VIOLET NAPIER,
Grievant,
v.
DOCKET NO. 00-29-086
MINGO COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Violet Napier, filed this grievance against her employer, the Mingo County
Board of Education (Board), on or about December 7, 1999:
Grievant, a regularly employed transportation/classroom aide, grieves
two alterations in her daily work schedule which has increased the amount
of time that she works for the Respondent. Grievant alleges a violation of
West Virginia Code §§ 18A-4-8a and 18-20-1c.
Relief sought: Grievant seeks the restoration of her former work schedule
and compensation for the additional time expended in the performance of
these duties at her daily rate of pay. Grievant seeks interest on all sums of
money to which she is entitled.
The grievance was denied at level one on December 14, 1999, by Grievant's
Principal, B. Thomas Slone. A level two hearing was held on February 10, 2000, and a
decision denying the grievance was issued by W. C. Totten, the Superintendent's
designee, on February 22, 2000. Grievant by-passed level three and appealed to levelfour on March 3, 2000. A level four hearing was held on May 8, 2000, before
(See footnote 1)
Administrative Law Judge Lewis Brewer, and this matter became mature for decision on
June 30, 2000, the deadline for the parties' proposed findings of fact and conclusions of
law. Grievant was represented by John E. Roush, Esq., West Virginia School Service
Personnel Association. The Board was represented at level two by David Temple, and at
level four by Hannah B. Curry, Esq., Kay, Casto and Chaney.
SUMMARY OF EVIDENCE
LII and LIV Grievant Exhibits
None.
LII Board Exhibits
Ex. 1 -
December 14, 1999 letter from Bill Kirk, Transportation Director to Violet
Napier.
Ex. 2 -
November 4, 1999 memorandum from Karen Browning, Special Education
Director and Bill Kirk, Transportation Director, to Tom Slone, Jada Hunter,
Violet Napier, and Carolyn Dempsey re: Schedules and Assignments.
LIV Board Exhibits
Ex. A -
September 10, 1997 letter from Violet Napier to John Fullen.
Ex. B -
August 22, 1997 acknowledgment by Violet Napier, with attached Special
Education Aide/Special Education Departmental Aide Job Description.
Ex. C -
Mingo County Public Schools Special Education Aide Policy, November 3,
1993.
Ex. D -
Agenda and Board Minutes of Regular Meeting of the Board, October 2,
1997.
Ex. E -
September 9, 1997 Posting No. 4, Service Personnel Positions.
Ex. F -
Special Education Aides Inservice Agenda, October 15, 1999, with attached
sign-in sheet; staff development registration and evaluation form.
Testimony
Grievant testified in her own behalf, and presented the testimony of Rose Anna
Martin. The Board presented the testimony of Bill Kirk, Karen Browning, and David
Temple.
FINDINGS OF FACT
I find, by a preponderance of the evidence, the following facts.
1. Grievant is employed by the Board as a Special Education Aide at Burch
Middle School.
2. The Board hires special education aides as itinerant aides due to the
challenging and constantly changing needs of the special education student population.
Schedules are modified only as the needs of students mandate a modification in
assignment or schedule.
3. Jobs are posted for the school in which a special education aide will perform
his/her classroom duties and include notice of the additional responsibility of riding a bus
as needed. Such job postings do not identify a particular student or students who will be
served while riding a bus. Aides are assigned to a driver and bus at the beginning of the
school term and assist through the duration of a school year, when the need arises.
4. At the beginning of the 1999-2000 school year, Transportation Director Bill
Kirk and Special Education Director Karen Browning conducted an inservice training for
special education aides and reminded them of the possibility of modifications in their
existing job assignments and responsibilities due to the constantly changing needs and
requirements of the special education student population. LIV Board Ex. F. 5. At the beginning of the 1999-2000 school year, Mr. Kirk assigned Grievant
to Bus Route 9607. Bus 9607 transported students to Burch High School and Burch
Middle School. At that time, another special education aide, Carolyn Dempsey, was also
assigned to Bus 9607. Ms. Dempsey's school assignment was Burch High School.
6. In the morning, Bus 9607 dropped students off first at Burch High School, and
then proceeded to Burch Middle School. Therefore, Ms. Dempsey would depart the bus
at Burch High School.
7. Originally, Mr. Kirk envisioned Grievant boarding the bus at Taylorville, the
first stop along the Bus 9607 route for a special education student. However, as Ms.
Dempsey was also riding the same bus, and would be on the bus at Taylorville, Mr. Kirk
decided Grievant could board the bus at Burch High School, when Ms. Dempsey departed
the bus.
8. Therefore, Grievant's schedule, at the beginning of the 1999-2000 school
year, required her to meet bus 9607 at Burch High School at approximately 7:20 a.m., to
provide services to a student on the bus from the high school to the middle school. That
trip takes approximately five (5) minutes. Once at the middle school, Grievant performed
classroom duties until 2:45 p.m. At that point she reboarded the bus for the five (5) minute
trip back to the high school. Her daily duties concluded there at 2:50 p.m.
9. In October 1999, the Board received notification by the Mingo County Circuit
Court that two students in the Williamson area would be transported to Burch Middle
School and Burch High School by the Mingo County transportation system, which caused
a shift in the schedules of three special education aides. This was cooperatively workedout among those involved, with overtime compensation offered to those working beyond
an eight-hour day. A written memorandum dated November 4, 1999, was mailed to all the
aides affected by the bus schedule realignment, including Grievant, informing them of the
final modifications.
9. Ms. Dempsey was removed from Bus 9607 and assigned to another bus as
a result of these modifications. Mr. Kirk then instructed Grievant she would be resuming
her original bus route and boarding at Taylorville.
10. Taylorville is less than ½ mile away from Burch High School. Grievant arrived
at Taylorville at 7:10 a.m. to board the bus. In the evening, Grievant was deposited at
Taylorville at 2:55 p.m.
11. In December 1999, another special education student began riding Bus 9607.
Mr. Kirk advised Grievant she would need to make arrangements to meet the new student
in Music, in order to assist him in boarding the bus. Grievant made arrangements to drive
to Hannah Lumber and boarded the bus at 6:40 a.m. Grievant made the return trip in the
afternoon, deboarding the bus at 3:10 p.m.
12. Grievant complained about her extended day, and had a meeting in early
December with Mr. Kirk, Ms. Browning, David Temple, Administrative Assistant, and
Patricia Grubb, President of the Mingo County School Service Personnel Association.
Grievant did not want any overtime or changes in her work schedule. As a result of that
meeting, Mr. Kirk was instructed by Mr. Temple to work the schedule in a manner that
would not necessitate overtime for Grievant. 13. Mr. Kirk made adjustments within the existing bus schedule to accomplish
this request. Subsequently, Grievant was instructed to meet the bus at the special
education student's home instead of at Hannah Lumber. This allowed Grievant to board
the bus with the student at 7:05 a.m. Grievant returned to the student's home in the
afternoon at 3:10.
DISCUSSION
Grievant has the burden of proving each element of 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.
Grievant claims the Board violated
W. Va. Code §§ 18A-4-8a and 18-20-1c when
it made changes to her original work schedule without her consent.
The Board denies it
has violated any
Code provisions, or that its actions in adjusting the special education
aides' bus schedules was arbitrary or capricious.
W. Va. Code § 18A-4-8a(7) provides:
No service employee shall have his or her daily work schedule changed
during the school year without such employee's written consent, and such
employee's required daily work hours shall not be changed to prevent the
payment of time and one-half wages or the employment of another
employee.
This issue has already been determined by the Grievance Board in
Sipple v. Mingo
County Bd. of Educ., Docket No. 95-29-487 (Mar. 27, 1996).
Sipple involved a change to
the schedule of a special education aide required to assist special education students onschool-provided transportation. The aide maintained the school board violated
W. Va.
Code § 18A-4-8a after it relieved her of bus duties for four days and then reassigned her
to a different bus route as a result of a change in the special education student population
for which she was responsible. The Administrative Law Judge held in
Sipple that:
Notwithstanding the language in W. Va. Code § 18A-4-8a, restricting
changes in a service employee's daily work schedule, a county board of
education must have the freedom to make reasonable changes to a service
employee's daily work schedule within the parameters of her contract, some
of which cannot reasonably be effected until shortly after school starts.
Id. (citations omitted). The Grievance Board concluded the school board's modifications
to the aide's transportation duties and schedule were not arbitrary or capricious or
schedule changes contemplated by the West Virginia Legislature under
W. Va. Code §
18A-4-8a, because they were made in response to the changing needs of the student
population and within the parameters of the aide's contract.
This Grievance Board adheres to the doctrine of
stare decisis
(See footnote 2)
in adjudicating
grievances that come before it.
Chafin v. W. Va. Dep't of Health & Human Res., Docket
No. 92-HHR-132 (July 24, 1992), citing
Dailey v. Bechtel Corp., 157 W. Va. 1023, 207
S.E.2d 169 (1974).
See also Belcher v. W. Va. Dep't of Transp./Div. of Highways, Docket
No. 94-DOH-341 (Apr. 27, 1995). This adherence is founded upon a determination that
the employees and employers whose relationships are decided by this Board are bestguided in their actions by a system that provides for predictability, while retaining the
discretion necessary to effectuate the purposes of the statutes applied. Consistent with
this approach, this Grievance Board follows precedents established by the Supreme Court
of Appeals of West Virginia as the law of this jurisdiction. Likewise, prior decisions of this
Grievance Board are followed unless a reasoned determination is made that the prior
decision was clearly in error.
The facts in the instant case are nearly identical to those of
Sipple, and the issue
of law is the same. Having been presented with no evidence or argument which would
persuade me that the Administrative Law Judge's decision in
Sipple was clearly wrong or
contrary to law, I find that
Sipple is good law and applicable to the case at hand.
Consequently, Grievant's claim that the Board has violated
W. Va. Code § 18A-4-8a(7) by
changing her bus schedule is governed by
Sipple and must fail.
Grievant also claims the Board violated
W. Va. Code § 18-20-1c, which provides
that, aides in the area of special education cannot be reassigned to more than one school
without the employee's consent. Grievant argues that, since she has responsibility on Bus
9607 for both high school and middle school students, she has, in effect, been assigned
to two schools at one time without her consent. Grievant's argument is creative, but fails.
This Grievance Board has indicated the language of
Code § 18-20-1c, while not clear,
seems to mean a special education aide cannot be assigned after the start of the school
year to two or more schools at a time.
See Conrad v. Nicholas County Bd. of Educ.,
Docket No. 97-34-388 (Jan. 12, 1998). The language of
Code § 18-20-1c speaks toassignment at a
school. Grievant's classroom assignment is at one school, Burch Middle
School.
CONCLUSIONS OF LAW
1. Grievant has the burden of proving each element of 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. County boards of education have broad discretion in personnel matters,
including making job assignments and transfers, but must exercise that discretion in a
manner which is not arbitrary or capricious.
Dillon v. Wyoming County Bd. of Educ., 351
S.E.2d 58 (W. Va. 1986);
Conrad v. Nicholas County Bd. of Educ., Docket No. 97-34-388
(Jan. 12, 1998);
Mullins v. Logan County Bd. of Educ., Docket No. 94-23-283 (Sept. 25,
1995);
Dodson v. McDowell County Bd. of Educ., Docket No. 93-33-243 (Feb. 15, 1994).
3. Grievances contending an employee's schedule has been changed in
violation of
W. Va. Code § 18A-4-8a, which limits changes in a school service employees'
daily work schedule during the school year to those which are consented to in writing by
the employee, must be decided on a case-by-case, fact-specific basis.
Sipple v. Mingo
County Bd. of Educ., Docket No. 95-29-487 (Mar. 27, 1996).
See Conner v. Barbour
County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995);
Roberts v. Lincoln
County Bd. of Educ., Docket No. 92-22-131 (Aug. 31, 1992). 4. Courts may venture beyond the plain meaning of a statute in those instances
where a literal application would produce an absurd result.
State ex rel. Frazier v.
Meadows, 193 W. Va. 20, 454 S.E.2d 65 (1994). A strict, literal intrepretation of
W. Va.
Code § 18A-4-8a would preclude a school board from ever changing a service employee's
schedule, even slightly, as one school year technically ends on June 30 and a new school
year begins each July 1.
Sipple,
supra;
Froats v. Hancock County Bd. of Educ., Docket
No. 89-15-414 (Dec. 18, 1989). Such a literal result would produce an absurd result,
inconsistent with the apparent legislative intent of protecting school service employees
from involuntary changes in their shift assignments.
Sipple,
supra.
5. Like bus operators, aides who assist special education students commuting
to and from school on school-provided transportation, are assigned duties of an itinerant
nature.
Sipple,
supra.
6. Notwithstanding the language in
W. Va. Code § 18A-4-8a, restricting changes
in a service employee's daily work schedule, a county board of education must have
freedom to make reasonable changes to a service employee's daily work schedule, within
the parameters of her contract, some of which cannot reasonably be effected until shortly
after school starts.
Sipple,
supra.
See Conner,
supra;
Froats;
supra.
Accord,
Conner v.
Barbour County Bd. of Educ., Docket No. 94-01-1100 (Aug. 2, 1995).
7. Grievant failed to prove by a preponderance of the evidence that the Board
abused its discretion, acted in an arbitrary and capricious manner, or violated
W. Va. Code
§ 18A-4-8a or Board policy when it made reasonable modifications to her bus schedule asan aide assigned to assist special education students commuting on school-provided
transportation mandated by the changing needs of the student population.
8.
W. Va. Code § 18-20-1c states than an aide cannot be assigned after the
start of the school year to two or more schools at a time.
See Conrad v. Nicholas County
Bd. of Educ., Docket No. 97-34-388 (Jan. 12, 1998). Grievant presented no evidence that
she was or will be assigned to more than one school at a time.
Accordingly, this Grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of the Mingo 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.
___________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: July 13, 2000
Footnote: 1