ROY PHILLIPS,

                  Grievant,

      v.

DOCKET NO. 99-PEDTA-307

WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,

                  Respondent.

D E C I S I O N


      Grievant, Roy Phillips, filed this grievance on May 6, 1999, alleging that, “false accusations and unwarranted disciplinary action taken against me”, and requesting that he be made whole and complete. The grievance was denied at level one on May 13, 1999, by Grievant's supervisor, William N. Blake, and at level two by Rick Deeds, on June 2, 1999. A level three hearing was conducted on June 24, 1999, and a decision denying the grievance was issued by the level three grievance evaluator, D. E. Lake, on July 20, 1999. Grievant appealed to level four on July 27, 1999, and a level four hearing was held on September 3, 1999, and May 5, 2000. Grievant was represented by Boyd Lilly, and the West Virginia Parkways Economic Development and Tourism Authority (“Parkways”) was represented by A. David Abrams, Jr., Esq.
SUMMARY OF EVIDENCE

Level Three Parkways Exhibits
Ex. 1 - Ex. 2 -
Level Four Parkways Exhibits

Ex. 1 -


Level Four Grievant Exhibits

Ex. 1 -


Testimony

      Parkways presented the testimony of William Blake, Steve Arthur, Terry Layton, Mike Arthur, Ray Garrett, and Steve Light. Grievant testified in his own behalf, and presented the testimony of Ray Garrett, Norman Jones, Steve Light, Bill Forrest, and George Snodgrass.

FINDINGS OF FACT

      
      I find, by a preponderance of the evidence, the following facts:
      1.      Grievant is employed by Parkways as a night watchman at Parkways' Chelyan facility. Grievant works 11 or 12 hour shifts, and is relieved at 7:00 a.m.
      2.      Grievant has security responsibility for the Chelyan maintenance compound. He also is on call as the only employee assigned to respond to accidents and maintenance emergencies on twelve (12) miles of the West Virginia Turnpike (“Turnpike”).
      3.      Parkways employees are not permitted to sleep on the job. West Virginia Parkways Personnel Policy II-4 recognizes sleeping on the job as a minor infraction. R. Ex. 2.      4.      On April 8, 1999, Grievant's foreman, Steve Arthur, arrived at work about 6:10 a.m., and found Grievant sleeping at his work site.
      5.      Grievant was in a room without windows, the lights were out, his boots were off, his feet propped up on a chair, and his head was laid back on a table with his eyes closed. Mr. Arthur turned on the lights, which consisted of six banks of flourescent lights each eight feet long and containing two flourescent tubes.
      6.      Mr. Arthur walked over to Grievant, and called him by name, at which time he roused, shaded and rubbed his eyes.
      7.      Grievant received a written warning on April 8, 1999, from his superior, William N. Blake, for the infraction of sleeping on the job. LIII R. Ex. 1.
      8.      Blake had counseled Grievant two times before the April 8, 1999 incident, that sleeping on the job was not permitted.
      9.      Grievant works a second job, which often makes it difficult for him to adjust his sleeping patterns.
DISCUSSION

      In disciplinary matters, the employer has the burden of proving the charges by a preponderance of the evidence. W. Va. Code § 29-6A-6; Evans v. Dep't of Health & Human Resources, Docket No. 97-HHR-280 (Nov. 12, 1997), Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997); Broughton v. W. Va. Div. of Highways, Docket No. 92-DOH-325 (Dec. 31, 1992). A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed.1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      Parkways' position is that falling asleep on the job was the obvious result of the intentional actions of Grievant. By turning off the inside lights, taking off his boots, getting comfortable in a chair, putting his head back and closing his eyes, he made every preparation for going to sleep, his intent was to fall asleep, and he did.
      Grievant denies that he has ever slept on the job while at work for Parkways. Grievant admits turning off the inside lights, lying back in his chair, and taking off his boots on April 8, 1999, but claims that just because his eyes were closed does not mean he was asleep. Grievant denies Mr. Arthur came over to him and woke him up on the morning of April 8, 1999, and further claims he has no memory of the April 8, 1999 incident. Finally, Grievant argues that, even if he was sleeping, other Parkways employees have slept on the job, but have not been disciplined.
      Because of the opposing testimony in this grievance, the ultimate outcome in this matter hinges upon witness credibility and appropriate inferences drawn from pertinent contested and uncontested facts. Some factors to consider in assessing the credibility of witnesses include their demeanor, opportunity or capacity to perceive and communicate, reputation for honesty, attitude toward the action, and admission of untruthfulness. Additionally, the trier of fact should consider the presence or absence of bias, interest or motive, the consistency of prior statements, the existence or non-existence of any fact testified to by the witness, and the plausibility of the witnesses information. See, Perdue v. W. Va. Dep't of Health and Human Resources, Docket No. 93-HHR-050 (Feb. 4, 1994).      Arthur's testimony is clear, detailed and uncontradicted about what occurred on the morning of April 8, 1999. Grievant's response is that he has no recollection of Arthur coming into the facility, and waking him up. Further, Grievant, who claims he has never been asleep working for Parkways, made every apparent preparation to go to sleep on April 8, 1999. He removed his boots, turned the lights off, leaned back in a chair, put his head back and closed his eyes.
      Grievant's testimony that he has never been asleep was clearly refuted by three witnesses who testified they had, on more than one occasion, each seen Grievant asleep while on duty. Terry Layton testified he has seen Grievant asleep on two different occasions, both times “kicked back” in a chair, with feet propped up and head back.
      Mike Arthur testified he has seen Grievant “laying back” in the shop once, and once saw him in the supervisor's office with his feet propped up, asleep.
      Ray Garrett testified he saw Grievant on the morning of April 8, 1999, with his head back, feet propped up and eyes closed. One other time he saw Grievant “laid out” with a mop under his head, with his eyes closed.
      Grievant's interest in winning this grievance is obvious, and renders his testimony self-serving. No employee likes having a written warning in his file. On the other hand, Steve Arthur, who advised his supervisor about the sleeping incident only after he had been asked about it directly, had no hidden agenda, nothing to gain, and no reason to manufacture the facts about which he testified.
      The content of Grievant's testimony is obviously flawed on a more objective basis. He has no independent recollection of what occurred on the morning of April 8, 1999; not unexpected if he was asleep. Three unbiased, unrelated witnesses testified they had allseen Grievant asleep on more than one occasion while he was on duty. Also damaging is Grievant's admission that he works long and hard hours at a second job, and as a result, often has trouble adjusting his sleep habits.
      The undersigned concludes that Parkways has established, by a preponderance of the evidence, that Grievant was asleep on the job on the morning of April 8, 1999.
      Grievant asserts that, even if he was asleep, other employees have slept on the job, and not been disciplined. Grievant has alleged a claim of discrimination under W. Va. Code § 29-6A-2(d), which defines "discrimination" 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." To establish a prima facie case of discrimination, Grievant must show:



Hendricks v. W. Va. Dep't of Tax and Revenue
, Docket No. 96-T&R-215 (Sept. 24, 1996); Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992).
      Once the grievant establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, a grievant may still prevail if he can demonstrate the reason given by the respondent was mere pretext. Hickman v. W. Va. Dep't of Transp., Docket No. 94-DOH- 435 (Feb. 28, 1995); 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); Hendricks, supra.; Runyon v. W. Va. Dep't of Transp., Docket Nos. 94-DOH 376 & 377 (Feb. 23, 1995); Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Terry Layton testified that he had seen other Parkways employees “nod off” on occasion. Mike Arthur testified he has “nodded off” in the truck, and has seen others “nodding off” in the truck. Ray Garrett testified that he, as well as others, have “nodded off” in the truck. Another witness, Steve Light, testified that he has seen others “nod off” in the trucks. The evidence established that, from time to time, Parkways employees are required to travel the length of the Turnpike. There are usually two or more employees in the truck when that occurs. What these witnesses were referring to was that, when they are traveling the Turnpike in the trucks as passengers, they have nodded off during the trip. None of these witnesses testified they ever nodded off while driving the trucks.
      Clearly, these incidents of “nodding off” while passengers in the Parkways trucks is not in the same category as Grievant's sleeping while performing the duties of a night watchman. While the witnesses technically were on the job for Parkways while riding in the trucks, they were not engaged in their duties at those times, and presented no danger or harm to themselves or the public while dozing along the Turnpike. Grievant, on the other hand, was charged with the security of the Chelyan warehouse facility as a night watchman, a job that requires the employee to be awake and alert. Grievant's sleeping while on the job as a night watchman is completely contrary to the expectations of his employer and the public. Therefore, Grievant has failed to make a prima facie case of discrimination, and his defense must fail.
CONCLUSIONS OF LAW

      1.      Pursuant to W. Va. Code § 29-6A-6, the burden of proof in disciplinary matters rests with the employer, and the employer must meet the burden by proving the charges against an employee by a preponderance of the evidence. Wellman v. W. Va. Dep't of Health and Human Serv., Docket No. 93-HHR-079 (Oct. 18, 1993).
      2.      Parkways has established by a preponderance of the evidence that Grievant was asleep while on duty during the morning of April 8, 1999.
      3.       W. Va. Code § 29-6A-2(d) defines "discrimination" 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." To establish a prima facie case of discrimination, Grievant must show:



Hendricks v. W. Va. Dep't of Tax and Revenue
, Docket No. 96-T&R-215 (Sept. 24, 1996); Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992).
      4.       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 county in which the grievance occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 29-6A-7 (1998). Neitherthe 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: June 29, 2000