ROBERT POTOCZNY,

      Grievant,

v.                                                      Docket No. 99-24-344

MARION COUNTY BOARD OF EDUCATION,

      Respondent.

DECISION

      Robert Potoczny (“Grievant”) filed this grievance directly at level four on August 20, 1999, challenging his termination from employment with the Marion County Board of Education (“MCBOE”). He seeks reinstatement to his position with back pay. A level four hearing was held in the Grievance Board's office in Morgantown, West Virginia, on October 29,1999, and January 28, 2000. Grievant was represented by counsel, Ross Maruka, and MCBOE was also represented by counsel, Stephen Brooks. After preparation of a transcript of the level four hearing was completed, and upon submission of the parties' final fact/law proposals, this matter became mature for consideration on April 28, 2000.
      The following findings of fact are made from a preponderance of the credible evidence of record.

Findings of Fact

      1.      Grievant has been employed by MCBOE since 1982, and he has worked as a mechanic since January of 1989.
      2.      As part of his normal job duties, Grievant is required to do repair and maintenance work on MCBOE school buses. During the summer when school buses are not being used, mechanics do preventive maintenance (“PM”) on all the buses, requiringa thorough check of all mechanical parts of the bus, and make any necessary repairs or adjustments.
      3.      On April 1, 1998, Grievant was placed on a plan of improvement for unsatisfactory job performance. The areas of deficiencies included failure to follow through with his assignments and negative attitude, along with problems with demonstration of initiative and work judgments, specifically “lack of ability to effectively diagnose mechanical and/or electrical problems of vehicles.” Resp. Ex. 7. Grievant was given specific instructions regarding how to improve his performance in each area, and he was evaluated weekly by his supervisors during the improvement period of April 1, 1998, through June 30, 1998.
      4.      Grievant was instructed in the improvement plan to take the following steps to improve his job performance with regard to effectively diagnosing mechanical problems:
      _      Reflect back on previous training sessions.
      _      Run various tests that would seem appropriate based on symptoms.
      _      Acquire the appropriate tools to do the job.

      5.      Grievant improved in all areas of deficiencies except for demonstration of initiative and work judgments.
      6.      On September 11, 1998, Grievant was suspended for three days, without pay, for two incidents which occurred in early September. Grievant had performed PM on Bus No. 22 and failed to replace the locks on the brakes and failed to adjust the brakes. He had also replaced a portion of the exhaust system on Bus No. 30, which caused a malfunction in the brakes when the brake lines melted. The suspension letter, dated September 10, 1998, informed Grievant that these two incidents further demonstrated Grievant's failure to improve in the areas of initiative and work judgments.      7.      Grievant received a performance evaluation on September 30, 1998, which rated him as “unsatisfactory” in the areas of “demonstration of appropriate work standards” and “demonstration of appropriate job performance skills.” The evaluation stated that improvements were needed in specific areas, as follows:

            Efficiency under stress--Needs improvement.”

      8.      Grievant did not file a grievance regarding his suspension without pay in September of 1998.
      9.      Grievant was placed on another plan of improvement from September 15, 1998, through December 30, 1998, listing the same areas of deficiencies as the previous improvement plan, with the same specific instructions for improving performance.
      10.      Grievant's performance was satisfactory at the conclusion of the second 1998 improvement plan. He received a satisfactory performance evaluation in January of 1999.
      11.      By letter dated July 28, 1999, Superintendent Thomas Long informed Grievant that he was being suspended, without pay, for fourteen days for willful neglect of duty and unsatisfactory performance. This suspension was based upon problems that were discovered on four buses upon which Grievant had performed PM in July of 1999. Grievant had certified that all parts had been checked and all adjustments and repairs had been made, but the following defects were discovered:





      12.      The July 28, 1999, letter also advised Grievant that the superintendent would be recommending to MCBOE that Grievant's employment be terminated for willful neglect of duty and unsatisfactory performance.
      13.      Following a hearing before the Board on August 16, 1999, Grievant's employment contract was terminated for the reasons stated above.
Discussion

      In disciplinary matters, the employer bears the burden of establishing the charges by a preponderance of the evidence. W. Va. Code § 18-29-6; Nicholson v. Logan County Bd. of Educ., Docket No. 95-23-129 (Oct. 18, 1995); Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989). A preponderance of the evidence is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proven is more probable than not. It may not be determined by the number of witnesses, but by the greater weight of all evidence presented, which means that such factors as opportunity for knowledge, information possessed, and manner of testifying determines the weightaccorded to testimony rather than the greater number of witnesses. Maxey v. McDowell County Bd. of Educ., Docket No. 97-33-208 (Apr. 30, 1998). See Black's Law Dictionary 1344-45 (4th ed. 1968); Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997). Moreover, the authority of a county board of education to discipline an employee must be based upon one or more of the causes listed in W. Va. Code § 18A-2-8, as amended, and must be exercised reasonably, not arbitrarily or capriciously. Bell v. Kanawha County Bd. of Educ., Docket No. 91-20-005 (Apr. 16, 1991). See Beverlin v. Bd. of Educ., 158 W. Va. 1067, 216 S.E.2d 554 (1975). W. Va. Code § 18A-2-8 provides, in pertinent part:

      With regard to the charge of unsatisfactory performance, Respondent has failed to prove that it complied with the provisions of W. Va. Code § 18A-2-8. Grievant's last recorded performance evaluation in January of 1999 stated that his performance was satisfactory. Respondent has provided no evidence that any evaluations have been performed since that time, or at any time since July of 1999, when the specific incidents for which Grievant was ultimately dismissed occurred. Accordingly, MCBOE cannot sustain a charge of unsatisfactory performance.
      Nevertheless, the undersigned finds that Respondent has met its burden of proof regarding the charge of willful neglect of duty. To prove willful neglect of duty, the employer must establish that the employee's conduct constituted a knowing and intentionalact, rather than a negligent act. Graham v. Putnam County Bd. of Educ., Docket No. 99-40-206 (Sept. 30, 1999); Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994). See Bd. of Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990). "Willful neglect of duty" encompasses something more serious than incompetence and imports a "knowing and intentional act, as distinguished from a negligent act." Chaddock, supra.
      Grievant's conduct unquestionably constitutes willful neglect of duty. He had been placed on two consecutive improvement plans, constituting the better part of the 1998 calendar year. He had been instructed repeatedly to pay closer attention to his work and was provided with specific instructions as to how to improve his work. He had been disciplined for his failures to diagnose mechanical problems and for not making appropriate repairs. Under these circumstances, Grievant's failure to make specific repairs and adjustments on four buses in July of 1999 cannot be said to constitute mere negligence. When an employee has been repeatedly chastised for not performing specific duties, then proceeds to ignore those duties, this is clearly willful neglect of duty. Chaddock, supra; See Jones v. Mingo County Bd. of Educ., Docket No. 95-29-151 (Aug. 24, 1995).
      Regarding the charges for which Grievant was dismissed, he has only offered an explanation as to Bus No. 2. Grievant testified that he did the appropriate test on the brakes to see if they needed replaced, and that he determined they did not. He stated he noticed the “drums” were worn, but he assumed that they would be repaired when it became absolutely necessary. This testimony was refuted by MCBOE's witnesses, who stated that the brakes on Bus No. 2 were quite obviously worn to the point of needing replacement.      The remainder of Grievant's testimony involved the two buses for which he was suspended in 1998. However, Grievant did not grieve that suspension. When an employee fails to file a timely grievance challenging an earlier disciplinary action, the merits of that action cannot be challenged in a subsequent grievance proceeding. See Aglinsky v. Bd. of Trustees, Docket No. 97-BOT-256 (Oct. 27, 1997); Jones. v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); Nicholson v. Logan County Bd. of Educ., Docket No. 95-23-129 (Oct. 18, 1995). Accordingly, Grievant's arguments that he did nothing wrong with regard to the matters for which he was disciplined in 1998 will not be considered here.
      Grievant provided no explanation or justification for the errors which were made when he PM'd the other three buses involved in this case. He presented the testimony of several bus drivers who testified that Grievant had worked on their buses and that no mechanical problems had occurred. However, none of these individuals had driven the four buses which Grievant PM'd in the summer of 1999, and upon which he failed to make necessary repairs and adjustments. MCBOE introduced the testimony of numerous witnesses associated with the transportation department who all agreed that Grievant's “mistakes” did not involve judgment calls. He consistently made many errors which were completely unjustified and involved the safety of children being transported by the school system's vehicles. Grievant was given more than ample opportunity to improve his performance and to show that he was capable of paying the close attention to detail necessary to perform his duties properly. In spite of the extensive instructions he was given as to what he needed to do to correctly perform his duties, he continued to either fail to diagnose mechanical problems, or he simply did not make the necessary repairs whenneeded. Accordingly, MCBOE has proven that Grievant's dismissal for willful neglect of duty was appropriate in these circumstances.
Conclusions of Law

      1.      In disciplinary matters, the employer bears the burden of establishing the charges by a preponderance of the evidence. W. Va. Code § 18-29-6; Nicholson v. Logan County Bd. of Educ., Docket No. 95-23-129 (Oct. 18, 1995); Landy v. Raleigh County Bd. of Educ., Docket No. 89-41-232 (Dec. 14, 1989).
      2.      An employee may be charged with unsatisfactory performance only as the result of a performance evaluation performed in accordance with W. Va. Code § 18A-2-12. W. Va. Code § 18A-2-8.
      3.      Respondent failed to establish that Grievant's performance was documented as unsatisfactory at the time of his most recent performance evaluation.
      4.      To prove willful neglect of duty, the employer must establish that the employee's conduct constituted a knowing and intentional act, rather than a negligent act. Graham v. Putnam County Bd. of Educ., Docket No. 99-40-206 (Sept. 30, 1999); Hoover v. Lewis County Bd. of Educ., Docket No. 93-21-427 (Feb. 24, 1994). See Bd. of Educ. v. Chaddock, 183 W. Va. 638, 398 S.E.2d 120 (1990).
      5.      Grievant's failure to make necessary repairs and adjustments on school buses, after having been disciplined and instructed regarding similar prior misconduct, constituted willful neglect of duty prohibited by W. Va. Code § 18A-2-8.
      6.      When an employee fails to file a timely grievance challenging an earlier disciplinary action, the merits of that action cannot be challenged in a subsequent grievance proceeding. See Aglinsky v. Bd. of Trustees, Docket No. 97-BOT-256 (Oct. 27,1997); Jones. v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); Nicholson v. Logan County Bd. of Educ., Docket No. 95-23-129 (Oct. 18, 1995).

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or the Circuit Court of Marion 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:      June 12, 2000                         _______________________________
                                                DENISE M. SPATAFORE
                                                Administrative Law Judge