| First Name | Sherry |
| Last Name | Slusher |
| Decision Date | 7/16/2019 |
| Docket Number | 2018-1480-CONS |
| ALJ | JSF |
| Respondent | Jefferson County Board of Education |
| Employment Type | SERV |
| Job Title | Aide |
| Topics | Selection |
| Primary Issues | Whether Grievant proved that Respondent was obligated to offer her the Clerk competency test for the Clerk/Clerk-Aide vacancy, or that its selection decision was otherwise improper. |
| Outcome | Denied |
| Statutes | W. Va. Code § 18A-4-8b; W. Va. Code § 18A-4-8e(c)(3) |
| Related Cases | Nelson v. Boone County Bd. of Educ., Docket No. 2008-1190-BooED (Feb. 24, 2009) aff’d, Kan. Co. Cir. Ct. Civil Action No. 09-AA-49 (Jan. 14, 2011), aff’d, W. Va. Sup Ct. App. Docket No. 11-0278 (Feb. 14, 2012); Ward, et al., v. Nicholas County Bd. of Educ., Docket No. 2013-2224-CONS (Apr. 1, 2014); Cornell v. Putnam County Bd. of Educ., Docket No. 03-40-111 (June 26, 2003), aff’d Cir. Ct. of Kanawha County, Civil Action No. 03-AA-107 (June 23, 2004); Taylor-Hurley v. Mingo County Bd. of Educ., 209 W. Va. 780, 551 S.E.2d 702 (2001); Miller v. Preston County Board of Education, Docket No. 2011-0107-PreED (August 9, 2011); Bowyer v. Fayette County Board of Education, Docket No. 2012-1352-FayED, (August 22, 2013); Cornell v. Putnam County Bd. of Educ., Docket No. 03 40 111 (June 26, 2003); Wellman v. Mercer County Bd. of Educ., Docket No. 95 27 327 (Nov. 30, 1995) |
| Keywords | Selection; Qualifications; Seniority; Competency Test; Posting; Arbitrary and Capricious |
| Intermediate Court of Appeals | |
| Circuit Court | |
| Supreme Court | |
| Synopsis | Grievant is regularly employed by Respondent under the Secretary classification title as regular service personnel. Respondent posted a vacancy under the Clerk/Clerk-Aide multi-classification title. Grievant applied but was not considered. In order to be considered, applicants were required to hold or have held the multi-classification title or be qualified for each of the component classification titles. None of the regular service personnel ever held the multi-classification title. Respondent therefore only considered regular service personnel applicants who were qualified for both the Clerk classification and the Aide classification, allowing applicants to be qualified if they either held the title or met the definition of the job title via a competency test. Grievant had previously held the Aide classification title as a regular service personnel but was not qualified for the Clerk classification, having never held the clerk classification or passed the Clerk competency test. Only 10 of the 37 applicants were regular service personnel. None of the 10 ever held the Clerk classification title. Six of the ten held the Aide classification title. Five of those had previously passed the Clerk competency test. Respondent only considered these five applicants for the vacancy. Respondent did not offer the competency test to Grievant or any of the remaining applicants prior to closing the job posting. Respondent prioritized seniority for the five candidates using their Aide classification. Intervenor Wills was the second most senior of these five. When the senior-most declined the position, it was awarded to Intervenor Wills. Grievant contends that Respondent was obligated to offer a Clerk competency test to all ten regular service personnel applicants, because none of them ever held the Clerk or multiclassification titles, and only five had passed the Clerk competency test, some as substitute service personnel. Grievant argues that no one with less seniority should have been ranked higher than her for the job posting. Respondent counters that it had no obligation to offer the Clerk competency test, as five regular service personnel applicants had already taken and passed the same and were, therefore, qualified. Respondent further contends that, since Grievant was not qualified for the multiclassification position, her seniority did not matter. Grievant did not prove that applicants could only qualify as Clerk by first holding the title, that Respondent was required to offer the remaining applicants the Clerk competency test just because some passed it as substitute service personnel, or that ranking multiclassification position applicants using only Aide seniority was arbitrary and capricious. Accordingly, the grievance is DENIED. |