KAREN SUMMERS,
Grievant,
v. Docket No. 98-30-224R
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent.
This matter is being reviewed in compliance with an Order of the Circuit Court of
Kanawha County remanding the grievance for the purpose of determining the amount of
compensation to which Grievant is entitled for certain extra-duty and extracurricular
assignments. A hearing was conducted on the matter at the Grievance Board's
Morgantown office on May 15, 2000, at which time Grievant was represented by John E.
Roush, Esq., WVSSPA, and Respondent Monongalia County Board of Education was
represented by Harry M. Rubenstein, Esq. Proposed findings of fact and conclusions of
law were filed by the parties on or before June 22, 2000, at which time the matter became
mature for decision.
The facts of this matter are undisputed and may be set forth as the following formal
findings of fact.
Findings of Fact
1. Grievant has been employed by MCBOE as a bus operator at all times
pertinent to this grievance. 2. Grievant fractured her right ankle on November 8, 1996, and did not return
to work the remainder of the 1996-97 school year.
3. Grievant was released by her physicians to return to work on August 5, 1997;
however, MCBOE did not allow her to resume her duties until she had completed a
functional capacity examination, and evaluation by a rehabilitation specialist.
4. Grievant returned to work on October 15, 1997.
5. Respondent paid Grievant her regular salary during the period she was
waiting to complete the additional examination, but declined to compensate her for extra-
duty or extracurricular assignments.
6. On October 27, 1997, Grievant filed a grievance seeking compensation for
the extra-duty and extracurricular assignments she missed as a result of her enforced
absence.
7. Grievant's claim was denied at level four in the matter of Summers v.
Monongalia County Board of Education, Docket No. 98-30-224 (Nov. 20, 1998); however,
that decision was reversed and remanded by the Circuit Court of Kanawha County by
Order dated September 22, 1999, directing that the Grievance Board determine the
compensation to which Grievant is entitled.
8. The parties stipulate that Grievant is entitled to $511.20 for the long, extra-
duty assignments, and $115.02 for short, extra-duty assignments.
9. Grievant held an extracurricular or mid-day assignment transporting students
in the Head Start Program at Dorsey Elementary School from 1993-1994 through 1996-
1997. Effective the 1997-1998 school year, a new Head Start Center was opened at CoolSprings Elementary School. What had previously been Grievant's run was split, with two
positions posted, and awarded to bus operators with more seniority.
Discussion
As this grievance does not involve a disciplinary matter, 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 argues that MCBOE has implemented two practices concerning the
continuity of extracurricular assignments. First, the employee holds an extracurricular
assignment from year to year. Second, when an assignment is split, the possessor of the
assignment is offered her choice of the resulting two assignments. Grievant asserts that
absent the termination of her extracurricular assignment in compliance with W. Va. Code
§18A-2-7, MCBOE was, in fact, required to offer her a choice of the positions, therefore,
she is entitled to instatement into her choice of the successor positions, and
compensation from the beginning of the 1997-1998 school year to the present for the
assignment she held prior to the 1997-1998 school year.
MCBOE argues that the grievance was untimely filed, and that she failed to meet
her burden of proving her case by a preponderance of the evidence because it was
required by W. Va. Code §18A-4-8b to post the two positions which were new, even if
they were similar to the assignment previously held by Grievant.Timeliness
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. Wounaris v. Bd. of Directors/ W. Va. State College,
Docket No. 99-BOD-033D (May 18, 1999); 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. Dept. of Transp., Docket No. 96-DOH-445 (July 29,
1997); Higginbotham v. W. Va. Dept. of Public Safety, Docket No. 97-DPS-018 (Mar. 31,
1997); Sayre v. Mason County Health Dept., 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).
Citing W. Va. Code §18-29-4(a)(1), MCBOE asserts that a grievance must be
initiated within 15 days following the occurrence of the event upon which the grievance is
based, or 15 days of the date on which the event became known to the grievant, or within15 days of the most recent occurrence of a continuing practice giving rise to a grievance.
This matter was untimely filed, MCBOE argues, because Grievant was aware that she was
not awarded either of the new positions on June 30, 1997, yet did not file a grievance until
October 27, 1997. Grievant argues that the timeliness issue was not raised at level two
as is required by statute.
W. Va. Code §18-29-3(a) provides, in pertinent part, that [a]ny assertion by the
employer that the filing of the grievance at level one was untimely must be asserted by the
employer on behalf of the employer at or before the level two hearing. A review of the
transcript indicates that the issue was not raised during the level two hearing. The record
does not include a level two decision; therefore, it must be determined that the issue of
timeliness was not raised at level two, and it will not be considered at this time.
Although not specifically asserted, MCBOE 's timeliness claim appears to be raised
in relation to another issue, i.e., whether the grievance has been amended since it was
initially filed. In fact, the issue relating to the mid-day, extracurricular issue has evolved
since the grievance was filed in October 1998. Initially, Grievant requested lost wages and
benefits from the extracurricular assignment that she missed as a result of her enforced
absence. However, her reinstatement was raised at the level two hearing, and was
pursued at the level four hearing conducted on September 10, 1998. Although the amount
of relief is now significantly larger than when it was limited to the period of Grievant's
absence, consistent with the provisions of W. Va. Code, 18-29-3(j), the undersigned does
not find that the amendment substantially altered the original grievance to render it a
different grievance. The Grievance Board has been Ordered to determine the amount ofcompensation owed Grievant during a period of time she was not allowed to work, even
though she had been released to resume her duties. If Grievant was entitled to the
extracurricular assignment during the period of her enforced leave, she would be entitled
to the compensation earned during that period, and since that time. These matters are
closely related, and absent objection by counsel at hearing that he was caught by surprise
at Grievant's request, any allegation that this issue was not timely raised is denied.
Extracurricular Assignment
Grievant argues that she is entitled to one of the two positions which were posted
because they both consisted of the position which she previously held, and it is the
practice of MCBOE to allow employees to continue in mid-day assignments from year to
year as long as such assignments exist. In similar cases, where runs have been split,
Grievant asserts that the employee who held the original assignment has been given his
or her choice of the new assignment. In addition to past practice, Grievant further argues
that MCBOE is legally required to allow her to retain a position because it failed to
terminate her extracurricular contract, which is not exempt from procedural requirements
of notice and hearing. Smith v. Bd. of Educ., 176 W. Va. 65, 341 S.E.2d 685 (1985).
MCBOE argues that Grievant has failed to meet her burden of proof because it is
required by statute to post notice of newly created positions, and that it does not matter
that the new runs were similar to that previously held by Grievant. Addressing the past
practice issue, MCBOE asserts that during the 1997-1998 school year, it used the same
criteria as was applied in the present matter to determine that approximately seven other
positions were new positions, which were subsequently posted. In any event, MCBOEconcludes that absent some legal requirement to do so, a board of education is not
required to continue to follow the same informal practices year after year. Taylor v.
Monongalia County Bd. of Educ., Docket No. 92-30-314 (Nov. 30, 1992).
Over the years, the Grievance Board has frequently considered the issue of whether
a board of education must post for competitive bid bus routes which it has reorganized
or reconfigured. In a number of instances posting was upheld. See Cowger v. Webster
County Bd. of Educ., Docket No. 92-51-348 (Mar. 12, 1993); Lucas v. Lincoln County Bd.
of Educ., Docket No. 90-22-419 (May 20, 1991); Alston v. Kanawha County Bd. of Educ.,
Docket No. 89-20-273 (Sept. 27, 1989). However, those decisions were reversed in
Mullens v. Logan County Bd. of Educ., Docket No. 94-23-283 (Sept. 25, 1995), which held
that the provisions of W. Va. Code §18A-4-8b do not mandate that particular duty
assignments within a job classification must be posted each time an assignment of duties
given to the incumbent within that classification is changed. Thus, a board of education
is not required to post such positions.
Additionally, MCBOE has established a practice of allowing bus operators to retain
extracurricular assignments from year to year. As argued, this practice may be changed;
however, any alteration must be properly implemented. In the present case, MCBOE
offers no evidence to refute Grievant's claim that her extracurricular contract was not
terminated. Further, only those extracurricular runs which were considered to be new
were posted, and the record does not reflect the criteria used by MCBOE to determine that
a run was new. In the present matter, the same children from the same geographic area
were transported to and from the same Head Start program. The only change effective the1998-1999 school year was that the program had moved to another site. According to
MCBOE administrators, the run was split based upon a determination that some of the very
young children were on the bus too long. While the reason for the split was reasonable,
the fact that the location of the program has moved from one school to another does not
make the program or one the positions newly created. Miller v. Kanawha County Bd. of
Educ., Docket No. 20-86-351-1 (Dec. 18, 1986). Absent any other explanation why both
runs were determined to be new, Grievant should have retained her position, and only
one position should have been posted.
In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following formal conclusions of law.
Conclusions 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.
Wounaris v. Bd. of Directors/ W. Va. State College,
Docket No. 99-BOD-033D (May 18, 1999);
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).
2. MCBOE failed to raise the issue of whether the grievance was untimely filed
at level two, and is prohibited from doing so at this time by
W. Va. Code §18-29-3(j).
3.
The provisions of
W. Va. Code §18A-4-8b do not mandate that particular
duty assignments within a job classification must be posted each time an assignment ofduties given to the incumbent within that classification is changed.
Mullens v. Logan
County Bd. of Educ., Docket No. 94-23-283 (Sept. 25, 1995).
4. The fact that the location of the program has moved from school to school
does not make the program or the positions newly created.
Miller v. Kanawha County Bd.
of Educ., Docket No. 20-86-351-1 (Dec. 18, 1986).
5. When MCBOE split a run previously completed by Grievant in its entirety,
one new run was created, and was required to be posted and filled.
6. The extracurricular assignment held by Grievant prior to the 1997-1998
school year remained in existence thereafter, and, absent a termination of her contract,
Grievant was entitled to continue in that assignment.
Accordingly, MCBOE is Ordered to reinstate Grievant to whichever of the
extracurricular split runs she chooses, and provide her with all back pay and benefits to
which she is entitled, in addition to the sum stipulated to by the parties for the extra-duty
runs.
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) 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: July 27, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE