Grievant,
v. Docket No. 00-HHR-060
DEPARTMENT OF HEALTH AND HUMAN RESOURCES/
WELCH EMERGENCY HOSPITAL,
Respondent.
(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.
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).
Once the grievant establishes a prima facie case, the burden shifts to the employer
to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id.
However, a grievant may still prevail if she can demonstrate the reason given by the
respondent was mere pretext. Steele v. Wavne Countv Bd. of Educ., Docket No. 89-50-
260 (Oct. 19, 1989).
A preponderance of the credible evidence in this grievance establishes that Grievant
was similarly situated, in a pertinent way, to other WEH Ward Clerks who were subject toshift and overtime assignment by WEH. However, Grievant was not, to her detriment,
treated by her employer in a manner that the other Ward Clerks were not, in a significant
particular, because she was subjected to the same shift and overtime assignment
procedures as the other Ward Clerks; because Grievant actually gets her preferred day
shift more frequently than do other Ward Clerks; and because she is assigned more
overtime than other Ward Clerks. Accordingly, Grievant has failed to establish a prima
facie case of discrimination.
The evidence in this grievance established that, when Grievant began work at WEH,
only a day shift Ward Clerk was required, and so she naturally worked the day shift. As
WEH grew, 24 hour coverage began, and considerations of adequate coverage and quality
patient care rendered Grievant, and all other Ward Clerks, subject to assignment to other
shifts. There was no evidence of any agreement between Grievant and WEH that she
work day shifts only, and WEH does not hire Ward Clerks for specific shifts.
The circumstances in this grievance are strikingly similar to those in Parker v. W.
Va. Dep't of Health and Human Resources/Welch Emergency Hospital, Docket No. 91-
HHR-282 (Apr. 22, 1992), which was apparently brought by Grievant's Level III
representative. In that grievance, it was held that W. Va. Code § 26-11-2 accorded the
administrator of WEH the authority to manage and administer the financial, business and
personnel affairs of WEH; that the grievant's shift assignments were the result of
legitimate shift and staffing requirements and were not indicative of discrimination; and that
the grievant had no statutory or regulatory right to a work schedule based solely on
seniority. The undersigned Administrative Law Judge finds nothing in the record of the
instant grievance to warrant a different result. Consistent with the foregoing discussion, the following Conclusions of Law are
made in this matter.
(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.
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 960-T&R-215 (Sept. 24,1996). 4. Once the grievant establishes a prima facie case, the burden shifts to the
employer to demonstrate a legitimate, nondiscriminatory reason for the employment action.
Id. However, a grievant may still prevail if she 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. Grievant failed to establish a prima facie case of discrimination.
6. W. Va. Code § 26-11-2 accords the administrator of WEH the authority to
manage and administer the financial, business and personnel affairs of WEH.
7. Grievant failed to establish, by a preponderance of the evidence, that she
was subjected to discrimination in her shift and overtime 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 § 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.
ANDREW MAIER
ADMINISTRATIVE LAW JUDGE
Dated June 30, 2000