v. Docket No. 99-03-410
Grievants, Carolyn Miller, Mary Knapp, and Raymond White,
(See footnote 1)
are Central Office
Administrators for Boone County Board of Education ("BCBOE"). They allege a violation
of
W. Va. Code § 18A-4-5a as well as favoritism and discrimination. Their Statement of
Grievance reads:
We as directors feel we are being discriminated against because of lack of
uniformity in our supplemental pay in violation of WV Code 18A-4-5a. We
feel favoritism is being shown to the new Director of Maintenance because
he is being paid a higher pay than the other directors in the county. Past
practices have been that professional directors have been paid on the basis
of degree, experience, plus $350.00 per month position pay. Based on this
formula the Maintenance Director is being paid approximately $193.32 per
month more than the other directors.
(See footnote 2)
This is discriminatory and shows
favoritism toward the Maintenance Director. This position was posted as a
professional position and we are asking that we get the same position pay
as the Maintenance Director in accordance with WV Code 18A-4-5a which
states "uniformity should apply to such salary increments for all persons
performing like duties and assignments."
In response to Mr. Sumpter's denial of our informal grievance filed on July
20, 1999, he stated that we are not performing duties and assignments like
the Director of Maintenance. We would argue that we are all responsible foradministering and overseeing countywide programs and therefore, should
be compensated on an equal basis that has been past practice in the county.
Secondly[,] we would argue that Mr. Sumpter's response violated the
grievance procedure that is outlined in WV Code 18-29-4. His response was
not received until August 5, 1999, twelve days after our informal grievance.
The response we received was dated August 3, 1999, however it was not
delivered to us until August 5, 1999, therefore, our grievance should ge (sic)
granted.
(See footnote 3)
The relief we are seeking is an additional $193.32 per month in position pay
to be granted to the directors listed in this grievance.
This grievance was denied at Levels I and II and waived at Level III. Grievants
appealed to Level IV on September 30, 1999, and a Level IV hearing was held on
December 1, 1999. This case became mature for decision on January 18, 2000, after
receipt of the parties' proposed findings of fact and conclusions of law.
(See footnote 4)
Issues and Arguments
The main thrust of Grievants' argument is that the Director of Maintenance position
is a professional one, and BCBOE is violating the uniformity provision of W. Va. Code §
18A-4-5a by paying this director more than they receive. They maintain they are
"performing like duties and assignments", and the failure of BCBOE to compensate them
at the same level demonstrates discrimination and favoritism.
BCBOE argues the Director of Maintenance position is not a professional position,
but a service position. BCBOE asserts the Director of Maintenance does not receive
position pay or a supplement, but a negotiated salary, and the negotiated salary wasnecessary to hire a qualified person into the position. BCBOE argues in the alternative
that even if the Director of Maintenance position is considered professional, there is no
violation of W. Va. Code § 18A-4-5a as the parties are not "performing like duties and
assignments."
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
Findings of Fact
1. Grievant Miller is the Director of Title I and Title VI federal services, and is
in charge of federally-funded programs designed to assist educationally deprived
students.
(See footnote 5)
As a professional educator, she is paid based on her educational level and
years of service, and she receives a teacher's supplement, plus additional position pay of
$350.00 a month. She is employed for 240 days, and is considered a Central Office
Administrator. Her duties are academic in nature.
2. Grievant Miller directly supervises 1½ employees, prepares and administers
a budget for the programs she directs, and writes a yearly report about the programs she
supervises. She routinely assists the principals and teachers involved in these federal
programs, and frequently works greater than a forty hour week.
3. Grievant Knapp is the Director of Special Education, and oversees the
services provided to students with special needs. As a professional educator, she is paid
based on her educational level and years of service, and she receives a teacher'ssupplement, plus additional position pay of $350.00 a month. She is employed for 240
days and is considered a Central Office Administrator. Her duties are academic in nature.
4. Grievant Knapp directly supervises a number of itinerant teachers, five bus
aides and three support staff. Grievant Knapp prepares and administers a budget for the
programs she directs and writes a yearly report about the programs she supervises. She
routinely assists the principals and teachers involved in these programs, and works three
to three and one half hours over each eight hour day.
5. Grievant White is the Director of Attendance and Student Services. He
performs the statutory duties of an Attendance Director identified in W. Va. Code § 18-8-4.
BCBOE has chosen to pay him like the other professional directors, and his compensation
is based on his educational level and years of service, and he receives the teacher's
supplement, plus additional position pay of $350.00 a month. He is employed for 220
days, and has an arrangement with BCBOE to take compensatory time, if he is required
to work during the summer. Grievant White does not supervise any employees.
6. Grievant White is not considered to be a Central Office Administrator as his
duties, title, and compensation are controlled and directed by W. Va. Code §§ 18-8-3 &
4.
7. Prior to Superintendent Gary Sumpter's tenure at BCBOE, Mr. Johnny
Linville was employed as the Director of Maintenance. This was a service personnel
position.
8. At the time Mr. Linville applied for the position, a Bachelor's degree was
required for the position, and Mr. Linville possessed this qualification. 9. Shortly after Superintendent Sumpter became superintendent, he decided
to RIF this position and combine the duties with those of another administrator.
10. Later Superintendent Sumpter believed this was a mistake and thought that
the position of Director of Maintenance should be posted and filled.
11. On May 21, 1999, the position of Director of Maintenance was posted as a
240 day position. The educational requirement for the position was a "[f]our year
Bachelors Degree".
(See footnote 6)
The salary range was listed as $47,500 to $52,500. BCBOE color
codes its position postings, and this posting was issued on grey paper which means the
posting is for a supervisory/administrative position.
12. The position was previously identified as a service personnel position, and
Superintendent Sumpter had no intention of changing this designation. (Test.
Superintendent Sumpter.)
13. Grievants did not apply and are not qualified for the position.
14. Superintendent Sumpter called Mr. Linville and offered him the position as
Mr. Linville was on the preferred recall list. Mr. Linville turned it down for two reasons. He
did not want the hassles that the position entails, and he would have been required to take
a $10,000 pay cut, even if he had received the highest posted salary.
15. Mr. Andy Dolan, a building construction teacher at the Vocational School
applied for and received the position at the salary of $52,000. Mr. Dolan does not receive
a supplement. 16. Mr. Dolan has an Associate's degree in liberal arts, a Bachelor's degree in
political science economics, a bachelor's degree in industrial arts and a Master's degree
in Vocational Education. He also has a building construction degree and a blueprint
reading degree.
17. Mr. Dolan's salary for teaching the prior school year was $45,000 for 220
days. As the Director of Maintenance he works 240 days and works approximately one
to two hours more each day than he did when he was teaching.
18. He did not want the position for less money as it would not have been worth
his while.
19. The Director of Maintenance is expected to prioritize and assign tasks to his
approximately 20 supervisees, understand and comply with all building and maintenance
codes and regulations, work with architects and read blueprints, order all maintenance
supplies, and deliver all school books and classroom material. He is on 24 hour call. He
does not prepare a budget.
20. At the July 1, 1999 BCBOE meeting, Mr. Dolan's administrative transfer was
listed under the professional personnel section, as transferring from a teaching position
to the Director of Maintenance at the Operations Complex.
21. The position of Director of Maintenance is not a professional position.
22. The salaries of the Grievants are unknown.
Discussion
As this grievance does not involve a disciplinary matter, Grievants have the burden
of proving their grievance by a preponderance of the evidence. Procedural Rules of theW. 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.
The first issue to discuss is whether the position filled by Mr. Dolan is professional
or service personnel, since the title of W. Va. Code § 18A-4-5a is "County salary
supplement for teachers" and the title of W. Va. Code § 18A-4-5b is "County salary
supplement for school service personnel." Both statues discuss the need to have
uniformity within those two broad classifications of personnel, but do not speak to the need
to have uniformity between the two categories.
W. Va. Code § 18A-4-5a explains the county salary supplements for teachers and
states the following:
County boards of education in fixing the salaries of teachers shall use at
least the state minimum salaries established under the provisions of this
article. The board may establish salary schedules which shall be in excess
of the state minimums fixed by this article, such county schedules to be
uniform throughout the county as to the classification of training, experience,
responsibility and other requirements.
Counties may fix higher salaries for teachers placed in special instructional
assignments, for those assigned to or employed for duties other than regular
instructional duties, and for teachers of one-teacher schools, and they may
provide additional compensation for any teacher assigned duties in addition
to the teacher's regular instructional duties wherein such noninstructional
duties are not a part of the scheduled hours of the regular school day.
Uniformity also shall apply to such additional salary increments or
compensation for all persons performing like assignments and duties within
the county: . . .
(Emphasis added.) Grievants argue the position must be professional because a Bachelor's degree
was required for the position, the posting was placed on grey paper, and Mr. Dolan's
administrative transfer was listed under the professional personnel section, as transferring
him from a teaching position to the Director of Maintenance at the Operations Complex.
Respondent contends the position is not a professional one. Superintendent
Sumpter testified the position was a service personnel position before, and he had no
intention of changing its designation. He clarified the requirement for a Bachelor's degree
did not make it a professional position, and noted that this requirement was in place when
Mr. Linville applied for and received the position. It is also noted that grey paper is used
for all administrative and supervisory positions, not just professional administrative and
supervisory positions as alleged by Grievants. Further, the fact that Mr. Dolan's transfer
from a professional position to the Director of Maintenance in the Board minutes does not
prove he was transferred from one professional position to another.
A review of the appropriate Code Sections will be helpful in deciding if the position
is a professional or service personnel one. It is clear that Grievants are covered in the W.
Va. Code § 18-1-1(g) definition of teacher which states:
(g) "Teacher" means teacher, supervisor, principal, superintendent, public
school librarian; registered professional nurse, licensed by the West Virginia
board of examiners for registered professional nurses and employed by a
county board of education, who has a baccalaureate degree; or any other
person regularly employed for instructional purposes in a public school in
this state.
W. Va. Code § 18-1-1(h) defines service personnel as
"Service personnel" means all nonteaching school employees not included
in the above definition of "teacher".
It is clear that Mr. Dolan's duties are not included in the definition of teacher and
would be included in the definition of service personnel.
Grievants are also included in the definitions of "Professional educator" and
"Central office administrator" contained in
W. Va. Code § 18A-1-1 (c) and (c) (4) which
state:
(c) "Professional educator" shall be synonymous with and shall have the
same meaning as "teacher" as defined in section one, article one, chapter
eighteen of this code. Professional educators shall be classified as:
. . .
(4) "Central office administrator" - The superintendent, associate
superintendent, assistant superintendent and other professional educators,
whether by these or other appropriate titles, who are charged with the
administering and supervising of the whole or some assigned part of the total
program of the county-wide school system.
It is also clear Mr. Dolan's position is not included in this
Code Section as a professional
position.
Other definitions which might cover the position as a professional one such as
"Other professional employee" and "Professional personnel" at
W. Va. Code § 18A-1-1(b)
and (d) state:
(b) "Professional personnel" means persons who meet the certification
and/or licensing requirements of the state, and shall include the professional
educator and other professional employees.
(d) "Other professional employee" means that person from another
profession who is properly licensed and is employed to serve the public
schools and shall include a registered professional nurse, licensed by the
West Virginia board of examiners for registered professional nurses and
employed by a county board of education, who has completed either a
two-year (sixty-four semester hours) or a three-year (ninety-six semester
hours) nursing program.
Clearly these definitions do not define Mr. Dolan's duties, as these
Code Sections indicate
a certification or license is required, and no certification or license is required for the
Director of Maintenance position.
This
Code Section, at (e), also defines "service personnel" as:
(e) "Service personnel" means those who serve the school or schools as a
whole, in a nonprofessional capacity, including such areas as secretarial,
custodial, maintenance, transportation, school lunch and as aides.
W. Va. Code § 18A-4-8, which lists the class titles for service personnel, contains
the following definitions:
"Director or coordinator of services" means personnel who are assigned to
direct a department or division. Nothing herein may prohibit professional
personnel or professional educators as defined in section one [§ 18A-1-1],
article one of this chapter, from holding this class title, but professional
personnel may not be defined or classified as service personnel unless the
professional personnel held a service personnel title under this section prior
to holding class title of "director or coordinator of services": Provided, That
funding for professional personnel in positions classified as directors or
coordinators of services who were assigned prior to the first day of May, one
thousand nine hundred ninety-four, may not be required to be redirected
from service personnel categories as a result of this provision until the first
day of July, one thousand nine hundred ninety-six.
(See footnote 7)
Thereafter, directors or
coordinators of service positions shall be classified as either a professional
personnel or service personnel position for state aid formula funding
purposes and funding for directors or coordinators of service positions shall
be based upon the employment status of the director or coordinator either
as a professional personnel or service personnel.
"Supervisor of maintenance" means skilled personnel not defined as
professional personnel or professional educators as in section one, article
one of this chapter. The responsibilities would include directing the upkeep
of buildings and shops, issuing instructions to subordinates relating to
cleaning, repairs and maintenance of all structures and mechanical and
electrical equipment of a board.
These service personnel definitions appear to be the better fit for Mr. Dolan's duties.
His duties are in the maintenance area listed in
W. Va. Code § 18A-1-1(e). Thus, given
all the information presented by Grievants, and after a review of the pertinent
Code
Sections, it is clear Mr. Dolan's position is not a professional one, but he is in a service
personnel position. Grievants have failed to meet their burden of proof of this issue.
Since Mr. Dolan's position as Director of Maintenance is in a service personnel
position, not a professional position, the uniformity provisions of
W. Va. Code § 18A-4-5a
do not apply to the issue before the undersigned Administrative Law Judge.
However, if it were found possible to apply the above-cited uniformity clauses
between service personnel and professionals, Grievants have not proven they are
"performing like duties and assignments" when compared to the Director of Maintenance.
This type of issue has been addressed many times by this Grievance Board. It is well-
settled that employment terms and compensation are, benefits which must be uniformly
granted to employees who "perform like duties and assignments".
See Allison v. Hancock
County Bd. of Educ., Docket No. 97-15-454 (Mar. 31, 1998).
The pivotal question in such cases is whether Grievants are actually performing
like assignments and duties to those of Mr. Dolan.
See Stanley v. Hancock County Bd.
of Educ., Docket No. 95-15-217 (Sept. 29, 1995);
Robb v. Hancock County Bd. of Educ.,
Docket No. 9-15-356 (March 31, 1992);
Allman v. Harrison County Bd. of Educ., Docket
No. 89-17-215 (June 29, 1990) (reversed on other grounds,
Harrison County Bd. of Educ.
v. Allman, Circuit Court of Harrison County, Civil Action No. 90-P-86-2, April 15, 1992).
It was concluded in
Stanley,
supra, that, in order to be entitled to the same benefits,employees must have "like classifications, ranks, assignments, duties and actual working
days." Although the employees' duties need not be identical, grievants must show that
their duties are substantially similar to other employees in order to prevail in a non-
uniformity claim.
See Weimer-Godwin v. Bd. of Educ., 179 W. Va. 423, 369 S.E.2d 726
(1988). Even employees holding the exact same classification have been determined to
have been properly granted different contract terms, based upon different work sites and
duties.
See Robb,
supra.
The West Virginia Supreme Court of Appeals defined the term "like" when it
discussed the uniformity of pay issue in
Weimer-Godwin,
supra.
"Like" refers to having a distinctive character, no matter how widely different
in nonessentials. State v. Gaughan, 55 W. Va. 692, 700, 48 S.E. 210, 213
(1904). "Like" has also been defined as having the same or nearly the same
qualities or characteristics; resembling another; or substantially similar.
Black's Law Dictionary 834 (5th ed. 1979).
The West Virginia Supreme Court of Appeals found a choral director and a band director
performed "like assignments and duties" as " the substantial similarity of such duties is
apparent, as is the distinctive character of preparing for and directing program
performances."
It is clear that all the duties of concern here are necessary and important to the
functioning of the school system. However, as expressed by Superintendent Sumpter, if
the Director of Maintenance fails to perform his job duties adequately, the entire school
system can be shut down, either through some type of equipment failure, or a violation of
the multiple regulations that govern the maintenance, construction, and safety hazards of
a school board and its buildings. While Grievants perform important academic duties designed to assist
disadvantaged or troubled students, the effect of the failure to perform their job duties is
not this far reaching. Also, it must be noted that while there are certain similarity of duties
among Grievants and the Director of Maintenance because they are supervisors, this is
insufficient to qualify these positions as "like".
(See footnote 8)
The Director of Maintenance oversees the work of all Maintenance employees in
multiple craft areas. He is on 24 hour call. The areas in which he is expected to have
expertise, and does have this expertise, are many and varied, such as carpentry, heating
and cooling, environmental and safety issues, and masonry. Grievants work within a set
area of expertise for one or two programs; thus, there is an insufficient similarity of duties
for uniformity to be required.
Grievants also raise allegations based upon discrimination and favoritism.
Discrimination is defined by
W. Va. Code § 18-29-2(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.
W. Va. Code
§18-29-2(o) defines favoritism as "unfair treatment of an employee as demonstrated by
preference, exceptional or advantageous treatment of another or other employee."
To prove discrimination or favoritism a grievant must establish a
prima facie case
which consists of demonstrating:
(a) that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his 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 other employee(s), and were not agreed to by the grievant
in writing.
If a grievant establishes a
prima facie case, a presumption of discrimination or favoritism
exists, which the respondent can rebut by presenting a legitimate, nondiscriminatory
reason for the action. However, a grievant may still prevail if he can demonstrate the
reason given by the respondent was pretextual.
Steele v. Wayne County Bd. of Educ.,
Docket No. 89-50-260 (Oct. 19, 1989).
E.g.,
Kirchner v. W. Va. Dept. of Educ., Docket No.
94-DOE-569 (Sept. 26, 1995);
Webb v. Kanawha County Bd. of Educ., Docket No. 94-20-
210 (Nov. 22, 1994).
In this case, Grievants have not established they are similarly situated to Mr.
Dolan, and there is ample evidence that the differences in treatment are the result of
Grievants' and Mr. Dolan's different job responsibilities. Therefore, Grievants have not
established a
prima facie case of discrimination or favoritism. Grievants did not prove by
a preponderance of the evidence that BCBOE's compensation decision violated
W. Va.
Code § 18A-4-5a, or
W. Va. Code § 18-29-2(m) & (o).
Consistent with the foregoing findings and discussion, the following conclusions of
law are appropriate in this matter.
Conclusions of Law
1. As this grievance does not involve a disciplinary matter, Grievants have the
burden of proving 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-4-5a provides that "such county schedules to be uniform
throughout the county as to the classification of training, experience, responsibility and
other requirements" and "[u]niformity also shall apply to such additional salary increments
or compensation for all persons performing like assignments and duties within the county."
3. Grievants have not met their burden of proof and demonstrated BCBOE
violated
W. Va. Code § 18A-4-5a.
4. The uniformity provisions of
W. Va. Code § 18A-4-5a do not apply when the
comparison attempted is between professional and service personnel.
5. Boards of education must provide uniform vacation benefits and employment
terms to employees who have like classifications, ranks, assignments, duties and actual
working days.
Stanley v. Hancock County Bd. of Educ., Docket No. 95-15-217 (Sept. 29,
1995).
6. In order to prevail in a pay uniformity claim, a grievant must show that his
duties are substantially similar to or "like" another employee.
See Weimer-Godwin v. Bd.
of Educ., 179 W. Va. 423, 369 S.E.2d 726 (1988). 7. Grievants did not prove by a preponderance of the evidence that they
performed like duties and assignments to the Director of Maintenance.
8. In order to establish a
prima facie case of discrimination or favoritism under
W. Va. Code § 18-29-2(m) & (o), a grievant must demonstrate the following:
(a) that he is similarly situated, in a pertinent way, to one or more other
employees:
(b) that he has, to his detriment, been treated by his employer in a manner
that the other employees have not, in a significant particular;
and
(c) that such differences were unrelated to actual job responsibilities of the
grievant and/or the other employees and were not agreed to by the grievant
in writing.
E.g.,
Kirchner v. W. Va. Dept. of Educ., Docket No. 94-DOE-569 (Sept. 26, 1995);
Webb
v. Kanawha County Bd. of Educ., Docket No. 94-20-210 (Nov. 22, 1994);
Steele v. Wayne
County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
9. Grievants did not establish a
prima facie case of discrimination or favoritism
as they are not similarly situated to the Director of Maintenance. Additionally, Respondent
provided job-related reasons for the differences in treatment.
Accordingly, this grievance is
DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County or the
Circuit Court of Boone 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 tosuch appeal and should not be so named. Any appealing party must advise this office of
the intent to appeal and provide the civil action number so that the record can be prepared
and transmitted to the appropriate court.
Date: February 17, 2000 ________________________________
Janis I. Reynolds
Administrative Law Judge
Footnote: 1