln County Board of Education, Docket No. 97-22-407 (Apr. 4, 1998).
Accordingly, this grievance is DENIED.
JANIS I. REYNOLDS
Administrative Law Judge
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