MARK WORRELL, et al.,
Grievants,
v.
DOCKET NO. 00-PEDTA-298
WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,
Respondent.
D E C I S I O N
Grievants, Mark Worrell, Harold Myers, Edwin Bailey, Steve A. Fortner, Louie
Constantino, Timothy Feijo, and Sylvia Miller, filed this grievance against their employer,
the West Virginia Parkways Economic Development and Tourism Authority (Parkways)
on March 12, 1998:
We the grievants, feel we are being treated differently in dispensing
the State of Emergency hours/days incurred during the State of Emergency
of 1998.
We are asking for equal time to be given according to hours worked.
The grievance was denied at the lower levels, and after many continuances for good
cause, proceeded to level four on September 18, 2000. A level four hearing was held in
the Grievance Board's Beckley, West Virginia, office on October 30, 2000, and this matter
became mature for decision on November 20, 2000, the deadline for the parties' proposed
findings of fact and conclusions of law. Grievants were represented by Mr. Boyd Lilly, and
Parkways was represented by A. David Abrams, Jr., Esq.
SUMMARY OF EVIDENCE
LIII Grievants' Exhibits
Ex. 1 -
January 29, 1998 memorandum from Richard M. Jemiola to all Divisions of
the Department of Transportation.
LIV Grievants' Exhibits
Ex. 1 -
Instructions for Personnel in the Toll Collection Division.
LIII Parkways' Exhibits
Ex. A -
Roger Bragg's timesheet from January 25, 1998 to February 7, 1998.
Ex. B -
Raymond Pettrey's timesheet from January 25, 1998 to February 7, 1998.
Ex. C -
Jerry Lilly's timesheet from January 25, 1998 to February 7, 1998.
Ex. D -
February 2, 1998 memorandum from Carrie Roache to All Department
Heads, Supervisors, and Foremen
Ex. E -
February 2, 1998 memorandum from James W. Teets to Cabinet Secretaries
and Bureau Commissioners.
Ex. F -
February 2, 1998 memorandum from Carrie Roache to All Department
Heads, Supervisors, and Foremen.
Ex. G -
Parkways' Personnel Policy and Procedure III-1, Scheduling and Reporting
to Work.
Testimony
Grievants presented the testimony of Mark Worrell, Jerry Lilly, Raymond Pettrey,
Roger Bragg, Louie Constantino, Boyd Lilly, and Larry Cousins. Parkways presented the
testimony of Dale Wooten and Carrie Roache.
FINDINGS OF FACT
I find, by a preponderance of the evidence, the following facts.
1. This grievance arose after heavy snowfall in southern West Virginia that
began on or about January 27, 1998, prompting Governor Cecil H. Underwood to declare
a State of Emergency in the affected areas. 2. Grievants were employed as toll collectors by Parkways at Toll Barrier A near
Ghent, Raleigh County, West Virginia, an area affected by the heavy snowfall.
3. Because a large number of State employees in the affected areas were
unable to report to work during the snow storm, Governor Underwood issued an Executive
Order, applicable to the Department of Transportation and Parkways, directing that
employees who missed work between January 28 and January 31, 1998, would receive
pay for the days missed without having to take leave.
4. On January 28, 1998, Secretary of Transportation Richard Jemiola, issued
a memorandum restating the Governor's approval of leave with pay for Department of
Transportation employees unable to report to work between January 28 and 31, 1998,
because of the heavy snowfall. In addition, the memorandum stated that [e]mployees who
reported to work despite the snow emergency should be recorded as time worked, with the
notation that they are due eight hours off (or the appropriate number of hours according
to their work schedule). LIII G. Ex. 1.
5. By memorandum dated February 2, 1998, and Addendum dated February
2, 1998, Parkways adopted procedures for providing the appropriate leave time to all
Parkways employees based upon the instructions from the Office of the Governor and the
Department of Transportation. LIII R. Exs. D, E, F.
6. Pursuant to those directives, employees who were able to make it to work on
those days would receive compensatory time off, in the future, with pay, for the appropriate
number of hours according to their work schedule, i.e, eight hours off if they worked a
scheduled eight hour shift. 7. Grievants Worrell and Constantino were scheduled to work an eight-hour shift
commencing during the period in question. Both were able to report for their scheduled
work because the weather was not severe enough to preclude travel at the time their
scheduled shifts started.
8. Each of them works what is referred to as the midnight shift, which requires
them to report to work at 10:50 p.m. and work until 6:50 a.m. the next morning. In each
case, Worrell and Constantino reported to work on Tuesday evening, January 27, 1998,
and worked through until the end of their respective shifts at 6:50 a.m. on Wednesday,
January 28, 1998.
9. By the end of their respective shifts, the weather had worsened to the point
where few, if any, employees were available to relieve them from their scheduled shifts.
As a result, Worrell and Constantino continued working the shifts of other employees who
were not able to come to work.
10. In the case of Worrell, he worked his scheduled midnight shift, then worked
two successive eight-hour shifts of others on Wednesday, January 28, 1998, along with
three or four hours of his next scheduled midnight shift that commenced at 10:50 p.m.
Wednesday, January 28, 1998.
11. The evidence is less clear about Constantino, but he in fact did continue to
work other employees' shifts due to the lack of relief toll collectors.
12. In the case of Worrell and Constantino, they were paid correctly for the hours
they worked, whether they were regular or overtime hours. 13. Parkways allowed Worrell to take 12 hours compensatory time off
representing his midnight shift that he worked Tuesday/Wednesday, January 27/28, 1998,
and four hours of his regularly scheduled midnight shift that he worked
Wednesday/Thursday, January 28/29, 1998.
14. No evidence was presented at Level III about any grievant except Worrell,
and no evidence was presented at Level IV with regard to any grievant except for Worrell
and Constantino.
15. It is and has been the policy of Parkways with regard to Parkways'
maintenance employees, that when it snows, their regular 8-hour shifts are converted to
two, 12-hour shifts.
16. Parkways' maintenance employees received hour-for-hour compensatory
time for working 12-hour shifts during the snow emergency.
DISCUSSION
Because 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 West Virginia Education and State Employees Grievance Board, 156 C.S.R. 1 § 4.19
(1996);
McCoy and Domingues v. W. Va. Parkways, Economic Development and Tourism
Auth., Docket No. 99-PEDTA-074 (July 19, 1999);
Howell v. W. Va. Dept. of Health and
Human Resources, Docket No. 89-DSH-72 (Nov. 29, 1990). See,
W. Va. Code § 29-6A-6.
Grievants claim they have suffered from discrimination and disparity in treatment
because Parkways maintenance employees were treated differently in terms of the number
of compensatory time off hours granted based on work performed during the snowemergency. Parkways responds that Worrell and Constantino were paid properly, and
received the appropriate number of compensatory hours off dictated by the Governor's
Executive Order and the memorandum of the Secretary of Transportation.
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. In order to
establish a claim of discrimination, an employee must establish a
prima facie case of
discrimination by a preponderance of the evidence. In order to meet this burden, the
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.
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18,
1996);
Hendricks v. W. Va. Dept. of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24,
1996). Once the Grievants establish a
prima facie case of discrimination, the burden shifts
to the employer to demonstrate a legitimate, non-discriminatory reason for the employment
decision.
Smith,
supra;
see Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248
(1981).
Parkways' practice dealing with work performed by the maintenance workers during
snow and ice removal operations is clearly established and supported by the authorizationof Personnel Policy III-1, Scheduling and Reporting to Work. LIII R. Ex. G. Parkways'
General Manager Larry Cousins testified that maximum flexibility is given to the
maintenance area supervisors to perform the difficult task of keeping the roadway open
during heavy snowfall events. Those supervisors are authorized to order deviations from
a normal workweek, which they do. When snow falls, such as during the time in question,
the maintenance workers are routinely called out to work a scheduled 12-hour shift, rather
than their normal 8-hour shift.
Unlike the maintenance workers, the toll employees' scheduled work hours are not
affected by weather-related events. They are scheduled year round for three, 8-hour shifts
to cover each toll barrier. Based on work duties, the toll collectors are not in any way
similarly situated to maintenance department employees, including their work schedules.
The effect of the Governor's Order and Secretary Jemiola's memoranda was that
Grievants, toll collectors, were paid for their regular 8-hour shift, plus any overtime accrued.
In addition, Grievants received 8 hours of compensatory time in an hour-for-hour
calculation corresponding to their regular, 8-hour shifts. The maintenance employees were
paid for their regular 12-hour shifts, plus any overtime accrued. In addition, they received
12 hours of compensatory time in an hour-for-hour calculation corresponding to their
regular 12-hour shifts.
Jerry Lilly, a maintenance worker at the Ghent maintenance facility, testified that
when it snows, the maintenance workers' regular 8-hour shifts automatically convert to 12-
hour shifts. In the instant case, Mr. Lilly's timesheets for the period in question show that
the worked 12-hour shifts on each of the days comprising the snow emergency. LIII R. Ex.C. Mr. Lilly was given hour-for-hour compensatory time for his 12-hours shifts, as a
maintenance employee's regular shift becomes 12 hours when it snows.
Raymond Pettrey, a maintenance employee at the Ghent facility, worked a 12-hour
shift for each of the days covered by the snow emergency. LIII R. Ex. A. He received
hour-for-hour compensatory time for each of those hours comprising his regular snow and
ice removal shift.
Roger Bragg is the day watchman at the Ghent maintenance facility. His normal
regular shift consists of one 14-hour shift and two 13-hour shifts, on Friday, Saturday, and
Sundays. During the snow emergency, Mr. Bragg was called in to work on the Wednesday
and Thursday preceding his regular shift, and then worked his regular shift. Mr. Bragg
testified that when he is called out to work because of snow, he is working under the 12-
hour snow and ice removal shift that applies to the other maintenance workers. During the
time period in question, Mr. Bragg received hour-for-hour compensatory time for the hours
comprising his 12-hour shifts on Wednesday and Thursday, as well as the hours
comprising his regular 14-hour shift on Friday.
Oddly, Mr. Boyd Lilly, Grievants' representative, testified himself at level four. At the
time in question, Boyd Lilly worked as a watchman at Barrier B, and similar to Mr. Bragg,
his normal work schedule consisted of three days, Sunday, Monday and Tuesday, with one
14-hour shift, and two 13-hour shifts. When the storm hit on Tuesday, Boyd Lilly was
instructed to stay and work on snow removal, just like Mr. Bragg. Boyd Lilly was paid for
his regular hours worked, plus any overtime. In addition, he testified he received 11 hours
compensatory time in an hour-for-hour calculation. Grievants' claim they were discriminated against must fail, in that they were treated
exactly like other employees at Parkways in accordance with the policy. The only
difference is that Grievants' shifts do not automatically convert to 12-hour shifts when it
snows, but rather, remain 8-hour shifts. Grievants and the maintenance employees
received hour-for-hour compensatory time for their regular shifts, as dictated by the
policies.
CONCLUSIONS OF LAW
1.
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. In order to
establish a claim of discrimination, an employee must establish a
prima facie case of
discrimination by a preponderance of the evidence. In order to meet this burden, the
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.
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18,
1996);
Hendricks v. W. Va. Dept. of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24,
1996). 2. Once the Grievants establish a
prima facie case of discrimination, the burden
shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the
employment decision.
Smith,
supra;
see Tex. Dept. of Community Affairs v. Burdine, 450
U.S. 248 (1981).
3. Grievants have failed to prove by a preponderance of the evidence that they
were treated differently than the maintenance employees with respect to the snow
emergency of January 28-30, 1998. In fact, Grievants and the maintenance employees
were treated the same under the snow policies.
Accordingly, this 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.
________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: December 7, 2000