TERRENCE OLSON,
Grievant,
v. DOCKET NO. 99-BOT-513
BOARD OF TRUSTEES/
MARSHALL UNIVERSITY,
Respondent.
DECISION
This grievance was filed by Grievant Terrence Olson against the Board of
Trustees/Marshall University, Respondent ("Marshall"), on or about October 29, 1999. As
relief he seeks "[t]hat the Marshall University Police Dept. use seniority in the shift
assignment."
(See footnote 1)
The following findings of fact have been properly made from the record developed
at Levels II and IV.
Findings of Fact
1. Grievant has been employed by Marshall for 16 years. He is currently a
Lieutenant, and is one of three supervisors employed by the Office of Public Safety
(OPS).
2. Marshall's OPS is staffed 24 hours a day, 7 days a week, in order to provide
around the clock law enforcement and protection services to the Marshall campus.
Employees of the OPS work one of three shifts: day shift (8:00 a.m. to 4:00 p.m.), evening
shift (4:00 p.m. to midnight), or night shift (midnight to 8:00 a.m.). When fully staffed, 18
employees staff these shifts, with 6 employees assigned to each shift. It has been the
practice of the OPS for at least 15 years to rotate employees among the shifts, and
employees are told this when they are hired.
3. Each shift is different in scope. OPS employees working day shift at Marshall
spend most of their time transporting money, packages and mail, writing parking tickets,
and patrolling the campus areas, although some arrests are made on day shift. More
warrants are served on day shift than on the other shifts. Day shift assignments are more
administrative in nature than the other shift assignments. Employees working evening shift
spend most of their time patrolling the campus, issuing parking citations, and making
arrests for drunkenness and disorderly conduct and other criminal activities. Evening shift
employees interact more with the students than employees on other shifts. Night shift
employees make more arrests for criminal activity than employees on the other two shifts,
and when there is a problem on night shift, the problem will generally be more difficult to
handle than problems on the other shifts.
4. In making recommendations to the Director of Public Safety, James Terry,
for changes in shift assignments, Captain Mark Rhodes, Assistant Director of Public
Safety, reviews the shift assignments, often talks to the shift supervisors about the shift
assignments, and reviews vacancies and the current needs of the OPS, in an attempt todistribute temporary vacancies evenly among the shifts. He also looks at the effectiveness
of individuals on particular shifts, whether the group of employees on a shift works well
together, diversity of experience, and diversity of race and gender. His objective is to
maintain the operational needs of the unit in order to maximize the law enforcement
protective services offered to the Marshall community. Flexibility is needed for the OPS,
which has a limited number of employees available to provide services 24 hours a day, 7
days a week.
5. New employees are rotated among the three shifts on a monthly basis for six
months, in order to expose them to all aspects of the operations, so they are aware of the
different aspects of the three shifts, and are able to work any shift where they are needed.
6. Grievant has worked the evening shift since August 1999. Prior to being
assigned to evening shift, Grievant had worked day shift for three and a half years.
7. Lieutenant J. Wilson has more seniority than Grievant. As of the date of the
Level IV hearing he was working day shift.
8. Custodians are assigned shifts at Marshall by seniority; however, most
custodians work a night shift schedule, with very few employees, out of a total of 79,
working day shift. This practice has not been placed in writing. Custodians do not work
seven days a week.
9. Marshall does not have any written policies regarding shift assignments.
Discussion
Grievant bears the burden of proving his allegations by a preponderance of the
evidence.
W. Va. Code § 29-6A-6.
Mowery v. W. Va. Dep't of Natural Resources, DocketNo. 96-DNR-218 (May 30, 1997). Grievant argued that seniority is used in a haphazard
manner by different departments in different ways at Marshall, and that this is not fair. He
believes Marshall should have one standard for using seniority in making shift
assignments throughout the university. He stated he has no problem working any of the
shifts, but he would like to be on day shift. He stated he had talked to the most senior
employee, Lieutenant Wilson, and he would prefer evening shift.
Respondent argued it is best for the OPS to make assignments on an as needed
basis, and that if the department were required to make assignments based on seniority,
it would interfere with the efficient operation of the department. Respondent argued that
the OPS is not like other departments on campus, as it has employees patrolling the
campus 24 hours a day, 7 days a week, and no other department is manned continuously.
Respondent also argued that the Grievance Board cannot require an employer to adopt
a policy, pointing to
Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997).
Grievant argued
Skaff was not applicable here, because that case involved two
different groups, firefighters and the national guard, whereas he was asking that Marshall
apply the same policy to all employees.
In support of his argument that shifts could be assigned by seniority, Grievant stated
that he had talked to a Captain Scheidler of the Huntington Police Department, and a
Sergeant Arnold of the West Virginia State Police, and both indicated to him that they go
by seniority in making shift assignments. He spoke to a Captain Bowman of the Cabell
County Sheriff's Office, and was told he has no control over who is on his shift, but he uses
seniority in scheduling days off. Grievant stated he spoke to a Sergeant White of the WestVirginia University (WVU) police department and was told WVU posts its jobs as shift
specific, so that there is no rotation of shifts, but when a vacancy exists, employees may
request a transfer to a different shift, and seniority is used at that time.
Captain Rhodes testified that he considers many factors when determining shift
assignments, as are detailed in the preceding findings of fact. In addition, he testified he
believed if seniority determined shift assignments, the most senior employees would want
the day shift, resulting in those with the least experience being assigned to the night shift.
In addition to compromising safety, he believed this would be inherently unfair to the new
employees, and would not be good for morale. He also felt that employees become stale
in the same shift assignment, and need to rotate among the shifts. He pointed out that he
has a limited staff, while WVU has 47 patrolmen.
While the other groups referred to by Grievant may find seniority to work for them
in assigning shifts, those in charge of the OPS at Marshall offered valid reasons why
assigning shifts by seniority would not be in the best interest of the OPS and the Marshall
community they are striving to protect. This Grievance Board has previously determined
that, with regard to assignments to work units and work shifts, Department of Corrections
officials have very broad discretion, absent some improper motivation.
Shannon v. W.
Va. Div. of Corrections, Docket No. 97-CORR-466 (Apr. 29, 1998).
See Stoneking v. W.
Va. Div. of Corrections, Docket No. 93-CORR-530 (Nov. 30, 1994);
Titus v. W. Va. Div. of
Corrections, Docket No. 93-CORR-528 (Nov. 22, 1994);
Crow v. W. Va. Div. of
Corrections, Docket No. 89-CORR-116 (June 30, 1989).
See also Forth v. W. Va. Dep't
of Transp., Docket No. 98-DOH-433 (July 22, 1999);
Jarrett v. Dep't of Admin., Docket No.98-ADMN-165 (Jan. 29, 1999). It seems appropriate here to extend this same standard
to the Marshall OPS, given its security role at Marshall, and the testimony regarding the
need of the OPS to maintain flexibility.
Further, "[t]he undersigned has no authority to require an agency to adopt a policy,
absent some law, rule or regulation which mandates such a policy be developed.
Skaff
v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997)."
Gary and Gillespie v. Dep't of
Health and Human Resources, Docket No. 97-HHR-461 (June 9, 1999). This rule of law
applies regardless of whether the entity involved is a state agency or Marshall University.
Grievant's claim that OPS employees should receive the same treatment as
custodians at Marshall, whose shifts are assigned based upon seniority, will be analyzed
as a discrimination claim.
W. Va. Code § 18-29-2(m) defines discrimination, for purposes
of the grievance procedure, 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.
A grievant alleging discrimination must establish a
prima facie case by
demonstrating:
(a) that he is similarly situated in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his 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.
Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
Once a
prima facie case has been established, a presumption exists, which the
employer may rebut by demonstrating a "legitimate, nondiscriminatory reason" for its
action. Grievant may still prevail by establishing that the rationale given by the employer
is "mere pretext".
Id.
Captain Rhodes opined that the responsibilities of the OPS were not comparable
to those of the custodians in Marshall's physical plant. He stated the coverage
responsibilities were not the same, for example, if a custodian fails to appear to clean a
building, the area is not cleaned, but if an OPS employee fails to report to work public
safety is much more adversely affected and the liability concerns are greater. Grievant
argued that custodians who work evening and night shifts are also exposed to the potential
for harm, just as officers are, pointing to an instance of a custodian who had been beaten
while working evening or night shift.
Grievant is not similarly situated to custodians at Marshall. His duties bear no
resemblance to those of custodians. Further, custodians outnumber OPS employees by
nearly three to one, they are not assigned in even numbers to the three shifts, and they
do not work seven days a week. Most of the custodians are assigned to midnight shift.
Grievant has not proven his claim of discrimination.
The following Conclusions of Law support the Decision reached.
Conclusions of Law
1. Grievant bears the burden of proving his allegations by a preponderance of
the evidence.
W. Va. Code § 29-6A-6.
Mowery v. W. Va. Dep't of Natural Resources,
Docket No. 96-DNR-218 (May 30, 1997).
2. "The undersigned has no authority to require an agency to adopt a policy,
absent some law, rule or regulation which mandates such a policy be developed.
Skaff
v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997)."
Gary and Gillespie v. Dep't of
Health and Human Resources, Docket No. 97-HHR-461 (June 9, 1999).
3.
W. Va. Code § 18-29-2(m) defines discrimination, for purposes of the
grievance procedure, 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.
A grievant alleging discrimination must establish a
prima facie case by
demonstrating:
(a) that he is similarly situated in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his 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.
Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
4. Grievant did not demonstrate he was discriminated against, as he is not
similarly situated to the custodians at Marshall. 5. Grievant did not demonstrate a violation of any statute, rule, regulation,
policy, or practice.
Accordingly, this grievance is DENIED.
Any party may appeal this Decision to the Circuit Court of Kanawha County or to
the Circuit Court of Cabell 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 Grievance Board with the civil action
number so that the record can be prepared and transmitted to the circuit court.
BRENDA L. GOULD
Administrative Law Judge
Dated: April 5, 2000
Footnote: 1