KATHY PORTER,

                        Grievant,

v.                                                       Docket No. 00-22-010

LINCOLN COUNTY BOARD OF EDUCATION,

                        Respondent.

D E C I S I O N

      On September 20, 1999, Kathy Porter (Grievant) initiated this grievance pursuant to W. Va. Code §§ 18-29-1, et seq., alleging that Respondent Lincoln County Board of Education (LCBE) had violated W. Va. Code §§ 18A-4-8b and 18A-4-8g by awarding a posted service personnel position to an employee with less seniority. After the grievance was denied at Level I, Grievant appealed to Level II, where an evidentiary hearing was conducted by the Superintendent's designee, Charles McCann, on October 11, and November 16, 1999. Mr. McCann issued a Level II decision denying the grievance on December 27, 1999. Grievant appealed to Level IV on January 10, 2000, by-passing Level III, as authorized by W. Va. Code § 18-29-4(c). On March 27, 2000, a Level IV hearing was conducted in this Grievance Board's office in Charleston, West Virginia.   (See footnote 1)  At theconclusion of that hearing, the parties agreed on a briefing schedule, and this matter became mature for decision on April 21, 2000, following receipt of the parties' written post- hearing arguments.
      The facts in this matter were essentially undisputed. Based upon a preponderance of the credible evidence contained in the record established at Levels II and IV, the following Findings of Fact pertinent to resolution of this grievance have been determined.
FINDINGS OF FACT
      1.      Grievant is employed by Respondent Lincoln County Board of Education (LCBE) as a substitute Custodian, a school service personnel classification.
      2.      Grievant has been employed by LCBE as a substitute Custodian since the 1993-94 school year. G Ex 3 at L II.
      3.      Grievant was selected by LCBE to fill a posted vacancy for a “temporary” Custodian III at its McCorkle Kindergarten Center during the 1997-98 school year. After accumulating 161 days of regular seniority in this position, Grievant was awarded preferred recall status through the reduction-in-force notification process.
      4.      Prior to the beginning of the 1999-2000 school year, Betty Pitts was hired to fill a posted Custodian vacancy at Griffithsville Elementary School. Grievant did not apply for this position.
      5.      In early September 1999, LCBE posted a vacancy for a Custodian position at Pleasant View Elementary School.
      6.      Grievant and Ms. Pitts applied for the posted vacancy at Pleasant View. At the time of the posting, Grievant held greater regular and substitute seniority than Ms. Pitts. However, Ms. Pitts was in a regular service personnel position, and Grievant was on LCBE's preferred recall list, simultaneously remaining on LCBE's list of available substitutes.
      7.      LCBE awarded the Pleasant View position to Ms. Pitts because she was the most senior regular employee that applied.      
DISCUSSION
      As this grievance does not involve a disciplinary matter, 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.
      The following portions of W. Va. Code § 18A-4-8b are pertinent to this grievance:






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      In addition, the following pertinent portions of W. Va. Code § 18A-4-8g are applicable to this grievance:


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      Under the foregoing language in W. Va. Code §§ 18A-4-8b and 18A-4-8g, regular school service personnel employees receive preference in filling vacant positions over employees holding some lesser status, including preferred recall rights. Hlebiczki v. Ohio County Bd. of Educ., Docket No. 97-35-037 (Sept. 30, 1997); Messer v. Mingo County Bd.of Educ., Docket No. 93-29-479 (Aug. 1, 1994), aff'd, Civil Action No. 94-C-238 (Cir. Ct. of Mingo County Jan. 21, 1997). See Dorsey v. Nicholas County Bd. of Educ., Docket No. 34-87-041-4 (May 28, 1987), aff'd, Civil Action No. 87-C-275 (Cir. Ct. of Nicholas County Aug. 29, 1989). When Grievant and Ms. Pitts applied for the Custodian position at issue, Ms. Pitts held a regular Custodian position while Grievant was a Custodian on LCBE's preferred recall list. In these circumstances, notwithstanding that Grievant had greater regular and substitute seniority than Ms. Pitts, the plain language of the statutes governing employment of school service personnel required LCBE to select Ms. Pitts ahead of Grievant, because Ms. Pitts was in a category of employment entitling her to a hiring preference over employees on preferred recall. Hlebiczki, supra; Messer, supra. Accord, Meadows v. Logan County Bd. of Educ., Docket No. 98-23-112 (June 16, 1998); Harrison v. Logan County Bd. of Educ., Docket No. 95-23-459 (May 31, 1996).
      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
      
CONCLUSIONS OF LAW

      1.      As this grievance does not involve a disciplinary matter, 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.      Pursuant to W. Va. Code § 18A-4-8b, a county board of education shall make decisions to fill service personnel positions on the basis of seniority, qualifications, and evaluation of past service. Dorsey v. Nicholas County Bd. of Educ., Docket No. 34-87-041- 4 (May 28, 1987).
      3.      W. Va. Code § 18A-4-8b requires county boards of education to consider applicants for vacant school service personnel positions in order of priority with regularly employed service personnel receiving preference over service personnel who have been awarded preferred recall status as a result of their employment being discontinued. Harrison v. Logan County Bd. of Educ., Docket No. 95-23-459 (May 31, 1996); Messer v. Mingo County Bd. of Educ., Docket No. 93-29-479 (Aug. 1, 1994). See Dorsey, supra.
      4.      Grievant failed to establish by a preponderance of the evidence that Respondent Lincoln County Board of Education violated W. Va. Code §§ 18A-4-8b, or 18A-4-8g, or any other statute, policy, rule, regulation, or written agreement, when it failed to select her for a posted vacancy for a Custodian at Pleasant View Elementary School.       
      Accordingly, this grievance is DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Lincoln 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.

                                                                                                  LEWIS G. BREWER
                                                ADMINISTRATIVE LAW JUDGE

Dated: May 30, 2000


Footnote: 1
      Grievant was represented by Anita Mitter with the West Virginia Education Association. Respondent was represented by counsel, James W. Gabehart.