RUTH MISSONAK, et al.,
                  Grievants,

v.                                                      Docket No. 99-05-358

BROOKE COUNTY BOARD OF EDUCATION,
                  Respondent,

DELCIE JONES,
                  Intervenor.

D E C I S I O N

      Grievants, sixteen individuals employed by the Brooke County Board of Education (BCBOE) as Secretaries, some with multi-classifications, filed a level one grievance on November 20, 1998, in which they alleged violations of W. Va. Code §§18A-4-5b and 18- 29-2(m). Grievants requested retroactive and prospective wages and benefits in the amount paid to Delcie Jones, Intervenor. The grievance was denied at levels one and two. Grievants elected to bypass consideration at level three, as is permitted by W. Va. Code §18-29-4, and advanced the matter to level four on August 26, 1999. An evidentiary hearing was conducted in the Grievance Board's Wheeling office on November 30, 1999, at which time Grievants were represented by John E. Roush, Esq., of the West Virginia School Service Personnel Association, BCBOE was represented by David F. Cross, Brooke County Assistant Prosecuting Attorney, and Ms. Jones appeared pro se. The matter became mature for decision with the submission of proposed findings of fact and conclusions of law by both parties on or before January 21, 2000.
      The following findings of fact are derived from the record in its entirety.
Findings of Fact
      1.      Grievants are all regularly employed by BCBOE, and are classified as follows:            a.      Ruth Missonak is an Executive Secretary/Accountant III assigned to the Central Office.
            b.      Mary Jean Kocher is a Secretary III in the Central Office.
            c.      Virginia Gundrum is a Secretary III in the Central Office.
            d.      Beverly Mason was a Secretary III at Brooke High School (BHS) during the 1998-99 school year, but is presently assigned to the Transportation Department.
            e.      Donna Capobianco is a Secretary III/Computer Operator assigned to the Food Services program.
            f.      Janet Leary is a Secretary III at BHS.
            g.      Karen Serafine is a Secretary III at the BHS library.
            h.      Lois Lantz was a Secretary III at BHS's vocational department until her retirement at the conclusion of the 1998-99 school year.
            i.      Adaline Utz is a Secretary II at BHS's Center III.
            j.      Karen VanDyke is a Secretary III at Beech Bottom Primary School.
            k.      Joyce Morgan is a Secretary II at Colliers Primary School.
            l.      Vickey Gallagher was a Secretary II at Bethany Primary School during the 1998-99 school year, and was transferred to Edgewood Primary School for the 1999- 2000 school year.
            m.      Pamela Mirasola is a Secretary III at Wellsburg Primary School.
            n.      Elaine Marcum is a Secretary III at Jefferson Primary School.
            o.      Elaine Cipoletti is a Secretary II at Follansbee Middle School.
            p.      Barbara J. Lyonett is a Secretary III at Follansbee Middle School.      2.      As Secretary II or III, Grievants' duties include general clerical tasks, transcribing from notes or mechanical equipment, preparing reports, receiving callers and referring them to proper persons, operating office machines, keeping records, handling routine correspondence, scheduling appointments , arranging conferences and interviews, maintaining records of all financial transactions. Grievant Missonak's duties as Executive Secretary/Accountant III, include processing personnel related matters, assisting the Assistant Superintendent in budget preparation and textbook orders, completing purchase orders for some departments, and developing the school calendar. As a Computer Operator, Grievant Capobianco is required to operate all computer data processing equipment, maintain diskettes and back ups, keep inventory of computer supplies, and process printed reports.
      3.      Intervenor Delcie Jones is employed as a Secretary III/Computer Operator/Financial Secretary in the Central Office. Ms. Jones is the most senior of all employees who are classified as Secretaries.
      4.      On or about February 12, 1996, BCBOE approved a recommendation made by the Superintendent to reclassify Ms. Jones from Secretary III/Computer Operator to Secretary III/Computer Operator/Financial Secretary, at pay grade G, with an additional $2,500.00 annually. Superintendent William Harvey's memorandum to BCBOE members indicates the reason for his recommendation was based upon the unique duties of the position which “requires the employee's personal life be planned accordingly.”
      5.      Ms. Jones' reclassification was effectuated in an attempt to reduce BCBOE's financial burden due to overstaffing beyond that covered by the State Aid formula.      6.      As Financial Secretary, Ms. Jones completes virtually all aspects of the payroll function for BCBOE. Additionally, she completes federal and state reports, which like the payroll, requires completion prior to deadlines. She has completed extensive training in the operation of Employee Management Systems payroll software and the Human Resource System.
      7.      W. Va. Code §18A-4-8 provides pay grades, from A to H, for each service classification. Employees in the Secretary II classification are compensated at pay grade E, Secretary III's at pay grade F, and Executive Secretaries at pay grade G. Employees classified as Computer Operator are compensated at pay grade E, while those classified as Accountant III are compensated at pay grade F. Employees who hold multi-classified titles are compensated at the highest pay grade within their title.      
Discussion
      Grievants argue that they perform duties substantially similar to Ms. Jones, and to deny them the same compensation results in a violation of W. Va. Code §§18A-4-5b and 18-29-2(m). BCBOE denies that Grievants are similarly situated to Ms. Jones, who holds a classification title different from any of Grievants, and which reflects her unique duties.
As this grievance does not involve a disciplinary matter, Grievants have the burden of proving each element of their grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 §4.19 (1996); 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 §18-29-6.       W. Va. Code §18A-4-5b provides that a county board of education may establish salary schedules which are in excess of the state minimums; however, “uniformity shall apply to all salaries, rates of pay, benefits, increments or compensation for all persons regularly employed and performing like assignments and duties within the county . . . .”
      W. Va. Code
§18-29-2(a) allows recovery for “any discriminatory or otherwise aggrieved application of unwritten policies or practices of the board.” Discrimination is defined in subsection (m) as “any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.”
      An employee seeking to prove discrimination must first establish a prima facie case of discrimination under W. Va. Code §18-29-2(m) by demonstrating the following:
(a)that she is similarly situated, in a pertinent way, to one or more other employee(s);

(b)that she has, to her detriment, been treated by her 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. Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. HumanRights 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 assert that Code §18A-4-5b only requires they perform duties which are like, and not necessarily identical, to those performed by Ms. Jones. In determining the meaning of “like”, Grievants cite the decision of the West Virginia Supreme Court of Appeals in Weimer-Godwin v. Board of Education of Upshur County, 179 W. Va.423, 369 S.E. 2d 726 (1988). In that decision, the term “like” was defined as “having a distinct character, no matter how widely different in nonessentials . . . as having the same or nearly the same qualities or characteristics; resembling another or substantially similar . . . .” (Citations omitted).       
      Grievants also note several decisions of the Grievance Board which have held that for assignments and duties of positions to be “like” they must be substantially similar in performance and general responsibilities, Wetherholt v. Cabell County Board of Education, Docket No. 93-06-017 (June 30, 1993); and/or require similar skills and impose similar responsibilities, Meadows v. Jefferson County Board of Education, Docket No. 19-88-192 (Dec. 29, 1988), and Allison v. Hancock County Board of Education, Docket No. 97-15-454 (Mar. 31, 1998).
      Grievants first assert that they perform duties which are like those of Ms. Jones because they all hold the title of Secretary. Second, while only Ms. Capobianco also holds the title of Computer Operator, Grievants argue that the mere holding of a title is not determinative of their claim, because they also spend a great portion of their work day using a computer to accomplish their duties. They note that “use of the computer” appears to be Ms. Jones' only qualification to hold the classification of computer operator, and thather use is limited to accessing the WVEIS software to prepare the payroll.   (See footnote 1)  Thus, while Ms. Jones uses the EMS portion of the WVEIS software, Grievants claim to also work extensively with the Student Management System portion of the program, as well as prepare purchase orders, and complete the hot lunch Point of Service reports.
      Addressing the Financial Secretary portion of Ms. Jones' title, Grievants assert that they prepare much of the raw material for the work which she completes. Specifically, information regarding the hiring, resignation, and retirement of personnel is provided by the personnel office. Those Grievants assigned to schools generate time sheets, personal leave and substitute employee information for the personnel assigned to their school. They note that many of Ms. Jones' duties have been automated by the EMS system, leaving her to simply enter the data. Grievants claim that, just as Ms. Jones, they have deadlines to be met, albeit without benefit of the overtime which she is paid. Grievants conclude that while her duties and responsibilities may justify the overtime paid to Ms. Jones, they do not justify the additional compensation of $2500.00 per year and salary at pay grade G.   (See footnote 2) 
      As noted by BCBOE, the West Virginia Supreme Court of Appeals recently addressed a similar situation in Flint v. The Board of Education of the County of Harrison, Slip Opinion No. 25898 (Dec. 10, 1999). In Flint, nine service employees hired under 240 day employment contracts alleged violations of W. Va. Code §§18A-4-5b and 18-29-2(m),in support of their argument that they were entitled to the same contract terms as 261 day employees. Seven of the nine grievants were multi-classified. The Court determined that to prove a uniformity claim under Code §18A-4-5b, an employee must hold the exact same classification, and, in cases of multi-classification, the employees must hold exactly the same class titles. Quite simply, the Court concluded that employees who do not have the same classifications are not performing “like assignments and duties.” Employees who have some classifications in common with another service employee were found not be performing like assignments and duties because they have additional duties in relation to the other classifications they hold.
      The Court further determined there was no discrimination for the same reason there was no uniformity violation. Because the grievants held different multi-class titles, they were not similarly situated in a pertinent way to one or more other employees, and did not establish a prima facie case of discrimination. Thus, Respondent was not required to provide 261 day contracts to these seven grievants.
      In the present matter, Grievants do not hold the same multi-classified title as Ms. Jones. Although Grievants offered extensive testimony to establish they use a computer to complete their tasks, and while Grievants do provide her with raw data which she uses to complete some of her work, the evidence is overwhelming that they do not perform duties which are “like” or “similar” to the Financial Secretary portion of her title. Ms. Jones is entirely responsible for the payroll functions applicable to all BCBOE employees. Her duties include, but are by no means limited to, printing payroll reports, printing and sorting checks by fifteen locations, electronically submitting direct deposits, updating employeerecords as changes occur, processing tax withholdings and making deposits to the IRS and West Virginia State Tax Department.
      She completes retirement reports, files W-2 forms, transfers tax deferred annuities to seven different companies, transfers membership dues for employee association groups, maintains accounts for retirement loans, life insurance, United Way, and credit unions. She processes legally required wage attachments, updates W-4 withholding status forms, maintains teachers' sick leave bank, completes retirement reports, computes pay for substitute employees, processes supplemental pay for all coaches, club and class sponsors, as well as salaries paid outside the normal contract for all employees, and calculates adjustments to salaries when a service personnel employee bids on a temporary position.
      Grievants clearly do not perform duties which are “like” or “similar” to those of Intervenor, and, under the Flint analysis, have failed to establish a prima facie case of discrimination.

Conclusions of Law
      1.      As this grievance does not involve a disciplinary matter, Grievants have the burden of proving each element of their grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 §4.19 (1996); 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 §18-29-6.
      2.       W. Va. Code §18A-4-5b provides that a county board of education may establish salary schedules which are in excess of the state minimums; however, “uniformityshall apply to all salaries, rates of pay, benefits, increments or compensation for all persons regularly employed and performing like assignments and duties within the county . . . .”
      3.      To prove a uniformity claim under Code §18A-4-5b, an employee must hold the exact same classification, and, in cases of multi-classification, the employees must hold exactly the same class titles. Employees who are multi-classified must hold exactly the same multiple classifications. Flint v. The Bd. of Educ. of the County of Harrison, Slip Opinion No. 25898 (Dec. 10, 1999).
      4.      Grievants do not hold the same classification title as Intervenor, and have failed to prove a uniformity violation under W. Va. Code §18A-4-5b.
      5.       W. Va. Code §18-29-2(m) defines “discrimination” as “any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.”
      6.      An employee seeking to prove discrimination must first establish a prima facie case of discrimination under W. Va. Code §18-29-2(m) by demonstrating the following:
(a)that she is similarly situated, in a pertinent way, to one or more other employee(s);

(b)that she has, to her detriment, been treated by her 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).      7.      Because Grievants do not hold the same multi-classified title as Intervenor they do not perform like or similar duties, and are not similarly situated. Grievants have failed to establish a prima facie case of discrimination.
      
      Accordingly, the grievance is DENIED.

Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Brooke County and 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.

Date: April 6, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE


Footnote: 1
      WVEIS is a payroll and personnel computer system required by the West Virginia Department of Education.
Footnote: 2
      Grievants indicate the higher pay grade increases Intervenor's base salary by thirty ($30) dollars per month.