ELAINE PRICKETT,
Grievant,
v. Docket No. 00-30-280
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent.
Grievant, Elaine Prickett, employed by the Monongalia County Board of Education
(MCBOE) as a bus operator, filed a level one grievance on May 26, 2000, in which she
alleged, job not filled in adequate time. Job was posted [but] not filled (still being occupied
by substitute). Became a run March 6, 2000 - (B.I.C. Run), code violation. Grievant
requested reimbursement for lost wages. The grievance was granted at level one, but was
appealed because the School Bus Supervisor lacked authority to grant the requested relief.
The grievance was granted following a level two hearing, yet Grievant advanced the matter
to level four on August 25, 2000, stating that [t]he decision I am not appealing, it is part
of the hearing examiners belief that I would like to have a ruling on. . . . MCBOE,
represented by Harry M. Rubenstein, Esq., filed a Motion to Dismiss; however, Grievant,
who appeared pro se, did not respond, and an evidentiary hearing was conducted on
October 26, 2000. The matter became mature at the conclusion of the hearing when both
parties declined the opportunity to file proposed findings of fact and conclusions of law.
The essential facts of this matter are undisputed and may be set forth as follows.
Findings of Fact
1. Grievant is regularly employed by MCBOE as a bus operator, and holds a
seniority date of March 18, 1991.
2. An extra-duty assignment for the B.I.C. program was posted from March 27through April 7, 2000. The employment date was stated to be as soon as possible.
3. A number of bus operators, including Grievant, bid on the position which was
held by a substitute bus operator for the remainder of the 1999-2000 school year.
4. Grievant was awarded the position, with appropriate back pay, at level two
of the grievance process.
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.
At hearing, Grievant argued that hearing evaluator, Dr. Louis Hlad, stated an
erroneous belief in the level two decision which needed to be corrected. That portion of
the decision in question states:
During Ms. Prickett['s] testimony, she argued by
referring to Monongalia County File: policy GDJ, which states
in part that All bus drivers shall be eligible for extracurricular
trips on a rotation basis. The rotation shall be established on
a seniority basis . . . . It is this hearing examiner's belief this
policy does not deal with extra duty contracts; extra duty
contracts are awarded on the basis of seniority and not on
rotation. If an employee can accommodate more than one
extra duty contract, it is permitted on the basis of seniority and
not on rotation.
Grievant argues that Dr. Hlad's belief is incorrect because Policy GDJ provides that
[a]ll service personnel in the same 'class title' working at the same duty station shall beprovided with equal opportunities for extra assignments and/or compensation on a rotating
basis. She supports her position by citing the W. Va. Code §18A-4-8b provision that [a]n
employee with the greatest length of service time in a particular category of employment
shall be given priority in accepting extra duty assignments, followed by other fellow
employees on a rotating basis according to the length of their service time until all such
employees have had an opportunity to perform similar assignments. The cycle then shall
be repeated . . . . Grievant seeks a ruling stating that MCBOE's practice of allowing the
more senior bus operators to hold multiple extra-duty assignments prior to providing all bus
operators the opportunity to accept such an assignment is contrary to law.
MCBOE asserts that Grievant prevailed at level two, and was awarded back pay for
the 1999-2000 school year, as well as assignment to the run for the 2000-2001 school
year, if it does not conflict with her regular schedule. Based upon these holdings, MCBOE
notes that Grievant specifically states that she is not appealing the level two decision, and
argues that the additional relief Grievant seeks at level four is in the form of a declaratory
ruling.
Grievant clearly states that she is not appealing the decision issued at level two
which granted her the relief requested. In fact, she appears to be litigating a new claim
based upon the language in a decision rather than a grievable event. She continues to
disagree with her employer's method of assigning extra duty runs, and wants confirmation
that she is correct. Grievant's request that MCBOE be instructed to award extra duty
assignments using a different procedure is a request for an advisory opinion, and this
Grievance Board does not issue advisory opinions. Priest v. Kanawha County Bd. of Educ.,
Docket No. 00-20-144 (Aug. 15, 2000); Dooley v. Dep't of Transp., Docket No.94-DOH-255 (Nov. 30, 1994); Pascoli & Kriner v. Ohio County Bd. of Educ., Docket No.
91-35-229/239 (Nov. 27, 1991). Of course, Grievant or any other bus operator who is
denied a future assignment may revisit this issue in an effort to obtain relief.
Conclusion of Law
This Grievance Board does not issue advisory opinions.
Priest v. Kanawha County
Bd. of Educ., Docket No. 00-20-144 (Aug. 15, 2000);
Dooley v. Dep't of Transp., Docket
No. 94-DOH-255 (Nov. 30, 1994);
Pascoli & Kriner v. Ohio County Bd. of Educ., Docket
No. 91-35-229/239 (Nov. 27, 1991).
Accordingly, this grievance is
DENIED.
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: November 16, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE