GREG RILEY,

      Grievant,

v.                                                            Docket No. 00-06-253

CABELL COUNTY BOARD OF EDUCATION,

      Respondent.

DECISION

      Greg Riley (“Grievant”) initiated this grievance on May 8, 2000, challenging his reduction in force (“RIF”) and the calculation of his seniority. He seeks to be reinstated to his teaching position for the 2000-2001 school year. The grievance was denied at level one on May 18, 2000. A level two hearing was held on June 26, 2000, and the grievance was denied at that level in a written decision dated July 24, 2000. Level three consideration was waived, and Grievant appealed to level four on August 1, 2000. The parties agreed to submit this grievance for a decision based upon the record developed below, supplemented by proposed findings of fact and conclusions of law. Grievant was represented by Susan Hubbard of the West Virginia Education Association, and Respondent was represented by counsel, Howard E. Seufer, Jr. This matter became mature for consideration upon receipt of the parties' fact/law proposals on August 18, 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 Respondent Cabell County Board of Education (“CCBOE”) as a regular classroom teacher since 1999. He is certified to teach Multi-Subjects K-8.
      2.      Grievant was assigned to Guyandotte Elementary School during the 1999- 2000 school year.
      3.      Because Guyandotte Elementary was opening a new school building for 1999-2000, CCBOE voted to allow the teachers to return to school two days prior to the start of the school year in order to unpack and prepare the building for classes.
      4.      Grievant was issued a probationary contract of employment, commencing on August 20, 1999, for a one-year employment term of 200 days. However, he was compensated for working 202 days during the 1999-2000 school year.
      5.      Because of budgetary constraints and low student enrollment, CCBOE decided to eliminate 19 professional positions with the start of the 2000-2001 school year. As part of this effort, it voted to eliminate one first grade teaching position at Guyandotte Elementary School, which was held by Elizabeth Mitchell, who had five years of seniority. Ms. Mitchell is certified in Multi-Subjects K-8.
      6.      At the end of the 1999-2000 school year, CCBOE determined that 22 elementary school teachers, including Grievant, had one year of seniority. Therefore, it conducted a “tie-breaker” to determine their seniority for RIF purposes. The other teachers involved in the tie-breaker were not employed at Guyandotte Elementary, so they had not worked the extra days that Grievant worked that year.      7.      Grievant was displaced or “bumped” from his position by Ms. Mitchell, due to his placement in the seniority tie-breaker and the determination that he was the least senior teacher in the certification area Multi-Subjects K-8.
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.       W. Va. Code § 18A-4-7a provides that “[w]henever a county board is required to reduce the number of professional personnel in its employment, the employee with the least amount of seniority shall be properly notified and released from employment[.]” Grievant contends that he should not have been included in the seniority “tie-breaker,” because he actually had two days' more seniority than the other elementary school teachers who were credited with one year of seniority.   (See footnote 1)  He bases his contention, in part, on the following additional portion of W. Va. Code § 18A-4-7a:
Grievant also believes that the following portion of W. Va. Code § 18A-4-7b(a) supports his contention that he should be credited with one year and two days' seniority:

* * *


      Respondent, however, contends that Grievant is not entitled to any additional credit for starting the school year two days early and that it was appropriate to include him in the tie-breaker with the other teachers who had one year of seniority. It bases its contention upon yet another portion of W. Va. Code § 18A-4-7a, which provides:

(Emphasis added.)
      Reading the provisions of W. Va. Code §§ 18A-4-7a and 18A-4-7b(a) in pari materia,   (See footnote 2)  this Grievance Board has determined that “a professional employee's seniority is to be based upon the 'length of time the employee has been employed as a regular full- time certified and/or licensed professional educator,' beginning on the date he/she entered into those regular duties.” Lavoie v. Kanawha County Bd. of Educ., Docket No. 94-20-186(Jan. 31, 1995). However, a request by a professional employee for additional seniority credit for beginning work prior to the start of the regular school term has been specifically rejected:

Napolillo v. Marion County Bd. of Educ., Docket No. 93-24-175 (Sept. 1, 1993).
      The statutory language is quite clear, and as stated in Napolillo, supra, professional employees--like Grievant_are simply not entitled to earn more than one year of seniority during any school term. Therefore, it was appropriate for Respondent to consider Grievant “tied” with all of the other teachers who had one year of seniority at the conclusion of the 1999-2000 school year, and his inclusion in the tie-breaker was proper. Grievant has provided no other legal reasoning which would lead to the conclusion that his reduction in force was improper or illegal in any fashion.
      Consistent with the foregoing, the following conclusions of law are appropriate.
Conclusions of Law

      1.      In non-disciplinary matters, a 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. ofEduc., 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.      “A professional employee's seniority is to be based upon the 'length of time the employee has been employed as a regular full-time certified and/or licensed professional educator,' beginning on the date he/she entered into those regular duties.” Lavoie v. Kanawha County Bd. of Educ., Docket No. 94-20-186 (Jan. 31, 1995). See W. Va. Code §§ 18A-4-7a and 18A-4-7b(a).
      3.      A professional employee is not entitled to earn more than one year of seniority, even when he has begun his duties prior to the normal start of the school year. Napolillo v. Marion County Bd. of Educ., Docket No. 93-24-175 (Sept. 1, 1993).
      4.      Grievant has failed to establish that his reduction in force violated any statute, rule or policy.

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or the Circuit Court of Cabell 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:      September 6, 2000                   _______________________________
                                                DENISE M. SPATAFORE
                                                Administrative Law Judge



Footnote: 1
      The parties agree that, if Grievant is deemed to have more seniority than the teachers with one year, then he would not have been bumped by Ms. Mitchell.
Footnote: 2
      In pari materia” refers to the rule of statutory construction which states that statutes dealing with the same subject matter should be read, construed and applied together.