J. STEPHEN WILSON,

      Grievant,

v.                                                      Docket No. 00-DOH-116

DEPARTMENT OF TRANSPORTATION/
DIVISION OF HIGHWAYS,

      Respondent.

DECISION

      J. Stephen Wilson (“Grievant”) initiated this proceeding, pursuant to the provisions of W. Va. Code §§ 29-6A-1, et seq., alleging discrimination and retaliation by his supervisor in the assignment of overtime. The grievance was denied at level one on August 25, 1999, and at level two on September 5, 1999. A level three hearing was held on December 8, 1999. In a level three decision dated March 20, 2000, Hearing Examiner Brenda Craig Ellis found that Respondent violated its overtime policy and awarded Grievant compensation for the overtime hours worked by other employees on August 20, 1999. However, Ms. Ellis found Grievant had failed to prove discrimination or retaliation. Grievant appealed to level four on March 24, 2000, and a level four hearing was held in the Grievance Board's office in Elkins, West Virginia, on June 14, 2000. Grievant was represented by counsel, Basil R. Legg, Jr., and Respondent was represented by counsel, Nedra Koval. At the parties' request, this matter was held in abeyance for several months, pending settlement negotiations. On December 6, 2000, Grievant's counsel informed the undersigned that negotiations were no longer ongoing and requested that a decision be issued. This matter became mature for consideration on that date.
      The following findings of fact are made from a preponderance of the credibleevidence of record.

Findings of Fact

      1.      Grievant is employed by the Division of Highways (“DOH”) as a Transportation Worker III--Equipment Operator in District Seven, Upshur County, at the Kanawha Head Substation. Grievant is certified to operate a grader and does so on a regular basis.
      2.      Hayes Cutright is the Administrator for Upshur County, and he determines which employees in the county are to be assigned to work scheduled overtime.
      3.      Many Upshur County DOH employees work four ten-hour days, and they do not normally work on Fridays.
      4.      Mr. Cutright usually schedules a crew chief, a truck driver, and a grader operator to work on Fridays at each substation, just in case there is an emergency. The employees assigned to work Friday overtime perform whatever work needs to be done, but are not always specifically called to work on a project that must be done that day. These employees receive overtime pay for working on Friday, and DOH's “scheduled overtime” rotation is used.
      5.      Tenerton Substation is also located in Upshur County. If employees are needed to work overtime at Tenerton, and none of the employees assigned there are available to work, Mr. Cutright often assigns Kanawha Head employees to the overtime work, and vice versa.   (See footnote 1) 
      6.      On August 19, 1999, Mr. Cutright asked the grader operators assigned toTenerton Substation to work overtime the next day, and none of them were available.
      7.      After learning that the Tenerton grader operators were unavailable, Mr. Cutright decided to assign two truck drivers and a crew chief to work on August 20, 1999, to haul some stone.
      8.      Because the crew chief assigned to work on August 20, 1999, also happened to be a certified grader operator, Mr. Cutright decided to have him grade the stone after the trucks hauled and dumped it.
      9.      Grievant was available to work overtime on August 20, 1999, but Mr. Cutright did not offer him the opportunity.
      10.      Mr. Cutright has been Grievant's supervisor since 1988.
      11.      Grievant has filed at least five grievances since 1996. Mr. Cutright was aware of or was directly involved in all of these grievances.
      12.      Mr. Cutright admits that he “takes grievances personally” and sometimes loses his temper over them.
Discussion

      In non-disciplinary matters, Grievant bears the burden of proving his allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997). Although Grievant was awarded overtime pay at level three, because DOH was found to have violated its overtime policy, Grievant maintains that his supervisor has engaged in retaliation, and he requests an order that this retaliation cease.
      W. Va. Code § 29-6A-2(p) defines "reprisal" as "the retaliation of an employer or agent toward a grievant, witness, representative or any other participant in the grievanceprocedure either for an alleged injury itself or any lawful attempt to redress it." A grievant alleging retaliation must first establish a prima facie case by demonstrating:




Dunford v. W. Va. Parkways Economic Dev. & Tourism Auth., Docket No. 97-PEDTA-546 (June 24, 1998); See Roach v. Regional Jail Auth., 198 W. Va. 694, 482 S.E.2d 679 (1996). Once a prima facie case of retaliation is established, the employer may rebut the presumption of retaliation by offering legitimate, nonretaliatory reasons for its action. If the employer successfully rebuts the presumption, the employee may offer evidence to demonstrate the reasons given by the employer were merely a pretext. Id.
      Clearly, Grievant has established a prima facie case of retaliation. Based upon Mr. Cutright's own testimony, he takes grievances personally and sometimes gets upset about them. Grievant had filed several grievances prior to and around the time of the events which took place on August 20, 1999, and Mr. Cutright was involved in those grievances as his immediate supervisor. The employment decision in question was made by Mr. Cutright and occurred in close proximity to grievance activity. Thus, retaliatory motive can be inferred.
      However, DOH has offered legitimate reasons for Mr. Cutright's decision not to call Grievant to work overtime on the day in question. Mr. Cutright explained at both the levelthree and level four hearings that he only has a few workers available on Fridays in case an emergency arises. However, since those employees are being paid overtime to work, he assigns them to work on whatever projects may be at hand at the time. On August 20, 1999, stone needed to be hauled and dumped on a roadway that was being repaired. Pursuant to his usual practice, Mr. Cutright planned to have a truck driver, a grader operator, and a crew chief work on that Friday. However, when the grader operators from that substation ended up being unavailable, he decided to just have two truck drivers and the crew chief work that day. Upon realizing that the crew chief was also certified to operate a grader, he decided to have the crew chief go ahead and grade the stone after it was dumped.
      The undersigned finds by a preponderance of the evidence that Mr. Cutright's motives were legitimate and not the result of retaliation. Grievant has failed to prove that Mr. Cutright's explanation is mere pretext. Although it is obvious that Grievant feels that Mr. Cutright has consistently treated him unfairly, the evidence of record does not establish that the explanation for Mr. Cutright's actions on August 20, 1999, was anything other than legitimate. Grievant has settled prior grievances and received pay raises as a result. Nevertheless, there is no evidence which establishes that Mr. Cutright was personally responsible for the issues which were grieved, nor that he took issue with the settlement of those grievances. While it is true that Mr. Cutright's decision in the instant case was found to be illegal and in violation of DOH's overtime policy at level three, Mr. Cutright appeared credible and forthright in his testimony when explaining the reasons for his actions. Accordingly, Grievant has failed to prove he is entitled to any further relief in this case.      Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law

      1.      In non-disciplinary matters, Grievant bears the burden of proving his allegations by a preponderance of the evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997).
      2.      W. Va. Code § 29-6A-2(p) defines "reprisal" as "the retaliation of an employer or agent toward a grievant, witness, representative or any other participant in the grievance procedure either for an alleged injury itself or any lawful attempt to redress it."
      3.      A grievant alleging retaliation must first establish a prima facie case by demonstrating:




Dunford v. W. Va. Parkways Economic Dev. & Tourism Auth., Docket No. 97-PEDTA-546 (June 24, 1998). See Roach v. Regional Jail Auth., 198 W. Va. 694, 482 S.E.2d 679 (1996). Once a prima facie case of retaliation is established, the employer may rebut the presumption of retaliation by offering legitimate, nonretaliatory reasons for its action. If the employer successfully rebuts the presumption, the employee may offer evidence to demonstrate the reasons given by the employer were merely a pretext. Id.
      4.      Grievant has established a prima facie case of reprisal.      5.      DOH has proven by a preponderance of the evidence that the reasons for Mr. Cutright's actions on August 20, 1999, were legitimate and not the result of retaliation.
      6.      Grievant has failed to prove that the reasons given for not offering him overtime on August 20, 1999, were merely a pretext for a retaliatory motive.
      Accordingly, this 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 grievance occurred, and 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:      December 29, 2000            ___________________________________
                                          DENISE M. SPATAFORE
                                          Administrative Law Judge


Footnote: 1
      Under DOH's Overtime Policy, employees are offered the opportunity to work overtime pursuant to a rotation system, and are free to refuse the work.