BEVERLY C. BAILEY,
v. Docket No. 95-29-346
MINGO COUNTY BOARD OF EDUCATION,
D E C I S I O N
Beverly Bailey, Grievant, grieves her non-selection for a Chapter I Math ("ECIA")
teaching position at Gilbert Middle School ("GMS").
(See footnote 1)
She contends her non-selection for
the position constitutes a violation of the preferred recall provisions of W. Va. Code §18A-
4-7a, and that she was more qualified than the successful applicant. She requests as relief
that she be placed in the position. This grievance was denied at Level II and waived at
Level III. A Level IV hearing was held on December 20, 1995, and this case became
mature for decision on January 29, 1996, the deadline for submission of proposed Findings
of Fact and Conclusions of Law.
The material facts are not in dispute and this grievance involves a question of law.
Findings of Fact
1. In Spring, 1995, both Grievant and the successful applicant were RIF'd and placed
on the preferred recall list.
2. On May 24, 1995 MCBOE posted a position for an "ECIA Math Teacher", or a
Chapter I Math teacher at GMS.
3. Thereafter MCBOE selected James Ellis to fill the position.
4. Grievant is certified as a Multi-subject teacher, K-8, Remedial Reading, K-12, and
Developmental Reading, 7-8.
(See footnote 2)
5. Mr. Ellis is certified in Mathematics, 5-12.
6. The Chapter I positions are funded by the federal government.
7. MCBOE completed a W. Va. Code
§18A-4-7a matrix when selecting the successful
applicant for the position. Grievant was credited with having a greater amount of teaching
experience, satisfactory evaluations, and seniority. Mr. Ellis received marks or checks for
having the appropriate certification, teaching experience in the required area, degree level
in the required certification, special training, and satisfactory evaluations.
8. The West Virginia State Department of Education ("SDOE") recommends that
Chapter I positions be filled by an individual certified in the subject area. If the position
is not filled with a certified teacher and one applied for the position, MCBOE may be citedby the SDOE. Spaulding v. Mingo County Bd. of Educ.
, Docket No. 95-29-357 (Jan. 31,
9. To prevent being cited, MCBOE fills the ECIA Math middle school and high school
positions with a teacher certified in Mathematics, if at all possible.
10. Grievant has approximately eighteen more months of seniority than Mr. Ellis.
11. Grievant did not testify about her prior teaching experience.
12. The posting did not state that Math certification was required, as the listing was for
a Math teacher. MCBOE's practice is to list the required certification, only if it is not
clearly discernible from the posting.
W. Va. Code §18A-4-7a lists the guidelines for recalling professional employees after
they have been RIF'd. The pertinent Section states:
All professional personnel whose seniority with the county board is insufficient to
allow their retention by the county board during a reduction in work force shall be
placed on a preferred recall list. As to any professional opening within the area
where they had previously been employed or to any lateral area for which they have
certification and/or licensure, such employee shall be recalled on the basis of seniority
if no regular, full-time professional personnel, or those returning from leaves of
absence with greater seniority, are qualified, apply for and accept such position.
W. Va. Code §18A-4-7a also requires that any special criteria or skills required by the
position be directly related to its performance.
The above-cited Code Section was "intended to afford laid-off employees a right to be
recalled to employment, [in] order of seniority in the certification area in which they had
been previously employed or in another area in which they had been certified or licensed."
Woodson v. Monroe County Bd. of Educ., Docket No. 92-31-282 (Feb. 10, 1993). ThisBoard has previously held that an individual's recall rights are "confined to the areas in
which [an employee] is certified", here, Multi-subject, K-8, Developmental Reading, 7-8, or
Remedial Reading, K-12. Id.
Although Grievant is currently teaching sixth grade Math, this position was posted as a
Multi-subject position and that is Grievant's certification area.
(See footnote 3)
Additionally, there was no
testimony from Ms. Hatfield as to why she requested a Multi-subject teacher. Because
"appropriate subject-matter certification is the most basic of qualifications for a position",
and Grievant does not possess the Math certification required for the ECIA position, she
cannot be awarded the GMS position.
(See footnote 4)
Argabright v. Wyoming County Bd. of Educ.,
Docket No. 93-55-053 (Apr. 6, 1993).
Additionally, it is well-settled that "[c]ounty boards of education have substantial
discretion in matters relating to hiring, assignments, transferring and promotion of school
personnel," as long as they exercise this discretion "reasonably, in the best interests of the
school, and in a manner which is not arbitrary and capricious." MCBOE can require that
middle school ECIA Chapter I Math positions be filled by Math certified teachers. This
decision falls within their broad discretion as discussed in Dillon. Spaulding v. Mingo
County Bd. of Educ., Docket No. 95-29-357 (Jan. 31, 1996). Further, the W. Va. SupremeCourt has recently expanded the Dillon standard "to matters involving curricular programs
and the qualifications and placement of personnel implementing those programs." Cowen,
et. al v. Harrison County Bd. of Educ., No. 22704 (Dec. 13, 1995). MCBOE's decision falls
within these identified parameters.
The above discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law
1. "The preferred recall provision of W. Va. Code §18A-4-7a, was intended to afford
laid-off employees a right to be recalled to employment, [in] order of seniority, in the
certification area in which they had been previously employed or in another area in which
they had been certified or licensed." Woodson v. Mercer County Bd. of Educ., Docket No.
92-31-282 (Feb. 10, 1993).
2. Under W. Va. Code §18A-4-7a's recall provisions, a grievant's recall rights are
confined to his or her areas of certification. Woodson, supra.
3. "Appropriate subject-matter certification is the most basic of qualifications for a
position." Argabright v. Wyoming County Bd. of Educ., Docket No. 93-55-053 (Apr. 6,
4. Grievant was not entitled to be recalled from the preferred recall list to fill the
vacant ECIA Math position because she was not certified in Math. Dunford v. Mercer
County Bd. of Educ., Docket No. 94-27-618 (Dec. 21, 1994); Bailey v. Wyoming County Bd.
of Educ., Docket No. 92-55-478 (July 19, 1993); Adams v. Mercer County Bd. of Educ.,
Docket No. 92-27-455 (Mar. 31, 1993). 5. Grievant has not established MCBOE violated the preferred recall provisions of W.
Va. Code §18A-4-7a, or abused its substantial discretion in applying the law to the particular
facts of this case.
6. County boards of education have substantial discretion in "matters involving
curricular programs and the qualification and placement of personnel implementing those
programs. Cowen et. al. v. Harrison County Bd. of Educ., No. 22704 (Dec. 13, 1995).
Accordingly, this grievance is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Mingo Circuit Court of 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. Any appealing party must advise this office of
the intent to appeal and provide the civil action number so that the record can be prepared
and transmitted to the appropriate court.
JANIS I. REYNOLDS
Administrative Law Judge
Dated: February 21, 1996