JEANNE STRADER,
Grievant,
v. Docket No. 99-30-263
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent.
Grievant, Jeanne Strader, employed by the Monongalia County Board of Education
(MCBOE) as a bus operator, filed a level four grievance appeal on June 22, 1999, in which
she alleged violations of W. Va. Code §§18A-4-16 and 18A-4-8b, when she was not
selected for a number of extracurricular assignments. The grievance had previously been
denied at level one. A level two hearing was conducted on May 17, 1999; however, a
decision was not issued, and Grievant elected to bypass consideration at level three, as
is permitted by W. Va. Code §18-29-4(c). A level four hearing was conducted in the
Grievance Board's Morgantown office on August 12, 1999, at which time Grievant was
represented by John E. Roush, Esq., of the West Virginia School Service Personnel
Association, and MCBOE was represented by Kelly J. Kimble, Esq., of Kay Casto &
Chaney. The matter became mature for decision on September 20, 1999, the due date for
final post-hearing submissions.
Upon review of the level two transcript, testimony and exhibits offered at level four,
the following findings of fact are made.
Findings of Fact
1. Grievant was first employed by MCBOE as a bus operator since 1984, and
has held that classification at all times pertinent to this grievance. 2. On or around September 21,1998, MCBOE posted a number of
extracurricular (noontime) runs. The deadline to apply for the positions was October 2,
1998.
3. The extracurricular posting included runs in both the Morgantown and
Blacksville areas of the county.
4. Grievant applied for each of the assignments posted for the Morgantown
area.
5. At the time the aforementioned positions were posted, bus operators were
allowed to apply either at the bus garage or at the central office.
6. Position posting #659 was awarded to Sheila Hixenbaugh, an applicant with
less seniority than Grievant. Grievant was listed as an applicant for this position.
7. Position posting #660 included two positions which were awarded to
Elizabeth Panrell and Russell McElroy. Mr. McElroy has more seniority than Grievant, but
Ms. Panrell is less senior than Grievant. Neither Grievant nor Mr. McElroy were listed as
applicants for these positions.
8. Position posting #664 was awarded to Rodney Moore, who has less seniority
than Grievant. Grievant was not included on MCBOE's list of applicants for this position;
however, this run is considered to be in the Blacksville area.
9. Position posting #665 was awarded to Jack Dumire, who has more seniority
than Grievant. Grievant was included as an applicant for this position, but Mr. Dumire's
name was not on MCBOE's list. 10. Position posting #666 was never filled on a permanent basis, and the run
was completed by a substitute bus operator throughout the 1998-99 school year. Grievant
was not listed as an applicant for this position, but was more senior than any applicant with
the exception of Charlotte Travis, who was awarded another position.
11. Position posting #667 was awarded to Ms. Travis, who has more seniority
than Grievant. Grievant was listed as an applicant for this position.
12. Ms. Hixenbaugh, Ms. Panrell, and Mr. Moore, were appointed to positions
which they held the immediate preceding year. It is the practice of MCBOE to post all
extracurricular positions, and to award them to the individual who held the assignment the
prior year, regardless of seniority.
13. Grievant spoke with Transportation Supervisor Richard Gemas sometime in
October 1998, to inquire about her concerns regarding the positions.
14. A level one grievance was filed on January 21, 1999.
Discussion
MCBOE argues that because Grievant failed to file a grievance within the statutory
time frames, and therefore, her claim is now time-barred. Where the employer seeks to
have a grievance dismissed on the basis that it was not timely filed, the employer has the
burden of demonstrating such untimely filing by a preponderance of the evidence.
Wounaris v. Bd. of Directors/ W. Va. State College, Docket No. 99-BOD-033D (May 18,
1999);
Ooten v. Mingo County Bd. of Educ., Docket No. 96-29-122 (July 31, 1996),
Hale
v. Minto County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996). A preponderance
of the evidence is generally recognized as evidence of greater weight, or which is moreconvincing than the evidence which is offered in opposition to it.
Petry v. Kanawha County
Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).
Once the employer has demonstrated that a grievance has not been timely filed, the
employee has the burden of demonstrating a proper basis to excuse his failure to file in
a timely manner.
Kessler v. W. Va. Dept. of Transp., Docket No. 96-DOH-445 (July 29,
1997);
Higginbotham v. W. Va. Dept. of Public Safety, Docket No. 97-DPS-018 (Mar. 31,
1997);
Sayre v. Mason County Health Dept., Docket No.95-MCHD-435 (Dec. 29, 1995),
aff'd, Circuit Court of Mason county, No. 96-C-02 (June 17, 1996).
See Ball v. Kanawha
County Bd. of Educ., Docket No. 94-20-384 (Mar. 13, 1995);
Woods v. Fairmont State
College, Docket No. 93-BOD-157 (Jan. 31, 1994);
Jack v. W. Va. Div. of Human Serv.,
Docket No. 90-DHS-524 (May 14, 1991).
W. Va. Code §18-29-4(a)(1) provides that a grievance must be initiated within
fifteen days following the occurrence of the event upon which the grievance is based, or
within fifteen days of the date upon which the event became known to the grievant . . . .
MCBOE has established that the positions in question were posted on September 21,
1998, with a closing date of October 2, 1998.
W. Va. Code §18A-4-8b provides that
following the five day minimum posting period, vacancies shall be filled within twenty
working days from the posting date notice . . . . Grievant testified that she spoke with her
supervisor about the positions a number of times, demonstrating her knowledge of the
grievable event. Grievant took no further action for nearly three months when she filed
a level one complaint.
At level two, Grievant's counsel inquired:Roush: Why didn't you file a grievance in mid-October or
something like that, as soon as you found out the less senior
drivers got the job?
Strader: Well I went in and I ask, I ask, I ask, every week.
Why did they get runs? Why are they running the runs? Why
aren't they advertised? Well there is going to be more out.
Roush: You ask why the less senior drivers got, you are
talking about the six original positions?
Strader: Right.
Roush: And about the posting jobs, are you talking about the
pre-school job that Mr. Dilly is performing or ones that have
been posted subsequently?
Strader: Both. I ask why a substitutes [sic] were driving runs,
either I had put in for and didn't get or they were filled with less
senior drivers and I didn't get them. I was told that I was on
the list and then I ask subsequently are there any other runs
coming up and I'm told yes there is always new runs coming
up. The hope is always there I'll get a noon run. I waited and
was patient and waited and nothing was posted . It was never
posted. Then I put in for February and when one came up I
got I took.
Roush: So basically, the reason was you waited from October
to January you thought there would shortly be other runs put
up or that other runs posted would be filled with you?
Strader: Right. For fifteen years I've had a noon run. Now I
have faith I would have a noon run if not one of these although
I wasn't given a reason as how they were filled, (paper rattle)
that's what I was told. I had never filled a grievance out, had
never done this so I was afraid to do this.
Level II Transcript, p. 7.
Grievant does not allege that MCBOE acted in any way to induce her delay in filing
the grievance. She does not indicate that any promises or representations of a remedialnature were made, other than more positions would be posted in the future, and that she
was on the list for an assignment. Grievant establishes by her own testimony that the
delay was due to her fear of filing a grievance, although she does not allege that the fear
was based upon actual or even implied threats, by MCBOE. Her testimony shows that she
was reluctant to file a grievance, and was patient in waiting for future positions to be
posted. These reasons do not constitute a proper basis to excuse her failure to file in a
timely manner.
In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following formal conclusions of law.
Conclusions of Law
1. Where the employer seeks to have a grievance dismissed on the basis that
it was not timely filed, the employer has the burden of demonstrating such untimely filing
by a preponderance of the evidence.
Wounaris v. Bd. of Directors/ W. Va. State College,
Docket No. 99-BOD-033D (May 18, 1999);
Ooten v. Mingo County Bd. of Educ., Docket
No. 96-29-122 (July 31, 1996),
Hale v. Minto County Bd. of Educ., Docket No. 95-29-315
(Jan. 25, 1996).
2. Once the employer has demonstrated that a grievance has not been timely
filed, the employee has the burden of demonstrating a proper basis to excuse his failure
to file in a timely manner.
Kessler v. W. Va. Dept. of Transp., Docket No. 96-DOH-445
(July 29, 1997);
Higginbotham v. W. Va. Dept. of Public Safety, Docket No. 97-DPS-018
(Mar. 31, 1997);
Sayre v. Mason County Health Dept., Docket No.95-MCHD-435 (Dec. 29,
1995),
aff'd, Circuit Court of Mason county, No. 96-C-02 (June 17, 1996).
See Ball v.Kanawha County Bd. of Educ., Docket No. 94-20-384 (Mar. 13, 1995);
Woods v. Fairmont
State College, Docket No. 93-BOD-157 (Jan. 31, 1994);
Jack v. W. Va. Div. of Human
Serv., Docket No. 90-DHS-524 (May 14, 1991).
3.
W. Va. Code §18-29-4(a)(1) provides that a grievance must be initiated
within fifteen days following the occurrence of the event upon which the grievance is
based, or within fifteen days of the date upon which the event became known to the
grievant . . . .
4. MCBOE established that a level one grievance was not filed within the time
frames set forth in
W. Va. Code §18-29-4(a)(1).
5. Grievant has failed to demonstrate a proper basis for the failure to file a
grievance in a timely manner.
Accordingly, the grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Monongalia 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.
Date: January 31, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE