PATTI PAUGH,
Grievant,
v.
DOCKET NO. 00-06-254
CABELL COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Patti Paugh, filed this grievance against her employer, the Cabell County
Board of Education (Board) on or about May 4, 2000, alleging:
Violations of WV Code 18A-2-7 with regard to grievant's transfer due to
realignment of staff in the transportation department. There was no reason
to justify her transfer.
Relief sought: Relief sought is to be reinstated to her position held during the
1999-2000 school term.
The grievance was waived at level one, and a level two hearing was held on June 26,
2000. The grievance was denied Linda Curtis, Superintendent's Designee, by decision
dated July 24, 2000, and Grievant timely appealed to level four. A level four hearing was
held on September 21, 2000, at which time this case became mature for decision.
Grievant was represented by Susan E. Hubbard, West Virginia Education Association, and
the Board was represented by Howard E. Seufer, Jr., Esq., Bowles, Rice, McDavid, Gaff
& Love.
SUMMARY OF EVIDENCE
L.I. Joint Exhibits
Ex. 1 -
Grievance forms and correspondence.
Ex. 2 -
Transcript of transfer hearing before the Board, dated May 1, 2000, with
exhibits.
Ex. 3 -
May 2, 2000 letter from David L. Roach to Grievant.
Testimony
Grievant testified in her own behalf, and presented the testimony of Sandra Rupert
and Regina Atkins.
FINDINGS OF FACT
I find, by a preponderance of the evidence, the following facts, which have been
derived from the entire record of this proceeding.
1. Grievant is a transportation bus aide employed by the Board to serve the
needs of its special education students.
2. Prior to the 1999-2000 school year, the transportation aides would meet
shortly before school started in the Fall, and decide upon assignments. They did this
because of the continuous changes in the Individual Education Plan (IEP's) of the students
they served. Assignments were made based upon seniority.
3. In the Spring of 2000, the Board eliminated a number of professional and
service employee positions as part of a reduction in force.
4. As part of the reductions, school officials decided to reduce the number of
special education bus runs from 15 to 14. Because each special education bus is staffed
by a bus operator and an aide, the elimination of one special education bus run would
eliminate two service personnel positions. The remaining special education runs wouldthen be adjusted, as necessary, to meet the needs of the Board's special education
students in the 2000-2001 school year. Based upon past experience, the Board expected
the route adjustment to be minimal.
5. It was not difficult for the Board to decide which bus operator position would
be reduced. Shortly before it came time to send transfer and RIF termination letters to
employees in early 2000, one of the special education bus operators, Dale Barnett,
successfully bid upon a posted job as bus operator for a regular bus run. Rather than post
Mr. Barnett's vacated special education bus run as a permanent position, the Board posted
it as a temporary position, to expire at the end of the 1999-2000 school year. It was
understood that when that assignment expired at the end of the school year, it would not
be posted or re-filled. Instead, it would be eliminated, thereby reducing the number of
special education bus operators from 15 to 14.
6. In then deciding which of the transportation aide positions to eliminate, school
officials decided that, because Dale Barnett's position as bus operator would not exist in
the 2000-2001 school year, it made sense to eliminate the position of the transportation
aide assigned to the bus run which Mr. Barnett drove in 1999-2000. This would completely
accomplish the goal of eliminating one special education bus run and the associated bus
operator and transportation aide for 2000-2001.
7. During the 1999-2000 school year, Grievant held the assignment of
transportation aide on Dale Barnett's run. To eliminate her position, the Board placed
Grievant's name on the list of employees to be considered for transfer and subsequent
assignment for the 2000-2001 school year. As required by
W. Va. Code § 18A-4-8b toprotect Grievant's seniority rights, the Board also terminated the employment of the least
senior transportation aide, Wendy Inch, who was assigned to the bus operated by Paul
Atkins. The Board placed Ms. Inch's name on the preferred recall list with the
understanding that her former position on Mr. Atkins' bus would be posted. Grievant would
be free to bid on that vacancy.
8. Grievant received her notice of transfer due to decline in student enrollment
and/or realignment of staff in a letter from the Superintendent dated March 15, 2000.
ARGUMENTS
Grievant contends she should not have been put on transfer for the 2000-2001
school year. She also contends the Board should not have posted the transportation aide
position vacated by Wendy Inch on Paul Atkins' bus. Instead, Grievant maintains that, as
in the past three or four years, all of the Board's transportation aides (except the RIF'd
Wendy Inch) should meet before school starts and, in order of their seniority, choose from
among the 14 remaining runs those to which they wish to be assigned for the 2000-2001
school year. Grievant contends this would be the fairest way to divide up the aide
assignments and claims that the practice is supported by this Grievance Board's decision
in
Raines v. Lincoln County Bd. of Educ., Docket No. 96-22-013 (June 28, 1996). Grievant
acknowledges that an aide's compensation can depend upon the route she is assigned to,
since all of the special education transportation aides, after their morning runs and before
their afternoon runs, also serve as classroom aides. Depending upon the bus run and
classroom to which they are assigned, aides must work either a half day or a full day in theclassroom. As a result, the aides with the most time-consuming assignments earn
overtime pay.
The Board replies that, by posting the transportation aide position on Paul Atkins'
run previously held by Wendy Inch, it is following the requirements of
W. Va. Code § 18A-
4-8b. Further, it argues that the Grievance Board decision upon which Grievant relies,
Raines v. Lincoln County Bd. of Educ., Docket No. 96-22-013 (June 28, 1996), is
distinguishable from the instant case and does not require the Board to forego posting Ms.
Inch's transportation aide position. I agree that Grievant's reliance on
Raines is misplaced.
In
Raines, the county board reconfigured its bus routes for the coming year. To staff the
reconfigured runs, it placed all bus operators and bus aides on transfer. The county board
then allowed the bus operators and aides, on the basis of seniority, to choose their
assignments. In excusing the county board's failure to post the reconfigured positions, the
Grievance Board made it clear that the number of bus aide positions
was the same before
and after the transfers and reconfigurations. (Italics supplied). In contrast, the Board in
the instant case would not have the same number of transportation aide positions in 2000-
2001 as it had in 1999-2000. The very purpose of terminating Wendy Inch, placing the
Grievant on transfer, and posting the position of transportation aide for Paul Atkins' bus
was to reduce the number of transportation aides (and special education bus operators)
from 15 to 14.
In addition, the Board contends that posting vacant positions is fairer to those
employees who are not now working as special education transportation aides who may
wish to obtain such a position. The Board asserts that, earlier in the 1999-2000 schoolyear, before any of the personnel actions described above had occurred, a new special
education bus was placed into service. The new bus took the place of an existing special
education bus. At a meeting of all the Board's transportation aides, the aides insisted that
the Board post the opportunity to work on the new bus. They were of the opinion that the
Board should not merely permit the transportation aide who worked on the replaced bus
to serve as the transportation aide on the new bus. Consistent with the aides' demands,
the Board posted the opportunity to work as an aide on the new bus. Having reformed its
ways and, consistent with the aides' demands, posted the opportunity to work on the new
bus, the Board decided to hereafter operate by the book, posting all aide vacancies under
W. Va. Code § 18A-4-8b.
Finally, the Board maintains that the last time a new special education bus run was
added (when the Board went from 14 to 15 runs), the position of transportation aide for that
run was posted.
CONCLUSIONS OF LAW
1. As Grievant's transfer does not involve a disciplinary matter, Grievant has the
burden of proving the allegations of her complaint by a preponderance of the evidence.
West Virginia Education and State Employees Grievance Board Procedural Rule 4.19, 156
C.S.R. 1.
2. The West Virginia Supreme Court of Appeals recognized in
Lucion v.
McDowell County Bd. of Educ., 191 W. Va. 399, 466 S.E.2d 487 (1994), if a board of
education decides to reduce the number of jobs for service personnel, it must follow the
reduction in force procedures of
W. Va. Code § 18A-4-8b which requires, first, that theboard release the least senior employee in the classification to be reduced
(See footnote 1)
and, second,
that the resulting vacancy be posted and filled under the requirements of that statute.
(See footnote 2)
That is precisely what the Board did in this case, releasing the least senior aide, Wendy
Inch, and posting her transportation aide position on Paul Atkins' bus.
3. Once Wendy Inch was terminated as part of the reduction in force, the
posting of her former position was also required by the Grievance Board's decision in
Lucion v. McDowell County Bd. of Educ., Docket No. 33-88-172 (Mar. 28, 1989)(not the
same
Lucion case which ultimately reached the Supreme Court of Appeals). In this
Lucion,
the school board, having terminated a number of service employees as part of a reduction
in force, argued that it should not have to post the resulting vacancies because it is more
efficient administratively to simply offer the positions to employees and a posting can
result in a reshuffling of a greater number of personnel. In vigorously rejecting the countyboard's position, the Grievance Board recognized that [t]he opportunity to apply for vacant
positions has been held to be a fundamental right of school [service] employees. In
Lucion Conclusion of Law 1, the Grievance Board held that the service personnel posting
requirement of
W. Va. Code § 18A-4-8b applies to vacancies created in a reduction in
force. In Conclusion of Law 2, the Grievance Board found that the board's failure to post
all vacancies created by the reduction in force was a violation of the explicit requirements
of
W. Va. Code § 18A-4-8b.
4. Accordingly, the Board followed the law, and did not violate the law, in
releasing Ms. Inch and posting the resulting vacancy.
5. The transfer statute,
W. Va. Code §18A-2-7 provides, in pertinent part, that
[t]he superintendent, subject only to approval of the board, shall have
authority to assign, transfer, promote, demote or suspend school personnel
and to recommend their dismissal pursuant to provisions of this chapter.
Notably,
Code § 18A-2-7 does not require the Superintendent or the Board to base transfer
decisions upon any particular factor. In recognition of this, the courts have held that
[c]ounty boards of education have substantial discretion in matters relating
to the hiring, assignment, transfer and promotion of school personnel.
Nevertheless, this discretion must be exercised reasonably, in the best
interests of the school, and in a manner which is not arbitrary and
capricious.
Dillon v. Bd. of Educ., 177 W. Va. 145, 351 S.E.2d 58 (1986). School statutes do not
require that transfers of school service employees be determined on the basis of seniority.
See Eckenrode v. Kanawha County Bd. of Educ., Docket No. 96-20-302 (Jan. 22, 1997).
6. It was reasonable, and neither arbitrary nor capricious, of the Board in the
instant case to take advantage of Dale Barnett's departure from his special education busoperator's job by eliminating his position for the ensuing school year. Similarly, it was
reasonable for the Board to then identify Grievant - the only transportation aide without a
bus operator or a bus run for the coming year - as the aide whose position would be
eliminated, resulting in the placement of her name on the transfer list.
7. The rule of
Raines v. Lincoln County Bd. of Educ., Docket No. 96-22-013
(June 28, 1996)
(which may have justified the Board in allowing aides to choose their
assignments on the basis of seniority in prior years), does not apply here, and it does not
invalidate the Board's decision to post Wendy Inch's job.
(See footnote 3)
8. Grievant has failed to meet her burden of establishing the Board violated,
misapplied, or misinterpreted any statute, policy, rule, regulation, or written agreement by
releasing Wendy Inch and placing Grievant on transfer for the 2000-2001 school year.
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 Cabell 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: October 31, 2000
Footnote: 1