DINA SMITH,

                  Grievant,

v v.


WYOMING COUNTY BOARD OF EDUCATION,

                  Respondent.


DECISION

      Dina Smith (Grievant) alleges that the Wyoming County Board of Education (WCBE) improperly terminated her employment during a reduction in force.
      The grievance was denied at Level I by Joseph Stewart, on April 13, 2000. A Level II hearing was held on May 17, 2000. Grievant was represented at this hearing by Ben Barkey of the West Virginia Education Association, and WCBE was represented by Gregory W. Bailey, Esq. The grievance was denied at Level II by Hearing Examiner Frank B. Mann, III on May 22, 2000. There is no record of any proceedings at Level III.
      The parties agreed that this grievance could be submitted at Level IV based on the record developed at the lower levels.   (See footnote 1)  The parties were given until August 23, 2000, to submit proposed findings of fact and conclusions of law, both parties did so, and this matter became mature for decision on that date.
      The following Findings of Fact have been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT
      1.      Grievant was employed by WCBE as a Math and Science teacher at Glen Fork Grade School. She holds the certifications Multi-Subjects K-8, Math 4-8, Counseling K-12, and authorization for Science 7-8.
      2.      Grievant has some five years seniority.
      3.      When Grievant assumed her position in 1988, she did not hold the three required certifications/authorizations. WCBE gave Grievant eight hours in-service training, so that she could qualify for the Science 7-8 authorization she lacked.
      4.      Due to declining enrollment, WCBE was required to conduct a reduction in force for the 2001-2001 school year.
      5.      A more senior teacher   (See footnote 2)  was eligible to “bump” Grievant, provided that he could acquire the needed Science 7-8 authorization.
      6.      WCBE terminated Grievant and arranged for the more senior teacher to take eight hours in-service training, so that he could qualify for the Science 7-8 authorization he lacked.
      7.      The more senior teacher completed the training, acquired the Science 7-8 authorization, and was awarded the position.
DISCUSSION

      As this grievance does not involve a disciplinary matter, Grievant has the burden ofproving 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. A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      Grievant alleges that WCBE improperly terminated her employment during a reduction in force, and argues that her replacement did not hold the required Science 7-8 authorization at the time she was terminated. Grievant seeks reinstatement to her teaching position. WCBE responds that it expected the more senior teacher who “bumped' Grievant to have the required Science 7-8 authorization before he began teaching in Grievant's former position; that the more senior teacher would be given the same eight hours of in- service training that Grievant received in order to qualify for the Science 7-8 authorization; and that its choice of the more senior teacher to fill Grievant's position was authorized by State Board of Education Policy 5202 (Policy 5202).
      WCBE is correct. Policy 5202 provides “[t]he educator who exhibits subject matter competence shall be issued, upon recommendation of the county superintendent, an Authorization to continue to teach this specialization.” WCBE satisfied the requirementsof subject matter competence in Science 7-8 by providing eight hours of in-service training for both Grievant and the more senior teacher. It is not disputed that the more senior teacher had the required Science 7-8 authorization before he began teaching in Grievant's former position.
      “In order for an applicant to be basically qualified for a classroom teaching position vacancy in West Virginia, that person must hold the appropriate certification.” Peters v. Putnam County Bd. of Educ., Docket No. 90-40-247 (Aug. 16, 1991); Grossl v. Mingo County Bd. of Educ., Docket No. 93-29-496 (July 21, 1994). However, a county board of education may consider and even appoint an applicant for a professional position who does not meet the certification requirements of a posting, but has completed all college hour requirements for the licensure. Jones v. Summers County Bd. of Educ., Docket No. 94-45-153 (Nov. 16, 1994); Grossl, supra.
      W. Va. Code
§ 18A-3-2 permits school boards to employ teachers in good faith who are anticipated to, but have not yet, received their certification. Shewbridge v. Mercer County Bd. of Educ., Docket No. 94-27-094 (Sept. 28, 1994). W. Va. Code § 18-5-4 specifically contemplates that boards of education may make selection decisions based upon the best information as to the certification an individual will hold at the time that person enters into their teaching assignment. Davidson v Wyoming County Bd. of Educ., Docket No. 92-55-402 (Feb. 23, 1993).
      A preponderance of the evidence in this grievance establishes that WCBE accommodated the “bumping” rights of the more senior teachers by allowing them to obtain Science 7-8 authorization under Policy 5202, as it had previously done for Grievant. WCBE assumed in good faith that this authorization could be secured before the 2000- 2001 school year began, and this came to pass. Accordingly, Grievant failed to prove, by a preponderance of the evidence, that she was wrongly terminated during WCBE's reduction in force.
      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
CONCLUSIONS OF LAW

      1.      In a nondisciplinary grievance, Grievant has the burden of proving 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.      “In order for an applicant to be basically qualified for a classroom teaching position vacancy in West Virginia, that person must hold the appropriate certification.” Peters v. Putnam County Bd. of Educ., Docket No. 90-40-247 (Aug. 16, 1991)
      3.      Policy 5202 provides “[t]he educator who exhibits subject matter competence shall be issued, upon recommendation of the county superintendent, an Authorization to continue to teach this specialization.”
      
4.      W. Va. Code § 18A-3-2 permits school boards to employ teachers in good faith who are anticipated to, but have not yet, received their certification. Shewbridge v. Mercer County Bd. of Educ., Docket No. 94-27-094 (Sept. 28, 1994).
      
5.      W. Va. Code § 18-5-4 specifically contemplates that boards of education maymake selection decisions based upon the best information as to the certification an individual will hold at the time that person enters into their teaching assignment.
      6.      Grievant failed to prove, by a preponderance of the evidence, that she was wrongly terminated during WCBE's reduction in force.
      Accordingly, this grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Wyoming 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.


                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated September 8, 2000


Footnote: 1
            This grievance was assigned, for administrative purposes, to the undersigned administrative law judge on November 9, 1999.
Footnote: 2
            The evidence in this grievance establishes that two more senior teachers would have the option of “bumping” Grievant during the reduction in force. One teacher had some ten years seniority, and the other had some 20 years.