BONNIE RUPPENKAMP,
Grievant,
v. Docket No. 99-28-500
MINERAL COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
On October 25, 1999, Bonnie Ruppenkamp (Grievant) initiated this grievance
pursuant to W. Va. Code §§ 18-29-1, et seq., alleging that Respondent Mineral County
Board of Education (MCBOE) violated W. Va. Code § 18A-4-7a when it selected another
applicant to fill a ½ day teaching position at Burlington Primary School. The parties
agreed to waive level one proceedings. Following a level two hearing (date unknown), the
grievance was denied at that level on November 19, 1999. Level three consideration was
waived, and Grievant appealed to level four on November 30, 1999. The parties agreed
that a level four decision could be rendered based upon the record developed below,
supplemented by written submissions. Grievant was represented by Harvey Bane of the
West Virginia Education Association, and MCBOE was represented by Gregory Bailey,
Esquire. This matter became mature for consideration upon receipt of the parties' fact/law
proposals on March 22, 2000.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant has been employed by MCBOE as a substitute classroom teachersince 1987.
2. In September of 1999, MCBOE posted a vacancy for a ½ day teacher,
grades 2 and 3, at Burlington Primary School (BPS). Qualifications listed in the posting
were certification in early childhood, elementary education, or multi-subjects, and the
criteria set forth in W. Va. Code § 18A-4-7a. The posting specified that, if no permanently
employed personnel applied, and the first set of factors were utilized, qualifications
considered in the other measures or indicators category would include:
_ Seniority gained as a substitute teacher
_ Knowledge of content areas in primary school education
_ Knowledge of instructional methods in primary school education
_
Recognition of personal and social development levels of
primary school students
_
Knowledge, agreement and willingness to support the primary
school programs offered in Mineral County Schools
_
Experience in and ability to carry out the performance
responsibilities listed in the job description.
3. The same position had been posted and filled in August of 1999. Grievant
and six other applicants had applied for the position at that time and were interviewed by
Principal Garrett Carskadon. The position was awarded to Tammy Ashby, who later
transferred out of the BPS position, just prior to the start of the 1999-2000 school year.
4. Pursuant to the reposting in September, the six remaining applicants from
the first posting applied again, along with five new applicants. The original applicants who
re-applied included Grievant and Kerri Staggers.
5. The new applicants were interviewed by Principal Carskadon, the assistant
superintendent, and the assistant general education director.
6. The applications and interviews of the previous applicants were reviewedand considered by Principal Carskadon, but those individuals were not re-interviewed.
7. In a memorandum to Assistant Superintendent Robert Mason dated October
14, 1999, Principal Carskadon recommended Ms. Staggers for the position, stating as
follows:
Mrs. Staggers had the best interview based on her knowledge of state
learning goals and objectives appropriate to the grades taught, knowledge
of technology to be used as a part of the implementation of these
expectations, development of teacher made units that meet goals
appropriate to the grades to be instructed, willingness to support the primary
school programs offered in Mineral County Schools, and familiarity with
Stanford Achievement testing as it relates to analysis and implementation of
individual remediation plans. She has also been actively involved in Energy
Express for two years. Mrs. Staggers has also been successful in
development of plans for parent involvement in their child's learning. She
has a 4.0 in her college major. She is currently teaching all areas of basic
skills in a long term substitute position within Mineral County Schools. In
addition to the areas listed above, Mrs. Staggers presented a portfolio at her
interview which verified her knowledge of the areas to be taught as well as
her academic and professional accomplishments.
8. Based upon Principal Carskadon's recommendation, Ms. Staggers was
awarded the BPS position.
9. None of the applicants for the position were regularly employed personnel.
10. Grievant holds a master's degree in elementary education, along with
certifications in developmental reading and remedial reading.
11. Ms. Staggers holds a bachelor's degree in elementary education, and has
been employed as a substitute for 1½ years.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burdenof 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.
"County boards of education have substantial discretion in matters relating to the
hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this
discretion must be exercised reasonably, in the best interests of the schools, and in a
manner which is not arbitrary and capricious." Syl Pt. 3,
Dillon v. Bd. of Educ., 177 W. Va.
145, 351 S.E.2d 58 (1986). Filling vacancies for administrative positions and new
classroom teachers is accomplished under the more flexible standards contained in the
so-called "first set of factors" in
W. Va. Code § 18A-4-7a:
A county board of education shall make decisions affecting the hiring of
professional personnel other than classroom teachers on the basis of the
applicant with the highest qualifications. . . . In judging qualifications,
consideration shall be given to each of the following: Appropriate
certification and/or licensure; amount of experience relevant to the position,
or, in the case of a classroom teaching position, the amount of teaching
experience in the subject area; the amount of course work and/or degree
level in the relevant field and degree level generally; academic achievement;
relevant specialized training; past performance evaluations conducted
pursuant to section twelve [§ 18A-2-12], article two of this chapter; and other
measures or indicators upon which the relative qualifications of the applicant
may be fairly judged.
These provisions afford county boards of education considerable latitude in
determining the weight to be given to each of the criteria in assessing candidates'
qualifications, so long as they do not abuse their discretion.
E.g.,
Saunders v. CabellCounty Bd. of Educ., Docket No. 97-06-149 (Dec. 29, 1997);
Hughes v. Lincoln County Bd.
of Educ., Docket No. 94-22-543 (Jan. 27, 1995);
Blair v. Lincoln County Bd. of Educ.,
Docket No. 92-22-009 (July 31, 1992).
See Pockl v. Ohio County Bd. of Educ., 185 W. Va.
256, 406 S.E.2d 687 (1991). Although the arbitrary and capricious standard requires a
searching and careful inquiry into the facts, the undersigned may not substitute her
judgment for that of a board of education.
See generally,
Harrison v. Ginsberg, 169 W.
Va. 162, 286 S.E.2d 276 (1982). Moreover, the Grievance Board cannot perform the role
of a super-interviewer in matters relating to the selection of candidates for vacant
positions, but merely analyze the legal sufficiency of the selection process at the time it
occurred.
Fittro v. Cabell County Bd. of Educ., Docket No. 97-06-556 (May 22, 1998);
Stover v. Kanawha County Bd. of Educ., Docket No. 89-20-75 (June 26, 1989).
See
Sparks v. Mingo County Bd. of Educ., Docket No. 96-29-447 (Feb. 18, 1997).
Grievant argues that, because she undisputedly has more experience teaching and
a higher degree level than Ms. Staggers, she was clearly more qualified for this position.
She contends that MCBOE has abused its discretion by allowing Principal Carskadon to
rely entirely upon the other measures or indicators category in recommending Ms.
Staggers.
In making his recommendation, the principal noted that Ms. Staggers had provided
a portfolio substantiating her qualifications. Grievant contends that she likewise offered
a portfolio at her interview, which the principal refused to review. However, Grievant's
allegation is not borne out by the record in this case. When questioned regarding this
issue at the level two hearing, Grievant testified as follows:
Grievant:
. . . At the time the interview was one hour late, he was running
one hour late. I had [the portfolio]. It was, I have seen it
before, maybe not directly stated that way but he was in a
hurry to get the other interviews finished, he did not look at it.
Mr. Bane:
All right. he did not take your portfolio from you and review [it].
Grievant: No.
Mr. Bane: In detail.
Grievant: No. He had seen it before.
The evidence reveals that, while Principal Carskadon did not review Grievant's
portfolio at the time of her interview, he had seen it before and was familiar with her
qualifications. Principal Carskadon testified to this himself, and it does not appear that
Grievant disputes that he had, indeed, reviewed her portfolio previously. As Principal
Carskadon explained, his decision was based upon Ms. Staggers' interview and his
perception that she had the best general knowledge of the areas pertinent to the grade
levels to be taught, not experience or education level.
It also appears that Grievant takes issue with the fact that she did not receive a
second interview when she applied for this position the second time. However, Ms.
Staggers was also an original applicant who was not re-interviewed, so Grievant has not
been prejudiced by this action.
The evidence presented in this case demonstrates that each and every one of the
criteria set forth in the pertinent portion of Code § 18A-4-7a was assessed and considered.
If that had not been the case, then reconsideration of the applicants may be merited. See
Baird/Hawley v. Kanawha County Bd. of Educ., Docket No. 95-20-445 (Sept. 16, 1996). In addition, there is no dispute that Grievant excelled over Ms. Staggers in some of the
criteria, such as amount of experience, degree level, and specialized training. However,
Code § 18A-4-7a permits school boards to look beyond such factors as experience . . .
when selecting applicants, because they are allowed to consider other measures or
indicators upon which the relative qualifications of the applicant[s] may be fairly judged.
Villers v. Kanawha County Bd. of Educ., Docket No. 97-20-294 (Jan. 30, 1998). Most
importantly, the statute does not prioritize the first set of criteria or mandate that any
particular area be given specific significance. A county board may objectively and/or
subjectively assign different weight to the various aspects of the applicants' credentials.
Jenkinson v. Greenbrier County Bd. of Educ., Docket No. 95-13-503 (March 31, 1996);
See Marsh v. Wyoming County Bd. of Educ., Docket No. 94-55-022 (Sept. 1, 1994).
In determining whether a discretionary decision was "arbitrary and capricious" a
reviewing body applies a narrow scope of review, limited to considering whether relevant
factors were considered in reaching the decision, and whether there has been a clear error
of judgment. Gruen v. Bd. of Directors, Docket No. 95-BOD-281 (Mar. 6, 1997). See
Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v.
Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982); Hill v. Kanawha County Bd. of Educ.,
Docket No. 94-20-537 (Mar. 22, 1995), aff'd sub nom. Hill v. Raglin, Circuit Court of
Kanawha County, No. 95-AA-106 (Mar. 22, 1995). Alternatively, it may be shown that the
county board and school superintendent, in making their selection determination, "did not
rely on factors that were intended to be considered, entirely ignored important aspects of
the problem, explained its decision in a manner contrary to the evidence before it, orreached a decision that is so implausible that it cannot be ascribed to a difference of view."
Bedford County Memorial Hosp. v. Health & Human Serv., 769 F.2d 1017 (4th Cir. 1985).
Although another person might reasonably have selected Grievant for this position
because she had more experience and education, the arbitrary and capricious standard
of review does not permit an administrative law judge to simply substitute her judgment for
that of the school board. Villers, supra; Bradley v. Bd. of Directors, Docket No.
96-BOD-030 (Jan. 28, 1997). See Harper v. Mingo County Bd. of Educ., Docket No.
93-29-064 (Sept. 27, 1993). See generally, Bedford Memorial Hosp., supra; Staton v.
Wyoming County Bd. of Educ., 184 W. Va. 369, 400 S.E.2d 613 (1990). Grievant
introduced no evidence to contradict Principal Carskadon's conclusions regarding Ms.
Staggers' qualifications, nor did she attempt to demonstrate that she was superior to Ms.
Staggers in those areas. Grievant failed to establish that her qualifications were so
superior to Ms. Staggers' that MCBE's failure to select her for this position was necessarily
an abuse of the considerable discretion extended school boards when making such
professional determinations. See Tracewell v. Wood County Bd. of Educ., Docket No.
90-54-398 (Jan. 30, 1991).
Consistent with the foregoing findings and discussion, the following conclusions of
law are made in this matter.
Conclusions of Law
1. In a nondisciplinary grievance, the 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.
2. County boards of education have substantial discretion in matters relating
to the hiring, assignment, transfer, and promotion of school personnel so long as that
discretion is exercised reasonably, in the best interests of the schools, and in a manner
which is not arbitrary and capricious. Syl. Pt. 3,
Dillon v. Bd. of Educ., 177 W. Va. 145,
351 S.E.2d 58 (1986).
3. A county board of education must make decisions on the selection of
professional personnel and new classroom teachers on the basis of the highest
qualifications. In making its selection, the board must give consideration to appropriate
certification, experience relevant to the position, course work and degree level in the
relevant field, degree level generally, academic achievement, relevant specialized training,
past performance evaluations and other measures or indicators upon which the relative
qualifications of the applicants may be fairly judged. Once they have reviewed the criteria
in
W. Va. Code § 18A-4-7a, county boards have wide discretion in filling these positions.
Villers v. Kanawha County Bd. of Educ., Docket No. 97-20-294 (Jan. 30, 1998).
See Pockl
v. Ohio County Bd. of Educ., 185 W. Va. 256, 406 S.E.2d 687 (1991).
4. The grievance procedure in
W. Va. Code §§ 18-29-1,
et seq., is not intended
to be a "super interview" for unsuccessful job applicants, rather, in this context it allows
review of the legal sufficiency of the selection process.
Fittro v. Cabell County Bd. of
Educ., Docket No. 97-06-556 (May 22, 1998);
Stover v. Kanawha County Bd. of Educ.,
Docket No. 89-20-75 (June 26, 1989). 5. In reviewing a county board's exercise of discretion in a hiring decision, the
inquiry into the process by which the decision was made must be thorough and searching,
but considerable deference must be afforded those conducting it.
Fittro,
supra;
Hopkins
v. Monroe County Bd. of Educ., Docket No. 95-31-477 (Feb. 21, 1996).
6. Grievant failed to establish that she was more qualified than Kerri Staggers
for the teaching position at issue in accordance with the requirements of
W. Va. Code
§ 18A-4-7a.
See Pockl,
supra;
Tracewell v. Wood County Bd. of Educ., Docket No.
90-54-398 (Jan. 30, 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 Mineral 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: March 31, 2000 ________________________________
DENISE M. SPATAFORE
Administrative Law Judge