MARJORIE SWISHER, et al.,
                  Grievants,

v.                                                      Docket No. 00-HHR-318

DEPARTMENT OF HEALTH & HUMAN RESOURCES/
BUREAU FOR CHILDREN AND FAMILIES,
                  Respondent.

D E C I S I O N

      Grievants, Marjorie Swisher, Suzanne Fisher, John Rybak, and Mollie Sanders, employed by the Department of Health & Human Resources (DHHR or Respondent) as Family Support Specialists in the Mason County WV Works Unit, complain that:
Change Order #176 was received in the Mason County DHHR office on 05/08/00 and distributed to all Income Maintenance and WV Works staff. The attached DW-17 refers to the 2000 WV Works School Clothing Allowance (SCA) and the 2000 West Virginia School Clothing Allowance (WVSCA) as being “both programs”, i.e. two different programs. Additionally, Appendix C on this DW-17 states,

'The WVSCA program is not directly linked to WV Works eligibility and the gross non-excluded income of the applicant family is compared to 100% of the FPL'.

I am grieving the assignment of the WVSCA applications of active Income Maintenance cases, and in any other way to be made whole.

I do not have access to, nor am I familiar with, the cases in the Income Maintenance Unit. The continual transferring of these customers from their regular case worker to a temporary, unfamiliar case worker could create havoc for both our customers and staff as well, and may increase the likelihood of errors.

For relief, Grievants request that “WV Works SCA to be processed in entirety by the WV Works Units. WVSCA for active Income Maintenance cases be processed in entirety byIncome Maintenance Unit. All other WVSCA of nonactive cases to be rotated among all case workers in both units, and that I in any other way be made whole.”
      The grievances were processed, and denied, individually at levels one and two, and were then consolidated for hearing at level three. Following denial at that level, appeal was made to level four on October 2, 2000. Grievants, represented by Marilyn Kendall and Steve Rutledge of WVSEU, and DHHR, represented by Assistant Attorney General Anthony D. Eates, II, agreed to submit the matter for decision based upon the lower-level record, supplemented with proposed findings of fact and conclusions of law. The grievance became mature for decision on November 9, 2000, the due date for the proposals. Grievants elected not to file post-hearing submissions.
      The following findings of fact are made based upon a review of the record in its entirety, including the level three transcript and exhibits.

Findings of Fact
      1.      Grievants are employed by the DHHR/Bureau for Children and Families as Family Support Specialists in the WV Works Unit of the Mason County office.
      2.      DHHR implements the school clothing allowance through two programs: (1) the WV Works School Clothing Allowance (SCA); and (2) the West Virginia School Clothing Allowance (WVSCA). Previously, the Income Maintenance Unit processed applications for active Income Maintenance cases, WV Works processed the WV Works SCA applications, and applications on non-active cases were assigned to both units.
      3.      On June 8, 2000, Community Services Manager Larry Tucker determined that the WV Works Units would be responsible for processing all school clothing allowanceapplications from both programs. This decision was based upon Grievants' lower case loads and number of daily customer interactions. During the processing period, Grievants were relieved of their mandatory home visits, and were granted the maximum use of overtime.
      4.      The SCA applications for the 2000-2001 school year have been processed, and there is no indication how the work will be assigned for the upcoming year.
Discussion
      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.
      While Grievants have clearly articulated their concerns with Mr. Tucker's decision to have them process all the school clothing applications, they do not allege a violation, misapplication, or misinterpretation of any statute, policy, rule, regulation, or written agreement under which they work. While the grievance notes that the WVSCA program is not related to the WV Works program, there is no indication that the criteria for the school clothing applications differ, or that processing was limited to any defined unit of employees.       Additionally, at the level two hearing, Grievants did not assert discrimination, but questioned whether they had been subject to discrimination. Employees seeking toestablish unlawful discrimination must first establish a prima facie case of discrimination under W. Va. Code §29-6A-2(d) by demonstrating the following:
(a)that they are similarly situated, in a pertinent way, to one or more other employee(s);

(b)that they have, to their detriment, been treated by their 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. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights 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 have failed to establish a prima facie case of discrimination because they did not prove they were similarly situated to employees who were assigned to another unit, have not established they were treated in a manner detrimental to them, or that any difference in treatment was unrelated to their actual job responsibilities. Further, Respondent has provided a legitimate, non-discriminatory reason for the assignment, and Grievants do not allege it was pretextual.       Finally, Grievants do not allege they suffered any harm from the assignment. Concerns that they were not familiar with Income Maintenance cases, and that the files were transferred multiple times for them to process the school clothing applications, creating the potential for mistakes or delays, are not without merit. However, the record does not indicate that either Grievants or their clients suffered under this procedure. Grievants simply did not like Mr. Tucker's decision that they would process all school clothing applications, and an employee's belief that a supervisor's management decision is incorrect is not grievable unless the decision violates some rule, regulation, or statute, or constitutes a substantial detriment to or interference with the employee's effective job performance or health and safety. Ball v. Dep't of Highways, Docket No. 96-DOH-141 (July 31, 1997).
      Grievants' only request for relief is that they not be assigned all school clothing applications next year. The record does not indicate that Mr. Tucker's decision applied to any but the current year. Thus, the relief is speculative, and unavailable from the Grievance Board. See Baker v. Bd. of Directors/Concord College, Docket No. 97-BOD- 265 (Oct. 8, 1997).
      In addition to the foregoing findings of fact and discussion, it is appropriate to make 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 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.      “'Discrimination'” means 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 §29-6A-2(d).
      3.      Grievants failed to establish a prima facie case of discrimination.
      4.      An employee's belief that a supervisor's management decision is incorrect is not grievable unless the decision violates some rule, regulation, or statute, or constitutes a substantial detriment to or interference with the employee's effective job performance or health and safety. Ball v. Dep't of Highways, Docket No. 96-DOH-141 (July 31, 1997). W. Va Code § 29-6A-2(i).
      5.      Grievants did not demonstrate Mr. Tucker's management decision violated any rule, regulation, or statute, or constitute a substantial detriment to or interference with his effective job performance or health and safety.
      6.      Relief which is speculative in nature is unavailable from the Grievance Board. See Baker v. Bd. of Directors/Concord College, Docket No. 97-BOD-265 (Oct. 8, 1997).
      Accordingly, the grievance is DENIED.
      
      Any party or the West Virginia Division of Personnel may appeal this decision to the Circuit Court of Kanawha County or to the circuit court of the county in which the grievanceoccurred. Any such appeal must be filed within thirty (30) days of receipt of this decision. W.Va. Code §29-6A-7 (1998). 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: November 27, 2000 _____________________________                                                   Sue Keller
       Senior Administrative Law Judge