RICHARD PATTERSON, et al.,

                              Grievants,

v v.


WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,

                              Respondent.

DECISION

      Richard Patterson, Roy L. Phillips, Steve Light, Norman Jones, Gary Boyd, Larry Treadway, Mark Oakes, Jackie Miller, Eric Dorsey, Jeff Vealey, Jim Boswell, and Joe LeGrand (Grievants) filed this grievance pursuant to W. Va. Code §§ 29-6A-1, et seq., on or about April 7, 1998, alleging that Respondent West Virginia Parkways Economic Development and Tourism Authority (Parkways) engaged in disparate treatment in requiring Grievants to have Commercial Driver's Licenses (CDLs) as a condition of their employment.
      This grievance was denied at Level I, on June 8, 1998, by Roger Johnson; and at Level II, on July 6, 1998, by Rick Deeds. Before a Level III hearing could be held, Grievants filed this matter at Level IV. An order remanding this grievance for proceedings at Level III was entered on April 15, 1999. A Level III hearing was held on July 8 and August 23, 1999. Grievants were represented at this hearing by Boyd Lilly of the West Virginia State Employees Union, and Parkways was represented by A. David Abrams, Jr., Esq. This grievance was denied at Level III by Grievance Evaluator D. L. Lake on October12, 1999.
      A Level IV hearing was held before the undersigned Administrative Law Judge at the Grievance Board's Beckley office on August 17 and September 8, 2000. At that hearing, Parkways was again represented by A. David Abrams, Jr., Esq., and Grievants were again represented by Boyd Lilly. The parties were given until November 6, 2000, to submit proposed findings of fact and conclusions of law, Parkways did so, and this grievance became mature for decision on that date.
      The following Findings of Fact pertinent to the resolution of this matter have been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT
      1.      Grievants, who are required to have Commercial Driver's Licenses (CDLs) as a condition of their employment, are employed in the several craft shops operated by Parkways, including its Utility Shop, Sign Shop, Carpentry Shop, and Chelyan Maintenance Shop.
      2.      In 1993, several employees, including some Grievants, asked Parkways for training to obtain CDLs. Parkways provided this training at its own expense, with the understanding that those who obtained CDLs would maintain them.
      3.      Since 1995, Parkways required that all craftsmen and technicians in its craft shops having CDLs maintain them, and that all new employees hired for or transferred to its craft shops obtain CDLs as a condition of their employment. Three employees then without CDLs were “grandfathered” from this requirement.
      4.      The “grandfathered” employees are not required to operate equipmentrequiring a CDL.
      5.      Parkways is experiencing an expansion of its facilities, which requires that employees be “cross-trained” and able to perform many functions involving vehicles that require a CDL to operate.
DISCUSSION
      As 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 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). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      Grievants claim that Parkways engages in disparate treatment by requiring Grievants to have Commercial Driver's Licenses (CDLs) as a condition of their employment.   (See footnote 1)  As relief, they seek to be made whole and complete. Grievants do not seeka requirement that employees “grandfathered” from the CDL requirement be required to get CDLs.
      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, Grievants must show:



Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).

      Once the grievants establish a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, the grievants may still prevail if they 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).
      Grievants established that they were similarly situated to other employees employed in Parkways' craft shops. They also established that they were treated differently, in a significant particular, than three “grandfathered” employees who are not required tomaintain CDLs as a condition of their employment. However, Parkways proved that their different treatment was related to their actual job responsibilities.
      The credible testimony of Parkways' Facilities Manager Darrell Richard Deeds and Chelyan Maintenance Shop Supervisor William Blake established that Parkways is experiencing an expansion of its facilities, which requires that employees be “cross-trained” and able to perform many functions involving vehicles that require a CDL to operate. Specifically, Parkways has more vehicles, lighting, and equipment to maintain today than it did in 1995, when CDLs were first required, due to its improved toll plazas, expanded headquarters, changeable message signs, new Beckley West maintenance facility, Tamarack and its Exit 45, maintenance garages at Standard, and upgraded service plazas and restaurants. Parkways' witnesses established that the three “grandfathered” employees are not required to operate equipment requiring a CDL, and that it needs Grievants to have CDLs so that it has a sufficient number of employees qualified to operate its heavy equipment, which includes dump trucks, lift bed trucks, and trailers. Accordingly, Grievants have failed to establish a prima facie case of discrimination.
      The credible testimony of Grievants demonstrated that this grievance is motivated by their feeling that maintaining a CDL is a financial and legal liability, and that the choice of maintaining one should be left to the individual employee. However, as noted in Bennett v. W. Va. Dep't of Health and Human Resources/Bureau for Children and Families, Docket No. 99-HHR-517 (Apr. 26, 2000), the undersigned does not have authority to second guess a state employer's employment policy, to order a state agency to make a discretionary change in its policy, or to substitute his management philosophy forParkways'. Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997), Bennett, supra, Kincaid v. W. Va. Div. of Corrections, Docket No. 98-CORR-144 (Nov. 23, 1998).
      This is yet another grievance where Parkways' employees seek to usurp management's prerogative to make policy. However, an agency's determination of matters within its expertise is entitled to substantial weight. Princeton Community Hosp. v. State Health Planning, 174 W. Va. 558, 328 S.E.2d 164 (1985). Unless Grievants present sufficient evidence to demonstrate Parkways CDL policy is clearly wrong, inappropriate, or the result of an abuse of discretion, an administrative law judge must give deference to Parkways and uphold the policy. O'Connell v. Dep't of Health and Human Resources, Docket No. 95-HHR-251 (Oct. 13, 1995); Farber v. Dep't of Health and Human Resources, Docket No. 95-HHR-052 (July 10, 1995). Simply put, Parkways' employees do not get to make policy. See Smith v. Parkways Economic Development and Tourism Auth., Docket No. 00-PEDTA-133 (July 7, 2000); Farley et al. v. Parkways Economic Development and Tourism Auth., Docket No. 00-PEDTA-015 (June 22, 2000); Settle v. Parkways Economic Development and Tourism Auth., Docket No. 00-PEDTA-031 (May 23, 2000); McCoy/Domingues v. Parkways Economic Development and Tourism Auth., Docket No. 99-PEDTA-074 (July 19, 1999). Therefore, this grievance must be denied.
            Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.

CONCLUSIONS OF LAW
      1.      In a non-disciplinary grievance, the grievants have the burden of proving their 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); Holly v. Logan County Bd. of Educ., Docket No 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988).
      2.      The undersigned does not have authority to second guess a state employer's employment policy, to order a state agency to make a discretionary change in its policy, or to substitute its management philosophy for Parkways'. Skaff v. Pridemore, 200 W. Va, 700, 490 S.E.2d 787 (1997), Bennett v. W. Va. Dep't of Health and Human Resources/Bureau for Children and Families, Docket No. 99-HHR-517 (Apr. 26, 2000), Kincaid v. W. Va. Div. of Corrections, Docket No. 98-CORR-144 (Nov. 23, 1998).
      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, Grievants must show:



Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).

      4.      Once the grievants establish a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, the grievants may still prevail if they 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.      Grievants failed to establish, by a preponderance of the evidence, a prima facie case of discrimination with respect to Parkways' CDL requirements.
      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 § 29A5-4(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: December 11, 2000


Footnote: 1
            Grievants also raised a claim of favoritism with respect to a grab bag of old gripes that were not relevant to this grievance, not timely, and not established by a preponderance of the evidence, including Grievant Jones's claim for one million dollars for Parkways' failure to grant him a pay increase in 1994, a claim that an employee who boasted of getting a merit pay increase from a relative later received one, and Grievant Light's claim that Parkways forced him to drive an unsafe truck for eight and one-halfyears.