CAROLYN RICE,

                  Grievant,

      v.

DOCKET NO. 00-40-011

PUTNAM COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievant, Carolyn Rice, filed a grievance against her employer, the Putnam County Board of Education (“Board”) on or about October 6, 1999, alleging as follows:


The grievance was denied at level one by Paul McCallister, Director of Attendance, on October 6, 1999. A level two hearing was held on November 16, 1999, and a decision denying the grievance was issued by the Superintendent's designee, Harold Hatfield, on December 16, 1999. Grievant appealed to level four on January 12, 2000, and a level four hearing was held in the Grievance Board's Charleston, West Virginia, office on March 27, 2000. This matter became mature for decision on April 14, 2000, the deadline for the parties' proposed findings of fact and conclusions of law. Grievant was represented bySusan Hubbard, West Virginia Education Association, and the Board was represented by John A. Grafton, Esq., Grafton Law Office.
SUMMARY OF EVIDENCE

Level Three Joint Exhibits

Ex. 1 -

Ex. 2 -
Level Three Grievant's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 -
Level Three Board Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 -
Level Four Grievant's Exhibits

Ex. 1 -

Ex. 2 - Ex. 3 - Ex. 4 - Ex. 5 - Ex. 6 -
Testimony

      Grievant testified in her own behalf, and presented the testimony of Paul McAllister. The Board presented the testimony of Paul McAllister.

FINDINGS OF FACT

      1.

      2.      Grievant is an itinerant employee, and reports to different schools depending upon her schedule for that day.
      3.      Grievant, along with three other itinerant school nurses, has an office located in the Board's central office building in Winfield, West Virginia. This office serves as a location for the nurses on Fridays. Mondays through Thursdays, the nurses report to a regularly scheduled school or schools.
      4.      Since 1981, Grievant has traveled from her home to the central office to pick up her equipment, materials, student records, and supplies, before traveling to her assigned schools, and has returned to the central office after school to store her equipment.
      5.      Since 1981, it has been the practice of the Board to compensate Grievant for her travel expenses from home to the central office.
      6.      Grievant is the only itinerant school nurse employed by the Board who has been compensated for her travel from home to the central office. She is also the only itinerant school nurse who stores her equipment and supplies at the central office.
      7.      Paul McCallister, Director of Attendance, became the nurses' supervisor approximately three years ago. Since assuming that responsibility, he became aware Grievant was being compensated for her travel from home to the central office.      8.      It is the Board's policy to compensate itinerant nurses for travel between assigned schools, but not from their home to their first assignment, or from their last assignment to their home.
      9.      Specifically, the Board's travel policy states that, with respect to travel allowance, “employees picking up or delivering packages enroute to work from home or from home to work shall not be paid a mileage allowance.”
      10.      Mr. McAllister discussed Grievant's situation with Superintendent Sam Sentelle, and with his approval, ordered Grievant to cease traveling to the central office in the morning before reporting to her first assigned school. Mr. McAllister further informed Grievant that she would no longer be compensated for travel from her home to the central office. LIII Jt. Ex. 2.
      11.      Grievant has submitted all of her travel expenses as one lump sum, without separating her travel from her home to the central office from travel between assigned schools. LIII G. Ex. 1.
      12.      Grievant has not been reimbursed for any travel expenses for the 1998-99 school year, or to the present time for the 1999-2000 school year.   (See footnote 1) 
DISCUSSION

      In non-disciplinary matters, a grievant has the burden of proving each element of 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); 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). See W. Va. Code § 18-29-6.
      Grievant alleges the Board's action in refusing to compensate her for travel from her home to the central office interferes with her job performance, and constitutes harassment and favoritism, in violation of W. Va. Code §§ 18-29-2(a), (n) and (o). The Board denies it has violated any rules, regulations, policies, or statutes with regard to Grievant's travel expenses.
      W. Va. Code §18-29-2(a) defines a grievance as any specifically identified incident of harassment or favoritism; or any action, policy or practice constituting a substantial detriment to or interference with effective classroom instruction, job performance, or the health and safety of students or employees.
      Harassment is defined by W. Va. Code § 18-29-2(n) as “repeated or continual disturbance, irritation or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession.”
      Favoritism is defined by W. Va. Code § 18-29-2(o) as “unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees.” In order to establish a prima facie case of favoritism, Grievant must establish the following:
      (a)
      (b)
      (c)
Frantz v. W. Va. Dep't of Health and Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999); Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998). See McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). If Grievant establishes a prima facie case of favoritism, the Board may rebut this showing by articulating a legitimate reason for its action. However, Grievant can still prevail if she can demonstrate that the reason proffered by the Board was mere pretext. See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
      Grievant testified that she is unable to store all the needed supplies, records and equipment in her personal vehicle each day. She is concerned with the safety of the equipment if left overnight or unattended in her personal vehicle. Grievant further alleges the Board has infringed upon her civil rights by requiring her to carry the equipment in her personal vehicle after school hours. She alleges she is unable to do personal shopping and errands because the school equipment takes up all the space in her car. Finally, Grievant testified that others are compensated for travel to and from the central office to pick up or deliver needed materials.
      Mr. McAllister testified that Grievant is the only one of the four itinerant nurses who travels to and from the central office every day, or finds it necessary to store equipment,supplies and materials at the central office. Mr. McAllister testified that no other nurse is compensated for travel to and from the central office. Further, although he has specifically instructed Grievant to refrain from traveling to and from the central office from her home every day, in compliance with Board policy, she has continued to do so in direct contravention of his order.
      Grievant has failed to demonstrate how she has been harassed. Mr. McAllister is merely following and enforcing Board policy regarding travel expenses. The fact that she had been allowed to submit travel expenses for her commute from home to the central office under a previous supervisor does not alter the fact that Board policy does not permit this type of reimbursement. It is not harassment for a supervisor to enforce Board policy, as long as it is done uniformly.
      In that regard, Grievant has also failed to make a prima facie case of favoritism. It is undisputed that the other three nurses do not travel from their home to the central office every day to pick up supplies. They are not being compensated for any type of travel that Grievant is not. Further, Grievant has failed to identify any other individual employed by the Board who is being compensated for commuting between their home and the central office. She merely testified that she believed “others” were being reimbursed.
      While Grievant finds keeping equipment in her personal vehicle an infringement upon her “civil rights”, she has not proven she is being treated any differently than any other Board personnel who, from time to time, are required to take school business home with them. Clearly, the other nurses have figured out a way to deal with this problem, and Grievant needs to do so also. Perhaps Grievant could continue to store her equipment andsupplies at the Board's office, but simply not be compensated for the travel between her home and the office. Grievant's blatant refusal to follow Mr. McAllister's directive constitutes insubordination, and she should feel fortunate that she has not been disciplined for failing to follow his reasonable and lawful order.
CONCLUSION OF LAW

      Grievant has failed to demonstrate she has been subjected to harassment or favoritism, or that her job performance has been substantially interfered with, as a result of being denied travel reimbursement for unauthorized travel from her home to the central office.

      Accordingly, this grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Putnam County. Any 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.

                                           __________________________________
                                                 MARY JO SWARTZ
                                                 Administrative Law Judge

Dated: May 4, 2000


Footnote: 1
       At the level four hearing, Grievant agreed to separate her expenses from her home to the central office from the remainder of her travel, so that she could be reimbursed for all legitimate travel expenses.