v. Docket No. 00-02-119
BERKELEY COUNTY BOARD OF EDUCATION,
Respondent.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
Circuit Court of the Berkeley 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 partyto 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.
___________________________________
Dated: June 9, 2000
I'm a 210-day employee. During the recent snow school closing, I was
required to report for work under Berkeley Work Schedule for Emergency
Closing, Code A. Other 210-day employees were not required to report for
work. RELIEF SOUGHT: I want to be afforded the same rights as other
similarly situated 210-day employees. I want the sick days that I was forced
to use returned.
This grievance was denied at Level I. On February 2, 2000, prior to the Level II
hearing on February 21, 2000, Grievant Deborah Weatherholtz asked to join this
grievance. Her requested relief is unclear, as she came to work on all of the five snow
days at issue. This grievance was denied at Level II on March 22, 2000, and apparently
a Level III hearing was waived. Grievants appealed to Level IV on April 3, 2000, and the
parties agreed to submit this case on the record developed below.
(See footnote 1)
This grievancebecame mature for decision on May 12, 2000, the date of the receipt of the parties'
proposed Findings of Fact and Conclusions of Law.
(See footnote 2)
Grievants argue they have been discriminated against because other 210 day
employees were not required to come to work on snow days, and they were. Respondent
maintains Grievants were treated the same as other similarly situated employees.
1. Grievants are employed as Special Education Coordinators under 210 day
contracts.
2. They work in the Special Education Office next door to the Ramer Resources
Center, a special education school building.
3. Early in the 1999 - 2000 school year, the Superintendent of the Berkeley
County School System directed a committee to revise the work schedule for emergency
closing. This revision was adopted November 1, 1999.
4. The provision of that Policy at issue here, Code A, states:
All custodians, transportation mechanics, transportation office personnel and
all maintenance personnel are to report to work at their scheduled time. All
other central office personnel and all other 261 day employees are to report
on a one hour delay (central office personnel includes: professional and
service personnel extended contract employees at Ramer and Special
Education Office). Principals shall report to and check their school buildings
and report conditions to the central office. Other school-based staff DO NOT
REPORT TO WORK. Principals must contact their immediate supervisor ifthey are unable to get to their school. If an employee who is scheduled to
work is absent from his/her work station that day, the employee must utilize
an OSE day, vacation day, personal leave day or arrange an alternate work
schedule with his/her supervisor.
(Emphasis in original).
5. Prior to any snow days occurring, Grievants talked with their supervisor, Dr.
Ronald Brown and discussed the policy.
(See footnote 3)
He informed them they would be expected to
report to work according to the policy. Grievant Shetler informed Dr. Brown that if there
was a "snow closing", and she could not get in she would be calling in. Trans., Level II at
10.
6. Grievants asked Dr. Brown for an alternate work schedule, and he stated he
did not feel he could give them one.
7. On January 20, 21, 25, 26, and February 18, 2000, schools were closed for
students due to inclement weather. BCBOE directed all employees to follow Code A.
8. Grievant Shetler called each of those days, and stated she would not be in
to work. She did not talk to her supervisor. She took sick leave for these five days even
though she was not sick.
(See footnote 4)
Grievant Shetler had already obligated her personal leave days to school activities with her children, and her OSE days had already been used for the
Thanksgiving holiday.
(See footnote 5)
Trans., Level II, at 16.
9. Grievant Weatherholtz came to work each of these snow days.
10. There are school-based employees with 210-day contracts who are not
required to report to work on snow days.
11. All Special Education Coordinators are required to report to work on snow
days.
12. Grievant Shetler and Grievant Weatherholtz had work to complete, and this
work could be done on a day when school was not in session.
13. Employees are paid for snow days whether they work or not.
14. The main reason schools are closed during snow days is because it is
hazardous to run the buses. Trans., Level II at 56. Many professional and service
employees are required to work during these snow days.
As 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
W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Toney v.
Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. Kanawha
County Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd.of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Napier v. Logan County Bd. of Educ.,
Docket No. 94-23-541 (Apr. 25, 1995). See W. Va. Code § 18-29-6.
Grievants allege discrimination and favoritism saying they were treated differently
than similarly situated employees. W. Va. Code § 18-29-2(m) defines "discrimination" as
"differences in the treatment of employees unless such differences are related to the actual
job responsibilities of the employees or agreed to in writing." W. Va. Code § 18-29-2(o)
defines "favoritism" as unfair treatment of an employee as demonstrated by preference,
exceptional or advantageous treatment of another or other employee."
To prove discrimination or favoritism a grievant must establish a prima facie case
which consists of 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 other employee(s), and were not agreed to by the grievant in
writing.
If a grievant establishes a prima facie case, a presumption of discrimination or favoritism
exists, which the respondent can rebut by presenting a legitimate, nondiscriminatory reason
for the action. However, a grievant may still prevail if he can demonstrate the reason given
by the respondent was pretextual. Steele v. Wayne County Bd. of Educ., Docket No. 89-
50-260 (Oct. 19, 1989). "Grievants have failed to make a prima facie case of discrimination, because they
have failed to prove that they were treated differently than other employees within their
particular classification. . . ." Bennett v. Fayette County Bd. of Educ., Docket No. 95-10-
256 (Aug. 31, 1995). Grievants were not similarly situated to the employees who were not
required to work on these snow days. The other 210-day employees that did not have to
work were school-based employees, were not in Grievants' classification, and their schools,
or places where they worked, were not open for business. These school-based employees
were not required to work by the policy as stated in Finding of Fact 4. It must be
remembered that a county board, in case of emergency, "may provide appropriate alternate
work schedules" for employees. W. Va. Code § 18A-5-2. See Rogers v. Jackson County
Bd. of Educ., Docket No. 96-18-104 (Aug. 30, 1996); Sullivan v. Jackson County Bd. of
Educ., Docket No. 96-18-087 (Aug. 30, 1996). Further, "[d]ifferences in work sites can
justify differences in the treatment of employees assigned to those sites despite that the
employees are in the same classification." Rotenberry v. McDowell County Bd. of Educ.,
Docket No. 93-33-102 (Sept. 22, 1993).
The above-discussion will be supplemented by the following formal Conclusions of
Law.
1. As 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 W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Toney
v. Lincoln County Bd. of Educ., Docket No. 99-22-046 (Apr. 23, 1999); Bowen v. KanawhaCounty Bd. of Educ., Docket No. 99-20-039 (Mar. 30, 1999); Holly v. Logan County Bd.
of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Napier v. Logan County Bd. of Educ.,
Docket No. 94-23-541 (Apr. 25, 1995). See W. Va. Code § 18-29-6.
2. W. Va. Code § 18-29-2(m) defines "discrimination" as "differences in the
treatment of employees unless such differences are related to the actual job responsibilities
of the employees or agreed to in writing."
3. W. Va. Code § 18-29-2(o) defines "favoritism" as unfair treatment of an
employee as demonstrated by preference, exceptional or advantageous treatment of
another or other employee."
4. To prove discrimination or favoritism a grievant must establish a prima facie
case which consists of 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 other employee(s), and were not agreed to by the grievant in
writing.
If a grievant establishes a prima facie case, a presumption of discrimination or favoritism
exists, which the respondent can rebut by presenting a legitimate, nondiscriminatory reason
for the action. However, a grievant may still prevail if he can demonstrate the reason given
by the respondent was pretextual. Steele v. Wayne County Bd. of Educ., Docket No. 89-
50-260 (Oct. 19, 1989). 5. Grievants have failed to establish a prima facie case. They were not similarly
situated to the employees who were not required to come to work on these snow days.
Rogers v. Jackson County Bd. of Educ., Docket No. 96-18-104 (Aug. 30, 1996); Sullivan
v. Jackson County Bd. of Educ., Docket No. 96-18-087 (Aug. 30, 1996); Bennett v. Fayette
County Bd. of Educ., Docket No. 95-10-256 (Aug. 31, 1995).
6. "Differences in work sites can justify differences in the treatment of employees
assigned to those sites despite that the employees are in the same classification."
Rotenberry v. McDowell County Bd. of Educ., Docket No. 93-33-102 (Sept. 22, 1993).
7. County boards of education may provide alternate work schedules in case of
emergency. W. Va. Code § 18A-5-2.
Accordingly, this grievance is DENIED.
JANIS I. REYNOLDS
Administrative Law Judge
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