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:
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      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:

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:

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:


      and,


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:

      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