MARLYN NELSON,

            Grievant,

v.                                                Docket No. 99-45-461

SUMMERS COUNTY BOARD OF EDUCATION,

            Respondent.

DECISION

      This grievance was filed by Grievant Marlyn Nelson, a teacher's aide, against Respondent Summers County Board of Education ("SBOE"), when she was not selected for the posted position of Autism Mentor/Aide at Hinton Elementary School. Grievant alleges as the most senior applicant, she should have been selected for the position, but SBOE

As relief she seeks instatement into the position, back pay with interest and seniority to the date the position was filled, and benefits to which she would have been entitled had she been placed in the position.   (See footnote 1)        The following Findings of Fact necessary to the Decision reached, are made based upon the evidence presented at the Level II hearing, and the joint stipulations of fact submitted at Level IV.
Findings of Fact

      1.      Grievant has been employed by SBOE as an aide since 1994. In October 1997, she was injured on the job as a result of lifting a child, and did not return to work until August 1998. During the 1998-99 school year, she was employed as a one-half time bus monitor aide. In that position she rode a school bus and assisted two special needs children, as well as assisting with the other children on the bus as necessary. One of the special needs children had autistic tendencies, and the other had seizures. As a bus monitor aide she was responsible for lifting children in need of assistance if necessary.
      2.      On May 18, 1999, SBOE posted a vacancy for a full-time Autism Mentor at Hinton Elementary School. The posting did not indicate any particular physical ability was needed.
      3.      The Autism Mentor would be required to work with two small boys with autistic tendencies. One of these boys rode the school bus on which Grievant was anaide. Both boys are able to walk, both are under 4 feet tall, and each weighs between 40 and 60 pounds.
      4.      Grievant applied for the position, and was the most senior applicant.
      5.      On June 30, 1999, Superintendent Charles R. Rodes wrote to Grievant asking her to obtain a letter from her doctor stating she was physically able to perform the duties of Autism Mentor. The letter stated, “[t]his position does require lifting of students.”       6.      At Grievant's request, her physician wrote a letter to Superintendent Rodes stating,

      7.      After receiving the letter from Grievant's physician, SBOE reposted the position. Grievant applied again. Grievant was again the most senior applicant. SBOE selected Debra Meadows for the position. Grievant was not selected because Superintendent Rodes did not believe she was physically able to perform the duties of the position.
      8.      Grievant's performance evaluations would not have prevented her employment in the position.
      9.      None of the applicants for the position, including Grievant and the successful applicant, holds certification as an Autism Mentor.
Discussion

      Grievant bears the burden of proving the allegations of her grievance by a preponderance of the evidence. Conner v. Mingo County Bd. of Educ., Docket No. 95-29- 476 (Mar. 28, 1996). W. Va. Code § 18A-4-8b ¶ 1 provides:
The parties do not dispute that, but for her physical limitations, Grievant was entitled by statute to placement in the Autism Mentor position as the most senior applicant. Grievant does not dispute that SBOE has the authority to eliminate her from consideration for the position if she is not physically capable of performing the duties of the position. She believes she is physically able to perform the duties of the position. She felt that, because the job would not require frequent heavy lifting, she could perform the duties of the position despite her injury. She noted that neither child weighs more than 60 pounds, both are able to walk without assistance, and she has worked with one of the children on the bus.
      Respondent pointed to State Board of Education Policy 5314.01, related to Autism Mentors, at § 3, Standards and Experience, which establishes as one of the standards of an Autism Mentor, “[p]hysical ability and stamina necessary to complete all job tasks, including tasks related to ensuring student safety.” It is the responsibility of the board of education to verify that this standard is met, and Respondent argued it had determined Grievant did not meet this standard.      Grievant's injury resulted from lifting a student. Workers' Compensation has awarded her one percent permanent partial disability. She has pending a claim for a seven percent award. She testified that she still has pain in her right shoulder, but it only causes her a problem when she lifts something. Although she could not state how much weight she has been able to lift, she stated she cannot carry a load of wood into her home, and doing housework sometimes aggravates the problem, and she has to pace her work. She testified she cannot lift dead weight, or perform repetitive lifting as would be required to assist a child in a wheelchair.
      Nonetheless, Grievant stated she could help a child up off the floor who falls, and is able to assist a child in the bathroom. She stated she is responsible as a bus monitor aide for lifting if a child needs help, although she has not had to do so. She testified that the child on her bus who had seizures weighed around 200 pounds. When she would have a seizure on the bus, Grievant had to push her back into position on the bus, and the child would then lean against Grievant's shoulder.
       Because of his concern about Grievant's physical ability, Superintendent Rodes requested a doctor's statement that Grievant could perform the duties of the position, and he was not satisfied from the statement she provided that she could do so. Superintendent Rodes testified that while there may be some lifting involved in the job, he was concerned that the children might try to run away, and Grievant would not be physically able to restrain a kicking, flailing, 40 to 60 pound child. He felt restraining such a child would be physically harder than lifting dead weight, although he based this upon his personal observations and beliefs, and not upon any particular experience with autistic children. While Grievant testified she had at times been required to restrain the child with autistic tendencies who rode her school bus, he was in a seat belt on the bus, and sat confined between Grievant and the window. It was only when he had gotten out of the seat belt and tried to get around her, or gotten past her, that she had to restrain him. The two children in the classroom would not be confined as the student on the bus was.
      There is no doubt that Grievant suffers from physical limitations. Although Grievant may have a different view of her limitations, her doctor's statement provides the best guidance on those limitations. In response to Superintendent's Rodes' statement that the job requires lifting of students, he responded that Grievant cannot do heavy lifting. He went on to state that no heavy physical demands can be placed on her right shoulder. Certainly the position will place physical demands on Grievant when either or both of the boys requires restraint or lifting, which not surprisingly gave Superintendent Rodes cause for concern. The statement provided by Grievant's doctor does not provide assurance that she is physically able to perform the duties of the position. It left Superintendent Rodes with concerns as to whether Grievant was physically capable of restraining the two boys in difficult situations. The undersigned cannot say that Superintendent's Rodes' concerns were unjustified.
      While Grievant pointed to her duties as a bus monitor aide, the fact that she would have to lift children if necessary in that position also, and that she had to restrain the child with autistic tendencies under different circumstances, does not mean she is physically capable of performing the duties of the Autism Mentor; rather, the undersigned wonders whether SBOE should have placed her in the bus monitor aide position in the first place. The fact that it did so once does not mean it should take the risk to her and the children here also. Grievant has not proven she was physically capable of performing the duties of the position, and therefore, SBOE was not required to place her in the position.
      The following Conclusions of Law support the Decision reached.
Conclusions of Law

      1.      The burden of proof is upon Grievant to prove the elements of her grievance by a preponderance of the evidence. Conner v. Mingo County Bd. of Educ., Docket No. 95-29-476 (Mar. 28, 1996).
      2.      Grievant did not demonstrate she was physically capable of performing the duties of an Autism Mentor in a manner which would not compromise the safety of the children or aggravate her injury, and she therefore was not entitled to placement in the position.

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the Circuit Court of Kanawha County or to the Circuit Court of Summers 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:      April 7, 2000


Footnote: 1
This grievance was filed on August 13, 1999, where Grievant's supervisor responded that he was without authority to grant the relief requested. Grievant appealed to Level II, where a hearing was held on September 13, 1999. The grievance was denied at Level II on September 30, 1999. Grievant appealed to Level III, where SBOE voted to waiveparticipation in the grievance. Grievant appealed to Level IV on October 29, 1999. After a Level IV hearing was scheduled, the parties agreed to submit this grievance for decision based upon the Level II record, supplemented by joint stipulations of fact and written argument. The joint stipulations of fact are marked and Ordered admitted into evidence as Joint Exhibit 1. This grievance became mature for decision on March 21, 2000, upon receipt of Grievant's written argument. Respondent declined to submit written argument. Grievant was represented by John Everett Roush, Esquire, and Respondent was represented by Kathryn R. Bayless, Esquire.