v. Docket No. 03-HEPC-320
HIGHER EDUCATION POLICY COMMISSION/
WEST LIBERTY STATE COLLEGE,
Respondent.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
circuit court of the county in which the grievance occurred. Any such appeal must be filed
within thirty (30) days of receipt of this decision. W. Va. Code §29-6A-7 (1998). 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 13,2004 _______________________________
Consideration of the grievance was waived at level one by Margaret Six, Grievant's
immediate supervisor, since she does not possess the authority to grant the relief
requested. Ms. Six, did note, however, that she believed the grievance had not been filed
in a timely fashion. Dr. Monica Kennison did not have the authority to grant the relief at
level two, but also noted the matter had not been timely filed. The grievance was denied
at level three by WLSC President, Dr. Richard H. Owens, and appeal was made to level
four on October 9, 2003. A level four hearing was conducted in the Grievance Board's
Wheeling office on February 5, 2004, at which time Grievant was represented by Daniel
C. Tomassetti, Esq., and WLSC was represented by Assistant Attorney General SamuelR. Spatafore. The matter became mature for decision upon receipt of proposed findings
of fact and conclusions of law filed by the parties on or before March 24, 2004.
The following facts have been derived from the record in its entirety.
2. In addition to classroom lecture courses, Grievant is responsible for
supervision of laboratory/clinical courses. Grievant is assigned seventeen or eighteen
contact hours per semester. Typically, Grievant's semester teaching load consists of six
or seven lecture hours and eleven clinical hours. Additionally, Grievant is required to be
on-site for on-call supervision fifteen and one-half hours per week.
3. Lecture classes may vary from one to twelve credits, but most are three credit
hours, and meet for three clock hours weekly during a fifteen week semester. School of
Sciences faculty receive one hour of credit for each clock hour of lecture classes taught.
However, an adjusted credit hour is assigned for contact hours in the clinic/laboratories.
For each clock hour in these courses, the faculty members are credited with two-thirds of
a contact hour.
4. Applying the adjusted credit hours for clinical/laboratory assignments to
Grievant's course load, his seventeen contact hours are considered to be thirteen and one-
third semester credit hours.
5. WLSC Policy 245 provides for a flexible faculty salary plan to accommodate
special circumstances, including teaching overloads. WLSC Policy 210 states that twelvehours is the minimum, and fifteen hours the maximum semester hours for full-time teaching
personnel. Hours beyond the maximum are to be compensated according to the pay
schedule for overload teaching. This pay schedule is based upon rank, with a Professor
earning $500 per semester hour and an Assistant Professor earning $450 per hour.
6. The “Notice Of Faculty Appointment” issued to Grievant in 2001 and 2002
included a notation, that “[t]his appointment includes responsibilities and duties as
Supervising Dentist.” The notation was not included on the 2003 Notice, due to an error
in a new software program being used by WLSC.
7. WLSC properly raised the issue of whether this matter was timely filed at all
lower levels.
Clearly, this grievance was not filed within ten days of the action Grievant complains
of, i.e., calculation of laboratory hours, and compensation for on-call time. Grievant asserts
that the grievance was timely filed under the discovery rule exception set forth in Spahr v.
Preston County Board of Education, 182 W. Va. 726, 391 S.E.2d 739 (1990). Specifically,
Grievant states that he was not mindful or aware that he had a legally protected claim
regarding the overload compensation until he read another level four decision dealing with
the same issue, Baker, et al. v. Fairmont State Technical & Community College, Docket
No. 02-HEPC-068 (June 27, 2002). Grievant opines that it is understandable that upon
reading that decision, he would realize that he too had been discriminated against, and hada legal claim and recourse. Thereafter, he filed this matter within the required ten days
after receiving his Fall 2003 teaching schedule, which revealed a continued refusal to
properly calculate his contact hours.
Grievant has failed to demonstrate a proper basis to excuse his failure to file in a
timely manner. He does not deny that he was unequivocally notified of his employment
terms upon his employment in 1989, and that he had not expressed dissatisfaction with
them through the grievance procedure prior to the filing of this matter. The circumstances
of this case does not fall under the discovery rule exception because it is not the discovery
of a similarly situated party prevailing on his claim, or a legal theory, that triggers the
statutory time lines. Rather, the time begins to run when the grievant learns of the facts of
his own case. Spahr v. Preston County Bd. of Educ., 182 W. Va. 726, 391 S.E.2d 739
(1990); Rhodes v. Div. of Corr. and Div. of Personnel, Docket No. 03-CORR-152 (Jan. 27,
2004); Gragg v. W. Va. Div. of Corrections, Docket No. 98-CORR-330 (1999); Pryor v. W.
Va. Dep't of Transp., Docket No. 97-DOH 341(Oct. 29, 1997). "It is not the discovery of a
legal theory which triggers the statute, but the event . . .." Lynch v. W. Va. Dep't of
Transp./Div. of Highways, Docket No. 97-DOH-060 (July 16, 1997). See also Byrd v. Cabell
County Bd. of Educ., Docket No. 96-06-324 (May 22, 1997); and Adkins v. Boone County
Bd. of Educ., Docket No 93-03-023 (Apr. 8, 1993).
Neither does this grievance allege a continuing practice. When a grievant
challenges a salary determination which was made in the past, which the grievant alleges
should have been greater, this "can only be classified as a continuing damage arising from
the alleged wrongful act which occurred in [the past]. Continuing damage cannot beconverted into a continuing practice giving rise to a timely grievance pursuant to Code
§29-6A-4(a). See, Spahr v. Preston Co. Bd. of Educ., [182 W. Va. 726,] 391 S.E.2d 739
(1990)." Young v. Div. of Corr., Docket No. 01-CORR-059 (July 10, 2001); Nutter v. W.
Va. Dep't of Health and Human Resources, Docket No. 94-HHR-630 (Mar. 23, 1995). See
also Jones v. Div. of Rehabilitation Services, Docket No. 00-RS-046 (June 22, 2000) (the
grievable event in merit increase grievances is ordinarily the failure to receive a merit
increase, not learning that others have received merit increases). The grievance was not
timely filed, and this grievance does not fall within the continuing practice or discovery
exceptions.
Even had the grievance been timely filed, Grievant could not prevail on the claim of
discrimination. Grievant is not similarly situated to any other faculty member at WLSC.
While others have laboratory/clinic components to their teaching load, Grievant does not
actually teach during this time. He does not prepare or give lectures, or evaluate students.
By his own account, he walks through the clinic, observing the work being done under the
supervision of the dental hygienists. Further, Grievant is compensated for his on-call time
as demonstrated by the fact that he is the highest paid faculty member in the School of
Sciences, and the duties of supervisory dentist are specifically included in his annual
appointment.
The above findings of fact and discussion are supplemented by the following
conclusions of law.
2. The facts that give rise to a claim are not the discovery of a similarly situated
party prevailing on their claim, or a legal theory. Spahr v. Preston County Bd. of Educ.,
182 W. Va. 726, 391 S.E.2d 739 (1990); Gragg v. W. Va. Div. of Corrections, Docket No.
98-CORR-330 (1999); Pryor v. W. Va. Dep't of Transp., Docket No. 97-DOH 341(Oct. 29,
1997). "It is not the discovery of a legal theory which triggers the statute, but the event.
.." Lynch v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 97-DOH-060 (July 16,
1997).
3. When a grievant challenges a salary determination which was made in the
past, which the grievant alleges should have been greater, this "can only be classified as
a continuing damage arising from the alleged wrongful act which occurred in [the past].
Continuing damage cannot be converted into a continuing practice giving rise to a timely
grievance pursuant to Code §29-6A-4(a). See, Spahr v. Preston Co. Bd. of Educ., [182 W.
Va. 726,] 391 S.E.2d 739 (1990)." Young v. Div. of Corr., Docket No. 01-CORR-059 (July10, 2001); Nutter v. W. Va. Dep't of Health and Human Resources, Docket No.
94-HHR-630 (Mar. 23, 1995). See also Jones v. Div. of Rehabilitation Services, Docket No.
00-RS-046 (June 22, 2000).
4. Grievant was aware of the facts giving rise to this grievance in 1989, but did
not file this grievance until September 2003, based upon his discovery of a legal theory.
The grievance was untimely filed.
Accordingly, this grievance is
DENIED
.
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE