CAROLYN RICE,
Grievant,
v.
DOCKET NO. 00-40-011
PUTNAM COUNTY BOARD OF EDUCATION,
Respondent.
D E C I S I O N
Grievant, Carolyn Rice, filed a grievance against her employer, the Putnam County
Board of Education (Board) on or about October 6, 1999, alleging as follows:
Violations of WV Code 18-29-2 sections a, n, and o with regard to
unpaid travel expenses and failure to address grievants concerns. Grievant
suffers from policy/practice constituting a substantial detriment to/or
interference with job performance and safety of grievant's job related
equipment.
Relief sought is to be compensated for travel and be permitted to continue
past practice.
The grievance was denied at level one by Paul McCallister, Director of Attendance, on
October 6, 1999. A level two hearing was held on November 16, 1999, and a decision
denying the grievance was issued by the Superintendent's designee, Harold Hatfield, on
December 16, 1999. Grievant appealed to level four on January 12, 2000, and a level four
hearing was held in the Grievance Board's Charleston, West Virginia, office on March 27,
2000. This matter became mature for decision on April 14, 2000, the deadline for the
parties' proposed findings of fact and conclusions of law. Grievant was represented bySusan Hubbard, West Virginia Education Association, and the Board was represented by
John A. Grafton, Esq., Grafton Law Office.
SUMMARY OF EVIDENCE
Level Three Joint Exhibits
Ex. 1 -
Ex. 2 -
June 14, 1999 memorandum from Paul McAllister to Carolyn Rice re: travel.
Level Three Grievant's Exhibits
Ex. 1 -
June 9, 1999 memorandum from Carolyn Rice to Chuck Hatfield and Paul
McAllister re: travel reimbursement.
Ex. 2 -
July 21, 1999 letter from Susan E. Hubbard to Dr. Sam Sentelle.
Ex. 3 -
September 25, 1998 letter from Rick Whitten to Virgil F. and Carolyn S. Rice.
Level Three Board Exhibits
Ex. 1 -
October 7, 1998 memorandum from Sam Sentelle to Chuck Hatfield.
Ex. 2 -
Memorandum from Carolyn Rice regarding use of personal vehicle for board
business.
Ex. 3 -
Carolyn Rice's schedule for November 1999.
Level Four Grievant's Exhibits
Ex. 1 -
Map of Putnam County broken into four teams.
Ex. 2 -
Chart representing mileage between assigned schools.
Ex. 3 -
List of equipment transported by Carolyn Rice, and issues regarding
equipment.
Ex. 4 -
Photographs of trunk of Carolyn Rice's automobile; equipment and materials
needed for Kindergarten registration.
Ex. 5 -
Photographs of Personnel/Pupil Services Department; office.
Ex. 6 -
Photographs of Rock Branch teacher's lounge; Hometown music room; Poca
Middle 8th grade teacher's lounge/computer graveyard; Scott Teays
teacher's lounge; counselor's office.
Testimony
Grievant testified in her own behalf, and presented the testimony of Paul McAllister.
The Board presented the testimony of Paul McAllister.
FINDINGS OF FACT
1.
Grievant is employed by the Board as a school nurse.
2. Grievant is an itinerant employee, and reports to different schools depending
upon her schedule for that day.
3. Grievant, along with three other itinerant school nurses, has an office located
in the Board's central office building in Winfield, West Virginia. This office serves as a
location for the nurses on Fridays. Mondays through Thursdays, the nurses report to a
regularly scheduled school or schools.
4. Since 1981, Grievant has traveled from her home to the central office to pick
up her equipment, materials, student records, and supplies, before traveling to her
assigned schools, and has returned to the central office after school to store her
equipment.
5. Since 1981, it has been the practice of the Board to compensate Grievant for
her travel expenses from home to the central office.
6. Grievant is the only itinerant school nurse employed by the Board who has
been compensated for her travel from home to the central office. She is also the only
itinerant school nurse who stores her equipment and supplies at the central office.
7. Paul McCallister, Director of Attendance, became the nurses' supervisor
approximately three years ago. Since assuming that responsibility, he became aware
Grievant was being compensated for her travel from home to the central office. 8. It is the Board's policy to compensate itinerant nurses for travel between
assigned schools, but not from their home to their first assignment, or from their last
assignment to their home.
9. Specifically, the Board's travel policy states that, with respect to travel
allowance, employees picking up or delivering packages enroute to work from home or
from home to work shall not be paid a mileage allowance.
10. Mr. McAllister discussed Grievant's situation with Superintendent Sam
Sentelle, and with his approval, ordered Grievant to cease traveling to the central office in
the morning before reporting to her first assigned school. Mr. McAllister further informed
Grievant that she would no longer be compensated for travel from her home to the central
office. LIII Jt. Ex. 2.
11. Grievant has submitted all of her travel expenses as one lump sum, without
separating her travel from her home to the central office from travel between assigned
schools. LIII G. Ex. 1.
12. Grievant has not been reimbursed for any travel expenses for the 1998-99
school year, or to the present time for the 1999-2000 school year.
(See footnote 1)
DISCUSSION
In non-disciplinary matters, a grievant has the burden of proving each element of
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.
Grievant alleges the Board's action in refusing to compensate her for travel from her
home to the central office interferes with her job performance, and constitutes harassment
and favoritism, in violation of
W. Va. Code §§ 18-29-2(a), (n) and (o). The Board denies
it has violated any rules, regulations, policies, or statutes with regard to Grievant's travel
expenses.
W. Va. Code §18-29-2(a) defines a grievance as any specifically identified incident
of harassment or favoritism; or any action, policy or practice constituting a substantial
detriment to or interference with effective classroom instruction, job performance, or the
health and safety of students or employees.
Harassment is defined by
W. Va. Code § 18-29-2(n) as repeated or continual
disturbance, irritation or annoyance of an employee which would be contrary to the
demeanor expected by law, policy and profession.
Favoritism is defined by
W. Va. Code § 18-29-2(o) as unfair treatment of an
employee as demonstrated by preferential, exceptional or advantageous treatment of
another or other employees. In order to establish a
prima facie case of favoritism,
Grievant must establish the following:
(a)
that she is similarly situated, in a pertinent way, to one or more other
employee(s);
(b)
that the other employee(s) have been given advantage or treated with
preference in a significant manner not similarly afforded her; and,
(c)
that the difference in treatment has caused a substantial inequity to her and
that there is no known or apparent justification for this difference.
Frantz v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-096 (Nov.
18, 1999);
Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998).
See
McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). If
Grievant establishes a
prima facie case of favoritism, the Board may rebut this showing by
articulating a legitimate reason for its action. However, Grievant can still prevail if she can
demonstrate that the reason proffered by the Board was mere pretext.
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);
Prince v. Wayne County Bd. of
Educ., Docket No. 90-50-281 (Jan. 28, 1990).
Grievant testified that she is unable to store all the needed supplies, records and
equipment in her personal vehicle each day. She is concerned with the safety of the
equipment if left overnight or unattended in her personal vehicle. Grievant further alleges
the Board has infringed upon her civil rights by requiring her to carry the equipment in her
personal vehicle after school hours. She alleges she is unable to do personal shopping
and errands because the school equipment takes up all the space in her car. Finally,
Grievant testified that others are compensated for travel to and from the central office to
pick up or deliver needed materials.
Mr. McAllister testified that Grievant is the only one of the four itinerant nurses who
travels to and from the central office every day, or finds it necessary to store equipment,supplies and materials at the central office. Mr. McAllister testified that no other nurse is
compensated for travel to and from the central office. Further, although he has specifically
instructed Grievant to refrain from traveling to and from the central office from her home
every day, in compliance with Board policy, she has continued to do so in direct
contravention of his order.
Grievant has failed to demonstrate how she has been harassed. Mr. McAllister is
merely following and enforcing Board policy regarding travel expenses. The fact that she
had been allowed to submit travel expenses for her commute from home to the central
office under a previous supervisor does not alter the fact that Board policy does not permit
this type of reimbursement. It is not harassment for a supervisor to enforce Board policy,
as long as it is done uniformly.
In that regard, Grievant has also failed to make a
prima facie case of favoritism. It
is undisputed that the other three nurses do not travel from their home to the central office
every day to pick up supplies. They are not being compensated for any type of travel that
Grievant is not. Further, Grievant has failed to identify any other individual employed by
the Board who is being compensated for commuting between their home and the central
office. She merely testified that she believed others were being reimbursed.
While Grievant finds keeping equipment in her personal vehicle an infringement
upon her civil rights, she has not proven she is being treated any differently than any
other Board personnel who, from time to time, are required to take school business home
with them. Clearly, the other nurses have figured out a way to deal with this problem, and
Grievant needs to do so also. Perhaps Grievant could continue to store her equipment andsupplies at the Board's office, but simply not be compensated for the travel between her
home and the office. Grievant's blatant refusal to follow Mr. McAllister's directive
constitutes insubordination, and she should feel fortunate that she has not been disciplined
for failing to follow his reasonable and lawful order.
CONCLUSION OF LAW
Grievant has failed to demonstrate she has been subjected to harassment or
favoritism, or that her job performance has been substantially interfered with, as a result
of being denied travel reimbursement for unauthorized travel from her home to the central
office.
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 Putnam 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 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.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: May 4, 2000
Footnote: 1