MARK WORRELL, et al.,

                  Grievants,

      v.

DOCKET NO. 00-PEDTA-298

WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,

                  Respondent.

D E C I S I O N

      Grievants, Mark Worrell, Harold Myers, Edwin Bailey, Steve A. Fortner, Louie Constantino, Timothy Feijo, and Sylvia Miller, filed this grievance against their employer, the West Virginia Parkways Economic Development and Tourism Authority (“Parkways”) on March 12, 1998:


The grievance was denied at the lower levels, and after many continuances for good cause, proceeded to level four on September 18, 2000. A level four hearing was held in the Grievance Board's Beckley, West Virginia, office on October 30, 2000, and this matter became mature for decision on November 20, 2000, the deadline for the parties' proposed findings of fact and conclusions of law. Grievants were represented by Mr. Boyd Lilly, and Parkways was represented by A. David Abrams, Jr., Esq.
SUMMARY OF EVIDENCE

LIII Grievants' Exhibits
Ex. 1 -
LIV Grievants' Exhibits

Ex. 1 -


LIII Parkways' Exhibits

Ex. A -

Ex. B - Ex. C - Ex. D - Ex. E - Ex. F - Ex. G -
Testimony

      Grievants presented the testimony of Mark Worrell, Jerry Lilly, Raymond Pettrey, Roger Bragg, Louie Constantino, Boyd Lilly, and Larry Cousins. Parkways presented the testimony of Dale Wooten and Carrie Roache.

FINDINGS OF FACT

      I find, by a preponderance of the evidence, the following facts.      
      1.      This grievance arose after heavy snowfall in southern West Virginia that began on or about January 27, 1998, prompting Governor Cecil H. Underwood to declare a State of Emergency in the affected areas.      2.      Grievants were employed as toll collectors by Parkways at Toll Barrier A near Ghent, Raleigh County, West Virginia, an area affected by the heavy snowfall.
      3.      Because a large number of State employees in the affected areas were unable to report to work during the snow storm, Governor Underwood issued an Executive Order, applicable to the Department of Transportation and Parkways, directing that employees who missed work between January 28 and January 31, 1998, would receive pay for the days missed without having to take leave.
      4.      On January 28, 1998, Secretary of Transportation Richard Jemiola, issued a memorandum restating the Governor's approval of leave with pay for Department of Transportation employees unable to report to work between January 28 and 31, 1998, because of the heavy snowfall. In addition, the memorandum stated that “[e]mployees who reported to work despite the snow emergency should be recorded as time worked, with the notation that they are due eight hours off (or the appropriate number of hours according to their work schedule).” LIII G. Ex. 1.
      5.      By memorandum dated February 2, 1998, and Addendum dated February 2, 1998, Parkways adopted procedures for providing the appropriate leave time to all Parkways employees based upon the instructions from the Office of the Governor and the Department of Transportation. LIII R. Exs. D, E, F.
      6.      Pursuant to those directives, employees who were able to make it to work on those days would receive compensatory time off, in the future, with pay, for the appropriate number of hours according to their work schedule, i.e, eight hours off if they worked a scheduled eight hour shift.      7.      Grievants Worrell and Constantino were scheduled to work an eight-hour shift commencing during the period in question. Both were able to report for their scheduled work because the weather was not severe enough to preclude travel at the time their scheduled shifts started.
      8.      Each of them works what is referred to as the “midnight” shift, which requires them to report to work at 10:50 p.m. and work until 6:50 a.m. the next morning. In each case, Worrell and Constantino reported to work on Tuesday evening, January 27, 1998, and worked through until the end of their respective shifts at 6:50 a.m. on Wednesday, January 28, 1998.
      9.      By the end of their respective shifts, the weather had worsened to the point where few, if any, employees were available to relieve them from their scheduled shifts. As a result, Worrell and Constantino continued working the shifts of other employees who were not able to come to work.
      10.      In the case of Worrell, he worked his scheduled midnight shift, then worked two successive eight-hour shifts of others on Wednesday, January 28, 1998, along with three or four hours of his next scheduled midnight shift that commenced at 10:50 p.m. Wednesday, January 28, 1998.
      11.      The evidence is less clear about Constantino, but he in fact did continue to work other employees' shifts due to the lack of relief toll collectors.
      12.      In the case of Worrell and Constantino, they were paid correctly for the hours they worked, whether they were regular or overtime hours.      13.      Parkways allowed Worrell to take 12 hours compensatory time off representing his midnight shift that he worked Tuesday/Wednesday, January 27/28, 1998, and four hours of his regularly scheduled midnight shift that he worked Wednesday/Thursday, January 28/29, 1998.
      14.      No evidence was presented at Level III about any grievant except Worrell, and no evidence was presented at Level IV with regard to any grievant except for Worrell and Constantino.
      15.      It is and has been the policy of Parkways with regard to Parkways' maintenance employees, that when it snows, their regular 8-hour shifts are converted to two, 12-hour shifts.
      16.      Parkways' maintenance employees received hour-for-hour compensatory time for working 12-hour shifts during the snow emergency.

DISCUSSION

      Because this grievance does not involve a disciplinary matter, Grievants have the burden of proving their grievance by a preponderance of the evidence. Procedural rules of the West Virginia Education and State Employees Grievance Board, 156 C.S.R. 1 § 4.19 (1996); McCoy and Domingues v. W. Va. Parkways, Economic Development and Tourism Auth., Docket No. 99-PEDTA-074 (July 19, 1999); Howell v. W. Va. Dept. of Health and Human Resources, Docket No. 89-DSH-72 (Nov. 29, 1990). See, W. Va. Code § 29-6A-6.
      Grievants claim they have suffered from discrimination and disparity in treatment because Parkways maintenance employees were treated differently in terms of the number of compensatory time off hours granted based on work performed during the snowemergency. Parkways responds that Worrell and Constantino were paid properly, and received the appropriate number of compensatory hours off dictated by the Governor's Executive Order and the memorandum of the Secretary of Transportation.
      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.” In order to establish a claim of discrimination, an employee must establish a prima facie case of discrimination by a preponderance of the evidence. In order to meet this burden, the Grievants must show:
      (a)
      (b)
      (c)
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18, 1996); Hendricks v. W. Va. Dept. of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996). Once the Grievants establish a prima facie case of discrimination, the burden shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the employment decision. Smith, supra; see Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
      Parkways' practice dealing with work performed by the maintenance workers during snow and ice removal operations is clearly established and supported by the authorizationof Personnel Policy III-1, Scheduling and Reporting to Work. LIII R. Ex. G. Parkways' General Manager Larry Cousins testified that maximum flexibility is given to the maintenance area supervisors to perform the difficult task of keeping the roadway open during heavy snowfall events. Those supervisors are authorized to order deviations from a normal workweek, which they do. When snow falls, such as during the time in question, the maintenance workers are routinely called out to work a scheduled 12-hour shift, rather than their normal 8-hour shift.
      Unlike the maintenance workers, the toll employees' scheduled work hours are not affected by weather-related events. They are scheduled year round for three, 8-hour shifts to cover each toll barrier. Based on work duties, the toll collectors are not in any way similarly situated to maintenance department employees, including their work schedules.
      The effect of the Governor's Order and Secretary Jemiola's memoranda was that Grievants, toll collectors, were paid for their regular 8-hour shift, plus any overtime accrued. In addition, Grievants received 8 hours of compensatory time in an hour-for-hour calculation corresponding to their regular, 8-hour shifts. The maintenance employees were paid for their regular 12-hour shifts, plus any overtime accrued. In addition, they received 12 hours of compensatory time in an hour-for-hour calculation corresponding to their regular 12-hour shifts.
      Jerry Lilly, a maintenance worker at the Ghent maintenance facility, testified that when it snows, the maintenance workers' regular 8-hour shifts automatically convert to 12- hour shifts. In the instant case, Mr. Lilly's timesheets for the period in question show that the worked 12-hour shifts on each of the days comprising the snow emergency. LIII R. Ex.C. Mr. Lilly was given hour-for-hour compensatory time for his 12-hours shifts, as a maintenance employee's “regular” shift becomes 12 hours when it snows.
      Raymond Pettrey, a maintenance employee at the Ghent facility, worked a 12-hour shift for each of the days covered by the snow emergency. LIII R. Ex. A. He received hour-for-hour compensatory time for each of those hours comprising his “regular” snow and ice removal shift.
      Roger Bragg is the day watchman at the Ghent maintenance facility. His normal “regular” shift consists of one 14-hour shift and two 13-hour shifts, on Friday, Saturday, and Sundays. During the snow emergency, Mr. Bragg was called in to work on the Wednesday and Thursday preceding his regular shift, and then worked his regular shift. Mr. Bragg testified that when he is called out to work because of snow, he is working under the 12- hour snow and ice removal shift that applies to the other maintenance workers. During the time period in question, Mr. Bragg received hour-for-hour compensatory time for the hours comprising his 12-hour shifts on Wednesday and Thursday, as well as the hours comprising his regular 14-hour shift on Friday.
      Oddly, Mr. Boyd Lilly, Grievants' representative, testified himself at level four. At the time in question, Boyd Lilly worked as a watchman at Barrier B, and similar to Mr. Bragg, his normal work schedule consisted of three days, Sunday, Monday and Tuesday, with one 14-hour shift, and two 13-hour shifts. When the storm hit on Tuesday, Boyd Lilly was instructed to stay and work on snow removal, just like Mr. Bragg. Boyd Lilly was paid for his regular hours worked, plus any overtime. In addition, he testified he received 11 hours compensatory time in an hour-for-hour calculation.      Grievants' claim they were discriminated against must fail, in that they were treated exactly like other employees at Parkways in accordance with the policy. The only difference is that Grievants' shifts do not automatically convert to 12-hour shifts when it snows, but rather, remain 8-hour shifts. Grievants and the maintenance employees received hour-for-hour compensatory time for their regular shifts, as dictated by the policies.
CONCLUSIONS OF LAW

      1.      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.” In order to establish a claim of discrimination, an employee must establish a prima facie case of discrimination by a preponderance of the evidence. In order to meet this burden, the Grievants must show:
      (a)
      (b)
      (c)
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18, 1996); Hendricks v. W. Va. Dept. of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).       2.      Once the Grievants establish a prima facie case of discrimination, the burden shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the employment decision. Smith, supra; see Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
      3.      Grievants have failed to prove by a preponderance of the evidence that they were treated differently than the maintenance employees with respect to the snow emergency of January 28-30, 1998. In fact, Grievants and the maintenance employees were treated the same under the snow policies.

      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. 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.

                                     ________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: December 7, 2000