DIANA TOMBLIN,
Grievant,
v.
DOCKET NO. 00-22-106
LINCOLN COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Diana Tomblin, filed the following grievance on January 12, 2000, against
her employer, the Lincoln County Board of Education (Board):
Violation of WV Code 18A-4-8b in hiring of Service Personnel. Donna Toney
was hired for cook at Hamlin (1/12/00).
Relief sought: To be placed into position, back pay, any and all benefits plus
interest.
A level two hearing was held on March 6, 2000, and a decision denying the grievance was
issued by grievance evaluator, Charles McCann, on March 12, 2000. Grievant by-passed
level three, and a level four hearing was held on June 2, 2000, in the Grievance Board's
Charleston, West Virginia, office. This matter became mature for decision on June 26,
2000, the deadline for the parties' proposed findings of fact and conclusions of law.
Grievant was represented by Anita Mitter, West Virginia Education Association, and the
Board was represented by James W. Gabehart, Esq.
SUMMARY OF EVIDENCE
Level Three Grievant Exhibits
Ex. 1 -
Record of substitute work for Diana Tomblin
Ex. 2 -
Vacancy Bulletin dated December 7, 1999.
Ex. 3 -
Record of substitute work for Donna Toney.
Ex. 4 -
Portion of Cook Seniority List, January 6, 2000.
Level Four Grievant Exhibits
Ex. 1 -
Cook Seniority List, January 6, 2000.
Ex. 2 -
Substitute Cook seniority list, August 27, 1999.
Ex. 3 -
January 6, 2000 memorandum from Charles S. McCann to
Principals/Administrators.
Testimony
Grievant testified in her own behalf, and presented the testimony of Tina Black and
Charles S. McCann. The Board presented the testimony of Charles S. McCann.
FINDINGS OF FACT
I find, by a preponderance of the evidence, the following facts.
1. Grievant is employed by the Board as a substitute cook.
2. On December 7, 1999, the Board posted a vacancy bulletin which included
a position for Cook II, ½ time at Hamlin Junior High. LIII G. Ex. 2.
3. Grievant and Donna Toney, also employed as a substitute cook, applied for
this position.
4. Grievant's starting date as a substitute cook is September 26, 1990. LIV G.
Ex. 2.
5. Ms. Toney's starting date as a substitute cook is September 25, 1989. LIV
G. Ex. 2. 6. At the time of the posting for the Cook II position, Grievant had 36 days of
regular employment seniority. Ms. Toney had 18 days of regular seniority. LIII G. Ex. 4;
LIV G. Exs. 1, 3. Both applicants were on the substitute list at the time of selection.
7. The Board selected Ms. Toney for the Cook II ½ time position at Hamlin
Junior High, based upon her greater substitute seniority.
(See footnote 1)
DISCUSSION
Grievant has the burden of proving each element of her 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.
Grievant contends it has been the practice of the Board to use regular seniority
when awarding service personnel positions, and as she had more regular seniority than
Ms. Toney, she should have been awarded the Cook II ½ time position at Hamlin Junior
High.
The Board only utilized the substitute seniority list when filling the subject position, and did
not consider the applicants' regular seniority.
W. Va. Code § 18A-4-8b sets forth the procedure to be followed in filling vacancies
in service personnel positions, and states in pertinent part as follows:
A county board of education shall make decisions affecting promotion
and filling of any service personnel positions of employment or jobs occurring
throughout the school year that are to be performed by service personnel as
provided in section eight, article four of this chapter, on the basis of seniority,
qualifications and evaluation of past service.
Qualifications shall mean that the applicant holds a classification title
in his category of employment as provided in this section and must be given
first opportunity for promotion and filling vacancies. Other employees then
must be considered and shall qualify by meeting the definition of the job title
as defined in section eight, article four of this chapter, that relates to the
promotion or vacancy. If the employee so requests, the board must show
valid cause why an employee with the most seniority is not promoted or
employed in the position for which he applies. Applicants shall be
considered in the following order:
(1) Regularly employed service personnel;
(2) Service personnel whose employment has been discontinued in
accordance with this section;
(3) Professional personnel who held temporary service personnel jobs
or positions prior to the ninth day of June, one thousand nine hundred eight-
two, and who apply only for such temporary jobs or positions;
(4) Substitute service personnel; and
(5) New service personnel.
The Board contends it properly followed the mandates of this provision, selecting
the substitute applicant with the most substitute seniority, Ms. Toney.
It is well-settled by this Grievance Board that when filling service personnel
positions, the amount of regular seniority the applicants possess must be utilized to award
the position, if such seniority is present.
Griffith v. Boone County Bd. of Educ., Docket No.
99-03-172 (Mar. 16, 2000 );
Brunty v. Lincoln County Bd. of Educ., Docket No. 99-22-069
(July 13, 1999);
Hall v. Mingo County Bd. of Educ., Docket No. 94-29-1110 (Sept. 29,
1995);
Ferrell v. Mingo County Bd. of Educ., Docket No. 92-45-440 (Aug. 4, 1993). All of
the cited cases involved substitute employees who applied for a regular position, just asin this case, it was held and affirmed that regular seniority, if any, was to be used to
determine the outcome of the selection process. Here, since Grievant had more regular
seniority than Ms. Toney, she should have been awarded the subject position in this
grievance.
It must be noted here that Grievant relied on this Grievance Board's decision in
Dempsey v. Mingo County Board of Education, Docket No. 96-29-020 (June 28, 1996), in
her proposed findings of fact and conclusions, specifically Conclusion of Law 3, to support
her argument that regular seniority must be used, if available, in selecting applicants for
service positions from a pool of substitute employees. A review of
Dempsey reveals that
its use by Grievant, and in other decisions of the Grievance Board, to support this holding,
has been misplaced.
See Brunty v. Lincoln County Bd. of Educ., Docket No. 99-22-069
(July 13, 1999);
Griffith v. Boone County Bd. of Educ., Docket No. 99-03-172 (Mar. 16,
2000).
Conclusion of Law 3 in
Dempsey states:
When filling service personnel positions, the amount of regular
seniority the applicants possess must be utilized to award the position, if
such seniority is present. Hall v. Mingo County Bd. of Educ., Docket No. 94-
29-1110 (Sept. 29, 1995); Ferrell v. Mingo County Bd. of Educ., Docket No.
92-45-440 (Aug. 4, 1993).
While that Conclusion cites
Hall and
Ferrell, which involved substitutes, the issue
in
Dempsey was not what type of seniority should be used in selecting applicants, i.e.,
substitute or regular, but rather, whether a board should look to the total amount of regular
seniority an applicant had accumulated, or merely look at the starting dates of their regular
employment. In that case, both applicants for the subject position were already regularemployees of the Board, not substitutes. The
Dempsey holding clarified that a board is to
look at the total amount of regular seniority accrued, rather than the starting date. The
holdings in
Brunty and
Griffith are not affected by this clarification as the holdings are the
same as the holding here.
Finally, the Board's reliance on
Stansbury v. Morgan County Bd. of Educ., Docket
No. 97-32-577 (July 24, 1998), is also misplaced, and does not support its argument that
regular seniority should not be used when applicants for a regular service position are
substitutes.
Stansbury merely stands for the proposition that, once a long-term substitute
position is ended, and the long-term substitute is returned to his position, be it regular or
substitute, all the rights and benefits associated with that long-term substitute employment
also come to an end. That does not mean that the regular seniority accumulated during
that time period ceases to exist and can not be counted when filling another position, only
that it is no longer accumulated by the employee.
CONCLUSIONS OF LAW
1. Grievant has the burden of proving each element of her 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. Service personnel positions are to be filled on the basis of seniority,
qualifications and evaluations of past service.
W. Va. Code § 18A-4-8b. 3. When filling service personnel positions, the amount of regular seniority the
applicants possess must be utilized to award the position, if such seniority is present.
Griffith v. Boone County Bd. of Educ., Docket No. 99-03-172 (Mar. 16, 2000);
Brunty v.
Lincoln County Bd. of Educ., Docket No. 99-22-069 (July 13, 1999);
Hall v. Mingo County
Bd. of Educ., Docket No. 94-29-1110 (Sept. 29, 1995);
Ferrell v. Mingo County Bd. of
Educ., Docket No. 92-45-440 (Aug. 4, 1993).
4. Grievant has demonstrated that she had accumulated more regular seniority
than the successful applicant, therefore she has proven a violation of
W. Va. Code § 18A-
4-8b and applicable case law.
Accordingly, this grievance is
GRANTED, and the Board is hereby
ORDERED to
instate Grievant into the Cook II, ½ time position at Hamlin Junior High, and award her any
back pay, with interest, and benefits, to which she is entitled.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Lincoln 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.
___________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: July 17, 2000
Footnote: 1