DONALEA JONES,
Grievant,
v.
DOCKET NO. 00-DOE-108
WEST VIRGINIA DEPARTMENT
OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Donalea Jones, filed a grievance on or about January 10, 2000, against
her employer, the West Virginia Department of Education (Department), as follows:
I have been inappropriately denied years of experience for the years that I
worked for the University of Charleston.
Relief sought: Back wages plus pre-judgment interest, plus all other benefits
that I am entitled to for the years that I worked for the University of
Charleston.
The grievance was denied at level one, and a level two hearing was held on March 10,
2000. The grievance was denied in an undated decision, by James C. Carter, Hearing
Examiner. Grievant appealed to level four on March 24, 2000, and the parties agreed to
submit this grievance based on the record developed at level two. This matter became
mature for decision on April 15, 2000, the deadline for the parties' proposed findings of fact
and conclusions of law.
(See footnote 1)
Grievant was represented by Perry Bryant, UniServ Consultant,West Virginia Education Association, and the Department was represented by Katherine
L. Dooley, Esq.
SUMMARY OF EVIDENCE
Grievant's Exhibits
Ex. 1 -
West Virginia Department of Education Employee Handbook.
Ex. 2 -
December 7, 1999 memorandum from Donalea M. Jones to Tony Smedley,
Mike McKowan, Mike Davis, with attached resume.
Ex. 3 -
January 10, 2000 letter from Tony Smedley to Donalea Jones.
Ex. 4 -
January 10, 2000 letter from Tony Smedley to Noretta Abston.
Department's Exhibits
Ex. 1 -
Employment History of Donalea M. Jones.
Ex. 2 -
Verification of Employment of Donalea M. Jones, dated March 2, 1995.
Ex. 3 -
Verification of Annual Increment of Donalea M. Jones.
Ex. 4 -
Ex. 5 -
West Virginia Blue Book, 1998.
Ex. 6 -
W. Va. Code §§ 5-5-1 and 5-5-2.
Testimony
Grievant testified in her own behalf. The Department presented the testimony of
Tony Smedley.
FINDINGS OF FACT
1. Grievant is employed by the Department as a secretary.
2. Grievant was previously employed at the University of Charleston, a private
institution of higher education, from December 8, 1989 through April 1992.
3. Sometime in November or December 1999, Grievant learned that another
employee of the Department, Noretta Abston, had been given credit for years of service
previously worked at the University of Charleston. Grievant checked her records and found
she had not been given credit for her years at the University. 4. Grievant requested credit for years of service at the University of Charleston
by letter memorandum dated December 7, 1999, to Tony Smedley, Executive Director,
Office of Human Resources. G. Ex. 2.
5. Mr. Smedley responded to Grievant by letter dated January 10, 2000,
denying her request for credit for years of service at the University of Charleston. The
letter indicates that:
[e]mployees are not given credit for work experiences at private colleges
and universities. These institutions are not supported by public tax dollars
and are not an integral part of state retirement or medical benefits system.
The reference in the 'old' Employee Handbook, Service to qualify
more than the minimum annual leave must be based on verified past
employment with the State of West Virginia or employment in other
educational positions, including educational experiences outside of
West Virginia, has been interpreted as experience with county boards of
educations, RESAs, and state supported colleges and universities.
Any errors that we have made in giving individuals credit for work
experiences at private colleges and universities will be corrected during the
next employment approval period (July 2000).
G. Ex. 3. (Emphasis in original)
6. Mr. Smedley informed Noretta Abston, by letter dated January 10, 2000, that
her years of service with the Department had been calculated incorrectly, in that she had
been given credit for one year experience at the University of Charleston. Mr. Smedley
further informed Ms. Abston that, [n]ext fiscal year we will hold your years of experience
at 12 years, for one year, and we will make the appropriate adjustment on your salary.
This adjustment will not result in a salary decrease. G. Ex. 4. (Emphasis in original).
DISCUSSION
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.
Grievant alleges she has improperly been denied years of service credit for years
worked at the University of Charleston, a private institution of higher education. The
Department argues its employees are only entitled to years of service credit for work with
State of West Virginia institutions. Therefore, no error was committed by denying her years
of experience credit for her work at the University of Charleston. Further, the Department
corrected the situation with Noretta Abston, who had inadvertently been given years of
experience credit for work at the University of Charleston.
The pertinent provision of the Employee Handbook is entitled Attendance and
Leave, and addresses how annual leave is computed relative to years of service. Under
the subsection Years of Service, the Handbook provides:
Service to qualify for more than the minimum annual leave must be based
on verified past employment with the State of West Virginia or employment
in other educational positions, including educational experience outside of
West Virginia.
According to the Department, the provision employment in other educational
positions has been interpreted to mean experience with county boards of education,
RESAs, and state supported colleges and universities.
See G. Ex. 3. The rationale givenfor this interpretation is that state supported colleges and universities are supported by
public tax dollars and an integral part of state retirement or medical benefits systems, while
private institutions are not. G. Ex. 3.
The Department points to the definition of years of employment within
W. Va. Code
§ 18A-4-8 to further support its position. According to that
Code Section, entitled,
Employment terms and class titles of service personnel; definitions:
Years of employment means the number of years which an
employee classified as service personnel has been employed by a board in
any position prior to or subsequent to the date of this section and including
service in the armed forces of the United States, if the employee were
employed at the time of his or her induction. For the purposes of section
eight-a of this article, years of employment shall be limited to the number of
years shown and allowed under the state minimum pay scale as set forth in
section eight-a of this article.
Department Ex. 4.
The Department also refers to
W. Va. Code § 5-5-1,
et seq. for support. That
section defines employee as any regular full-time employee of the state or any spending
unit thereof who is eligible for membership in any state retirement system of the state of
West Virginia or other retirement plan authorized by the State. Department Ex. 6.
It is well established that a government agency's determination regarding matters
within its expertise is entitled to substantial weight.
Princeton Community Hosp. v. State
Health Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985).
See W. Va.
Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993);
Security Nat'l
Bank v. W. Va. Bancorp, 166 W. Va. 775, 277 S.E.2d 613 (1981). Additionally, where the
plain language of a policy does not compel a different result, deference must be extendedto the agency in interpreting its own policies.
See Dyer v. Lincoln County Bd. of Educ.,
Docket No. 95-22-494 (June 28, 1996). Where the language in a policy is either
ambiguous or susceptible to varying interpretations, this Grievance Board will give
reasonable deference to the agency's interpretation of its own policy.
See Dyer,
supra;
Edwards v. W. Va. Parkways Dev. and Tourism Auth., Docket No. 97-PEDTA- 420 (May
7, 1998).
See generally Blankenship,
supra;
Princeton Community Hosp. v. State Health
Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985);
Jones v. Bd. of
Trustees, Docket No. 94-MBOT-978 (Feb. 29, 1996);
Foss v. Concord College, Docket No.
91-BOD-351 (Feb. 19, 1993). Thus, the Department's interpretation of its policy is entitled
to deference by this Grievance Board, unless it is contrary to the plain meaning of the
language, is inherently unreasonable, or is arbitrary and capricious.
Dyer,
supra. Grievant
has failed to prove the Department's interpretation of its policy is arbitrary and capricious,
or unreasonable.
Grievant also contends it was arbitrary and capricious for the Department to correct
the years of experience erroneously given to Nora Abston, and that the proper remedy is
for the Department to treat Grievant in the same manner as Ms. Abston. However, the
appropriate remedy in a case such as this is not to compensate Grievant, but rather, to
correct the erroneous application of the Department's policy regarding Ms. Abston. Of
course, that is not the remedy Grievant desires, but it is the appropriate remedy in this
instance.
See Roberts v. W. Va. Div. of Highways, 96-DOH-107 (May 2, 1996).
CONCLUSION OF LAW
Grievant has failed to establish by a preponderance of the evidence that the
Department's interpretation of its annual leave policy is unreasonable, or arbitrary and
capricious, or that she is entitled to the remedy sought in this grievance.
Accordingly, this grievance is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County. Any
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.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: May 23, 2000
Footnote: 1