v v.
Respondent.
1. Grievant was employed by WCBE as a Math and Science teacher at Glen
Fork Grade School. She holds the certifications Multi-Subjects K-8, Math 4-8, Counseling
K-12, and authorization for Science 7-8.
2. Grievant has some five years seniority.
3. When Grievant assumed her position in 1988, she did not hold the three
required certifications/authorizations. WCBE gave Grievant eight hours in-service training,
so that she could qualify for the Science 7-8 authorization she lacked.
4. Due to declining enrollment, WCBE was required to conduct a reduction in
force for the 2001-2001 school year.
5. A more senior teacher
(See footnote 2)
was eligible to bump Grievant, provided that he
could acquire the needed Science 7-8 authorization.
6. WCBE terminated Grievant and arranged for the more senior teacher to take
eight hours in-service training, so that he could qualify for the Science 7-8 authorization he
lacked.
7. The more senior teacher completed the training, acquired the Science 7-8
authorization, and was awarded the position.
DISCUSSION
As this grievance does not involve a disciplinary matter, Grievant has the burden ofproving 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. A
preponderance of the evidence is defined as 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 proved is more probable than not.
Black's Law
Dictionary (6th ed. 1991);
Leichliter v. W. Va. Dep't of Health & Human Resources, Docket
No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party
has not met its burden of proof.
Id.
Grievant alleges that WCBE improperly terminated her employment during a
reduction in force, and argues that her replacement did not hold the required Science 7-8
authorization at the time she was terminated. Grievant seeks reinstatement to her teaching
position. WCBE responds that it expected the more senior teacher who bumped' Grievant
to have the required Science 7-8 authorization before he began teaching in Grievant's
former position; that the more senior teacher would be given the same eight hours of in-
service training that Grievant received in order to qualify for the Science 7-8 authorization;
and that its choice of the more senior teacher to fill Grievant's position was authorized by
State Board of Education Policy 5202 (Policy 5202).
WCBE is correct. Policy 5202 provides [t]he educator who exhibits subject matter
competence shall be issued, upon recommendation of the county superintendent, an
Authorization to continue to teach this specialization. WCBE satisfied the requirementsof subject matter competence in Science 7-8 by providing eight hours of in-service training
for both Grievant and the more senior teacher. It is not disputed that the more senior
teacher had the required Science 7-8 authorization before he began teaching in Grievant's
former position.
In order for an applicant to be basically qualified for a classroom teaching position
vacancy in West Virginia, that person must hold the appropriate certification.
Peters v.
Putnam County Bd. of Educ., Docket No. 90-40-247 (Aug. 16, 1991);
Grossl v. Mingo
County Bd. of Educ., Docket No. 93-29-496 (July 21, 1994). However, a county board of
education may consider and even appoint an applicant for a professional position who
does not meet the certification requirements of a posting, but has completed all college
hour requirements for the licensure.
Jones v. Summers County Bd. of Educ., Docket No.
94-45-153 (Nov. 16, 1994);
Grossl,
supra.
W. Va. Code § 18A-3-2
permits school boards to employ teachers in good faith who
are anticipated to, but have not yet, received their certification.
Shewbridge v. Mercer
County Bd. of Educ., Docket No. 94-27-094 (Sept. 28, 1994).
W. Va. Code § 18-5-4
specifically contemplates that boards of education may make selection decisions based
upon the best information as to the certification an individual will hold at the time that
person enters into their teaching assignment.
Davidson v Wyoming County Bd. of Educ.,
Docket No. 92-55-402 (Feb. 23, 1993).
A preponderance of the evidence in this grievance establishes that WCBE
accommodated the bumping rights of the more senior teachers by allowing them to obtain
Science 7-8 authorization under Policy 5202, as it had previously done for Grievant. WCBE assumed in good faith that this authorization could be secured before the 2000-
2001 school year began, and this came to pass. Accordingly, Grievant failed to prove, by
a preponderance of the evidence, that she was wrongly terminated during WCBE's
reduction in force.
Consistent with the foregoing discussion, the following Conclusions of Law are
made in this matter.
CONCLUSIONS OF LAW
1. In a nondisciplinary grievance, Grievant has the burden of proving 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.
2. In order for an applicant to be basically qualified for a classroom teaching
position vacancy in West Virginia, that person must hold the appropriate certification.
Peters v. Putnam County Bd. of Educ., Docket No. 90-40-247 (Aug. 16, 1991)
3. Policy 5202 provides [t]he educator who exhibits subject matter competence
shall be issued, upon recommendation of the county superintendent, an Authorization to
continue to teach this specialization.
4.
W. Va. Code § 18A-3-2
permits school boards to employ teachers in good
faith who are anticipated to, but have not yet, received their certification.
Shewbridge v.
Mercer County Bd. of Educ., Docket No. 94-27-094 (Sept. 28, 1994).
5.
W. Va. Code § 18-5-4 specifically contemplates that boards of education maymake selection decisions based upon the best information as to the certification an
individual will hold at the time that person enters into their teaching assignment.
6. Grievant failed to prove, by a preponderance of the evidence, that she was
wrongly terminated during WCBE's reduction in force.
Accordingly, this grievance is
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Wyoming 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.
ANDREW MAIER
ADMINISTRATIVE LAW JUDGE
Dated September 8, 2000
Footnote: 1 The evidence in this grievance establishes that two more senior teachers
would have the option of bumping Grievant during the reduction in force. One teacher
had some ten years seniority, and the other had some 20 years.