PAMELA PENNINGTON,      

       Grievant,

v.                                                            Docket No. 00-42-232

RANDOLPH COUNTY BOARD OF EDUCATION,

      Respondent.

DECISION

      Pamela Pennington (“Grievant”) initiated this proceeding on February 11, 2000, alleging entitlement to greater regular seniority than another employee of the Randolph County Board of Education (“RCBOE”), Susan Lynch. The grievance was denied at level one, and a level two hearing was held on April 5, 2000. The grievance was denied in a written level two decision dated June 29, 2000. Level three consideration was bypassed, and Grievant appealed to level four on July 13, 2000. After a level four hearing was scheduled, the parties agreed to submit this grievance for a decision based upon the lower level record. Grievant was represented by counsel, John E. Roush, and Respondent was also represented by counsel, Basil R. Legg, Jr. This matter became mature for consideration upon receipt of the parties' fact/law proposals on December 5, 2000.
      The following findings of fact are made from a preponderance of the evidence of record.

Findings of Fact

      1.      Grievant is regularly employed by Respondent in the multi-classification of Secretary II/Computer Operator/Accountant III.
      2.      Grievant first began regular employment on April 4, 1996, in a long-termleave of absence position acquired through posting. Grievant was continuously employed in leave of absence positions until she bid upon and received a regular position in August of 1997, in which position she has remained employed to the present time.
      3.      Susan Lynch is regularly employed by RCBOE as a Secretary III/Computer Operator/Accountant II.
      4.      Through the competitive bid process, Ms. Lynch began serving in a long-term leave of absence position beginning on September 25, 1995. The employee on leave of absence was Hilda McWilliams. This position was ultimately classified as Secretary III/Computer Operator.   (See footnote 1) 
      5.      Effective January 31, 1997, Ms. McWilliams resigned her employment with RCBOE. On March 3, 1997, Respondent posted Ms. McWilliams' position, and it was awarded to Ms. Lynch. Ms. Lynch also continued to serve in the position during the posting period and before it was filled by her on a permanent basis.
      6.      On March 25, 1997, several RCBOE employees filed a grievance, challenging the placement of Ms. Lynch in the Secretary III/Computer Operator position.
Their grievance was granted at level four in a decision entitled Sharp v. Randolph County Board of Education, Docket No. 97-42-300 (Jan. 8, 1998), which was ultimately affirmed by the Circuit Court of Randolph County on September 27, 1999.
      7.      Ms. Lynch served in the “McWilliams position” continuously from September25, 1995, until September 27, 1999, when she was removed from the position and returned to substitute status. Ms. Lynch was employed under a contract with RCBOE as a regular employee during that time period.
      8.      In the Sharp decision, the Grievance Board held that Ms. Lynch was not legally entitled to regular employee status once Ms. McWilliams resigned her position on January 31, 1997, and the position should have been filled on a temporary basis with a substitute while posted for permanent filling. Pursuant to that decision, If Ms. Lynch had not been allowed to continue to serve in the position after January 31, 1997, she would not have had regular employee status at the time she applied for it (the second time), and would not have been entitled to placement in the position.   (See footnote 2) 
      9.      Ms. Lynch was credited with regular seniority for the period of January 31, 1997, through September 27, 1999.
      10.      Grievant has less regular seniority than Ms. Lynch. Grievant would have more seniority than Ms. Lynch, if Ms. Lynch had not been credited with seniority for the time period after Ms. McWilliams' resignation.
Discussion

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her claims 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 correctly contends that, if not for the seniority credited to Ms. Lynch after January 31, 1997, she would have more seniority than Ms. Lynch. She argues that, per the administrative law judge's reasoning in Sharp, supra, Ms. Lynch's regular employee status ceased to exist on January 31, 1997, and, therefore, her contract of employment was illegal. Consequently, Grievant contends, Ms. Lunch did not “enter into her duties” under contract, at which time regular employees' seniority begins to accumulate, pursuant to the provisions of W. Va. Code §§ 18A-4-8b and 18A-4-8g.
      Respondent has argued that, per previous rulings of this Grievance Board, employees who are later determined to have been improperly placed in positions through board of education error may keep seniority and other benefits earned while serving in such positions. See Gibson v. Wyoming County Bd. of Educ., Docket No. 97-55-331 (Feb. 9, 1998). However, the West Virginia Supreme Court of Appeals has just recently issued an opinion which decisively determines the legal standard on this issue. Noting that seniority arises only from statutory mandate or from an employment contract, the Court held that “school service personnel must be awarded seniority earned for time served under a contract for a position later determined to have been incorrectly awarded to such employee.” After reviewing several statutes which provide that seniority is to be retained by school service employees under various circumstances, the Court reasoned that “because of its significance, 'earned' seniority cannot be removed from an employee in an arbitrary manner,” specifically the situation in which the employee was placed in a position erroneously. Hall v. Bd. of Educ. of the County of Mingo, W. Va. S. Ct. Nos. 27870 & 28396 (Dec. 1, 2000).
      Accordingly, pursuant to the Supreme Court's ruling in Hall, supra, the undersignedfinds that Respondent correctly credited Susan Lynch with regular employee seniority for the time period of January 31, 1997, through September 27, 1999.
Conclusions of Law

      1.       In a non-disciplinary case, Grievant has the burden of proving her claims 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.      “Seniority arises either from a statute or from a contract between an employer and an employee.” Syl. Pt. 3, Hall v. Bd. of Educ. of the County of Mingo, W. Va. S. Ct. Nos. 27870 & 28396 (Dec. 1, 2000).
      3.      “Seniority accumulation for a regular school service employee begins on the date the employee enters upon regular employment duties pursuant to a contract as provided in [18A-2-5], and continues until the employee's employment as a regular employee is severed by the county board.” W. Va. Code § 18A-4-8g(a).
      4.      “School service personnel must be given seniority earned for time served under a contract for a position later determined to have been incorrectly awarded to such employee.” Syl. Pt. 6, Hall, supra.
      5.      Respondent properly credited Susan Lynch with regular seniority for the time period from January 31, 1997, through September 27, 1999.

      Accordingly, this grievance is DENIED.
      Any party may appeal this Decision to the Circuit Court of Kanawha County or the Circuit Court of Randolph 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:      December 20, 2000                  _______________________________                                                 DENISE M. SPATAFORE
                                                Administrative Law Judge


Footnote: 1
      After Ms. Lynch began serving in the position, the employee who was on leave of absence, Hilda McWilliams, won a reclassification grievance which determined the proper classification titles for her position. Ms. Lynch was then credited with having served in the Secretary III/Computer Operator titles retroactive to the date she began employment, September 25, 1995. This portion of Ms. Lynch's seniority is not in dispute in this grievance.
Footnote: 2
      See Sharp, supra, for a detailed explanation of the legal reasoning which led to this conclusion, which is not relevant to the issues at hand in the current grievance.