TRISHA RICE,
                  Grievant,

v.                                                      Docket No. 00-30-185

MONONGALIA COUNTY BOARD OF EDUCATION,
                  Respondent,

and

JENNA FETTY,
                  Intervenor.

D E C I S I O N

       Grievant, Trisha Rice, employed by the Monongalia County Board of Education (MCBOE) as a substitute Secretary/Clerk, filed a level one grievance on January 26, 2000, in which she alleged that she “applied for a vacancy for a clerk at Cheat Lake Elementary School. This position was awarded to Jenna Fetty by board action on January 12, 2000. The Grievant contends that Ms. Fetty is less senior than she is and alleges a violation of §18A-4-8b, §18A-4-8g, § 18A-4-15, and §18A-4-8.” For relief, Grievant “seeks instatement into the clerical position at Cheat Lake Elementary School, wages, benefits, and seniority retroactive to January 12, 2000 and interest on all monetary sums.”
      
A level one decision was not made part of the lower-level record. The grievance was denied at level two following an evidentiary hearing held on April 13, 2000. Grievant elected to bypass consideration at level three, as is permitted by W. Va. Code §18-29-4(c), and advanced her appeal to level four on May 30, 2000.
      A level four hearing was conducted in the Grievance Board's Morgantown office on July 11, 2000, at which time Grievant was represented by John E. Roush, Esq., of WVSSPA, MCBOE was represented by Harry M. Rubenstein, Esq., of Kay Casto &Chaney, and Intervenor was represented by Brian Edwards, Esq. The matter became mature for decision on August 21, 2000, the due date for final post-hearing submissions.
      The essential facts of this matter are undisputed, and may be set forth as the following formal findings of fact.
Findings of Fact
      1.      Grievant was first employed by MCBOE as a substitute service personnel employee in December 1997. At that time, MCBOE administered a Secretarial, but not a Clerical, competency test, and maintained a single seniority list for substitute Secretaries and Clerks.
      2.      In September 1998, MCBOE Director of Personnel, Dr. Louis Hlad, learned that the State Department of Education had produced a separate test for Clerks, and from that time separate Secretarial and Clerical competency tests were administered.
      3.      Grievant was not notified that she needed to take the Clerical competency test if she wished to continue substituting in that classification, but was employed as a substitute Clerk in the Spring of 1999, and again in February 2000.
      4.      Intervenor successfully completed the Clerk competency test on September 30, 1998, and the Secretary competency test on September 16, 1998.
      5.      Intervenor was placed in a half-time clerical vacancy at Cheat Lake Elementary School in Fall 1998. Her appointment appears to have been made by the principal of the school, without formal approval by MCBOE.
      6.       As the result of a a level four decision issued in the matter of Gyorko v. Monongalia County Board of Education, Docket No. 99-30-188 (Aug. 1, 1999), Intervenorwas removed from the position at Cheat Lake on November 23, 1999, and returned to the status of a substitute employee.
      7.      On or about January 5, 2000, Intervenor filed a claim in the Circuit Court of Monongalia County challenging her removal from the Clerical position at Cheat Lake Elementary School.
      8.      Shorty after assuming the position of Clerk, Ms. Gyorko transferred to another position, and the Clerical assignment at Cheat Lake Elementary School was posted from December 16, 1999, through January 6, 2000.
      9.      Both Grievant and Intervenor applied for the vacancy, and Intervenor was appointed to the position by MCBOE, effective January 12, 2000.
      10.      By Order dated March 13, 2000, the Circuit Court of Monongalia County ruled that Intervenor was entitled to regular seniority status from October 1, 1998, through November 23, 1999, but further determined that her removal from the position was not invalid. She was not awarded any relief for the period from November 23, 1999 through January 12, 2000, nor was she awarded attorney fees.
      11.      Grievant attained regular employment status when she was employed by MCBOE in March 2000 as a permanent substitute.

Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of 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. The preponderance standard generally requires proof that a reasonable person would accept as sufficient that a contested fact is more likely true than not. Petry v. Kanawha County Bd. Of Educ., Docket No. 96-20-380 (Mar. 18, 1997). Where the evidence equally supports both sides, the employee has not met her burden of proof.
      Grievant asserts that at the time the position was posted, in December 1999, both she and Intervenor held the status of substitute Clerk. As the substitute with the greatest seniority, Grievant claims she was entitled to the position. MCBOE argues that Grievant was employed as a substitute Secretary with a seniority date of December 18, 1997, while Intervenor holds regular seniority status as a Clerk, effective October 1, 1998. Because Intervenor held the classification title of Clerk, and W. Va. Code §18A-4-8b(b) requires that regularly employed service personnel are to be given first consideration when filling vacancies, MCBOE concludes that she was entitled to the position.
      W. Va. Code §18A-4-8b sets forth the procedure to be followed in filling vacancies in service personnel positions, and states in pertinent part:
      A county board of education shall make decisions affecting promotion and filling of any service personnel positions of employment or jobs occurring throughout the school year that are to be performed by service personnel as provided in section eight, article four of this chapter, on the basis of seniority, qualifications and evaluation of past service.

      Qualifications shall mean that the applicant holds a classification title in his category of employment as provided in this section and must be given first opportunity for promotion and filling vacancies. Other employees then must beconsidered and shall qualify by meeting the definition of the job title as defined in section eight, article four of this chapter, that relates to the promotion or vacancy. If the employee so requests, the board must show valid cause why an employee with the most seniority is not promoted or employed in the position for which he applies. Applicants shall be considered in the following order:

      (1) Regularly employed service personnel;
      (2) Service personnel whose employment has been discontinued in accordance with this section;
      (3) Professional personnel who held temporary service personnel jobs or positions prior to the ninth day of June, one thousand nine hundred eighty-two, and who apply only for such temporary jobs or positions;
      (4) Substitute service personnel; and
      (5) New service personnel.

      Two issues must be addressed in resolving this matter. First, did Grievant hold the classification of Clerk. Second, was Grievant entitled to the position as the substitute with the most seniority.
      It is undisputed that Grievant never took the competency test for the classification of Clerk. However, MCBOE also does not dispute her testimony at level four that she was advised by an employee in the Personnel office at the time she was hired that she would be substituting in both the Secretarial and Clerical classifications. Neither does it contest Grievant's claim that she has twice been assigned as a substitute for individuals employed as Clerks. In fact, Grievant's testimony is supported by that of Dr. Hlad, who confirmed that he was unaware that a competency test for Clerks existed, and were not administered by MCBOE until September 1998. Additionally, Johnnie Hamilton, MCBOE's Coordinator of Adult Education, and the individual who administers the competency examinations, recalled that when he had inquired about a competency test for Clerks prior to 1998, hehad been advised by Dr. Hlad that if an individual passed the Secretarial test, he or she more than met the requirements for the Clerk classification.
      MCBOE does not represent that substitutes employed in the Secretarial classification prior to September 1998 were ever advised that it would be necessary for them to take the competency test if they wished to be assigned as a Clerk. Certainly, the assignment of Grievant to Clerical positions in 1999 and 2000 demonstrates that MCBOE considered her to be qualified to hold that classification. Therefore, Grievant must be found to have been qualified to hold the position of Clerk. MCBOE is urged to correct this situation, if it has not already, with any other similarly situated substitute employees at the earliest opportunity, to avoid future grievances.
      The issue of seniority is complicated by the Order of the Circuit Court. Clearly, Grievant was employed as a substitute prior to Intervenor. However, Intervenor has been awarded regular employee status by the Court, while Grievant has no such seniority. Grievant's argument that the Court Order was not retroactive cannot be accepted. While the Order contains no specific language, the award is inherently retroactive, based upon the finding that but for lack of an official contract, Intervenor was employed from October 1998 through November 1999, as a regular employee. Further, the fact that the Court found Intervenor's discharge in November 1999 was not improper, does not affect the accrual of the seniority, i.e., that the Gyorko decision meant that Intervenor was never entitled to the position in the first place, thereby negating the seniority
      If, at the time the position was filled in January 2000, both Grievant and Intervenor were substitute employees, as MCBOE argued in the matter of Fetty v. Monongalia CountyBoard of Education, Civil Action No. 00-C-10 (March. 13, 2000), Grievant, the most senior applicant would have been entitled to the position. However, in this case, a decision cannot be based upon MCBOE's position in January 2000, because Grievant would have been awarded the position based upon an erroneous determination that Intervenor had no accrued seniority as a regular employee. As previously noted, the Court Order issued in March 2000, established that Intervenor had accrued seniority as a regular employee at the time the position was filled.
      It is well-settled by this Grievance Board that when filling service personnel positions, the amount of regular seniority the applicants possess must be utilized to award the position, if such seniority is present. Ellis v. Lincoln County Bd. of Educ., Docket No. 00-23-196 (September 13, 2000); Tomblin v. Lincoln County Bd. of Educ., Docket No. 00- 22-106 (July 14, 2000); Griffith v. Boone County Bd. of Educ., Docket No. 99-03-172 (Mar. 16, 2000); Brunty v. Lincoln County Bd. of Educ., Docket No. 99-22-069 (July 13, 1999); Hall v. Mingo County Bd. of Educ., Docket No. 94-29-1110 (Sept. 29, 1995); Ferrell v. Mingo County Bd. of Educ., Docket No. 92-45-440 (Aug. 4, 1993).
      All of the cited cases involved substitute employees who applied for a regular position, and it was held that regular seniority, if any, was to be used to determine the outcome of the selection process. In the present matter, Intervenor had more regular seniority than Grievant, and was properly awarded the position in January 2000.   (See footnote 1)        In addition to the foregoing findings of fact and discussion, it is appropriate to make the following formal conclusions of law.

Conclusions of Law
      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of 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.
      2.      Service personnel positions are to be filled on the basis of seniority, qualifications, and evaluations of past service. W. Va. Code §18A-4-8b.
      3.      When filling service personnel positions, the amount of regular seniority the applicants possess must be utilized to award the position, if such seniority is present. Ellis v. Lincoln County Bd. of Educ., Docket No. 00-23-196 (September 13, 2000); Tomblin v. Lincoln County Bd. of Educ., Docket No. 00-22-106 (July 14, 2000); Griffith v. Boone County Bd. of Educ., Docket No. 99-03-172 (Mar. 16, 2000); Brunty v. Lincoln County Bd. of Educ., Docket No. 99-22-069 (July 13, 1999); Hall v. Mingo County Bd. of Educ., Docket No. 94-29-1110 (Sept. 29, 1995); Ferrell v. Mingo County Bd. of Educ., Docket No. 92-45- 440 (Aug. 4, 1993).
      4.      By Court Order, Intervenor was determined to have accrued seniority as a regular employee, therefore she was entitled to the position of Clerk at Cheat Lake Elementary School in January 2000.      Accordingly the grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Monongalia 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 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.

Date: September 25, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE


Footnote: 1
      W. Va. Code §18A-4-8g was amended, effective July 1, 2000, and now limits boards of education to consideration of only substitute seniority when filling positions with substitute applicants.