CAROL S. YOUNG,
                  Grievant,

v.                                                      Docket No. 00-40-323

PUTNAM COUNTY BOARD OF EDUCATION,
                  Respondent.

                              D E C I S I O N

      Grievant, Carol S. Young, employed by the Putnam County Board of Education (PCBOE) as a music teacher, filed a level one grievance on June 2, 2000, in which she stated:
      The Grievant, an elementary music teacher, was given a directive from her principal that she was to work the evening of May 25th for a music program. Ms. Young feels that the board discriminated against elementary music teachers since they pay the Middle School music teachers an extra-curricular supplement to work extra duty.

For relief, Grievant requested to be paid for five hours at her regular hourly salary, for a total of $131.50.
      The grievance was denied at levels one and two. Grievant elected to bypass consideration at level three, as is permitted by W. Va. Code §18-29-4(c), and advanced her claim to level four on October 3, 2000. The parties agreed to submit the grievance for decision based upon the lower-level record, supplemented by proposed findings of fact and conclusions of law filed on or before November 17, 2000.   (See footnote 1) 
       The following finding of fact are derived from the record in its entirety, including the level two transcript and exhibits.

Findings of Fact
      1.      Grievant has been employed by PCBOE for approximately seventeen years, and has held the position of music teacher at West Teays Elementary School (WTES) at all times pertinent to this decision.
      2.      On or about May 5, 2000, Bruce Faulkner, Principal at WTES directed Grievant to prepare and present a musical program for a performance by fifth graders at a reception on May 25, 2000.
      3.      Grievant declined the opportunity to present the program, indicating that she was unavailable to do any further music programs outside normal school hours.
      4.      Mr. Faulkner advised Grievant, by undated letter, that she was required by the job description for music teacher to perform reasonable extra duty assignments, and that her failure to comply with the request may result in disciplinary charges of insubordination, willful neglect of duty and/or unsatisfactory performance.
5.      Grievant spent five hours in the preparation and presentation of the program.
      6.      PCBOE did not provide supplemental, extra duty compensation to elementary music teachers for the 1999-2000 school year, but did provide a $400 supplement for middle school music teachers/choral directors.
      7.      A $400 extra duty supplement for elementary teachers, effective the 2000- 2001 school year, was approved by PCBOE in July 2000.
      Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving 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 CountyBd. 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.
       Grievant claims she is entitled to compensation for performing work similar to that of middle school music teachers, who are given a supplement. Lacking established standards, other than the annual supplement, Grievant requests compensation at her hourly rate of pay. PCBOE asserts that the assignment was part of Grievant's ordinary duties, not extracurricular in nature, and did not require additional compensation.   (See footnote 2) 
      The West Virginia Supreme Court of Appeals addressed a virtually identical situation in Weimer-Godwin v.Board of Education of the County of Upshur, 179 W. Va. 423, 369 S.E.2d 726 (1988). In that matter, Ms. Weimer-Godwin was employed as an itinerant general music teacher and choral director assigned to one elementary and one intermediate school. Her duties as choral director required that she work outside regular school hours in the preparation and direction of two evening performances each year. Elementary and intermediate music teachers/choral directors were not awarded any salary supplement. The Board of Education also employed itinerant string instrument and band instrument teachers. While some aspects of their work varied from the general music teachers/choral directors, such as the number of students taught, grade levels instructed, and schools served, the instrumental instructors were similarly required to present threeor four evening performances annually. The instrumental teachers were paid additional compensation in the form of a supplement of $100 per month.
      Given these facts, the Court determined that W. Va. Code §18A-4-5a provides that a board of education “may” provide additional compensation for teachers under certain circumstances and, once awarded, the same amount of additional compensation must be granted to other teachers performing like assignments and duties. “Like” was defined as “having a distinctive character, no matter how widely different in nonessentials”   (See footnote 3)  and/or “as having the same or nearly the same qualities or characteristics; resembling another; or substantially similar”.   (See footnote 4)  Upholding Ms. Weimer-Godwin's claim, the Court concluded “the substantial similarity of duties is apparent, as is the distinctive character of preparing for and directing program performances”.
      In the present matter, there is no evidence that the general duties of the elementary and middle school music teachers differ. The job description of the middle school teachers indicates that they will present three to four performances per year with a minimum of eleven extra hours. This appears to be more performances than the elementary teachers provide; however, under Weimer-Godwin, that factor alone would not exempt PCBOE from providing the supplemental compensation required by W. Va. Code §18A-4-5a. The elementary and middle school music teachers clearly perform like assignments and duties, and PCBOE is required to compensate them uniformly, as it has already acknowledged for the 2000-2001 school year. Although Grievant's requested relief is not equivalent to thatearned by the middle school teachers, it does not appear to be unreasonable, or otherwise improper.
      In addition to the foregoing findings of fact and discussion, it is appropriate to make the following formal conclusions of law.
Conclusions of Law
      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving 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.      A county board of education “may provide additional compensation for any teacher assigned duties in addition to the teacher's regular instructional duties wherein such noninstructional duties are not a part of the scheduled hours of the regular school day. Uniformity also shall apply to such additional salary increments or compensation for all persons performing like assignments and duties within the county . . . .” W. Va. Code §18A-4-5a.
      3.      Once a county board of education pays additional compensation to certain teachers, it must pay the same amount of additional compensation to other teachers performing “like assignments and duties[.]” Syl. Pt. 1, Weimer-Godwin v. Bd. of Educ. of the County of Upshur, 179 W. Va. 423, 369 S.E.2d 726 (1988).
      4.      Grievant has proven by a preponderance of the evidence that elementary music teachers employed by PCBOE perform “like assignments and duties” as the middle school music teachers/choral directors, and are entitled to the same supplemental salary.      Accordingly, the grievance is GRANTED, and PCBOE is directed to compensate Grievant in the amount of $131.50.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Putnam 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: December 4, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE


Footnote: 1
      Grievant was represented by Rosemary Jenkins of the West Virginia Federation of Teachers, and PCBOE was represented by counsel, John A. Grafton.
Footnote: 2
      Although both parties referred to the assignment as extra duty and extracurricular interchangeably, it is not necessary to address the correct designation due to the outcome of the decision. It is noted that all the documents relating to PCBOE's action to grant the supplemental income to elementary music teachers, and the job description for the middle school teachers, refer to “extra duties” or “extra duty”.
Footnote: 3
      State v. Gaughan, 55 W. Va. 692, 700, 48 S.E. 210, 213 (1904).
Footnote: 4
      Black's Law Dictionary834 (5th ed. 1979).