MARIETA WOODS,

                              Grievant,

v v.


MONROE COUNTY BOARD OF EDUCATION,             

                              Respondent.

D E C I S I O N

      Marieta Woods (Grievant) is a Preschool Special Education Aide/Bus Aide employed by Respondent Monroe County Board of Education (MCBE). Grievant filed this grievance pursuant to W. Va. Code §§ 18-29-1, et seq., alleging that her schedule subjects her to discrimination and a lack of pay uniformity, and that she should receive the pay of a supervisory aide. The record in this grievance reflects only that this grievance was denied, at Level II, on November 5,1999; and that Level III was bypassed as authorized by W. Va. Code § 18-29-4(c).
      A Level IV hearing was held at this Grievance Board's Beckley office on January 24, 2000. Grievant was represented at that hearing by John Roush, Esq., and MCBE was represented by Greg Bailey, Esq. The parties were given until February 23, 2000, to submit proposed findings of fact and conclusions of law, and the matter became mature for decision on that date. The facts in this matter are undisputed. Accordingly, the following Findings of Fact are established by a preponderance of the evidence.
FINDINGS OF FACT
      1.      Grievant is a Preschool Special Education Aide/Bus Aide currently employed by MCBE at Mountain View Elementary School.      
      2.      On October 7, 1999, Grievant began assisting A. R.   (See footnote 1)  , a student with muscular dystrophy. Grievant assists A. R. from 7:15 a.m. to 4:20 p.m., or nine hours and five minutes, on Mondays, Tuesdays, and Fridays.
      3.      On Wednesdays and Thursdays Grievant works the standard work day of the Monroe County school system: 8:30 a.m. to 3:40 p.m., or seven hours and ten minutes.       4.      While caring for A. R., Grievant's work week is 41 hours and 35 minutes long.
      5.      MCBE posts all of its Special Education Aide positions as being Bus Aide positions as well, and all of its Special Education Aides assist students on buses as needed.
      6.      MCBE's Special Education Aides' schedules vary according to the needs of the students they assist.
      7.      Grievant is paid overtime for her work in excess of 40 hours per week.
      8.      For a time, Grievant brought A. R. to a classroom when he arrived at school in the morning, instead of bringing him to the bus hall in the gymnasium with the other students. Grievant was sometimes alone in the classroom with A. R.
DISCUSSION

      As this grievance does not involve a disciplinary matter, Grievant has the burden ofproving her 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. A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      Grievant alleges that her schedule subjects her to discrimination and a lack of pay uniformity, and that she should receive the pay of a supervisory aide because she is sometimes alone with A. R. She requests as relief prospective and retrospective payment of wages and benefits, plus interest.       
      County boards of education must maintain uniformity of salaries and rates of pay for all school service personnel who perform like assignments and duties. W. Va. Code § 18A-4-5b.
            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.” In order to establish a prima facie case of discrimination, a grievant must prove:


Steele v. Wayne County Bd. of Educ.
, Docket No. 89-50-260 (Oct. 19, 1989).       
      Once the grievant establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, a grievant may still prevail if she can demonstrate the reason given by the respondent was mere pretext. Id.
      Grievant has failed to establish a prima facie case of discrimination. Assuming, for the purpose of argument, that she is similarly situated to her fellow aides, Grievant has failed to establish that she has, to her detriment, been treated by her employer in a manner that the other employee(s) have not, because all of MCBE's Preschool Special Education Aide/Bus Aides are paid for a 40 hour week unless they work longer, in which case they are paid overtime, and all of MCBE's Special Education Aides/Bus Aides' schedules vary according to the needs of the students they assist. A. R.'s Individual Education Plan is such that he needs Grievant's assistance from 7:15 a.m. to 4:20 p.m., three days per week. Other students with special needs require assistance from other aides according to other schedules. Grievant also presented no evidence to prove that other aides were paid for 40 hours of work while working less.
      Grievant appears, from her testimony at Level II, to argue that she should be paid for an extra 50 minutes on Wednesdays and Thursdays, when her work day is seven hours and ten minutes long, because she believes that some other aides are being paid for eighthours per day without actually working eight hours. It appears undisputed that Grievant is paid overtime, at time and one-half, for her hours over 40 hours per week.
      Because Grievant is already being paid for a 40 hour week, she is, in effect, asking to be paid twice for the final 50 minutes of Wednesdays and Thursdays. Grievant has cited no legal authority for this, and the undersigned is aware of none. Grievant is being properly paid for a 40 hour week, plus overtime, at time and one-half, for her hours over 40 hours per week.
      A teacher's aide who, when designated by the principal, supervises children outside the direct supervision of a professional employee is entitled to the designation supervisory aide and is entitled to one higher pay grade. W. Va. Code § 18A-5-8; W. Va. Code § 18A- 4-8a(10). However, this benefit is reserved for those aides who have been directed to perform such duties on a regular basis for significant periods of time, Johnson v. Monroe County Bd. of Educ., Docket No. 95-31-354 (Dec. 22, 1995), and for aides who exercise teacher-like control and authority over students. Rymer v. Wood County Bd. of Educ., Docket No. 89-54-91 (Dec. 19, 1989).
      With respect to Grievant's argument that she should receive the pay of a supervisory aide, MCBE established that Grievant did not bring A. R. to the classroom, instead of the gymnasium, at the direction of MCBE; that A. R. belonged in the gymnasium, where he could socialize and see model behavior; that Grievant is alone with A. R., if at all, for only a small fraction of the school day; that an itinerant teacher was often in the classroom with Grievant and A. R; and that Grievant was not designated as a supervisory aide by her principal. Accordingly, the undersigned cannot conclude that Grievant is entitled to the designation of supervisory aide. Grievant has failed to establish, by apreponderance of the evidence, that she was entitled to increased pay as a supervisory aide.             
      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
CONCLUSIONS OF LAW

      1.      In a nondisciplinary grievance, Grievant has the burden of proving her 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.      County boards of education must maintain uniformity of salaries and rates of pay for all school service personnel who perform like assignments and duties. W. Va. Code § 18A-4-5b.
      3.      To establish a prima facie case of discrimination, Grievant must show:(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).       
      4.      Grievant failed to establish a prima facie case of discrimination.
      5.      A teacher's aide who, when designated by the principal, supervises childrenoutside the direct supervision of a professional employee is entitled to the designation supervisory aide and is entitled to one higher pay grade. W. Va. Code § 18A-5-8; W. Va. Code § 18A-4-8a(10).
      6.      Grievant failed to establish, by a preponderance of the evidence, that she was entitled to the designation supervisory aide.
      Accordingly this Grievance is hereby DENIED.
      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Monroe 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.

                                     
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated April 5, 2000


Footnote: 1
      1 The student involved in this matter has been identified only by initials, consistent with this Board's practice respecting the privacy of individuals in such circumstances. See, e.g., Brown v. Mercer County Bd. of Educ., Docket No. 98-27-113 (July 30, 1998); Jones v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-371 (Oct. 30, 1996); Edwards v. McDowell County Bd. of Educ., Docket No. 93-33-118 (July 13, 1994).