BARBARA HAUGER,
Grievant,
v. Docket No. 00-39-388
PRESTON COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
Barbara Hauger (“Grievant”), employed as an aide by the Preston County Board of
Education (“PCBOE”), initiated this proceeding on October 23, 2000, challenging her
transfer from Central Preston Middle School to West Preston Middle School. The
grievance was denied at level one, a level two hearing was held on November 14, 2000,
and the grievance was denied at that level on December 5, 2000. Level three
consideration was bypassed, and Grievant appealed to level four on March 27, 2001. A
hearing was held in the Grievance Board's office in Morgantown, West Virginia, on
February 26, 2001. Grievant was represented by counsel, John E. Roush of the School
Service Personnel Association, and Respondent was represented by counsel, Gregory W.
Bailey. This matter became mature for consideration upon receipt of the parties' fact/law
proposals on March 27, 2001.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant is employed by PCBOE as a classroom aide. For the 1999-2000
school year, Grievant was assigned to Central Preston Middle School (“Central Preston”).
She was not assigned to work with any particular student at that time.
2. Grievant did not receive a notice of transfer during the spring of 2000, and
her name was not listed among those who were on the proposed transfer list for the
following school year.
3. Grievant returned to Central Preston at the beginning of the 2000-2001
school year, and she was assigned to work with a particular handicapped student.
4. During the fall of 2000, the student Grievant had been assisting was
transferred to West Preston Middle School (“West Preston”).
(See footnote 1)
5. When Grievant expressed her reluctance to transfer to West Preston, she
was allowed to remain at Central Preston and serve in the position of an aide who was on
a leave of absence. That aide returned on December 12, 2000, at which time Grievant
was transferred to West Preston to assist the student who had previously been transferred.
6. Grievant did not voluntarily transfer to West Preston; she was threatened with
disciplinary action if she did not take the assignment.
7. When Grievant was assigned to Central Preston, she drove five miles each
way and caught a bus, which took her to the school. Since she has been assigned to West
Preston, Grievant has been driving seventeen miles each way, then she rides a bus. On
several occasions, Grievant has driven the entire distance to West Preston, because the
bus did not stop.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden of
proving her claims by a preponderance of the evidence. Procedural Rules of the W. Va.
Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2000);
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.
Grievant contends that her transfer to West Preston in the middle of the school year
violated
W. Va. Code § 18A-2-7, which provides, in pertinent part: "An employee shall be
notified in writing by the superintendent on or before the first Monday in April if he is being
considered for transfer or to be transferred." The statute also provides employees the
opportunity to have a hearing before the board concerning any proposed transfer, and any
action on transfers must be completed by the first Monday in May.
Respondent does not dispute that Grievant was not notified of any potential transfer
in the spring of 2000. However, it contends that
W. Va. Code § 18A-2-7 should be
construed to permit the movement of a special education aide from one school to another
to maintain continuity of services to a particular student, and that such an action should fall
outside the meaning of “transfer” as contemplated by the statute. Respondent contends
that such an interpretation has already been adopted by this Grievance Board with regard
to transportation aides in
Sipple v. Mingo County Board of Education, Docket No. 95-29-
487 (March 27, 1996), where it was held that “aides who assist special education students
commuting to and from school on school-provided transportation, are assigned duties of
an itinerant nature,” allowing county boards of education the freedom to make reasonable
changes in their schedules to accommodate the students to whom they are assigned. Respondent's reliance upon
Sipple,
supra, is somewhat misplaced. The aide
involved in that grievance was reassigned from one bus run to another, slightly altering her
daily work schedule. The issue of transfer was never addressed in that case, and the
administrative law judge only ruled that, in accordance with previous Grievance Board
decisions, a county board may make reasonable daily schedule changes within the
parameters of the employee's contract. The basis of the ruling was that the changes that
occurred in that case did not violate the provisions of
W. Va. Code § 18A-4-8a, restricting
changes in an employee's daily work schedule during the school year without his/her
written consent. The transfer provisions of
W. Va. Code § 18A-2-7 were not at issue in that
case, so Respondent's argument is not persuasive.
The predicament presented when a special education aide is assigned to a
particular student, who may be moved to another school during the school year, was
addressed in
Conrad v. Nicholas County Board of Education, Docket No. 97-34-388 (Jan.
12, 1998). In that case, the grievant protested when she was notified that she was to be
“transferred” from assignment to a particular school to “itinerant” status for the following
school year. The administrative law judge found that Nicholas County's decision to make
all their special education aides itinerant was a logical solution to the problem which occurs
when the student transfers, leaving the aide behind at a particular school with no specific
assignment, and requiring that a new aide be hired at the other school. It was noted in
Conrad that, aside from transferring the employee to itinerant status, the board “could not
otherwise require Grievant to move with the child.”
Moving Grievant involuntarily to another school in the middle of the school year
clearly constitutes a transfer within the meaning of
W. Va. Code § 18A-2-7. Additionally,the undersigned finds that this transfer violated the provisions of that statute requiring
notice of the transfer prior to the first Monday in April of the preceding school year, an
opportunity for hearing, and board action on the transfer by May. Accordingly, Grievant's
transfer was improper, and she is entitled to reinstatement to her position at Central
Preston.
In addition to being returned to her previous position, Grievant has requested
reimbursement for the extra miles she has been required to travel while assigned to West
Preston.
Ordinarily, the relief provided to a grieving employee under the education
grievance procedure involves a "make-whole" remedy, intended to restore the employee
to his or her rightful place as an employee of the county board.
Gillispie v. Kanawha
County Bd. of Educ., Docket No. 98-20-216 (Aug. 26, 1998).
See W.Va. Code §
18-29-5(b);
Graf v. W. Va. Univ., 189 W. Va. 214, 429 S.E.2d 496 (1992);
Sanders v.
Putnam County Bd. of Educ., Docket No. 97-40-459 (Dec. 3, 1997). This Grievance Board
has previously awarded mileage reimbursement to grievants who demonstrated that "but
for" their employer's improper actions, they would not have incurred certain travel or
commuting expenses.
See, e.g.,
Ali v. W. Va. Dep't of Health & Human Resources, Docket
No. 97-HHR-474 (June 30, 1998);
Manns v. Lincoln County Bd. of Educ., Docket No.
97-22-257 (Oct. 20, 1997). Therefore, Respondent must reimburse Grievant for all extra
mileage she has traveled since being transferred to West Preston, to be paid at PCBOE's
standard mileage rate for employees.
See Barker v. Lincoln County Bd. of Educ., Docket
No. 98-22-496 (March 30, 1999).
Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law
1.
In a non-disciplinary matter, Grievant has the burden of proving her claims
by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State
Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2000);
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. Employees of county boards of education must be notified in writing by the
first Monday in April of any proposed transfer for the ensuing school year, are entitled to
a hearing before the board, and action on all proposed transfers must be taken by the first
Monday in May.
W. Va. Code § 18A-2-7.
3. Grievant's transfer to West Preston Middle School in the middle of the 2000-
2001 school year violated the provisions of
W. Va. Code § 18A-2-7.
4. Mileage reimbursement may be awarded to a grievant who has demonstrated
that "but for" their employer's improper actions, they would not have incurred certain travel
or commuting expenses.
See, e.g.,
Barker v. Lincoln County Bd. of Educ., Docket No. 98-
22-496 (March 30, 1999);
Ali v. W. Va. Dep't of Health & Human Resources, Docket No.
97-HHR-474 (June 30, 1998);
Manns v. Lincoln County Bd. of Educ., Docket No.
97-22-257 (Oct. 20, 1997).
5. Grievant established by a preponderance of the evidence that she incurred
additional travel expenses when Respondent improperly transferred her to West Preston
Middle School.
Accordingly, this grievance is GRANTED. Respondent is hereby ORDERED to
reinstate Grievant to her previous position at Central Preston Middle School and toreimburse her for additional travel expenses while assigned there, as previously discussed
in this decision.
Any party may appeal this Decision to the Circuit Court of Kanawha County or the
Circuit Court of Preston 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: April 5, 2001 _______________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1