JIMMY SETTLE, et al.,

                              Grievants,

v v.


WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,

                              Respondent.

DECISION

      Jimmy Settle, Tommy Graley, and Greg Wriston (Grievants) filed this grievance pursuant to W. Va. Code §§ 29-6A-1, et seq., on November 9, 1999, alleging that Respondent West Virginia Parkways Economic Development and Tourism Authority (Parkways) engaged in discrimination by using seniority to determine the shift assignments of other Parkways employees while not using seniority to determine their shift assignments.
      This grievance was denied at Level I, on or about November 19, 1999, by Samuel P. Rahall; and at Level II, on or about December 2, 1999, by Administrator William K. Forrest. A Level III hearing was held on December 17, 1999. Grievants were represented at this hearing by Boyd Lilly and Jerry 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 January 11, 2000.
      A Level IV hearing was held before the undersigned administrative law judge at the Grievance Board's Beckley office on March 10, 2000. At that hearing, Parkways was again represented by A. David Abrams, Jr., Esq., and Grievants were again represented by Boyd Lilly and Jerry Lilly. The parties were given until May 15, 2000, to submit proposed findingsof fact and conclusions of law, both parties did so, and this grievance became nature 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.      Grievant Settle works at Parkways' Standard maintenance facility, and has some 22 years seniority. Grievant Wriston also works there, and has some 20 years seniority. In Winter, they work removing ice and snow.
      2.      Grievant Graley also works at Parkways' Standard maintenance facility, and has some 13 years seniority. He works as a night watchman.   (See footnote 1) 
      3.      On September 15, 1998, Parkways instituted a new policy for assigning employees to day and night shifts for snow and ice removal duties. The policy provided that employees would rotate between day and night shifts in alternate winters.   (See footnote 2) 
      4.      In previous years, employees with the greatest seniority could usually choose between day or night shift snow and ice removal duty.
      5.      The new policy had the effect of giving some less-senior employees more desirable shift assignments than some employees with greater seniority.
      6.      Although Parkways informally recognizes seniority when it assigns shifts atsome of its facilities, it has no written policy or procedure requiring that shift assignments ever be assigned by seniority.
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 engaged in discrimination by using seniority to determine the shift assignments of other Parkways employees while not using seniority to determine their shift assignments. As relief, they seek to be made whole and complete, and that they be allowed to select their shift assignments for snow and ice removal duty based upon their seniority.
      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 Parkways employees subject to shift assignment by Parkways. They also established that they were treated differently, in a significant particular, than those employees who may select their shift based upon their greater seniority. However, Parkways proved that their different treatment was related to their actual job responsibilities.
      The credible testimony of Parkways' Highway Production Manager Walter Brubaker, Standard maintenance facility Supervisor Sam Rahall, and General Manager Laurence Cousins, established that Grievants' work is different than that of Parkways employees who can choose their shifts based on seniority, because of the unpredictable nature of snow and ice removal work, with each snow and/or ice storm being of varying duration, intensity, and expanse. In the past, the lack of a regularly assigned night snow and ice removal crew meant that employees would sometimes work a full day, and then be held over to battlean afternoon, evening, or night storm. These irregular assignments resulted in fatigued workers and decreased public safety. Parkways soundly reasoned that allowing senior workers their choice of shift makes more sense in the utterly predictable work of, for example, toll collectors, who perform repetitious duties in a controlled environment.
      Parkways' witnesses also established that it takes years for an employee to become proficient at snow and ice removal work, because some types of storms only occur once in a decade. Accordingly, it is desirable for each snow and ice removal shift to contain a balance of more and less senior employees, which will be less likely to happen if the most senior employees can all choose the more desirable day shift. The new policy also gives the Supervisor more flexibility in considering qualities such as leadership and degree of knowledge, in addition to seniority. 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, as one Grievant put it, "the younger man shouldn't get the choice over an older man." 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 for Parkways'. 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).
      Parkways Director of Human Resources Carrie Roaché credibly testified that Parkways informally recognizes seniority when it assigns shifts at some of its facilities, buthas no written policy or procedure requiring that shift assignments ever be assigned by seniority. Parkways Personnel Policy III-1, dated March 1, 1994, provides that "[m]anagement has the right to establish work schedules necessary to achieve the goals and objectives of the Parkways Authority. Scheduled shifts may vary according to the operational requirements of the Parkways Authority, such as the seasonal work load." By rotating employees between day and night shifts for snow and ice removal duties in alternate winters, Parkways exercised this right to schedule Grievants' work. Therefore, this grievance must be denied.
      This result is consistent with Olson v. Bd. of Trustees/Marshall Univ., Docket No. 99- BOT -513 (Apr. 5, 2000), in which security officers were held not to be entitled to shift assignment by seniority, because that would result in the most senior employees selecting day shift, and the least senior employees being assigned the more dangerous and difficult night shift, compromising safety and morale. See Shannon v. W. Va. Div. of Corrections, Docket No. 97-CORR-466 (Apr. 29, 1998).
      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 grievant has the burden of proving his 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.      Parkways Personnel Policy III-1, dated March l, 1994, provides that“[m]anagement has the right to establish work schedules necessary to achieve the goals and objectives of the Parkways Authority. Scheduled shifts may vary according to the operational requirements of the Parkways Authority, such as the seasonal work load."
      3.      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).
      4.      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).

      5.      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 bythe respondent was mere pretext. Steele v. Wayne County Bd. of Educ., Docket No. 89- 50-260 (Oct. 19, 1989).
      6.      Grievants failed to establish, by a preponderance of the evidence, that they were the victims of discrimination with respect to their shift 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 § 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: May 23, 2000


Footnote: 1
Due to the outcome of this grievance, it is unnecessary to decide whether Grievant Graley has standing to pursue this grievance. See Hundley v. W. Va. Div: of Corrections, Docket No. 97-CORR-197C (May 4, 1999).
Footnote: 2
Due to the outcome of this grievance, it is unnecessary to decide whether it was timely filed. The record appears to reflect that Grievants did not grieve this issue when the relevant policy was first implemented in 1998, but only in 1999, when its annual rotating shift feature caused Grievants to have to work the night shift.