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:
Once a grievance has been filed, supportive or corroborative evidence may
be presented at any conference or hearing conducted pursuant to the
provisions of this article. Whether evidence substantially alters the original
grievance and renders it a different grievance is within the discretion of the
grievance evaluator at the level wherein the new evidence is presented. If
the grievance evaluator rules that the evidence renders it a different
grievance, the party offering the evidence may withdraw same, the parties
may consent to such evidence, or the grievance evaluator may decide to
hear the evidence or rule that the grievant must file a new grievance. The
time limitations for filing the new grievance shall be measured from the date
of such ruling.
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:
Notwithstanding any other provision of the code to the contrary, the
county board of education is authorized to employ school service personnel
to perform any related duties outside the regular school term as defined in
section eight, article four, chapter eighteen-a of this code. An employee who
was employed in any service personnel job or position during the immediate
previous summer shall have the option of retaining such job or position if
such exists during any succeeding summer. If such employee is unavailableor if the position is newly created, the position shall be filled pursuant to
section eight-b, article four, chapter eighteen-a of this code. When any
summer employee who is employed in a summer position is granted a leave
of absence for the summer months, the board shall give regular employment
status to such employee for that summer position which shall be filled under
the procedure set forth in section eight-b, article four, chapter eighteen-a of
this code. The summer employee on leave of absence shall have the option
of returning to that summer position if such exists the succeeding summer
or whenever such position is reestablished if it were abolished. The salary
of a summer employee shall be in accordance with the salary schedule of
persons regularly employed in the same position in the county where
employed.
If a county board reduces in force the number of employees to be
employed in a particular summer program or classification from the number
employed in such position in previous summers, such reductions in force
and priority in reemployment to such summer positions shall be based upon
the length of service time in the particular summer program or classification.
For the purpose of this section, summer employment for service
personnel shall be defined, but not limited to, filling jobs and positions as
defined in section eight, article four, chapter eighteen-a of this code and
especially established for and which are to be predominantly performed
during the summer months to meet the needs of a county board of
education.
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:
Grievant's argument that the summer positions, at issue, are newly created
must fail. Clearly, the program has remained the same since 1991. The fact
that the location of the program has moved from school to school does notmake the program or the positions newly created.
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 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.