v. Docket No. 00-48-121
TYLER COUNTY BOARD OF EDUCATION,
Respondent.
(b)that they have, to their detriment, been treated by their
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 grievants 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 grievants establish a prima facie case of discrimination, the burden shifts
to the employer to demonstrate a legitimate, nondiscriminatory reason to substantiate its
actions. Thereafter, grievants 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. 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); Conner v. Barbour County Bd. of
Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
Grievants rely upon Weimer-Godwin v. Board of Education of Upshur County, 179
W. Va. 423, 369 S.E.2d 726 (1988) in support of their claim that TCBOE must provide
uniform vacation benefits to similarly situated service employees. The West Virginia
Supreme Court of Appeals determined in Weimer-Godwin that it was not necessary for
employees to perform identical duties to meet the like assignments and duties
requirement in W. Va. Code §18A-4-5b, but rather, found that when the assignments andduties are substantially similar the uniformity requirement applies. Covert v. Putnam
County Bd. of Educ., Docket No. 99-40-463 (Feb. 29, 2000).
However, in a recent case with remarkable factual similarity, the Court held that
multiclassified employees who do not have the same classifications are not performing
'like assignments and duties.' Even those employees who have some classifications in
common with another service employee would not be performing 'like assignments and
duties' because they have additional duties in relation to the other classification they hold.
On that basis, the board of education was not required to provide petitioners the same
contract terms as the 261-day employees with whom they compared themselves. Claims
of favoritism and discrimination were denied for the same reason. Flint v. Bd. of Educ. of
Harrison, ___ W. Va. ____, 531 S.E.2d 76 (1999).
Grievants argue that Flint requires they be granted the vacation benefit because
they hold the same titles as employees who receive the benefit. While the record includes
what appears to be conflicting documentation of Grievant LeMasters' classification title,
Bob Wilt, Executive Director for Personnel, testified that the omission of the Clerk portion
of her title on a list prepared for the level two hearing had simply been an oversight. The
Notice of Vacancy posted for the position Grievant LeMasters currently holds was for an
Accountant III/Clerk II. Superintendent Weese stated at level four that the Secretary III title
was later added at Grievant's request to protect her transfer rights, but that Grievant's
duties in this classification were minimal. In any event, Grievant LeMasters does not claim
to be misclassified as an Accountant III/Clerk II/Secretary III. Applying the reasoning of
Flint, Grievant LeMasters does not hold the same multiclassified title as Ms. Leasure, and
is not entitled to the same vacation benefit. Grievant White is not multiclassified, and does not hold the same classification title
as Ms. Burton; however, she does hold the same classification as Barbara J. Smith, Ms.
Burton's predecessor. Comparison with Ms. Smith is appropriate because she was
employed as an Executive Secretary with a 261-day employment term at the time Grievant
attained that classification, and thereafter, until her retirement. Although Ms. Smith was
assigned to work for two individuals, the Assistant Superintendent and the Transportation
Director, she testified that she was responsible for the typical duties associated with an
Executive Secretary. Grievant's duties also appear to be typical of that classification.
Grievant White has established that she performed assignments and duties like
those performed by Ms. Smith, as contemplated by the uniformity provision of W. Va. Code
§18A-4-5b. Grievant has further demonstrated that she was similarly situated to Ms.
Smith, and has received disparate, less favorable, treatment because she has a shorter
employment term, and thereby receives no vacation benefits enjoyed by Ms. Smith and
other 261-day employees. TCBOE explains that the position now held by Grievant was
posted with a shorter employment term as an effort to cope with declining resources.
Accepting that boards of education are facing declining resources, TCBOE has offered no
nondiscriminatory reason for the difference in treatment; therefore, Grievant White prevails
on the claims of discrimination and favoritism.
Addressing Respondent's timeliness argument, this grievance involves a continuing
practice, as addressed in W. Va. Code §18-29-4(a)(1), and was timely filed. However, as
noted in Superintendent Weese's level one decision, back pay and other appropriate relief
may be limited to a period of one year prior to the filing of the grievance. W. Va. Code §18-
29-3(v). See Flint, supra. In addition to the foregoing findings of fact and discussion, it is appropriate to make
the following formal conclusions of law.
(b) that the other employee(s) have been given advantage or
treated with preference in a significant
manner not similarly afforded her; and,
(c) that the difference in treatment has caused a substantial
inequity to her, and that there is no
known or apparent justification for this difference.
Byrd v. Cabell County Bd. of Educ., Docket No. 96-06-316 (May 23, 1997); McFarland v.
Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). See Prince v.
Wayne County Bd. of Educ., Docket Nos. 90-50-281/296/296/311 (Jan. 28, 1991); Steele
v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
8. Once a grievant establishes a prima facie case of discrimination or favoritism,
the employer can then offer a legitimate reason to substantiate its actions. Thereafter, the
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. Dep't of Community Affairs v.
Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178W. Va. 53, 365 S.E.2d 251 (1986); Conner v. Barbour County Bd. of Educ., Docket Nos.
93-01-543/544 (Jan. 31, 1995).
9. Grievant White has proven by a preponderance of the evidence that she is
similarly situated to another Executive Secretary in Respondent's Central Office who held
a 261-day employment contract in that she performs like assignments and duties.
Respondent's reason for the difference in treatment, i.e., financial difficulties, is not a
legitimate reason for engaging in discrimination and/or favoritism.
10. Grievant LeMasters does not hold the exact same multiclassification title as
the employees with whom she compares herself, and is not entitled to the same contract
under the uniformity provisions of W. Va. Code §18A-4-5b. For the same reason, she has
not proven discrimination or favoritism as defined by W. Va. Code §18-29-2 (m) or (o).
Accordingly, Grievant is entitled to the same employment term as the 261-day
Executive Secretary and her grievance is GRANTED. Respondent Tyler County Board of
Education is hereby ORDERED to instate Grievant White to a 261-day employment
contract, effective February 2, 1998, back pay, with interest, and all other benefits to which
she would be entitled. The grievance filed by Ms. LeMasters is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of Tyler 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: December 19, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE