GLESTON SEABOLT,
Grievant,
v. Docket No. 00-20-307
KANAWHA COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Gleston Seabolt, filed this grievance against his employer, the Kanawha
County Board of Education ("KBOE"), when he failed the painter competency test and was
not selected for either of two posted painter positions for which he applied. The statement
of grievance filed at Level IV reads:
Grievant, a regularly employed Custodian III, applied for a painter's
vacancy at Respondent's Crede maintenance facility. Grievant was the most
senior candidate for this position. While Grievant was attending the training
session prior to taking the painter classification competency examination,
Grievant was directed to leave the training session and to take the hands-
on portion of the competency examination. As a result of leaving the
training session prior to its completion, the Grievant failed the competency
examination and the position was awarded to another applicant. The
Grievant filed a grievance alleging a violation of West Virginia Code §18A-4-
8e. The Level II hearing officer awarded the Grievant an opportunity to take
the examination again, and if Grievant passes the examination, instatement
into the sought-after position. However, the hearing officer failed to award
the Grievant retroactive wages and benefits.
As relief Grievant sought the payment of wages and benefits retroactive to the date of the
filling of the painter's vacancy and interest on all monetary sums.
(See footnote 1)
The following Findings of Fact are properly made based upon the record developed
at Level II, supplemented by a stipulation of fact at Level IV.
FINDINGS OF FACT
1. Grievant has been employed by KBOE for 26 years. During the 1999-2000
school year, Grievant was employed in a regular position at Roosevelt Junior High School
as a custodian. Roosevelt Junior High was closed at the end of the 1999-2000 school
year, and Grievant was placed on transfer.
2. KBOE posted two painter vacancies in late May and early June 2000.
Grievant applied for the vacancies.
3. As Grievant had never served in the painter classification, on July 13, 2000,
he attended a training session at the Crede warehouse to prepare for the painter
competency test. The training was given by Roy Russell, a vocational teacher. About ten
minutes after the training session began, Grievant was taken to another room to take the
painting portion of the test. This was the hands-on or skills portion of the competency
test.
4. The training session continued while Grievant was painting. Grievant missed
approximately one hour of the competency training while he was painting. Grievant failed
the competency test.
5. Grievant was the most senior applicant for both painter positions. None of
the applicants had seniority in the painter classification.
6. Grievant was not placed in either position. Phyllis Morris was placed in one
of the painter positions on July 3, 2000, and Freddie Boyd was hired into the other painter
position on July 17, 2000.
DISCUSSION
Grievant bears the burden of proving the elements of his grievance by a
preponderance of the evidence.
Tibbs v. Mercer County Bd. of Educ., Docket No. 96-27-074 (Oct. 31, 1996). KBOE offered no evidence or argument to dispute that Grievant
would have been placed in the position, pursuant to
W. Va. Code § 18A-4-8b, as the most
senior applicant, had he passed the competency test. KBOE also does not dispute that
the competency testing was not properly administered. KBOE offered, prior to the
grievance being filed, and continued to offer during this proceeding, to allow Grievant to
retake the training and the painter competency test. KBOE did not offer to place Grievant
in one of the two painter positions for which he had applied, or to pay him any back pay.
KBOE correctly argues that it is not an appropriate remedy to place Grievant in the
position without passing the competency test.
W. Va. Code § 18A-4-8e provides for competency testing of school service
personnel as follows:
The state board of education shall develop and cause to be made
available competency tests for all of the classification titles defined in section
eight [§ 8A-4-8] and listed in section eight-a [§ 18A-4-8a] of this article for
service personnel. Each classification title defined and listed shall be
considered a separate classification category of employment and shall have
a separate competency test, except for those class titles having Roman
numeral designations, which shall be considered a single classification of
employment and shall have a single competency test. The cafeteria
manager class title shall be included in the same classification category as
cooks and shall have the same competency test. The executive secretary
class title shall be included in the same classification category as secretaries
and shall have the same competency test. The classification titles of chief
mechanic, mechanic and assistant mechanic shall be included in one
classification title and shall have the same competency test.
The purpose of these tests shall be to provide county boards of
education a uniform means of determining whether school service personnel
employees who do not hold a classification title in a particular category of
employment can meet the definition of the classification title in another
category of employment as defined in section eight of this article.
Competency tests shall not be used to evaluate employees who hold the
classification title in the category of their employment.
The competency test shall consist of an objective written and/or
performance test: Provided, That applicants shall have the opportunity of
taking the written test orally if requested. Oral tests shall be recorded
mechanically and kept on file. Persons administering the oral test shall not
know the applicant personally. The performance test for all classifications
and categories other than Bus Operator shall be administered by a
vocational school which serves the county board of education. A standardpassing score shall be established by the state department of education for
each test and shall be used by county boards of education. The subject
matter of each competency test shall be commensurate with the
requirements of the definitions of the classification titles as provided in
section eight of this article. The subject matter of each competency test
shall be designed in such a manner that achieving a passing grade will not
require knowledge and skill in excess of the requirements of the definitions
of the classification titles. Achieving a passing score shall conclusively
demonstrate the qualification of an applicant for a classification title. Once
an employee passes the competency test of a classification title, said
applicant shall be fully qualified to fill vacancies in that classification
category of employment as provided in section eight-b [§ 18A-4-8b] of this
article and shall not be required to take the competency test again.
An applicant who fails to achieve a passing score shall be given other
opportunities to pass the competency test when making application for
another vacancy within the classification category.
Competency tests shall be administered to applicants in a uniform
manner under uniform testing conditions. County boards of education shall
be responsible for scheduling competency tests and shall not utilize a
competency test other than the test authorized by this section.
When scheduling of the competency test conflicts with the work
schedule of a school employee who has applied for a vacancy, said
employee must be excused from work to take said competency test without
loss of pay.
A minimum of one day of appropriate inservice training shall be
provided employees to assist them in preparing to take the competency
tests.
Competency tests shall be utilized to determine the qualification of
new applicants seeking initial employment in a particular classification title
as either a regular or substitute employee.
Notwithstanding any provision in this code to the contrary, once an
employee holds or has held a classification title in a category of employment,
that employee shall be deemed as qualified for said classification title even
though that employee no longer holds that classification.
The requirements of this section shall not be construed to alter the
definitions of class titles as provided in section eight of this article nor the
procedure and requirements of section eight-b of this article.
The testing procedures of this section shall be implemented effective
the first day of July, one thousand nine hundred ninety-one. (Emphasis
added.)
This Grievance Board has previously determined that providing a full day of
inservice training prior to administration of a competency test to a regularly employedschool service personnel employee is mandatory.
Quintrell v. Lincoln County Bd. of Educ.,
Docket No. 95-22-051 (Aug. 31, 1995),
aff'd, Cir. Ct. of Kanawha County No. 95-AA-241
(Apr. 30, 1996).
See Marion County Bd. of Educ. v. Bonfantino, 179 W. Va. 202, 366
S.E.2d 650 (1988).
Bailey v. Logan County Bd. of Educ., Docket No. 97-23-436 (Feb. 27,
1998). [T]he purpose of the inservice training is to acquaint the applicant with the test
content, scoring, and format, and to offer the applicant a chance to practice or 'brush up
on' the necessary skills.
Quintrell v. Lincoln County Bd. of Educ., Docket No. 95-22-05
(Aug. 31, 1995).
Edmonds v. Lincoln County Bd. of Educ., Docket No. 97-22-120 (May
27, 1998).
Grievant was not provided with the required eight hours of training prior to taking
the competency test. Grievant cannot, however, simply be placed in a painter position, as
he has neither held that classification, nor has he passed the competency test. As both
parties suggest, the appropriate remedy is to allow Grievant a full eight hours of training,
and allow him to take the competency test. If Grievant passes the competency test, he is
entitled to be placed in one of the two painter positions for which he applied, retroactive
to July 3, 2000, the date the first person was hired into a posted position, and back pay
plus interest at the statutory rate. The Level II decision indicates that Grievant has been
employed in a Custodian III position during the 2000-2001 school year. If this is correct,
any back pay would be in the amount of the difference in pay between his pay as a
Custodian III, and his pay as a painter.
The following Conclusions of Law support the Decision reached.
CONCLUSIONS OF LAW
1. The burden of proof is upon Grievant to prove the elements of his grievance
by a preponderance of the evidence.
Tibbs v. Mercer County Bd. of Educ., Docket No. 96-
27-074 (Oct. 31, 1996). 2. This Grievance Board has previously determined that providing a full day
of inservice training prior to administration of a competency test to a regularly employed
school service personnel employee is mandatory.
Quintrell v. Lincoln County Bd. of Educ.,
Docket No. 95-22-051 (Aug. 31, 1995),
aff'd, Cir. Ct. of Kanawha County No. 95-AA-241
(Apr. 30, 1996).
See Marion County Bd. of Educ. v. Bonfantino, 179 W. Va. 202, 366
S.E.2d 650 (1988).
Bailey v. Logan County Bd. of Educ., Docket No. 97-23-436 (Feb. 27,
1998). [T]he purpose of the inservice training is to acquaint the applicant with the test
content, scoring, and format, and to offer the applicant a chance to practice or 'brush up
on' the necessary skills.
Quintrell v. Lincoln County Bd. of Educ., Docket No. 95-22-05
(Aug. 31, 1995).
Edmonds v. Lincoln County Bd. of Educ., Docket No. 97-22-120 (May
27, 1998).
3. KBOE failed to provide eight hours of training to Grievant prior to
administering the competency test to him, in violation of
W. Va. Code § 18A-4-8e.
Accordingly, this grievance is GRANTED. Respondent, Kanawha County Board of
Education is ORDERED to provide Grievant a full eight hours of training, and allow him
to take the painter competency test. If Grievant passes the painter competency test, the
Kanawha County Board of Education is to place Grievant in one of the painter positions,
retroactive to July 3, 2000, the date the first person was hired into a position, and to pay
him any back pay to which he is entitled, plus interest at the statutory rate, from July 3,
2000.
Any party may appeal this Decision to the Circuit Court of Kanawha 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 sonamed. 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 Grievance Board with the civil action number so that the record can be
prepared and transmitted to the circuit court.
BRENDA L. GOULD
Administrative Law Judge
Dated: December 22, 2000
Footnote: 1