v. Docket No. 00-HHR-318
DEPARTMENT OF HEALTH & HUMAN RESOURCES/
BUREAU FOR CHILDREN AND FAMILIES,
Respondent.
'The WVSCA program is not directly linked to WV Works
eligibility and the gross non-excluded income of the applicant
family is compared to 100% of the FPL'.
I am grieving the assignment of the WVSCA applications of
active Income Maintenance cases, and in any other way to be
made whole.
I do not have access to, nor am I familiar with, the cases in the
Income Maintenance Unit. The continual transferring of these
customers from their regular case worker to a temporary,
unfamiliar case worker could create havoc for both our
customers and staff as well, and may increase the likelihood
of errors.
For relief, Grievants request that WV Works SCA to be processed in entirety by the WV
Works Units. WVSCA for active Income Maintenance cases be processed in entirety byIncome Maintenance Unit. All other WVSCA of nonactive cases to be rotated among all
case workers in both units, and that I in any other way be made whole.
The grievances were processed, and denied, individually at levels one and two, and
were then consolidated for hearing at level three. Following denial at that level, appeal
was made to level four on October 2, 2000. Grievants, represented by Marilyn Kendall
and Steve Rutledge of WVSEU, and DHHR, represented by Assistant Attorney General
Anthony D. Eates, II, agreed to submit the matter for decision based upon the lower-level
record, supplemented with proposed findings of fact and conclusions of law. The
grievance became mature for decision on November 9, 2000, the due date for the
proposals. Grievants elected not to file post-hearing submissions.
The following findings of fact are made based upon a review of the record in its
entirety, including the level three transcript and exhibits.
(b)that they have, to their detriment, been treated by their
employer in a manner that the other employee(s) has/have not,
in a significant particular; and,
(c)that such differences were unrelated to actual job
responsibilities of the grievant and/or the other employee(s)
and were not agreed to by the grievant in writing.
Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
Once the grievant establishes a prima facie case of discrimination, the burden shifts
to the employer to demonstrate a legitimate, non-discriminatory reason to substantiate its
actions. Thereafter, a grievant may show that the offered reasons are pretextual. Deal v.
Mason County Bd. of Educ., Docket No. 96-26-106 (Aug. 30, 1996). See Tex. Dep't of
Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human
Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Conner v. Barbour County Bd. of
Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
Grievants have failed to establish a prima facie case of discrimination because they
did not prove they were similarly situated to employees who were assigned to another unit,
have not established they were treated in a manner detrimental to them, or that any
difference in treatment was unrelated to their actual job responsibilities. Further,
Respondent has provided a legitimate, non-discriminatory reason for the assignment, and
Grievants do not allege it was pretextual. Finally, Grievants do not allege they suffered any harm from the assignment.
Concerns that they were not familiar with Income Maintenance cases, and that the files
were transferred multiple times for them to process the school clothing applications,
creating the potential for mistakes or delays, are not without merit. However, the record
does not indicate that either Grievants or their clients suffered under this procedure.
Grievants simply did not like Mr. Tucker's decision that they would process all school
clothing applications, and an employee's belief that a supervisor's management decision
is incorrect is not grievable unless the decision violates some rule, regulation, or statute,
or constitutes a substantial detriment to or interference with the employee's effective job
performance or health and safety. Ball v. Dep't of Highways, Docket No. 96-DOH-141
(July 31, 1997).
Grievants' only request for relief is that they not be assigned all school clothing
applications next year. The record does not indicate that Mr. Tucker's decision applied to
any but the current year. Thus, the relief is speculative, and unavailable from the
Grievance Board. See Baker v. Bd. of Directors/Concord College, Docket No. 97-BOD-
265 (Oct. 8, 1997).
In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following formal conclusions of law.
Date: November 27, 2000 _____________________________
Sue Keller
Senior Administrative Law Judge