CAROLYN MILLER, et al.,
            Grievants,

v.                                                       Docket No. 99-03-410

BOONE COUNTY BOARD OF EDUCATION,
            Respondent.

D E C I S I O N

      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:




      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:


(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:

W. Va. Code § 18-1-1(h) defines service personnel as

      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:
. . .


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:

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:

      W. Va. Code § 18A-4-8, which lists the class titles for service personnel, contains the following definitions:

      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.

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:

      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). 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:


      and


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
      Although Martha Hill was listed as a Grievant, she withdrew her name on August 16, 1999.
Footnote: 2
      It is unclear from the evidence in the record exactly how these figures were calculated by Grievants. No formulas with numbers were introduced into the record, and it is unclear if Grievants were aware what the Director of Maintenance's prior salary and contract was. It is noted that the Director of Maintenance's prior salary for 220 days, while he was a teacher, was $45,000.00, and his new salary, for 240 days, is $52,000.00.
Footnote: 3
      This issue was not pursued at Level II by agreement of the parties.
Footnote: 4
      Grievant was represented by Anita Mitter from the West Virginia Education Association, and Respondent was represented by Attorney Tim Conaway.
Footnote: 5
      This position was also titled the Director of ESSIA, Chapter I and II. This acronym was not explained.
Footnote: 6
      Grievants's representative argued in her post hearing submissions that a teaching degree was required. This statement is incorrect.
Footnote: 7
      Grievants' positions are professional positions and have been for some period of time.
Footnote: 8
      Grievant Miller supervises only 1½ employees, while Grievant White supervises no employees.