MARY C. PATTERSON,
Grievant,
v. DOCKET NO. 95-DOE-533
WEST VIRGINIA DEPARTMENT OF EDUCATION\
WEST VIRGINIA SCHOOLS FOR THE DEAF AND BLIND,
Respondent.
DECISION
Grievant, Mary C. Patterson, filed a grievance against the
West Virginia Schools for the Deaf and Blind (Respondent) on
October 18, 1995. She alleges "my classification does not coincide
with the duties that I perform on a daily basis. I feel that I am
misclassified. To resolve this grievance, I request to be
reclassified to Coordinator of Services, Pay Grade H, or Supervisor
of Maintenance, Pay Grade H or Foreman, Pay Grade H."
Grievant was denied relief at Levels I and II. Pursuant to
W.Va. Code §18-29-4(c), this matter was appealed directly to Level
IV. On March 5, 1996, a Level IV evidentiary hearing was held. At
the conclusion of the hearing the parties agreed not to submit
post-hearing briefs, and the case became mature for decision. The following Findings of Fact were derived from the record.
(See footnote 1)
FINDINGS OF FACT
1. Grievant, an employee of Respondent, is multi-classified
as a laundry worker\general maintenance.
2. Grievant has been a laundry worker since August 16, 1983.
3. In 1983 when Grievant was hired, three full-time
employees, including Grievant, and one person who worked forty
hours a month, comprised the laundry staff.
4. Currently, Grievant is the only regularly employed full-
time employee in the laundry "department". Grievant usually
performs the laundry work by herself. A student helps her forty
minutes a day. The last time Grievant had a full-time co-worker
was approximately two years ago.
W.Va. Code §§ 18-29-1 provides, in pertinent part:
The purpose of this article is to provide a procedure for
employees of the governing boards of higher education,
state board of education, county boards of education,
regional educational service agencies and multi-county
vocational center and their employer or agents of the
employer to reach solutions to problems which arise
between them within the scope of their respective
employment relationships to the end that good morale may
be maintained, effective job performance may be enhanced
and the citizens of the community may be better served. Therefore, WVSBOE employees are allowed to participate in the
grievance procedure. Furthermore, W.Va. Code § 18-17-1 provides:
The West Virginia schools for deaf pupils and blind
pupils heretofore established and located at Romney, in
Hampshire County, shall be continued and shall be known
as the 'West Virginia schools for the deaf and the
blind.' The schools shall be maintained for the care and
education of the deaf youth and blind youth of the state.
The educational or business affairs of the schools shall
be under the control, supervision and management of the
state board of education, and the state board shall
employ the superintendent, principals, teachers and other
employees and shall fix the yearly or monthly salary to
be paid to each person so employed.
The minimum salary scale for said principals,
teachers and other employees shall be the same as set
forth in sections two, three and eight-a [§§ 18A-4-2, 18-
4-3 and 18A-4-8a], article four, chapter eighteen-a of
this code.
Therefore, not only are the West Virginia Schools for the Deaf
and the Blind (WVSDB) are under the control of the West Virginia
State Board of Education (WVSBOE), but the above section of
Code
also specifically states that
W.Va. Code § 18A-4-8A applies to
WVSBOE employees.
W.Va. Code § 18A-4-8A sets the minimum monthly
salaries and pay grades for the class titles found in
W.Va. Code §
18A-4-8. It would be illogical to require WVSBOE employees to be
paid according to a class title, but then not require the
corresponding class title definitions, found in the preceding
section, be properly applied.
In this case, the Undersigned will assume
arguendo that WVSBOE
employees must be classified according to
W.Va. Code § 18A-4-8.
Therefore, Grievant's claims will be analyzed below as if she were
a county board of education employee or enjoyed those same
benefits. In order to prevail in a misclassification grievance, an
employee must establish, by a preponderance of the evidence, that
the duties performed more closely match those of another
classification than that under which her position is categorized.
Hatfield v. Mingo County Bd. of Educ., Docket No. 91-29-077 (Apr.
15, 1991);
Savilla v. Putnam County Bd. of Educ., Docket No. 89-40-
546 (Dec. 21, 1989). Furthermore, a county board of education is
required to classify service personnel according to the duties they
perform.
W.Va. Code §§ 18A-2-5 and 18A-4-8.
See,
Porter v.
Hancock County Bd. of Educ., Docket No. 93-15-493 (May 24, 1994).
County boards of education also have an obligation to ensure that
its school service employees' duties coincide with their
classification designations.
Graham v. Nicholas County Bd. of
Educ., Docket No. 93-34-224 (Jan. 6, 1994).
Even though Grievant is alleging she is misclassified, she did
not testify that she had been misclassified concerning the areas
(laundry and general maintenance) in which she works. The higher
of the two of Grievant's class titles is General Maintenance, which
is defined by
W.Va. Code § 18A-4-8 to mean "personnel employed as
helpers to skilled maintenance employees and to perform minor
repairs to equipment and buildings for a county school system."
Grievant's desire is to be classified in a supervisory
capacity. Class titles to which Grievant desires to be
reclassified include foreman and supervisor of maintenance.
Foreman is defined by
W.Va. Code § 18A-4-8 to mean "skilled persons
employed for supervision of personnel who work in the areas of
repair and maintenance of school property and equipment," while
supervisor of maintenance is defined as
skilled personnel not defined as professional personnel
or professional educators as in section one, article one
of this chapter. The responsibilities would include
directing the upkeep of buildings and shops, issuing
instructions to subordinates relating to cleaning,
repairs and maintenance of all structures and mechanical
and electrical equipment of a board of education.
At the Level II hearing, Grievant failed to provide sufficient
evidence to support her claims. Grievant testified that except for
forty minutes a day, when a student helps her, she usually does the
laundry work by herself. Furthermore, Grievant has not had a
regular co-worker for approximately two years, when another laundry
worker retired. Grievant further testified that on rare occasions
a "substitute" laundry employee will be assigned to help her.
However, merely having a student helper and a co-worker on rare
occasions does not make one a supervisor.
Grievant's second assertion for being classified in a
supervisory capacity was only hinted at during the Level II hearing
when she stated the following:
As far as what I do different than what's on this job
description, over the years I have taken charge of, not
responsible for, but have been asked to pass messages
along or follow through on work. I just recently was
needed to be in charge. I was asked by my immediate
supervisor to be in charge when he was away, and I have
done that in the past before for many different people at
times, and I always took it upon myself to be responsible
enough to, if there was an emergency, find out who I
needed to get in touch with fast, because of the way
things are on the campus. Our department used to be
contacted initially if there was an emergency, and I
always felt it my responsibility to find out who was here
and who was available for me to be in touch with in case
I needed to respond.
Level II, Tr. 19. Emphasis added.
At the Level IV hearing, Grievant further expounded on the
above assertion by testifying that she also "supervised" various
maintenance personnel when Mr. Cooper, Director of Maintenance andGrounds, is out of the building. Apparently, the Director does not
have a beeper or two-way radio which would allow him to be notified
when he leaves the building, so Grievant answers the phone.
Instead of just taking a message and leaving it on the
Director's desk, Grievant takes the initiative and voluntarily
notifies the appropriate personnel. For example, if the problem
relates to plumbing, then Grievant will notify Respondent's only
plumber. Being a small educational facility, Respondent has only
one person for each vocational area. Specifically, Grievant
testified that Billy Mavis performs vehicle maintenance, plumbing
and welding tasks; Jason Charlton, maintenance
(See footnote 2)
; Roger Nickelson,
refrigeration and electrical; Bobby Shaw, carpentry; and Jim
Shoemaker, painting. Therefore, with the exception of Jason
Charlton, Grievant is merely relaying messages and does not have to
decide who to assign a particular task within a vocational area.
However, Director Cooper testified that (1) Grievant is not
required to answer the phone; (2) if she does voluntarily decide to
answer the phone, she is not required to relay any messages to
other personnel and could leave a message on his desk; (3) he has
not asked Grievant to supervise any personnel; and (4) she does not
supervise any personnel. Grievant admitted that she does not
evaluate the performance of any personnel and is not certified in
any of the maintenance vocational areas, i.e., skilled.
Besides answering the phone and relaying messages, Grievant
also testified she performs inventory tasks, purchases supplies,
stocks supplies, and keeps her student helper's time sheet. However, none of these tasks, considered separately or together,
suggest or require Grievant be classified in a supervisory
capacity.
Moreover, Grievant voluntarily assumes the duty of answering
the phone. Therefore, Grievant's claim fails. In
Taylor v. Putnam
County Bd. of Educ., Docket No. 89-40-429 (Sept. 21, 1989), Ms.
Taylor, a teacher, sponsored a student club. Her grievance,
requesting to be paid for these duties, was denied because she
accepted the position voluntarily, at her "own behest". Similarly,
in
Bailey v. Morgan County Bd. of Educ., Docket No. 91-22-150 (Oct.
31, 1991), a bus operator's grievance was denied because she
voluntarily agreed to drive an extra run, when she knew that she
could have refused.
In summary, even
assuming arguendo that WVSBOE employees
should be treated like county board of education employees,
Grievant has not met her burden.
In addition to the foregoing findings of fact and narration,
it is appropriate to make the following conclusions of law.
CONCLUSIONS OF LAW
1. A state board of education employee may participate in the
grievance procedure set forth in
W.Va. Code §§ 18-29-1,
et seq.
2. Grievant is not "skilled personnel" and does not supervise
any other employees of Respondent.
3. Grievant failed to prove her grievance by a preponderance
of the evidence.
Accordingly, this grievance is DENIED.
Any party may appeal this decision to the "circuit court of
the county in which the grievance occurred," and such appeal must
be filed within thirty (30) days of receipt of this decision. W.
Va. Code § 29-6A-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.
Dated: 4/10/96 ____________________________________
JEFFREY N. WEATHERHOLT
ADMINISTRATIVE LAW JUDGE
Footnote: 1