v. Docket No. 99-05-358
BROOKE COUNTY BOARD OF EDUCATION,
Respondent,
DELCIE JONES,
Intervenor.
(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.
Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
Once the grievant establishes a prima facie case of discrimination, the burden shifts
to the employer to demonstrate a legitimate, non-discriminatory reason to substantiate its
actions. Thereafter, a grievant may show that the offered reasons are pretextual. Deal v.
Mason County Bd. of Educ., Docket No. 96-26-106 (Aug. 30, 1996). See Tex. Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. HumanRights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Conner v. Barbour County Bd. of
Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
Grievants assert that Code §18A-4-5b only requires they perform duties which are
like, and not necessarily identical, to those performed by Ms. Jones. In determining the
meaning of like, Grievants cite the decision of the West Virginia Supreme Court of
Appeals in Weimer-Godwin v. Board of Education of Upshur County, 179 W. Va.423, 369
S.E. 2d 726 (1988). In that decision, the term like was defined as having a distinct
character, no matter how widely different in nonessentials . . . as having the same or nearly
the same qualities or characteristics; resembling another or substantially similar . . . .
(Citations omitted).
Grievants also note several decisions of the Grievance Board which have held that
for assignments and duties of positions to be like they must be substantially similar in
performance and general responsibilities, Wetherholt v. Cabell County Board of Education,
Docket No. 93-06-017 (June 30, 1993); and/or require similar skills and impose similar
responsibilities, Meadows v. Jefferson County Board of Education, Docket No. 19-88-192
(Dec. 29, 1988), and Allison v. Hancock County Board of Education, Docket No. 97-15-454
(Mar. 31, 1998).
Grievants first assert that they perform duties which are like those of Ms. Jones
because they all hold the title of Secretary. Second, while only Ms. Capobianco also holds
the title of Computer Operator, Grievants argue that the mere holding of a title is not
determinative of their claim, because they also spend a great portion of their work day
using a computer to accomplish their duties. They note that use of the computer appears
to be Ms. Jones' only qualification to hold the classification of computer operator, and thather use is limited to accessing the WVEIS software to prepare the payroll.
(See footnote 1)
Thus, while
Ms. Jones uses the EMS portion of the WVEIS software, Grievants claim to also work
extensively with the Student Management System portion of the program, as well as
prepare purchase orders, and complete the hot lunch Point of Service reports.
Addressing the Financial Secretary portion of Ms. Jones' title, Grievants assert that
they prepare much of the raw material for the work which she completes. Specifically,
information regarding the hiring, resignation, and retirement of personnel is provided by the
personnel office. Those Grievants assigned to schools generate time sheets, personal
leave and substitute employee information for the personnel assigned to their school.
They note that many of Ms. Jones' duties have been automated by the EMS system,
leaving her to simply enter the data. Grievants claim that, just as Ms. Jones, they have
deadlines to be met, albeit without benefit of the overtime which she is paid. Grievants
conclude that while her duties and responsibilities may justify the overtime paid to Ms.
Jones, they do not justify the additional compensation of $2500.00 per year and salary at
pay grade G.
(See footnote 2)
As noted by BCBOE, the West Virginia Supreme Court of Appeals recently
addressed a similar situation in Flint v. The Board of Education of the County of Harrison,
Slip Opinion No. 25898 (Dec. 10, 1999). In Flint, nine service employees hired under 240
day employment contracts alleged violations of W. Va. Code §§18A-4-5b and 18-29-2(m),in support of their argument that they were entitled to the same contract terms as 261 day
employees. Seven of the nine grievants were multi-classified. The Court determined that
to prove a uniformity claim under Code §18A-4-5b, an employee must hold the exact same
classification, and, in cases of multi-classification, the employees must hold exactly the
same class titles. Quite simply, the Court concluded that employees who do not have the
same classifications are not performing like assignments and duties. Employees who
have some classifications in common with another service employee were found not be
performing like assignments and duties because they have additional duties in relation to
the other classifications they hold.
The Court further determined there was no discrimination for the same reason there
was no uniformity violation. Because the grievants held different multi-class titles, they
were not similarly situated in a pertinent way to one or more other employees, and did not
establish a prima facie case of discrimination. Thus, Respondent was not required to
provide 261 day contracts to these seven grievants.
In the present matter, Grievants do not hold the same multi-classified title as Ms.
Jones. Although Grievants offered extensive testimony to establish they use a computer
to complete their tasks, and while Grievants do provide her with raw data which she uses
to complete some of her work, the evidence is overwhelming that they do not perform
duties which are like or similar to the Financial Secretary portion of her title. Ms. Jones
is entirely responsible for the payroll functions applicable to all BCBOE employees. Her
duties include, but are by no means limited to, printing payroll reports, printing and sorting
checks by fifteen locations, electronically submitting direct deposits, updating employeerecords as changes occur, processing tax withholdings and making deposits to the IRS and
West Virginia State Tax Department.
She completes retirement reports, files W-2 forms, transfers tax deferred annuities
to seven different companies, transfers membership dues for employee association
groups, maintains accounts for retirement loans, life insurance, United Way, and credit
unions. She processes legally required wage attachments, updates W-4 withholding status
forms, maintains teachers' sick leave bank, completes retirement reports, computes pay
for substitute employees, processes supplemental pay for all coaches, club and class
sponsors, as well as salaries paid outside the normal contract for all employees, and
calculates adjustments to salaries when a service personnel employee bids on a temporary
position.
Grievants clearly do not perform duties which are like or similar to those of
Intervenor, and, under the Flint analysis, have failed to establish a prima facie case of
discrimination.
(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.
Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989). 7. Because Grievants do not hold the same multi-classified title as Intervenor
they do not perform like or similar duties, and are not similarly situated. Grievants have
failed to establish a prima facie case of discrimination.
Accordingly, the grievance is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Brooke County and 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.
Date: April 6, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE