LISA GRAPES,
Grievant,
v. Docket No. 03-36-368
PENDLETON COUNTY BOARD OF EDUCATION,
Respondent.
DECISION
Lisa Grapes (“Grievant”) initiated this proceeding on September 8, 2003, alleging
entitlement to placement in a kindergarten aide position. The grievance was denied at
level one, a level two hearing was conducted on September 30, 2003, and the grievance
was again denied in a decision dated October 3, 2003. A level three hearing was held on
November 18, 2003, and the grievance was denied at that hearing. Grievant appealed to
level four on December 2, 2003. In lieu of a level four hearing, this matter was submitted
for a decision based upon the lower level record, supplemented by fact/law proposals
submitted by March 22, 2004, at which time this grievance became mature for decision.
(See footnote 1)
The following findings of fact are made based upon a preponderance of the credible
evidence of record.
Findings of Fact
1. Grievant has been regularly employed by Respondent as a half-time cook
since 2002. 2. Grievant had previously been employed by Respondent as an aide and cook,
but had been reduced in force from those positions, and was placed on the preferred recall
list in those classifications. She was employed temporarily as an aide during the 1997-
1998 school year for 127 days
(See footnote 2)
, and she worked as a cook during the 1996-1997, 1997-
1998, and 1998-1999 school years. Grievant had previously been employed by
Respondent as a substitute cook and aide since 1995.
(See footnote 3)
3. On September 18, 2002, Respondent posted an aide position created by the
leave of absence of Wanda Brady. The posting stated that the employment term was
“temporary _ to fill medical leave of absence.”
4. Kenna Champ, a substitute aide, applied for and was selected to fill Wanda
Brady's position, pursuant to the posting. However, due to an inadvertent error by the
Board of Education, Ms. Champ's selection was not formally voted upon the Board. Ms.
Champ served in the position for the remainder of the 2002-2003 school year.
5. On July 28, 2003, Respondent posted a kindergarten aide position at Franklin
Elementary School. Grievant, Ms. Champ, and Beth Kimble, a regularly employed cook,
applied for the position during the posting period.
6. At its meeting on August 4, 2003, Respondent approved Beth Kimble for the
kindergarten aide position, because she was believed to be the most senior regular
employee. 7. On August 20, 2003, Wanda Brady formally requested a continuation of her
medical leave of absence.
8. At its meeting on August 20, 2003, Respondent rescinded the placement of
Beth Kimble in the kindergarten aide position, and approved Kenna Champ for placement
in that position, due to her status as a regularly employed aide at the time of the posting.
Also at that meeting, Respondent corrected its inadvertent failure to formally hire Ms.
Champ for the leave of absence position, approving her placement in that position
retroactive to September of 2002.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden of
proving her grievance by a preponderance of the evidence. Procedural Rules of the W.
Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (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 Ms. Champ should have been considered a substitute at the
time the kindergarten aide position was posted. If she had been, then Grievant contends
that she would have been entitled to the position, because she would have had priority
over Ms. Champ as a regular employee. Respondent counters that the selection of Ms.
Champ was proper, because she was selected to fill the leave of absence position until the
regular employee returned, which had not occurred at the time the kindergarten aide
position was filled. Accordingly, pursuant to the provisions of
W. Va. Code §§ 18A-4-15
and 18A-4-8g, Ms. Champ was entitled to be considered as a regular employee at thattime, so she was the appropriate selection for the position, as the only applicant regularly
employed in the classification at issue.
W. Va. Code § 18A-4-15(a)(2) provides that substitutes are entitled to fill vacancies
caused by leaves of absence, and that, if the leave of absence is for more than 30 days,
such positions must be filled pursuant to the posting and selection requirements of
W. Va.
Code § 18A-4-8b. There is no dispute here that Ms. Champ was placed in Ms. Brady's
position in compliance with those provisions. However, the dispute arises regarding the
issue of Ms. Champ's status as of July, 2003. Grievant contends that the position expired
at the end of the school year, so Ms. Champ had returned to substitute status for the
summer.
The issue presented here has been previously addressed by this Grievance Board.
It has been held that, even if a board of education attempts to limit a leave of absence to
the current school year only, it is prohibited from doing so, because
W. Va. Code § 18A-4-
15 clearly requires that an employee who is placed in such a position is to remain in it until
the regular employee returns.
See Tennant v. Marion County Bd. of Educ., Docket No. 00-
24-381 (Mar. 8, 2001);
Simpson v. Mingo County Bd. of Educ., Docket No. 96-29-431 (May
28, 1997). Accordingly, since Ms. Brady had obviously not returned to her position at the
end of the 2002-2003 school year, and in fact renewed her leave of absence prior to the
beginning of the 2003-2004 school year, Ms. Champ was still serving in that position when
she applied for the kindergarten aide vacancy.
Both
W. Va. Code §§ 18A-4-15 and 18A-4-8g provide that a substitute serving in
a leave of absence vacancy is to be given regular employee status and seniority while
serving in such a position. Although Respondent inadvertently failed to formally place Ms.Champ in the leave of absence position, there is no dispute that she was selected pursuant
to a proper posting and bidding process. This Grievance Board has held that, if a leave
of absence position has not been properly posted, the substitute placed in such a position
is not entitled to the benefits of regular employment and seniority.
Cisco v. Mingo County
Bd. of Educ., Docket No. 00-29-087 (July 20, 2000). However, that did not happen here.
Ms. Champ was competitively selected, pursuant to the requirements of
W. Va. Code §
18A-4-8b, so she was entitled to regular employee status while serving in the position.
Messer v. Mingo County Bd. of Educ., Docket No. 93-29-497 (Aug. 1, 1994);
See W. Va.
Code § 18A-4-8g.
Although
W. Va. Code § 18A-4-8b states that service personnel positions are to be
filled on the basis of “seniority, qualifications, and evaluations of past service,” that statute
goes on to state that “[q]ualifications shall mean that the applicant holds a classification title
in his category of employment . . . and must be given first opportunity for . . . filling
vacancies.” Moreover, and of specific pertinence here,
W. Va. Code § 18A-4-8g provides
that “[s]ervice personnel who are employed in a classification . . . at the time when a
vacancy is posted . . . shall be given first opportunity to fill the vacancy.” Accordingly, it is
quite clear that, as the only applicant who was regularly employed as an aide at the time
of the posting, Ms. Champ was entitled to placement in the kindergarten aide position.
See
Haer v. Mason County Bd. of Educ., Docket No. 99-26-292 (Nov. 30, 1999).
The following conclusions of law support the decision reached.
Conclusions of Law
1.
In a non-disciplinary matter, Grievant has the burden of proving her grievance
by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & StateEmployees 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.
Kenna Champ was considered to be a regularly employed aide at the time
she applied for the kindergarten aide position at issue, because she was serving in a
properly posted leave of absence position.
W. Va. Code §§ 18A-4-15 and 18A-4-8g.
3. As the only applicant who was regularly employed in the aide classification
at the time the vacancy was posted, Kenna Champ was entitled to placement in the
position over Grievant.
W. Va. Code §18A-4-8g(g).
Accordingly, this grievance is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County, or to
the Circuit Court of Pendleton 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.
Date: April 9, 2004 ______________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1