PHYLLIS MORRIS,
Grievant,
v.
DOCKET NO. 00-20-227
KANAWHA COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Phyllis Morris, filed this grievance against her employer, the Kanawha
County Board of Education (Board) on April 13, 2000:
Grievant, a regularly employed painter and former regularly employed
school bus operator, contends that the Respondent failed to post a painter's
position when the incumbent regular employee was absent from work for
more than 30 days. Grievant alleges a violation of West Virginia Code §
18A-4-15(2) and § 18A-4-8b.
Relief sought: Grievant seeks wages, benefits, & seniority as a regularly
employed painter and interest on all monetary sums.
The grievance was denied at level one by Grievant's immediate supervisor, Donna
Thomas, on April 13, 2000. A level two hearing was scheduled and held on June 26, 2000,
and the grievance was denied by Grievance Evaluator Lisa West on July 11, 2000.
Grievant by-passed level three and appealed to level four on July 19, 2000, and a hearing
was held on September 13, 2000. This case became mature for decision on October 9,
2000, the deadline for the parties' submissions of proposed findings of fact and
conclusions of law. Grievant was represented by John E. Roush, Esq., West VirginiaSchool Service Personnel Association, and the Board was represented by James Withrow,
Esq.
SUMMARY OF EVIDENCE
LII Evaluator's Exhibits
Ex. 1 - All grievance forms.
LIV Grievant's Exhibits
Ex. 1 -
Kanawha County Schools Service Personnel Vacancies, dated March 28,
2000.
Testimony
Grievant testified in her own behalf. The Board presented no witnesses.
FINDINGS OF FACT
I find, by a preponderance of the evidence, the following facts.
1. Grievant has been employed by the Board for approximately 24 years, and
at the time this grievance was filed, was employed as a regular school bus operator.
(See footnote 1)
2. Grievant has also worked for a number of years as a Painter during the
summer.
3. The Board employed Jimmy Mize as a regular Painter. In the late summer
of 1999, Mr. Mize became physically unable to perform his duties as Painter. Mr. Mize was
retrained to perform another service job within the school system. Eventually, in the spring
of 2000, Mr. Mize transferred into a Locksmith position.
4. While Mr. Mize was being retrained, the Board called in Roger Strickland near
the end of October, 1999 to substitute for Mr. Mize in the Painter's position, and this
position was not advertised.
5. The Board did not post Mr. Mize's Painter position after he had been absent
from the position for thirty (30) days. Instead, Mr. Strickland continued to work in the
position.
6. Grievant knew of Mr. Mize's problem, and had been watching the postings
in anticipation that Mr. Mize's position would be posted.
7. In late winter, early spring 2000, Grievant was awarded another Painter's
position (not Mr. Mize's) on a long-term substitute basis. However, the regular employee
returned to work before Grievant entered into the duties of that position.
(See footnote 2)
8. On or about April 10, 2000, Grievant learned that Mr. Strickland was
substituting for Mr. Mize.
9.
Grievant filed this grievance on April 13, 2000.
10. When Mr. Mize completed his retraining for the Locksmith classification, and
assumed a Locksmith position, his Painter's position was advertised. By coincidence,
another Painter's position became vacant and was advertised during this same time period. 11. Grievant applied for and was awarded one of the vacant Painter's positions
on July 3, 2000.
(See footnote 3)
DISCUSSION
As this is not a disciplinary grievance, Grievant bears the burden of proving the
allegations in her grievance by a preponderance of the evidence. Grievant alleges the
Board violated
W. Va. Code §§ 18A-4-8b and 18A-4-15(2) when it failed to post the Painter
position held by Mr. Mize after he had been absent from that position for thirty (30) days.
The Board responds that, because Mr. Mize was in a retraining program, there was
no requirement to post the position pursuant to
W. Va. Code § 18A-4-15(2), because Mr.
Mize was not a leave of absence. The Board further contends that, even if the position
should have been posted after thirty days, Grievant has failed to prove she would have
been the most senior applicant for the position. Finally, the Board asserts that, if Grievant
is awarded the Painter position, she is limited to back pay for the period from fifteen days
prior to filing the grievance up to July 3, 2000, when she was awarded the permanent
Painter's position.
W. Va. Code § 18A-4-15 provides, in pertinent part, the following regarding
employment of substitute service personnel:
The county board shall employ and the county superintendent, subject
to the approval of the county board, shall assign substitute service personnel
on the basis of seniority to perform any of the following duties:
(1) To fill the temporary absence of another service employee;
(2) To fill the position of a regular service employee on leave of
absence: Provided, That if such leave of absence is to extend beyond thirty
days, the board, within twenty working days from the commencement of the
leave of absence, shall give regular employee status to a person hired to fill
such position. The person employed on a regular basis shall be selected
under the procedure set forth in . . . § 18A-4-8b . . . . .
(3) To perform the service of a service employee who is authorized
to be absent from duties without loss of pay.
W. Va. Code §§ 18A-4-8b and 18A-4-15 require a county board to post all vacancies
which occur as a result of an employee being on a leave of absence for more than 30
days. It is not necessary for the employee to formally request a leave of absence in order
for these statutory provisions to be triggered.
Adkins v. Lincoln County Bd. of Educ.,
Docket No. 97-22-272 (Aug. 25, 1997);
Livingood v. Mingo County Bd. of Educ., Docket
No. 95-39-413 (May 8, 1996);
Eagle v. Marion County Bd. of Educ., Docket No. 94-24-226
(Nov. 23, 1994);
Lambert v. Lincoln County Bd. of Educ., Docket No. 93-22-547 (Sept. 29,
1994);
Hensley v. Mingo County Bd. of Educ., Docket No. 93-29-037 (July 6, 1994);
Stutler
v. Wood County Bd. of Educ., Docket No. 54-86-333-3 (Aug. 20, 1987).
(See footnote 4)
Grievant's theory relies on a determination that Mr. Mize's absence from his Painter
position was a leave of absence, and that the hiring of a long-term substitute required
posting and filling pursuant to
W. Va. Code § 18A-4-8b. The Board, however, correctly
points out that Mr. Mize was not on a leave of absence from his employment with the
Board, but rather, had been relieved of his Painter duties and was being retrained for
another service position within the school system. Mr. Mize was, at all times, still working
and receiving on-the-job training. Thus, the selection of a substitute for the Painter positionfalls within subsection (3) of
Code Section 18A-4-15. It is, therefore, unnecessary to
address the Board's other arguments in defense of this grievance.
CONCLUSIONS OF LAW
1.
W. Va. Code § 18A-4-15 provides, in pertinent part, the following regarding
employment of substitute service personnel:
The county board shall employ and the county superintendent, subject
to the approval of the county board, shall assign substitute service personnel
on the basis of seniority to perform any of the following duties:
(1) To fill the temporary absence of another service employee;
(2) To fill the position of a regular service employee on leave of
absence: Provided, That if such leave of absence is to extend beyond thirty
days, the board, within twenty working days from the commencement of the
leave of absence, shall give regular employee status to a person hired to fill
such position. The person employed on a regular basis shall be selected
under the procedure set forth in . . . § 18A-4-8b . . . . .
(3) To perform the service of a service employee who is authorized
to be absent from duties without loss of pay.
2.
W. Va. Code §§ 18A-4-8b and 18A-4-15 require a county board to post all
vacancies which occur as a result of an employee being on a leave of absence for more
than 30 days. It is not necessary for the employee to formally request a leave of absence
in order for these statutory provisions to be triggered.
Adkins v. Lincoln County Bd. of
Educ., Docket No. 97-22-272 (Aug. 25, 1997);
Livingood v. Mingo County Bd. of Educ.,
Docket No. 95-39-413 (May 8, 1996);
Eagle v. Marion County Bd. of Educ., Docket No. 94-
24-226 (Nov. 23, 1994);
Lambert v. Lincoln County Bd. of Educ., Docket No. 93-22-547
(Sept. 29, 1994);
Hensley v. Mingo County Bd. of Educ., Docket No. 93-29-037 (July 6,
1994);
Stutler v. Wood County Bd. of Educ., Docket No. 54-86-333-3 (Aug. 20, 1987). 3. The vacancy in this case, caused by Mr. Mize's being relieved of his Painter
duties while undergoing retraining for another service position within the school system,
was not a leave of absence as set forth in
W. Va. Code § 18A-4-15(2), requiring posting
after thirty days and filling according to
W. Va. Code § 18A-4-8b.
4. Mr. Mize was authorized by the Board to be absent from duties without loss
of pay while he received training for another service position. The selection of a substitute
in that situation fell within subsection (3) of Section 18A-4-15, and did not require posting
and filling pursuant to
Code Section 18A-4-8b.
Accordingly, this grievance is DENIED.
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 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.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: November 16, 2000
Footnote: 1