VANESSA JOHNSON,

                                    Grievant,

v.                                                Docket No. 00-HHR-060

DEPARTMENT OF HEALTH AND HUMAN RESOURCES/
WELCH EMERGENCY HOSPITAL,

                                    Respondent.

                              

DECISION

      Vanessa Johnson (Grievant) is employed by Welch Emergency Hospital (WEH) as a Ward Clerk. She filed this grievance on June 15, 1998, alleging discrimination in her shift and overtime assignments. This grievance was denied at Level II, on July 23, 1998, by David Gresham. A Level III hearing was held on November 9, 1999, before Barbara J. Wheeler, Esq. Grievant was represented at this hearing by Sandra F. Parker, and WEH was represented by Cathy Addair. This grievance was denied at Level III, on February 4, 2000, by Commissioner Jonathan Boggs.
      At Level IV, Grievant was represented by Michael E. Froble, Esq., and WEH was represented by Assistant Attorney General Anthony Eates, II. The parties agreed that this grievance could be decided upon the record developed at the lower levels, and were given until June 21, 2000, to submit proposed findings of fact and conclusions of law. Both parties did so, and this grievance became mature for decision on that date.
      The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT

      1.      Grievant is employed at WEH as one of WEH's three Ward Clerks. Having worked at WEH for some 25 years, she is the most senior Ward Clerk..
      2.      Grievant works more day shifts, and fewer evening shifts, than any other Ward Clerk.
      3.       Grievant's supervisor, Virginia Topping, is responsible for making the Ward Clerk schedule, and must coordinate their work with that of the Registered Nurses and the Licensed Practical Nurses to provide adequate coverage and quality patient care.
      4.       There is no agreement between Grievant and WEH that she work only day shifts.
      5.       Grievant was not hired to work only day shifts, and WEH does not hire Ward Clerks for specific shifts.
      6.      Grievant receives more overtime than any other Ward Clerk.
DISCUSSION

      Grievant has the burden of proving 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); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6. 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). Wherethe evidence equally supports both sides, a party has not met its burden of proof. Id.
      Grievant argues that she has been subjected to discrimination by being assigned to work shifts other than her preferred day shift, and that other WEH employees get preferential treatment in shift and overtime assignment. Grievant maintains that she was hired to work the day shift.
      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:
(a)      that she is similarly situated, in a pertinent way, to one or more other employee(s);

(b)      that she has, to her detriment, been treated by her 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.

Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).
      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 she can demonstrate the reason given by the respondent was mere pretext. Steele v. Wavne Countv Bd. of Educ., Docket No. 89-50- 260 (Oct. 19, 1989).
      A preponderance of the credible evidence in this grievance establishes that Grievant was similarly situated, in a pertinent way, to other WEH Ward Clerks who were subject toshift and overtime assignment by WEH. However, Grievant was not, to her detriment, treated by her employer in a manner that the other Ward Clerks were not, in a significant particular, because she was subjected to the same shift and overtime assignment procedures as the other Ward Clerks; because Grievant actually gets her preferred day shift more frequently than do other Ward Clerks; and because she is assigned more overtime than other Ward Clerks. Accordingly, Grievant has failed to establish a prima facie case of discrimination.
      The evidence in this grievance established that, when Grievant began work at WEH, only a day shift Ward Clerk was required, and so she naturally worked the day shift. As WEH grew, 24 hour coverage began, and considerations of adequate coverage and quality patient care rendered Grievant, and all other Ward Clerks, subject to assignment to other shifts. There was no evidence of any agreement between Grievant and WEH that she work day shifts only, and WEH does not hire Ward Clerks for specific shifts.
      The circumstances in this grievance are strikingly similar to those in Parker v. W. Va. Dep't of Health and Human Resources/Welch Emergency Hospital, Docket No. 91- HHR-282 (Apr. 22, 1992), which was apparently brought by Grievant's Level III representative. In that grievance, it was held that W. Va. Code § 26-11-2 accorded the administrator of WEH “the authority to manage and administer the financial, business and personnel affairs” of WEH; that the grievant's shift assignments were the result of legitimate shift and staffing requirements and were not indicative of discrimination; and that the grievant had no statutory or regulatory right to a work schedule based solely on seniority. The undersigned Administrative Law Judge finds nothing in the record of the instant grievance to warrant a different result.      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.

CONCLUSIONS OF LAW

      1.      Grievant has the burden of proving 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); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
      2.      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).
      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:
(a)      that she is similarly situated. in a pertinent way, to one or more other employee(s);

(b)      that she has, to her detriment, been treated by her 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.

Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 960-T&R-215 (Sept. 24,1996).      4.      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 she can demonstrate the reason given by the respondent was mere pretext. Steele v. Wayne County Bd. of Educ., Docket No. 89-50- 260 (Oct. 19, 1989).
      5.      Grievant failed to establish a prima facie case of discrimination.
      6.      W. Va. Code § 26-11-2 accords the administrator of WEH “the authority to manage and administer the financial, business and personnel affairs” of WEH.
      7.      Grievant failed to establish, by a preponderance of the evidence, that she was subjected to discrimination in her shift and overtime assignments.
      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 grievance occurred. 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.
                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated June 30, 2000