SANDRA SHETLER and
DEBORAH WEATHERHOLTZ ,
            Grievants,

v.                                                      Docket No. 00-02-119

BERKELEY COUNTY BOARD OF EDUCATION,            
            Respondent.

D E C I S I O N

      Grievants, Sandra Shetler and Deborah Weatherholtz, are Special Education Coordinators with the Berkeley County Board of Education ("BCBOE"). Grievant Shetler filed this grievance on January 24, 2000. Her Statement of Grievance reads:

      This grievance was denied at Level I. On February 2, 2000, prior to the Level II hearing on February 21, 2000, Grievant Deborah Weatherholtz asked to join this grievance. Her requested relief is unclear, as she came to work on all of the five snow days at issue. This grievance was denied at Level II on March 22, 2000, and apparently a Level III hearing was waived. Grievants appealed to Level IV on April 3, 2000, and the parties agreed to submit this case on the record developed below.   (See footnote 1)  This grievancebecame mature for decision on May 12, 2000, the date of the receipt of the parties' proposed Findings of Fact and Conclusions of Law.   (See footnote 2) 
Issues and Arguments

      Grievants argue they have been discriminated against because other 210 day employees were not required to come to work on snow days, and they were. Respondent maintains Grievants were treated the same as other similarly situated employees.
Findings of Fact

      1.      Grievants are employed as Special Education Coordinators under 210 day contracts.
      2.      They work in the Special Education Office next door to the Ramer Resources Center, a special education school building.
      3.      Early in the 1999 - 2000 school year, the Superintendent of the Berkeley County School System directed a committee to revise the work schedule for emergency closing. This revision was adopted November 1, 1999.
      4.      The provision of that Policy at issue here, Code A, states:

(Emphasis in original).
      5.      Prior to any snow days occurring, Grievants talked with their supervisor, Dr. Ronald Brown and discussed the policy.   (See footnote 3)  He informed them they would be expected to report to work according to the policy. Grievant Shetler informed Dr. Brown that if there was a "snow closing", and she could not get in she would be calling in. Trans., Level II at 10.
      6.      Grievants asked Dr. Brown for an alternate work schedule, and he stated he did not feel he could give them one.
      7.      On January 20, 21, 25, 26, and February 18, 2000, schools were closed for students due to inclement weather. BCBOE directed all employees to follow Code A.
      8.      Grievant Shetler called each of those days, and stated she would not be in to work. She did not talk to her supervisor. She took sick leave for these five days even though she was not sick.   (See footnote 4)  Grievant Shetler had already obligated her personal leave days to school activities with her children, and her OSE days had already been used for the Thanksgiving holiday.   (See footnote 5)  Trans., Level II, at 16.
      9.      Grievant Weatherholtz came to work each of these snow days.
      10.      There are school-based employees with 210-day contracts who are not required to report to work on snow days.
      11.      All Special Education Coordinators are required to report to work on snow days.
      12.      Grievant Shetler and Grievant Weatherholtz had work to complete, and this work could be done on a day when school was not in session.
      13.      Employees are paid for snow days whether they work or not.
      14.      The main reason schools are closed during snow days is because it is hazardous to run the buses. Trans., Level II at 56. Many professional and service employees are required to work during these snow days.
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 the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Toney v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd.of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Napier v. Logan County Bd. of Educ., Docket No. 94-23-541 (Apr. 25, 1995). See W. Va. Code § 18-29-6.
      Grievants allege discrimination and favoritism saying they were treated differently than similarly situated employees. W. Va. Code § 18-29-2(m) defines "discrimination" as "differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing." 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:


      and,


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).      "Grievants have failed to make a prima facie case of discrimination, because they have failed to prove that they were treated differently than other employees within their particular classification. . . ." Bennett v. Fayette County Bd. of Educ., Docket No. 95-10- 256 (Aug. 31, 1995). Grievants were not similarly situated to the employees who were not required to work on these snow days. The other 210-day employees that did not have to work were school-based employees, were not in Grievants' classification, and their schools, or places where they worked, were not open for business. These school-based employees were not required to work by the policy as stated in Finding of Fact 4. It must be remembered that a county board, in case of emergency, "may provide appropriate alternate work schedules" for employees. W. Va. Code § 18A-5-2. See Rogers v. Jackson County Bd. of Educ., Docket No. 96-18-104 (Aug. 30, 1996); Sullivan v. Jackson County Bd. of Educ., Docket No. 96-18-087 (Aug. 30, 1996). Further, "[d]ifferences in work sites can justify differences in the treatment of employees assigned to those sites despite that the employees are in the same classification." Rotenberry v. McDowell County Bd. of Educ., Docket No. 93-33-102 (Sept. 22, 1993).
      The above-discussion will be supplemented by the following formal Conclusions of Law.
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); Toney v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. KanawhaCounty Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Napier v. Logan County Bd. of Educ., Docket No. 94-23-541 (Apr. 25, 1995). See W. Va. Code § 18-29-6.
      2.      W. Va. Code § 18-29-2(m) defines "discrimination" as "differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing."
      3.      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."
      4.      To prove discrimination or favoritism a grievant must establish a prima facie case which consists of demonstrating:


      and,


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).      5.      Grievants have failed to establish a prima facie case. They were not similarly situated to the employees who were not required to come to work on these snow days. Rogers v. Jackson County Bd. of Educ., Docket No. 96-18-104 (Aug. 30, 1996); Sullivan v. Jackson County Bd. of Educ., Docket No. 96-18-087 (Aug. 30, 1996); Bennett v. Fayette County Bd. of Educ., Docket No. 95-10-256 (Aug. 31, 1995).
      6.      "Differences in work sites can justify differences in the treatment of employees assigned to those sites despite that the employees are in the same classification." Rotenberry v. McDowell County Bd. of Educ., Docket No. 93-33-102 (Sept. 22, 1993).
      7.      County boards of education may provide alternate work schedules in case of emergency. W. Va. Code § 18A-5-2.
      Accordingly, this grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Berkeley County. Any 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 partyto 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.

                                     ___________________________________
                                                 JANIS I. REYNOLDS
                                                Administrative Law Judge

Dated: June 9, 2000


Footnote: 1
      This case was reassigned to the undersigned Administrative Law Judge on May 18, 2000, for administrative reasons.
Footnote: 2
      Grievant was represented by Harvey Bane, a Consultant for the West Virginia Education Association - Region I, and Respondent was represented by its attorney, Laura Lilly.
Footnote: 3
      Dr. Brown was present at the time of the hearing, but he was not called to testify by either party. Grievant's representative noted this as significant. As neither party chose to call him and he was present, the undersigned Administrative Law Judge cannot view this occurrence as significant.
Footnote: 4
      This issue was not addressed by the parties, but it should be noted that the use of sick leave is designated for use only when the employee or a close family member is ill, and is not included as an alternative in the Code A Policy.
Footnote: 5
      It appears she had not taken these days, and this situation was not explained further.