CHARLES CROOKSHANKS,
Grievant,
v.
DOCKET NO. 02-54-289
WOOD COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Charles Crookshanks, instituted this grievance against his employer, the
Wood County Board of Education (“Board”), on July 15, 2002:
The Grievant is employed under a 240-day contract at Parkersburg South
High School as an Assistant Principal. He performs identical or substantially
similar work as Assistant Principals at Parkersburg High School and
Parkersburg South High School who have 261-day contracts. Grievant
seeks an addition of twenty-one days to his contract to create uniformity and
similar treatment with the 261-day contract employees and to permit the
Appellant to receive the benefits conferred upon 261-day employees. There
is no known or non-arbitrary reason for this difference in treatment.
The Chief Administrator violated the Grievant's rights by setting the
Level Two hearing on a date when Grievant was supposed to attend a
mandatory continuing education seminar out of town and then requiring
Grievant to make up the seminar on another date. The Chief Administrator's
actions constitute a reprisal against the Grievant for filing the original
grievance.
The Chief Administrator violated the Grievant's rights when he
designated George Summers, a former employee of the Wood County Board
of Education, as hearing examiner at Level Two. The Chief Administrator did
not utilize Mr. Bob Harris, a current employee whose regular duties include
the holding of Level Two hearings. The Chief Administrator then proceeded
to serve as the Board of Education's key witness against the Grievant.
The grievance was denied at level ones and two, and appealed to level four on
September 12, 2002. A level four hearing was held in the Grievance Board's Charleston,
West Virginia, office on November 7, 2002, and this matter became mature for decision
on December 7, 2002, the deadline for the parties' submission of proposed findings of fact
and conclusions of law. Grievant was represented by Joseph P. Albright, Jr., Bradley &
Albright, and the Board was represented by Dean A. Furner, Spilman, Thomas & Battle.
SUMMARY OF EVIDENCE
LII General Exhibits
Ex. 1 -
Crookshanks Statement of Grievance and Level One Grievance Decision,
dated August 8, 2002, by Tom Eschbacher.
Ex. 2 -
Allenbaugh Statement of Grievance and Level One Grievance Decision,
dated August 8, 2002, by Tom Eschbacher.
(See footnote 1)
Ex. 3 -
Crookshanks appeal to level two.
Ex. 4 -
Allenbaugh appeal to level two.
Ex. 5 -
August 13, 2002 letter from Daniel D. Curry to George Summers.
Ex. 6 -
August 13, 2002 letter from Daniel D. Curry to George Summers.
Ex. 7 -
August 15, 2002 memorandum from Daniel Curry to Joyce Allenbaugh and
Charles Crookshanks.
LII Grievants' Exhibits
Ex. 1 -
Board of Education of County of Wood v. Airhart, et al., No. 30103 (Apr. 5,
2002).
Ex. 2 -
Grievance Procedural Levels.
Ex. 3 -
Wood County Schools Standard Operating Procedure, Grievances.
Ex. 4 -
Notes prepared by Grievants.
Ex. 5 -
Allenbaugh Statement of Grievance, dated July 25, 2002.
Ex. 6 -
Parkersburg South High School 2002-2003 Administrative Assignments.
Ex. 7 -
Parkersburg High School Administrative Assignments 2002-2003.
Ex. 8 -
Wood County Schools Average Daily Attendance 2001-2002 10th Month.
Ex. 9 -
May 10, 2002 memorandum from George B. Summers.
Level Two Board Exhibits
None.
Level Four Grievant's Exhibits
Ex. 1 -
Assistant Principal Contract of Employment of Charles Crookshanks, dated
August 3, 2000.
Ex. 2 -
Wood County Schools Job Description, Assistant Principal.
Level Four Board Exhibits
Ex. 1 -
Proposed Principal Contract Change Through Attrition.
Ex. 2 -
Wood County Technical Center Block Enrollment 2002-03.
Testimony
Grievant presented the testimony of Daniel Curry, Thomas Eschbacher, and Bill
Niday. The Board presented the testimony of Joyce Allenbaugh and Daniel Curry.
The material facts in this matter are not in dispute, and are set forth in the following
findings of fact.
FINDINGS OF FACT
1. Grievant is currently employed by the Board as an Assistant Principal at
Parkersburg South High School under a 240-day contract.
2. Marie Held and Ed Goe are employed as Assistant Principals at Parkersburg
High School under 261-day contracts.
3. As a result of being employed under 261-day contracts, Ms. Held and Mr.
Goe receive greater annual pay and benefits than Grievant does.
4. The job description for all assistant principals in Wood County is identical
except for the term of employment.
5. All assistant principals in Wood County, regardless of whether they work at
the elementary, junior high or high school level, perform many of the same basic dutiessuch as scheduling, attendance, discipline, supervision, evaluation, ordering of supplies,
etc. LII G. Ex. 2.
6. A breakdown of job assignments among assistant principals at Parkersburg
High School and Parkersburg South High School evidences that they are performing
substantially similar duties, and, if so ordered by the Principal, were subject at all times to
assuming other duties currently performed by their counterparts.
7. Grievant, who holds a 240-day contract, performs the same or substantially
similar duties and responsibilities as Ms. Held and Mr. Goe, who have 261-day contracts.
8. Beginning in 1996, Wood County began the process of reducing the contract
terms of its principals and assistant principals through attrition. LIV Board Ex. 1.
9. Ms. Held and Mr. Goe have had their 261-day contracts since before 1996.
10. Grievant received his Assistant Principal contract in August 2000.
11. At level two, Superintendent Curry learned on a Wednesday that Grievant
and Joyce Allenbaugh agreed to consolidate their grievances for hearing, but were not
willing to waive the time line for setting the level two hearing. Superintendent Curry knew
the regular grievance evaluator was not available on the next Monday, and that he had
asked not to do that particular hearing. He set the hearing for that Friday, and, because
he felt he needed to testify at the hearing, contacted George Summers, a retired Board
employee, to conduct the level two hearing.
12. Grievant informed Superintendent Curry he had to attend a state department
of education training session that Friday, but still would not agree to waive the time line for
the level two hearing. 13. Being forced between the proverbial “rock and a hard place,” Superintendent
Curry left the level two hearing set for that Friday, so as not to end up in default.
14. Superintendent Curry told Grievant he was being selfish and arrogant in not
waiving the time line, and in filing the grievance right at the beginning of the school term,
when it was very disruptive.
DISCUSSION
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 § 4.21 (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.
This grievance arises from a policy adopted by the Board in 1996 to systematically
reduce the contract terms of its Principals and Assistant Principals through attrition.
(See footnote 2)
Since
Grievant was hired as Assistant Principal in 2000, he was offered a 240-day employment
contract, while incumbent administrators retained 261-day contracts. The difference
between a 240-day contract and a 261-day contract is that under the latter, an employee
receives 21 paid vacation days.
Grievant alleges the Board has violated the uniformity provisions of
W. Va. Code
§ 18A-4-5b (1990), as well as the discrimination provisions of
W. Va. Code § 18-29-2(m).
W. Va. Code § 18A-4-5b provides that “uniformity shall apply to all salaries, rates
of pay, benefits, increments or compensation for all persons regularly employed and
performing like assignments and duties within the county[.]” Similarly,
W. Va. Code § 18-
29-2 prohibits discrimination with respect to any employee of a board of education. In
particular,
W. Va. Code §§18-29-2(a) allows recovery for “any discriminatory or otherwise
aggrieved application of unwritten policies or practices of the board.”
W. Va. Code § 18-
29-2(m) defines “discrimination” as “any differences in the treatment of employees unless
such differences are related to the actual job responsibilities of the employees or agreed
to in writing by the employees.” In order to establish a prima facie case of discrimination
under
W. Va. Code § 18-29- 2(m), Grievant must establish the following:
(a) that he is similarly situated, in a pertinent way, to one or more other
employees;
(b) that the other employee(s) have been given advantage or treated with
preference in a significant manner not similarly afforded him; and
(c) that the difference in treatment has caused a substantial inequity to him,
and that there is no known or apparent justification for this difference.
See Martin v. Randolph County Bd. of Educ.,195 W.Va. 297, 465 S.E.2d 399;
Flint v. Bd.
of Educ. of County of Harrison, 207 W. Va. 251, 531 S.E.2d 76 (1999).
Moreover, Grievant alleges the West Virginia Supreme Court of Appeals in the
recently decided case of
Board of Education of the County of Wood v. Airhart, ___ W. Va.
___, 569 S.E.2d 422 (2002), has determined the Board's practice violates the above
Code
provisions. In
Airhart, Wood County service employees grieved the fact that similarly-
situated employees had different contract terms. Finding that the employees in
Airhart
performed substantially similar duties, the Court held that
[W]here county board of education employees perform substantially similar
work under 261-day and 240-day contracts, and vacation days provided to
261-day employees reduce their annual number of work days to a level at or
near the 240-day employees, principles of uniformity demand that the
similarly situated employees receive similar benefits.
Id.
In arriving at that holding, the Court discussed a prior uniformity case, Flint v. Board
of Education of County of Harrison, 207 W. Va. 251, 531 S.E.2d 76 (1999). In that case,
in the early 1980s, the Harrison County Board began to reduce the number of professional
and service employees holding 261-day employment contracts in an effort to reduce
personnel costs which were not subsidized by State aid. Rather than laying-off employees
or reducing their benefits, the Board either eliminated or posted 261-day positions as they
became vacant with shorter employment terms of 240 days, and in some cases, 220 or
200 days. The Court, held that,
while it is clear that the BOE had the authority in the early 1980s to replace
vacant 261-day positions with 240-day contracts, it could not disregard the
uniformity requirement of W.Va. Code §§ 18A-4-5b
The Court has declined to approve county boards' desire to reduce contracts through
attrition, based on the clear and unambiguous language of
Code § 18A-4-5b, and as the
Board in this case has presented no evidence which would dictate a different holding, the
Court's decisions in
Flint and
Airhart will be applied here.
Grievant also claims he is the victim of reprisal, due to Superintendent Curry's
scheduling of the level two hearing on a day he was supposed to attend a conference, and
for calling him selfish and arrogant.
W. Va. Code § 18-29-2(p) defines “reprisal” as “the
retaliation of an employer or agent toward a grievant or any other participant in thegrievance procedure either for an alleged injury itself or any lawful attempt to redress it.”
A grievant claiming retaliation may establish a
prima facie case of reprisal by establishing:
(1) that he engaged in protected activity, e.g., filing a grievance;
(2) that he was subsequently treated in an adverse manner by the
employer or an agent;
(3) that the employer's official or agent had actual or constructive
knowledge that the employee engaged in the protected activity; and
(4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment.
Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
See
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251
(1986);
Fareydoon-Nezhad v. W. Va. Bd. of Trustees/Marshall Univ., Docket No. 94-BOT-
088 (Sept. 19, 1994);
Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept.
29, 1989).
This charge requires little discussion. Superintendent Curry had five days to
schedule the level two hearing, pursuant to
W. Va. Code § 18-29-4(b). Superintendent
Curry knew neither the regular designated grievance evaluator, nor the Board's attorney,
would be available for at least one day of the five day period, and requested that Grievant
agree to waive the five-day requirement. Grievant refused to do so, but now claims that
the Superintendent's choice to schedule the hearing within five days to avoid default is
somehow evidence of “reprisal.” This is a specious argument. In this instance, the
scheduling of the level two hearing on a day when Grievant was to attend a conference
must be attributed, at least in part, to Grievant's refusal to waive the time lines, and
demanding a hearing be scheduled on a day when no grievance evaluator was available. Grievant seeks as relief full back pay and benefits retroactive to the beginning of the
2002-2003 school year as though he was employed under a 261-day contract. The Board
seeks to limit the relief requested because the grievance was not filed within fifteen days
following the event giving rise to the grievance, i.e., Grievant's acceptance of his 240-day
contract of employment, which the Board also contends constituted a waiver on Grievant's
part.
(See footnote 3)
Grievant filed this grievance on July 15, 2002, after receipt of his first paycheck for
the 2002-2003 fiscal year. Grievant was aware of the
Airhart decision, which had been
issued in April 2002, and believed the Board was in error in continuing his 240-day contract
for the 2002-2003 school year based on that decision. As the fiscal year began on July 1,
2002, Grievant's institution of the grievance on July 15, 2002, occurred within fifteen
working days of the beginning of his contract for that year, and Grievant is entitled to the
relief requested.
Moreover, the Board was also aware of
Airhart, yet decided to maintain
Grievant's 240-day contract despite that decision.
The above findings are supplemented by the following conclusions of law.
CONCLUSIONS OF LAW
1. 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 § 4.21 (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.
W. Va. Code § 18A-4-5b provides that “uniformity shall apply to all salaries,
rates of pay, benefits, increments or compensation for all persons regularly employed and
performing like assignments and duties within the county[.]”
3.
W. Va. Code § 18-29-2(m) defines “discrimination” as “any differences in the
treatment of employees unless such differences are related to the actual job
responsibilities of the employees or agreed to in writing by the employees.” In order to
establish a prima facie case of discrimination under
W. Va. Code § 18-29- 2(m), Grievant
must establish the following:
(a) that he is similarly situated, in a pertinent way, to one or more other employees;
(b) that the other employee(s) have been given advantage or treated with
preference in a significant manner not similarly afforded him; and
(c) that the difference in treatment has caused a substantial inequity to him,
and that there is no known or apparent justification for this difference.
See Martin v. Randolph County Bd. of Educ.,195 W.Va. 297, 465 S.E.2d 399;
Flint v.
Board of Educ. of County of Harrison, 207 W. Va. 251, 531 S.E.2d 76 (1999).
4. While county boards of education have the authority to replace vacant 261-
day positions with 240-day contracts, they cannot disregard the uniformity requirement of
W. Va. Code §§ 18A-4-5b.
Flint v. Board of Educ. of County of Harrison, 207 W. Va. 251,
531 S.E.2d 76 (1999).
5. Where county board of education employees perform substantially similar
work under 261-day and 240-day contracts, and vacation days provided to 261-day
employees reduce their annual number of work days to level at or near the 240-dayemployees, principles of uniformity demand that the similarly situated employees receive
similar benefits.
Board of Education of the County of Wood v. Airhart, ___ W. Va. ___, 569
S.E.2d 422 (2002).
6. Grievant has proven by a preponderance of the evidence that he performs
the same or substantially similar duties to Assistant Principals who are employed under
261-day contracts of employment, and that the Board has violated the uniformity and
discrimination provisions set forth in
W. Va. Code §§ 18A-4-5b and 18-29-2(m).
7.
W. Va. Code § 18-29-2(p) defines “reprisal” as “the retaliation of an
employer or agent toward a grievant or any other participant in the grievance procedure
either for an alleged injury itself or any lawful attempt to redress it.” A grievant claiming
retaliation may establish a
prima facie case of reprisal by establishing:
(1) that he engaged in protected activity, e.g., filing a grievance;
(2) that he was subsequently treated in an adverse manner by the
employer or an agent;
(3) that the employer's official or agent had actual or constructive
knowledge that the employee engaged in the protected activity; and
(4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment.
Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
See
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251
(1986);
Fareydoon-Nezhad v. W. Va. Bd. of Trustees/Marshall Univ., Docket No. 94-BOT-
088 (Sept. 19, 1994);
Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept.
29, 1989).
9. Grievant has failed to establish a case of reprisal.
Accordingly, this grievance is
GRANTED, and the Board is hereby
ORDERED to
change Grievant's contract of employment as Assistant Principal to 261-days, and to
compensate Grievant in the form of all back pay and benefits to which he is entitled, as if
he had been employed as a 261-day contract employee since the beginning of the 2002-
2003 school year.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Wood 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 Board with the civil action number so
that the record can be prepared and properly transmitted to the appropriate circuit court.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: December 31, 2002
Footnote: 1