GARY WORKMAN,
            Grievant,

v.                                                       Docket No. 99-08-430

CLAY COUNTY BOARD OF EDUCATION,
            Respondent.

D E C I S I O N

      
      Grievant, Gary Workman, alleges the Clay County Board of Education ("CCBOE") violated several statutes in hiring a substitute over the Summer of 1999. His Statement of Grievance reads   (See footnote 1)  :

      This grievance was filed on September 15, 1999, denied at Levels I and II, and waived at Level III. Grievant appealed to Level IV on October 13, 1999, and a Level IV hearing was held on November 30, 1999. This case became mature for decision on that date as the parties elected not to file proposed findings of fact and conclusions of law.   (See footnote 2) 
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact
      1.      Grievant is employed under a regular, continuing, ten month contract as a custodian with CCBOE. During the regular school year he works at Clay Elementary School ("CES"). He is the third most senior custodian at CES, and there are more senior custodians elsewhere in the CCBOE system.
      2.      Grievant does not have a regular summer position with CCBOE.
      3.      During the Summer of 1999, Grievant was called out to work nine days of extra-duty work. CCBOE did not call out custodians in order of seniority for this work.
      4.      At CES there is one full-time custodian, Jackie Boggs. While he was off for two days, August 18 and 19, over the summer of 1999, CCBOE called a substitute, Rick McClothin, to fill in during his absence. Mr. McClothin was called out as his name was the next in line on a rotating substitute list.
      5.      Grievant was available to work the two days the substitute was called in to work.
Issues and Arguments

      Grievant argues CCBOE violated W. Va. Code §§ 18A-4-8b and 18A-4-15 when it called out a substitute custodian to replace the vacationing, full-time custodian. Grievant maintains he should have been allowed to "step-up" into Mr. Boggs' position for these two days. Respondent asserts it followed the correct procedure as W. Va. Code § 18A-4-15 "step-up" provisions do not apply to summer positions.   (See footnote 3) 
Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his 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.
Brown v. Lincoln County Bd. of Educ., Docket No. 97-22-407 (Apr. 28, 1998).
      This case is directly on point with the case of Brown v. Lincoln County Board of Education, Docket No. 97-22-407 (Apr. 4, 1998). There, as here, the grievant specifically alleged the Lincoln County Board of Education violated the "step-up" provision of W. Va. Code § 18A-4-15 when it did not hire her to fill a temporary vacancy during the summer. Although the grievant in Brown had a regular, ten month contract and a regular summer position, she was not employed at the time of the alleged violation. The "step-up" provision in W. Va. Code § 18A-4-15 states as follows:

      The administrative law judge in Brown noted, "[t]his provision allows an exception to the requirement in Code § 18A-4-15 that substitutes be hired to fill temporary vacancies caused by the absence of a regular employee, and allows regular employees within the same classification and working station of an absent employee to 'step up' into the placeof the absent employee." Brown, supra. The administrative law judge in Brown noted Grievant Brown "would have the Grievance Board extend the 'step up' provisions not only to employees currently working in the same building or work station as an absent employee, but also to those not employed", and noted "there is nothing in [W. Va. Code § 18A-4-15] which would support such a theory." Id. Thus, the administrative law judge in Brown held that since the grievant was unable to demonstrate she was employed at the time of the alleged violation, she was not excusable neglect titled to the "step-up" provisions of W. Va. Code § 18A-4-15.
      Here, as in Brown, Grievant holds the same classification as the substitute, was employed in the same school during the regular school year, and was not employed at the time of the substitute's placement into the position. Thus, the facts are almost identical, and Grievant, like the grievant in Brown, is not entitled to the relief he seeks as the "step- up" provisions in W. Va. Code § 18A-4-15 do not apply in this situation.   (See footnote 4) 
      The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his 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.      Grievant failed to prove CCBOE violated W. Va. Code § 18A-4-15 when it did not apply the "step-up" provisions during the summer when he was not under contract.
      3.      Grievant has not proven he is entitled to the relief sought as CCBOE correctly followed the provisions in W. Va. Code § 18A-4-15 and the holding in Brown v. Lincoln County Board of Education, Docket No. 97-22-407 (Apr. 4, 1998).
      Accordingly, this grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Clay 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. Any appealing party must advise this office of the intent to appeal and provide the civil action number so that the record can be prepared and transmitted to the appropriate court.

                                           __________________________________
                                                 JANIS I. REYNOLDS
                                                 Administrative Law Judge

Dated: February 4, 2000


Footnote: 1
      Grievant submitted two Statements of Grievance. The Statement of Grievance used is found on CCBOE's Employee Grievance Form, and more clearly states the issues and Grievant's position.
Footnote: 2
      CCBOE was represented by Superintendent Jerry Linkinoggor, and Grievant was pro se.
Footnote: 3
      Respondent also noted it had failed to follow the proper procedure in calling out employees for summer extra-duty work. CCBOE called Grievant out to work two separate times over the Summer of 1999, and did not follow a rotation list as is required by W. Va. Code § 18A-4-8b.
Footnote: 4
      It should be noted that if Grievant's argument were accepted, the last part of the proviso would be rendered meaningless.