NORMAN LILLY,

                  Grievant,

v.                                                Docket No. 99-10-433

FAYETTE COUNTY BOARD OF EDUCATION,

                  Respondent.

DECISION

      This grievance was filed by Grievant, Norman Lilly, against Respondent, Fayette County Board of Education ("FBOE"), on or about June 11, 1999, challenging the selection of another bus operator for a summer position. As relief Grievant seeks backpay for the summer of 1999, benefits lost, and priority for the position for the summer of 2000, if it exists.   (See footnote 1)        Although his statement of grievance does not allege discrimination, Grievant stated at the Level II hearing that he was alleging discrimination, as well as a violation of W. Va.
Code
§ 18-5-39. Respondent objected to the amendment of the grievance to include a claim of discrimination on the grounds that no such claim was included in the statement of grievance. Respondent did not indicate that it would be prejudiced in any way by allowing the discrimination claim. The Level II grievance evaluator took this under advisement, allowed Grievant to present evidence on the claims of discrimination, and then did not address the issue of discrimination in the Level II decision. It is therefore necessary to determine whether Grievant may allege discrimination.
      W. Va. Code § 18-29-3(j) provides:

The grievance evaluator heard the evidence without making any ruling on whether the grievance could be amended to include a claim of discrimination, and never ruled that the grievant must file a new grievance. Accordingly, the undersigned concludes that the grievance evaluator allowed the grievance to be amended to include claims of discrimination, and those claims may be pursued at Level IV.
      The following Findings of Fact necessary to the decision reached, are made based upon the evidence presented at Levels II and III.
Findings of Fact
      1.      Grievant has been employed by the Fayette County Board of Education ("FBOE") as a regular bus operator since August 25, 1982.
      2.      Betty Harler has been employed by FBOE as a regular bus operator since August 25, 1982.   (See footnote 2) 
      3.      Grievant was suspended for 10 days without pay for disciplinary reasons in February 1997. FBOE adjusted Grievant's seniority by 10 days to reflect this suspension. As of the date of the Level II hearing in this grievance, FBOE had not adjusted any other employee's seniority date to reflect a suspension without pay.
      4.      On April 22, 1999, FBOE posted the two summer positions which are at issue here. The first position was a bus operator position in the Title I Extended Summer Program, transporting students to and from Mount Hope Middle School, and the second was a Carpenter I/Painter position. The two positions overlapped on July 6, 7, 8, and 9, 1999, so that the same employee could not simultaneously perform the duties of both positions on those days. FBOE posted a total of four bus operator positions for the Title I Extended Summer Program for the summer of 1999, and one additional bus operator position for field trips only. The posted location of two of these positions was Mount Hope Middle School, and the posted location of the other two was Mount Hope Elementary.
      5.      Ms. Harler held a bus operator position in the Title I Extended Year Program transporting special education students to and from Pax Elementary School during thesummer of 1998. Grievant had been offered this position, but had declined to accept it. FBOE had posted four bus operator positions for the summer of 1998 for the Title I Extended Year Program. The posted locations for the positions were one at Scarbro Elementary, two at Ansted Elementary, one at Pax Elementary. When the positions were filled, the location of one of the Ansted Elementary positions was changed to Mount Hope Middle School, and Charles Canterbury held the position at Mount Hope Middle School.
      6.      The Title I Extended Year Program at Pax Elementary School for special education students during the summer of 1998 is the same program which was offered at Mount Hope Middle School during the summer of 1999.
      7.      Grievant held a Carpenter I/Painter position during the summer of 1998.
      8.      Grievant applied for the posted Carpenter I/Painter position and a bus operator position serving Mount Hope Middle School, and was awarded the Carpenter I/Painter position. Ms. Harler was awarded the bus operator position serving Mount Hope Middle School.
      9.      FBOE has not in the past allowed an employee to hold two summer positions which overlap, and has not called out a substitute to fill one of the positions on the days which overlapped.
Discussion

      The burden of proof is upon Grievant to prove the elements of his grievance by a preponderance of the evidence. Conner v. Mingo County Bd. of Educ., Docket No. 95-29- 476 (Mar. 28, 1996). Grievant argued that he has been discriminated against by Respondent in two ways. First, he pointed out that FBOE had not adjusted the seniorityof other employees who had been suspended without pay for disciplinary reasons. Apparently, FBOE was planning to correct this error sometime in the fall of 1999. Grievant argued that if the seniority of all employees was adjusted at that time, it was discriminatory to adjust his seniority at an earlier date. Second, Grievant argued that in prior summers, FBOE had allowed bus operators to work in two positions which overlapped, employing substitute personnel to fill one of the positions on the overlapping days.   (See footnote 3)  Thus, to the extent one of the reasons Grievant was not employed in the bus operator position was that he could not simultaneously hold two positions, this was discriminatory treatment.
      Grievant also argued that W. Va. Code § 18A-4-8g does not require FBOE to adjust the seniority of its employees when they are suspended without pay. Grievant read this statute as discretionary. He further argued that even if his seniority were adjusted by 10 days, since he worked during the summer he worked more than 200 days anyway, and a 10 day adjustment would not affect his seniority date.
      Respondent argued that Ms. Harler had filled the posted bus operator position during the summer of 1998, and therefore, W. Va. Code § 18-5-39 gave her priority for the position during the summer of 1999. It argued the Title I summer program did not change, and that changing the location of the summer school program from Pax Elementary School to Mount Hope Middle School did not make this a different position. The bus operator position was still associated with the same Title I summer program. Respondent alsoargued that W. Va. Code § 18A-4-8h limits service personnel to one regular full-day position. Finally, Respondent argued that Grievant was less senior than Ms. Harler by 10 days due to Grievant's suspension. It also pointed out that even if Grievant's seniority had not been adjusted for his suspension, Grievant was not more senior than Ms. Harler, as they both began their regular employment as bus operators on the same day. Respondent did not address Grievant's discrimination arguments.
      Grievant responded that Ms. Harler was not employed in the position which was posted during the summer of 1998. Grievant argued that position was held by Charles Canterbury. Grievant also argued that Respondent could not now argue Ms. Harler was employed in the position during the summer of 1998, and was therefore entitled to hold it during the summer of 1999, as Respondent had not listed this as one of the reasons Grievant was not placed in the position when it responded to his inquiry as to why he was not placed in the position. Grievant cited no legal authority for this position, and the undersigned is not aware of any. If FBOE reached the right legal result for the wrong reason, that does not preclude it from putting forward the correct legal reasoning at a later date, so long as Grievant is not prejudiced by this, and there is no indication that he was.
      W. Va. Code § 18-5-39 governs the employment of school service personnel in summer positions, providing as follows:


      This Grievance Board has previously addressed the issue of whether the summer bus route must remain exactly the same from one summer to the next in order to be the same position. In Lilly v. Fayette County Board of Education, Docket No. 96-10-481 (September 15, 1997), the Grievant here challenged the selection of bus operators for summer positions based upon their summer seniority, arguing that because the extended summer program changed locations from year to year, the bus operator positions for the summer of 1996 were newly created positions. The Administrative Law Judge stated:

      The facts here are identical. Ms. Harler held a bus operator position in the Extended Summer Program in 1998, and held summer seniority over Grievant to hold a bus operator position in the Extended Summer Program in 1999. Grievant's other arguments need not be addressed as they have no bearing on whether Ms. Harler held summer seniority over Grievant.
      The following Conclusions of Law support the decision reached.
Conclusions of Law

      1.      Grievant bears the burden of proving the elements of his grievance by a preponderance of the evidence. Conner v. Mingo County Bd. of Educ., Docket No. 95-29- 476 (Mar. 28, 1996).
      2.      “W. Va. Code § 18-5-39 provides summer seniority for service personnel who have been employed in a county board of education's summer school program in previous years.” Gibson v. Wayne County Bd. of Educ., Docket No. 98-50-374 (Dec. 3, 1998).
      3.      “Merely because a summer program moves its location from year to year, does not mean that the program is a different one or that the positions within that program are newly created. Miller v. Kanawha County Bd. of Educ., Docket No. 20-86-351-1 (Dec. 18, 1986).” Lilly v. Fayette County Bd. of Educ., Docket No. 96-10-481 (Sept. 15, 1997).
      4.      Because Betty Harler held a summer position with FBOE driving a bus for FBOE's Title I Extended Summer Program during the summer of 1998, FBOE properly selected Ms. Harler over Grievant for the posted Title I Extended Summer Program bus operator position.
      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Fayette County or 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 Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.

                                                                                                       BRENDA L. GOULD
                                                 Administrative Law Judge

Dated:      March 17, 2000


Footnote: 1
Grievant's supervisor responded on June 18, 1999, that he was without authority to resolve the grievance. Grievant appealed to Level II on June 25, 1999, where a hearing was held on August 6, 1999. The grievance was denied at Level II on August 27, 1999. Grievant appealed to Level III, where a hearing was held by the Board of Education on September 30, 1999. The grievance was denied at Level III on October 4, 1999. Grievant appealed to Level IV on October 8, 1999. The grievance was misfiled, and no action was taken on it until this error was discovered on January 19, 2000. The parties agreed to submit this grievance for decision based upon the record developed at Levels II and III, and this grievance was then assigned to the undersigned Administrative Law Judge. Grievant was represented at Level II by Kimberly A. Levy, Esquire, and Respondent was represented by Douglas L. Kincaid, its Director of Personnel. Grievant was represented at Levels III and IV by John Everett Roush, Esquire, and Respondent was represented by Erwin L. Conrad, Esquire. This grievance became mature for decision on March 7, 2000, upon receipt of the Level III transcript. Neither party submitted additional written argument. Although Grievant had initially also sought as relief “pay for an extra-duty trips that were taken by Betty Harler, this relief was not requested or addressed at any level of the grievance proceeding, and is considered abandoned.
Footnote: 2
Grievant's counsel represented at the Level III hearing that Grievant had moved ahead of Ms. Harler on the seniority list as the result of a random drawing. Respondent neither denied nor agreed with this. As no testimony or documentary evidence on this point was offered, it cannot be considered a fact.
Footnote: 3
As noted in Finding of Fact Number 9, the undersigned did not find this assertion to be proven. Both Douglas Kincaid, Personnel Director, and Galen Horrocks, Supervisor of Transportation, denied that FBOE had allowed this in the past. While Grievant stated this had occurred, he could not recall when this had occurred or in what areas of Fayette County.