v. Docket No. 04-30-311
MONONGALIA COUNTY BOARD OF EDUCATION,
Respondent.
DATE: DECEMBER 7, 2004 ______________________________
MCBE initially raised two procedural issues at level four. First, was a “Motion To
Dismiss” those individuals who purported to join the grievance at level two. MCBE argues
that those individuals had not timely pursued a complaint, and none had offered any
evidence, or even appeared at any level. The multiple individuals who attempted to join the
grievance at level two failed to timely initiate their claim regarding the positions in question,
since they did not indicate any interest in the matter until sometime after Grievant filed her
level two appeal on July 29, 2004. Further, while these individuals have a general interest
in the posting of positions, they do not allege that any are interested in or entitled to the
assignments now in question. The “Motion To Dismiss” is granted regarding those
individuals.
MCBE additionally asserts that the level one grievance alleged no facts, and the
amended statement at level two remained so vague that it does not give adequate notice
of the claims. After some discussion of the matter, it was determined that Grievant was
addressing two positions which were filled without posting, as well as the position she held
as a substitute. Having clarified the issue as such, counsel for MCBE did not indicate that
she was impeded in the presentation of her case regarding Grievant's claim at level four.
Addressing the merits of the case, the following facts have been derived from a
preponderance of the evidence admitted at levels two and four.
2. In 2003, MCBE reconfigured its transportation plan for the summer, resulting
in the reduction in force of seven bus drivers who had been employed in 2002. The seven
individuals all held the same amount of summer seniority, and a drawing was conducted
to determine their placement on the seniority list. Grievant was placed fifth in seniority, and
along with the others, was put on the preferred recall list.
3. In Summer 2003, Grievant held an extra-duty summer assignment which
required that she work approximately one hour daily. MCBE does not consider these
positions to be regular summer jobs, and the employees who hold them are not granted
seniority or benefits.
4. Grievant was assigned the extra-duty position again in Summer 2004.
5. Cathy White, a bus operator also employed by MCBE, held a summer bus
run awarded to her some time prior to 2003. Due to an at-work injury, Ms. White was on
Workers' Compensation during Summer 2003, and the position was filled by a substitute
driver, Joe Boyles.
6. Ms. White was again unable to work in Summer 2004. She was no longer
receiving Workers' Compensation benefits, and had not requested a leave of absence, but
was absent on a day-to-day basis. 7. Grievant was offered the opportunity to “step up” as a substitute employee
for Ms. White in Summer 2004. Because she was classified as a substitute employee,
Grievant did not earn seniority or other benefits for the assignment.
(See footnote 1)
8. MCBE failed to post at least two bus operator positions for Summer 2004,
apparently due to a communication breakdown between the personnel office and the
transportation department.
Grievant argues that because MCBE failed to post Ms. White's position and the
other two positions, she was denied the opportunity to earn seniority and benefits, as well
as the right to retain a regular position in subsequent summers. MCBE asserts that Ms.
White's position was still retained by Ms. White, and was not available for posting. MCBE
concedes that two other positions were not posted as required, but argues that they cannot
now be posted since the assignments have been concluded, and any relief would be
speculative. Assistant Human Resources Manager Rick Williams testified at level four that Ms.
White's position was not posted because she had not requested a leave of absence, and
was simply absent on a day-to-day basis. W. Va. Code § 18A-5-39(f) provides that
[w]hen any summer employee is absent, qualified regular
employees within the same classification category who are not
working because their employment term for the school year
has ended or has not yet begun the succeeding school
employment term, shall be given first opportunity to substitute
for the absent summer employee on a rotating and seniority
basis.
MCBE could not post Ms. White's position while she was on day-to-day sick leave,
and properly filled her assignment with a substitute.
As to the other positions which were not properly posted for Summer 2004, Grievant
has simply failed to establish any entitlement to relief. Even though those employees on
the preferred recall list with greater seniority than Grievant had accepted other positions,
it is unknown whether the unposted positions were more lucrative. Further, other regular
summer employees were eligible to bid on these positions. Under these circumstances,
it is impossible to determine whether Grievant would have received either of the positions.
The following conclusions of law support the decision reached.
3. MCBE erred in not posting summer job vacancies; however, it is impossible
to determine whether Grievant would have actually received either assignment, and any
relief would be speculative.
Accordingly, this grievance is
DENIED
.
Any party may appeal this decision to the Circuit Court of Kanawha County, or to
the Circuit Court of Monongalia 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.
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE
Footnote: 1