v. Docket No. 04-43-329
RITCHIE COUNTY BOARD OF EDUCATION,
Melissa Davis (Grievant), employed as a teacher by the Ritchie County Board of
Education (RCBE), filed a level one grievance on May 26, 2004, in which she alleged a
violation of W. Va. Code §18A-4-7a occurred when two individuals were employed as co-
Directors of the Project APPLE program, when only one position had been advertised. For
relief, Grievant requested the appointments be rescinded, and both positions be posted.
Additionally, Grievant requests the salary she would have earned if the disposition of the
grievance extends beyond the employment period of the positions.
After the grievance was denied at levels one and two, appeal was made to level four
on September 3, 2004. Bruce Boston, Grievant's West Virginia Education Association
Consultant, and RCBE counsel Howard E. Seufer, Jr., agreed that the grievance could be
submitted for decision based upon the lower-level record. The parties submitted proposed
findings of fact and conclusions of law in November 2004, and the grievance was
reassigned to the undersigned Administrative Law Judge on January 20, 2005.
The following facts have been derived from a preponderance of the credible
evidence made part of the record at level two.
Findings of Fact
1. Grievant has been employed by RCBE as a teacher of Title I Reading and
Math at all times pertinent to this grievance. 2. In March 2004, RCBE posted a vacancy for the extra-curricular position of
Project APPLE Director.
(See footnote 1)
The Director is a twelve month employee, and is responsible for
a fourteen-day Summer Academy and the After- and Before-School Programs.
(See footnote 2)
desired qualifications included a professional teaching license and at least five years of
experience. Annual compensation for the Director is $4,000.00.
3. Grievant discussed her possible application for the position with RCBE
Superintendent, Dr. Richard Butler. The fact that she lacked the preferred years of
experience was addressed, and Dr. Butler encouraged her to apply anyway since no
applications had been received. Grievant did not apply for the position.
4. Some recruitment was necessary to fill the Director position. At its regular
meeting on April 12, 2004, employed Tanya Barker and Karen Prim, who agreed to accept
the position as co-Directors. Both Ms. Barker and Ms. Prim met all the qualifications for
the position which they divided, including the salary, equally.
5. Grievant was employed by RCBE as a teacher for the Summer Academy, for
which she was compensated $2,016.00.
Grievant argues that she was denied the opportunity to apply for a position of co-
Director. RCBE asserts that it was duty-bound to fill the position from among the qualified
employees who applied, and it did not have the option of re-posting to give Grievant the
opportunity to change her mind. RCBE further asserts that there was no abuse of its discretion, and that Grievant does not have standing to grieve the decision since she did
not apply for the position. As this grievance does not involve a disciplinary matter, Grievant
has the burden of proving her claim by a preponderance of the evidence. Procedural Rules
of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2004); 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
"Standing, defined simply, is a legal requirement that a party must have a personal
stake in the outcome of the controversy." Wagner v. Hardy County Bd. of Educ.
No. 95-16-504 (Feb. 23, 1996); See Jarrell v. Raleigh County Bd. of Educ
., Docket No. 95-
41-479 (July 8, 1996). In order to have a personal stake in the outcome, Grievant must
have been harmed or suffered damages. Farley v. W. Va. Parkway Auth.
, Docket No. 96-
PEDTA-204 (Feb. 21, 1997).
It is necessary for a Grievant to "allege an injury in fact, either economic or
otherwise, which is the result of the challenged action and shows that the interest he seeks
to protect by way of the institution of legal proceedings is arguably within the zone of
interests protected by the statute, regulation or constitutional guarantee which is the basis
for the lawsuit." Shobe v. Latimer
, 162 W. Va. 779, 253 S.E.2d 54 (1979). Without some
allegation of personal injury, Grievant is without standing to pursue this grievance. Lyons
v. Wood County Bd. of Educ.
, Docket No. 89-54-601 (Feb. 28, 1990). Because Grievant's
complaint is that the positions were not properly posted, and that she would have applied
had they been, she has standing in this matter.
W. Va. Code
§ 18A-4-7a states in pertinent part:(o) Openings in established, existing or newly created positions
shall be processed as follows:
(1) Boards shall be required to post and date notices which
shall be subject to the following:
(A) The notices shall be posted in conspicuous working places
for all professional personnel to observe for at least five
(B) The notice shall be posted within twenty working days of
the position openings and shall include the job description;
(C) Any special criteria or skills that are required by the
position shall be specifically stated in the job description and
directly related to the performance of the job;
(D) Postings for vacancies made pursuant to this section shall
be written so as to ensure that the largest possible pool of
qualified applicants may apply; and
(E) Job postings may not require criteria which are not
necessary for the successful performance of the job and may
not be written with the intent to favor a specific applicant;
Grievant asserts that this provision was violated when it hired co-directors for a
posting advertising one position. Grievant specifically notes that this provision states that
any special criteria or skills that are required, must be stated in the job description, and that
postings are to be drafted to ensure the largest possible pool of qualified applicants may
apply. Grievant additionally cites RCBE Policy GBEE, which requires postings of all
openings in established, existing or newly created positions.
Grievant's assertion that when it was determined that two employees could share
the position, RCBE was required to post two positions, is not supported by the evidence.
To the contrary, one position was posted, and one position was filled. Grievant had every
opportunity to apply, and was encouraged to apply, by the Superintendent, but elected notto do so. The sole reason the position was awarded to two individuals, was because no
one individual was interested in being the Director. Grievant now, in effect, has simply
changed her mind and wants another opportunity to apply. Under these circumstances
there was no violation of W. Va. Code § 18A-4-7a.
In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following formal conclusions of law.
Conclusions of Law
1. "Standing, defined simply, is a legal requirement that a party must have a
personal stake in the outcome of the controversy." Wagner v. Hardy County Bd. of Educ.
Docket No. 95-16-504 (Feb. 23, 1996); See Jarrell v. Raleigh County Bd. of Educ
No. 95-41-479 (July 8, 1996).
2. Grievant has standing to pursue this issue.
3. Grievant has the burden of proving her claim by a preponderance of the
evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156
C.S.R. 1 § 4.21 (2004); 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
4. Grievant failed to prove that RCBE acted in violation of W. Va. Code
7a when one position was filled with two employees who agreed to share the
responsibilities and the salary.
Accordingly, the grievance is DENIED
Any party may appeal this decision to the Circuit Court of Kanawha County, or to
the Circuit Court of Ritchie County. Any such appeal must be filed within thirty (30) daysof 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.
§ 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: FEBRUARY 16, 2005
SENIOR ADMINISTRATIVE LAW JUDGE
Footnote: 1 APPLE is the acronym for Activities Promoting Positive Learning Experiences.
Footnote: 2 The Director's duties for these programs are minimal according to Dr. Butler.