JANIS L. THORN,
Grievant,
v. Docket No. 00-30-137
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent.
Grievant, Janis L. Thorne, employed by the Monongalia County Board of Education
(MCBOE) as a bus operator, filed a level one grievance on December 6, 1999, in which
she alleged violations of W. Va. Code §§18A-2-7 and 18A-4-16 when a 'noon'
extracurricular assignment transporting students from Morgantown High School to
Respondent's vocational/technical center was taken away from her without notice. For
relief, Grievant requested reinstatement to the assignment, retroactive wages and benefits,
and retroactive and prospective interest on all monetary sums.
Duane Prickett, School Bus Supervisor, denied the grievance at level one stating
that due to a change in the educational programs at Morgantown High School there was
no longer a need for the run. Following an evidentiary hearing, the level two hearing
evaluator determined that Grievant had failed to prove her claim, and that the matter was
untimely filed. Grievant elected to bypass consideration at level three, as is permitted by
W. Va. Code §18-29-4(c), and advanced her claim to level four on April 14, 2000. A
hearing to supplement the record was conducted in the Grievance Board's Morgantown
office on June 2, 2000. Grievant was represented by John E. Roush, Esq., of WVSSPA.
MCBOE was represented by Harry M. Rubenstein, Esq. The matter became mature for
decision on July 19, 2000, the due date for final post-hearing submissions.
The following findings of fact are derived from the record in its entirety.
Findings of Fact
1. Grievant has been employed by MCBOE for nineteen years and has been
classified as a bus operator for that entire period of time.
2. Beginning in the 1998-1999 school year, Grievant was assigned a noon run
transporting special needs students who were not physically handicapped from
Morgantown High School to the Technical Education Center. Grievant was compensated
for one hour at her regular rate for this assignment which was generally performed five
days per week.
3. Sometime prior to the beginning of the run in the 1999-2000 school year, it
was determined that there was no longer a need for one of the mid-day runs from
Morgantown High School to the Technical Education Center. Because all of the students
could be transported on the bus equipped for handicapped students, Grievant's run was
eliminated.
4. Upon her return to work for the 1999-2000 school year, Grievant inquired of
Mr. Prickett and Transportation Supervisor Richard Gemas when her mid-day assignment
would begin. She was advised at that time that her run had been absorbed. When she
asked for clarification, she was advised that the run no longer existed due to lack of need.
5. Grievant later learned that another bus operator was transporting the
students from her prior mid-day run. When Grievant again inquired why she was not
transporting these students, she was again informed why the change had been made and
that she would definitely not be getting the assignment back.
6. Grievant filed a level one complaint on December 6, 1999. 7. Supplemental contracts of employment issued by MCBOE contain a provision
which sets forth the period of time the assignment is effective.
Discussion
Initially, MCBOE contends this grievance is untimely because the grievance was not
initiated within the time limits contained in
W. Va. Code §18-29-4(a). 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.
Ooten v. Mingo County Bd. of Educ., Docket No. 96-29-122 (July 31, 1996);
Hale v. Mingo
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 more
convincing 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. Dep't of
Transp., Docket No. 96-DOH-445 (July 29, 1997);
Higginbotham v. W. Va. Dep't of Public
Safety, Docket No. 97-DPS-018 (Mar. 31, 1997);
Sayre v. Mason County Health Dep't,
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). As
required by
W. Va. Code § 18-29-3(a), Respondent asserted at the Level II hearing that
this grievance was not initiated in a timely manner.
See generally Payne v. Mason CountyBd. of Educ., Docket No. 96-26-047 (Nov. 27, 1996);
Trickett v. Preston County Bd. of
Educ., Docket No. 95-39-413 (May 8, 1996).
W. Va. Code § 18-29-4(a)(1) provides that,
Before a grievance is filed and within fifteen days following the
occurrence of the event upon which the grievance is based, or
within fifteen days of the date on which the event became
known to the grievant . . . , the grievant or the designated
representative shall schedule a conference with the immediate
supervisor to discuss the nature of the grievance and the
action, redress or other remedy sought.
The running of the relevant time period is ordinarily deemed to begin when the
employee is unequivocally notified of the decision being challenged. Harvey, supra;
Kessler, supra. See Rose v. Raleigh County Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566
(1997); Naylor v. W. Va. Human Rights Comm'n, 180 W. Va. 634, 378 S.E.2d 843 (1989).
By her own testimony, Grievant knew in September 1999, that she would not be performing
the mid-day run she previously held. While she testified at level two that she was confused
and spoke with Mr. Prickett a second time, Grievant did not file a grievance until someone
told her that she had better wake up because her class was still going to the Technical
Center. When, during another conversation with Mr. Prickett, she understood that a
teacher at the Center had decided Grievant's run would be eliminated, Grievant filed at
level one, based on her perception that any such decision would be made by an
appropriate administrator, and would be based on seniority.
Grievant was unequivocally notified in September 1999, that she was not assigned
the mid-day run from Morgantown High School to the Technical Center. Although Grievant
later learned that the students she previously transported were assigned to another bus,this did not constitute discovery of an event giving rise to a grievance, and does not fall
within the discovery rule exception to the statutory time lines set forth in Spahr v. Preston
County Board of Education, 182 W. Va. 726, 391 S.E.2d 739 (1990). Grievant knew in
September that she was not completing the mid-day run, and the only information she later
obtained was the specifics as to what arrangements had been made. Because Grievant
delayed in filing a grievance for approximately three months, and offers no proper basis
for the delay, this grievance must be dismissed as untimely filed.
Even if it should be determined that the grievance was timely filed, Grievant failed
to prove that she was entitled to retain the assignment in question. Level IV, Joint Exhibit
I, includes a number of Contract[s] of Employment for Additional Assignment. Although
the exhibit does not include a contract for the Noon Run Morgantown High - Tech Ed
Shuttle for the 1998-1999 school year, it does include those from other years as well as
other assignments held by Grievant. Every contract specifically states the period of time
which the assignment is effective, and the extracurricular runs expire at the end of the
school year. The inclusion of the period of assignment continued to be included on
contracts Grievant entered into in May 1999, therefore, it is reasonable to conclude that
Grievant's contract for the run in question would have also included an expiration date.
MCBOE is not required to terminate Grievant's employment pursuant to W. Va. Code
§18A-2-7 when the terms of the contract include an expiration date, and Grievant has no
entitlement to employment past the date stated in the contract.
In addition to the foregoing findings of fact and discussion it is appropriate to make
the following formal conclusions of law.
Conclusion 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.
Ooten v. Mingo County Bd. of Educ., Docket No.
96-29-122 (July 31, 1996);
Hale v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan.
25, 1996). 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. Dep't of Transp., Docket No. 96-DOH-445 (July
29, 1997);
Higginbotham v. W. Va. Dep't of Public Safety, Docket No. 97-DPS-018 (Mar.
31, 1997);
Sayre v. Mason County Health Dep't, 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).
2.
W. Va. Code § 18-29-4(a)(1) requires that:
Before a grievance is filed and within fifteen days following the
occurrence of the event upon which the grievance is based, or
within fifteen days of the date on which the event became
known to the grievant . . . , the grievant or the designated
representative shall schedule a conference with the immediate
supervisor to discuss the nature of the grievance and the
action, redress or other remedy sought.
3. Grievant failed to initiate this grievance within the time lines set forth in
W.Va.
Code §18-29-4, or to provide a proper basis for her failure to timely file.
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 and such appeal must be filed within thirty (30) daysof 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: August 21, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE