Grievant,
v. DOCKET NO. 00-41-151
RALEIGH COUNTY BOARD OF EDUCATION,
Respondent,
and
GARY AKERS,
Intervenor.
DECISION
Roy Saddler (Grievant) alleges that Raleigh County Board of Education (RCBE),
improperly selected Intervenor Gary Akers (Intervenor) as a Custodian III at Marsh Fork
High School (MFHS). This grievance was denied at Level I by Marsh Fork High School
Principal Clyde Stepp (Stepp) on February 11, 2000. The grievance was denied at Level
II by Superintendent Dwight D. Dials on April 21, 2000. Proceedings at Level III were
apparently bypassed pursuant to W. Va. Code § 18-29-4(c).
A Level IV hearing was held on July 12, 2000, before the undersigned
Administrative Law Judge, at the Grievance Board's Beckley office. Grievant was
represented by John Roush, Esq. of the West Virginia School Service Personnel
Association, and RCBE was represented by Erwin Conrad, Esq. The parties were given
until August 8, 2000, to submit proposed findings of fact and conclusions of law, Grievant
and Respondent did so, and this grievance became mature for decision at that time. Thefollowing Findings of Fact pertinent to resolution of this matter have been determined
based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT
1. Grievant is employed by RCBE as a substitute Custodian.
2. RCBE posted the position of Custodian III at MFHS.
3. Grievant and Intervenor applied for the position.
4. Intervenor had some 30 months more seniority than Grievant. Principal
Stepp called Intervenor to determine whether he was interested in the position, but
Intervenor could not accept the position because he was caring for his seriously ill mother.
5. Stepp called Grievant to determine whether he was interested in the position,
Grievant told him that he was, and they agreed that Grievant would visit MFHS for an
interview and review of the position's duties, which include operating several coal-fired
furnaces.
6. Later, Stepp was informed by RCBE Personnel Director Dr. Emily Meadows
that Intervenor could accept the position by exercising his rights under the Family and
Medical Leave Act of 1993, 29 USCS § 2615, and the West Virginia Parental Leave Act,
W. Va. Code § 21-5D-1.
7. Intervenor was offered and accepted the position.
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. LoganCounty 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. A
preponderance of the evidence is defined as evidence which is of greater weight or more
convincing than the evidence which is offered in opposition to it; that is, evidence which as
a whole shows that the fact sought to be proved is more probable than not. Black's Law
Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket
No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party
has not met its burden of proof. Id.
Grievant alleges that he should have been selected for the Custodian III position,
arguing that Stepp offered it to him in his telephone call. RCBE responds that Intervenor
was entitled to the position by his seniority and his rights under the Family Medical Leave
Act; and that Stepp's telephone call to Grievant was not an offer of employment because
Stepp had no authority to make such an offer. Grievant seeks instatement into the
position, wages, and benefits he would have earned had he been selected, and interest.
There is little disagreement about the facts in this grievance, and a preponderance
of the evidence demonstrates that, even assuming that Stepp's telephone call to Grievant
was in the nature of a job offer, Stepp lacked authority to offer Grievant a position.
W. Va. Code § 18A-2-5 provides that [t]he board is authorized to employ such
service personnel. . . as is deemed necessary for meeting the needs of the county school
system[.] (emphasis added). W. Va. Code § 18A-2-7 provides that [t]he superintendent,
subject only to approval of the board, shall have authority to assign, transfer, promote,
demote or suspend school personnel and to recommend their dismissal. . . Furthermore,
W. Va. Code § 18A-2-9 provides that [t]he principal may submit recommendations to thesuperintendent regarding the appointment, assignment, promotion, transfer and dismissal
of all personnel assigned to the school or schools under said principal's control.
From these statutes, it appears that RCBE is correct when it argues that Stepp had
only the authority to make a hiring recommendation to RCBE Superintendent Dials, who
could ask RCBE to approve it. Grievant credibly testified that his visit to MFHS was for an
interview, and that Stepp never definitely told him that the job was his. Furthermore, a
preponderance of the credible evidence of record in this grievance tends to show that
Stepp's telephone call to Grievant was predominantly an invitation to visit MFHS and look
the job over, because several past applicants had turned the job down due to MFHS
having several coal-fired furnaces, and an invitation to an interview.
However, even if Stepp mistakenly offered Grievant the position during the disputed
telephone call, mistakes by RCBE's employees do not bind RCBE. Berry v. Boone County
Bd. of Educ., Docket No. 97-03-305 (Apr. 13, 1998); Chilton v. Kanawha County Bd. of
Educ., Docket No. 89-20-114 (Aug. 7, 1989). Accordingly, Grievant's claim must fail.
The following Conclusions of Law support the Decision reached.
CONCLUSIONS OF LAW
1. Grievant bears 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. A preponderance of the evidence is defined as
evidence which is of greater weight or more convincing than the evidence which is offered
in opposition to it; that is, evidence which as a whole shows that the fact sought to beproved is more probable than not. Black's Law Dictionary (6th ed. 1991); Leichliter v. W.
Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993).
2. W. Va. Code § 18A-2-5 provides that [t]he board is authorized to employ
such service personnel. . . as is deemed necessary for meeting the needs of the county
school system. . . (emphasis added).
3. W. Va. Code § 18A-2-7 provides that [t]he superintendent, subject only to
approval of the board, shall have authority to assign, transfer, promote, demote or suspend
school personnel and to recommend their dismissal. . .
4. W. Va. Code § 18A-2-9 provides that [t]he principal may submit
recommendations to the superintendent regarding the appointment, assignment,
promotion, transfer and dismissal of all personnel assigned to the school or schools under
said principal's control.
5. Mistakes by a county board of education's employees do not bind it. Berry
v. Boone County Bd. of Educ., Docket No. 97-03-305 (Apr. 13, 1998); Chilton v. Kanawha
County Bd. of Educ., Docket No. 89-20-114 (Aug. 7, 1989).
6. Grievant failed to prove, by a preponderance of the evidence, that he was
improperly denied the position of Custodian III at MFHS.
Accordingly, the grievance is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Raleigh 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 byW.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.
ANDREW MAIER
ADMINISTRATIVE LAW JUDGE
Dated August 29, 2000