ROBERT WAYBRIGHT,

      Grievant,

v.                                                      Docket No. 00-51-072

WEBSTER COUNTY BOARD
OF EDUCATION,

      Respondent.

DECISION

      Robert Waybright (“Grievant”) initiated two separate grievances on October 18, 1999. Grievant is seeking full day wages for part-time summer positions he held in the summers of 1997 and 1999. Second, he challenges the posting of two aide positions, and seeks as relief to have the positions reposted as autism mentor positions. The grievances were denied at level one on October 19, 1999. Level two hearings were held on November 15, 1999, followed by denials of the grievances.   (See footnote 1)  Level three consideration was waived, and Grievant jointly appealed both grievances to level four on February 24, 2000. After several continuances granted for good cause shown, a level four hearing was held before the undersigned in the Grievance Board's office in Elkins, West Virginia, on September 27, 2000. Grievant was represented by counsel, John E. Roush, and Respondent was represented by counsel, Basil R. Legg, Jr. This matter became mature for consideration upon receipt of the parties' fact/law proposals on November 14, 2000.
      The following findings of fact are made from a preponderance of the evidence ofrecord.

Findings of Fact

      1.      Grievant has been employed by Respondent since 1985 as a classroom aide. Grievant also holds the classification of Autism Mentor, having been certified and serving in that classification in recent years.   (See footnote 2) 
      2.      Grievant served in an aide position during summer school sessions in 1997, 1998, and 1999. Grievant worked two days per week, approximately four hours per day. In 1997 and 1998, he was paid an hourly wage for the exact time he worked, based upon his normal salary.   (See footnote 3) 
      3.      On July 29, 1999, Respondent posted two vacancies for full-time aides, one at Webster Springs Elementary School and the other at Glade Elementary School. The posting did not describe the positions in detail, nor did it mention the type of children the aides would be assisting. Both positions entailed assisting an autistic child.
      4.      Grievant did not apply for either of the posted aide positions.
      5.      Charlene Bicknell received the position at Webster Springs Elementary School. Although she works with an autistic child, Ms. Bicknell is classified and paid as an aide, not as an Autism Mentor. She is not certified as an Autism Mentor.
      6.      Donna Davis received the position at Glade Elementary School and also is assigned to an autistic child. Prior to being placed in this position, Ms. Davis was certifiedas an Autism Mentor, but had not worked in that job classification. Since she began working in the position at Glade Elementary School, Ms. Davis has been classified and compensated as an Autism Mentor.
      7.      Grievant received his final paycheck for the 1999 summer session on August 31, 1999. He knew throughout his summer employment in 1997, 1998, and 1999 that he was being paid an hourly wage, rather than full day pay.
      8.      Grievant was absent from work for medical reasons on September 2 and 3, 1999. He was also absent the entire week of September 13 through 17, 1999, because of the death of his father.
      9.      Grievant knew that both Ms. Bicknell and Ms. Davis would be working with autistic children prior to the beginning of the 1999-2000 school year. He did not became aware that Ms. Davis was being compensated and classified as an Autism Mentor until September 7, 1999, when he received a copy of the county seniority list.
      10.      Grievant testified that he requested and received an informal conference on both of these grievances when he returned to work on September 20, 1999.
      11.      Grievant received a response from his supervisor on both grievances on October 18, 1999, and he filed his written level one grievances on that day.
Discussion

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his 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 CountyBd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988). See W. Va. Code § 18-29-6. Respondent contends that neither of these grievances was initiated within the time limits specified in W. Va. Code § 18-29-4(a) which states in pertinent part:



      A timeliness defense is an affirmative defense which the employer must establish by a preponderance of the evidence. Lowry v. W. Va. Dep't of Educ., Docket No. 96-DOE-130 (Dec. 26, 1996); Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996). The time period for filing a grievance ordinarily begins to run when the employee is unequivocally notified of the decision being challenged. Kessler v. W. Va. Dep't of Transp., Docket No. 96-DOH-445 (July 28, 1997). See Rose v. Raleigh County Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566 (1997).
      In the instant case, Grievant contends that both claims were timely filed. First, regarding his “summer pay” grievance, Grievant argues that he initiated it within fifteen working days of the last occurrence of this “continuing practice,” i.e. the receipt of his paycheck on August 31, 1999. Grievant also notes that the time limits set forth in theabove statute are specifically extended when an employee is absent due to “accident, sickness, [or] death in the immediately family.” W. Va. Code §§ 18-29-3(a), 18A-4-10.
      This Grievance Board has consistently recognized that, in accordance with Martin v. Randolph County Board of Education, 195 W. Va. 297, 465 S.E.2d 399 (1995), salary disputes alleging pay disparity are continuing violations, which may be grieved within fifteen days of the most recent occurrence, i.e. the issuance of a paycheck. See Haddox v. Mason County Bd. of Educ., Docket No. 98-26-283 (Nov. 30, 1998); Casto v. Kanawha County Bd. of Educ., Docket No. 95-20-567 (May 30, 1996). Grievant initiated this claim within six working days of receipt of his paycheck on August 31, 1999, so it is timely.
      As to the grievance regarding the two aide positions, Respondent contends that Grievant was required to file this grievance as soon as he became aware that both positions involved working with autistic children, which occurred in August of 1999. However, Grievant did not discover that the position awarded to Ms. Davis actually became an Autism Mentor position until September 7, 1999. Once again, this grievance was filed within the statutory time limit, excluding the days Grievant was not working due to death and illness. Both grievances are timely filed. The merits of each grievance will be discussed separately.
Summer Pay
      Grievant argues that, although he only worked approximately four hours per day in his summer position, he is entitled to full day wages. He based this contention upon a portion of W. Va. Code §18A-4-8a which provides that "the minimum monthly pay for each employee whose employment is for a period of three and one-half hours a day shall be atleast the amounts indicated in the 'state minimum pay scale grade[.]'" In turn, W. Va. Code § 18-5-39 provides that “[t]he salary of a summer employee shall be in accordance with the salary schedule of [regular employees]. . . and persons employed in those positions are entitled to all rights, privileges and benefits provided in . . . [§18A-4-8a].” Accordingly, Grievant believes that these provisions intend to provide part-time summer employees who work more than 3½ hours with full day pay.
      The exact argument Grievant is presenting in this case was addressed in this Grievance Board's decision in McMillen/Colvin v. Hancock County Bd. of Educ., Docket Nos. 93-15-366/467 (May 20, 1994). As stated in that decision, the portion of W. Va. Code § 18A-4-8a relied upon does not support Grievant's position, because it merely indicates that “a determination of full-time or part-time employment for salary purposes pertains to the term of a service employee's contracted regular employment, not summer school employment.” Accordingly, Grievant cannot be granted full day wages for half day work pursuant to the statutes cited.
Aide Positions
      As a preliminary matter, Respondent contends that Grievant does not have standing to contest the filling of these positions, because he did not apply for either position. However, as Grievant has pointed out, he did not apply because they were posted as regular aide positions, for which he would not have received any increase in salary. If they had been posted as Autism Mentor positions, which command a higher rate of pay, he would have been more likely to apply. If a position is wrongly posted, a grievant who did not apply does indeed have standing, because he has suffered harm by being denied theopportunity of being considered for the position. Taylor-Hurley v. Mingo County Bd. of Educ., Docket No. 96-29-265 (Apr. 28, 1997).
      Respondent argues that, although both of these positions required an aide to work with an autistic child, it was not required to use an Autism Mentor in either position, unless required by the child's IEP (and it was not for these children). “Autism Mentor” is defined by W. Va. Code § 18A-4-8 as “personnel who work with autistic students and who meet standards and experience to be determined by the state board[.]” Respondent is correct in its statement that a regular classroom aide could be assigned to work with an autistic child, if no particular expertise is required for working with that child. Therefore, as to the position ultimately awarded to Ms. Bicknell, Grievant has failed to establish that it was improperly posted as an aide position.
      However, the fact remains that Ms. Davis' position, although posted as an aide position, became an Autism Mentor position when she was placed in it. Respondent's argument that the position was only “upgraded” because of Ms. Davis' certification does not excuse its failure to properly post the position. W. Va. Code §18A-4-8 places a burden on county boards of education to see that the duties of a particular service position coincide with the classification and paygrade to which it is assigned. Robinson v. Nicholas County Bd. of Educ., Docket No. 93-34-197 (Mar. 25, 1994). Simply stated, the statute requires the board to call the position what it is. Gosnell v. Raleigh County Bd. of Educ., Docket No. 94-41-112 (Apr. 21, 1995). As was held in Taylor, supra, when a board of education posts a vacant position, it must call the position “what it is” pursuant to the required duties of that position. Obviously, Respondent would not have changed Ms.Davis' classification and pay grade at the beginning of the 1999-2000 school year unless this action was necessitated by the duties of her new position. Accordingly, as Grievant has requested, her position must be reposted as an Autism Mentor position, so that all properly qualified applicants may have the opportunity to apply.
      Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law

      1.      In a non-disciplinary matter, Grievant has the burden of proving his 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.      An employee must initiate a grievance within fifteen days of the occurrence of the event grieved, or within fifteen days of the discovery of that event or the most recent occurrence of a continuing practice. W. Va. Code § 18-29-4(a).
      3.      A timeliness defense is an affirmative defense which the employer must establish by a preponderance of the evidence. Lowry v. W. Va. Dep't of Educ., Docket No. 96-DOE-130 (Dec. 26, 1996); Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996).
      4.       The time limits set forth in W. Va. Code § 18-29-4(a) are specifically extended when an employee is absent due to “accident, sickness, [or] death in the immediately family.” W. Va. Code §§ 18-29-3(a), 18A-4-10.
      5.      Grievant initiated both of the instant claims within the statutory time period.      6.      A determination of full-time or part-time employment for salary purposes pursuant to W. Va. Code § 18A-4-8a pertains to the term of a service employee's contracted regular employment, not summer school employment. McMillen/Colvin v. Hancock County Bd. of Educ., Docket Nos. 93-15-366/467 (May 20, 1994).
      7.      Grievant is not entitled to full day wages for his summer employment in 1997 and 1999.
      8.       If a position is wrongly posted, a grievant who did not apply has standing, because he has suffered harm by being denied the opportunity of being considered for the position. Taylor-Hurley v. Mingo County Bd. of Educ., Docket No. 96-29-265 (Apr. 28, 1997).
      9.      W. Va. Code §18A-4-8 places a burden on county boards of education to see that the duties of a particular service position coincide with the classification and paygrade to which it is assigned. Robinson v. Nicholas County Bd. of Educ., Docket No. 93-34-197 (Mar. 25, 1994). Simply stated, the statute requires the board to call the position what it is. Gosnell v. Raleigh County Bd. of Educ., Docket No. 94-41-112 (Apr. 21, 1995).
      10.      Grievant has proven by a preponderance of the evidence that the aide position awarded to Donna Davis should have been posted as an Autism Mentor position.

      Accordingly, this grievance is GRANTED, IN PART, and DENIED, IN PART. Respondent is hereby ORDERED to repost the subject position as an Autism Mentor position. Should it be determined that Grievant would have been the successful applicantfor the Autism Mentor position, he shall be compensated for any back pay and benefits, plus interest, he would have received if originally placed in the position.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or the Circuit Court of Webster 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:      November 22, 2000                   _______________________________                                                 DENISE M. SPATAFORE
                                                Administrative Law Judge


Footnote: 1
      The record contains only a level two decision regarding the two aide positions. However, there appears to be an agreement between the parties that both grievances were denied at that level.
Footnote: 2
      The record does not reflect the exact date upon which Grievant began serving as an Autism Mentor.
Footnote: 3
      For unexplained reasons, Grievant received full day pay although he only worked half days in the summer of 1998.