Grievants,
v v.
WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,
Respondent.
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).
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).
Dated: December 11, 2000
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.
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.
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:
(a) that they are similarly situated, in a pertinent way, to one or more
other employee(s);
(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
grievants in writing.
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).
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.
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:
(a) that they are similarly situated, in a pertinent way, to one or more
other employee(s);
(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
grievants in writing.
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).
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
Footnote: 1