DIANA RANDOLPH,

                  Grievant,

      v.

DOCKET NO. 00-40-012

PUTNAM COUNTY BOARD OF EDUCATION,

                  Respondent.

D E C I S I O N

      Grievant, Diana Randolph, filed a grievance against her employer, the Putnam County Board of Education (“Board”) on November 3, 1999, as follows:


The grievance was denied at level one and a level two hearing was held on November 16, 1999. The grievance was denied by the Superintendent's designee, Harold Hatfield, by decision dated December 16, 1999. The Board elected to by-pass the grievance procedure at level three pursuant to W. Va. Code § 18-29-4, and Grievant appealed to level four on January 12, 2000. A hearing was held at the Grievance Board's Charleston, West Virginia, office on March 27, 2000, and this matter became mature for decision on April 14, 2000, the deadline for the parties' submission of proposed findings of fact and conclusions of law. Grievant was represented by Susan M. Hubbard, West VirginiaEducation Association, and the Board was represented by John A. Grafton, Esq., Grafton Law Office.
SUMMARY OF EVIDENCE

Level Two Joint Exhibits

Ex. 1 -

Ex. 2 -
Level Four Exhibits

None.

Testimony

      Grievant testified in her own behalf, and presented the testimony of Robert Smith, Virgil Erskine, James Lewis, Okey Sumner, Jr., and Eleanor Edwards.

FINDINGS OF FACT

      1.      Grievant is employed by the Board as an inventory supervisor/buyer, and works in the warehouse.
      2.      In or about 1995, Grievant approached her supervisor, Robert Smith, and asked him to assist her being reclassified. Mr. Smith spoke with his supervisor, Bill Duncan, about her request, and they both agreed it would be advantageous to the Board to have Grievant reclassified.
      3.      Grievant was reclassified as an inventory specialist/buyer, with a subsequent pay raise approximately three years later.
      4.      A delivery of white marker boards came to the warehouse, and Mr. Smith told the workers to place them in Grievant's area, because the boards took up too much spacein the warehouse. Grievant complained to Bill Duncan, Mr. Smith's supervisor, that the boards were making her area too crowded.
      3.      Mr. Smith observed the warehouse workers spent a lot of time visiting in Grievant's area, and he instructed them not to visit there.
      4.      In 1998, it was determined that employees working in the warehouse, especially those who have occasion to visit the schools, should have uniforms. Uniforms were ordered and paid for by the Board for workers in the warehouse. Grievant was not required to order a uniform at that time, but she did request and was given a pair of coveralls.
      5.      Subsequently, Robert Smith, Coordinator of Purchasing, decided Grievant should also have a uniform. He told her to go to the uniform shop and pick out a polo-type shirt and pants, and the Board would pay for them. Mr. Smith also informed Grievant she should wear shoes which covered her entire foot, rather than sandals or high heels.
      6.      Grievant did go to the uniform shop, but rather than order a shirt and pants, she ordered some smocks to cover her clothes.
      7.      The county has instituted a new evaluation process for school service personnel, which went into effect the 1999-2000 school year. As part of this evaluation process, supervisors are required to observe their employees, and complete observation forms. The first observation was to be completed by November 15, 1999.
      8.      Mr. Smith observed Grievant on October 27, 1999. He gave her a “meets standards” rating on 38 of 39 total categories. He gave her a “does not meet standards” for the category, “dresses appropriately for job responsibilities”. LII Jt. Ex. 2.      9.      Observation forms do not become a part of the employee's personnel file, nor are they considered “evaluations” of employees.

DISCUSSION

      Grievant has the burden of proving each element of her 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); Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88- 130 (Aug. 19, 1988). See W. Va. Code § 18-29-6.      
      Grievant alleges she has been harassed by Mr. Smith, as evidenced by the delay in her reclassification, the storage of white marker boards in her area, his direction to warehouse workers not to loiter in her area, and by giving her a “does not meet standard” rating in the area of dressing appropriately for her job on her October 27, 1999, observation form. The Board denies that any of the incidents cited by Grievant constitute harassment, and denies it has violated any policy, rule, regulation, law or statute under which Grievant is employed.
      W. Va. Code § 18-29-2(n) defines harassment as “repeated or continued disturbance, irritation, or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession.” Key to this definition is the requirement that the action be “contrary to the demeanor expected by law, policy and profession.” There is simply no evidence that Mr. Smith did anything to delay Grievant's reclassification; in fact, the evidence demonstrates that he fully supported the reclassification, and discussed this matter with his own supervisor, in order to facilitate the reclassification. There is no explanation given why it took three years for Grievant to be reclassified, but there is no evidence that Mr. Smith was at fault.
      Mr. Smith adequately explained why he had the white marker boards placed in Grievant's area in that there was not enough room in the warehouse. Grievant complained to Mr. Smith's supervisor about the boards and they were removed.
      With regard to Mr. Smith's order to the warehouse workers not to loiter around Grievant's area, he testified that the reason for the order was because the workers were not being productive. This type of order is exactly the type of thing that would be expected of a supervisor, and there is no evidence that it was given in order to harass Grievant. Rather, it was to ensure the warehouse workers remained productive on the job.
      While there is no written policy requiring that Grievant wear a uniform, there is also nothing improper about Mr. Smith's request to her that she obtain one, at Board expense. The evidence established that all other warehouse workers were wearing uniforms, and it was not unreasonable for Mr. Smith to be concerned about Grievant wearing dresses, sandals, or high heels in the warehouse. Mr. Smith was not satisfied with the smocks Grievant obtained, and informed her of such, both verbally and in writing.
      Mr. Smith noted on Grievant's observation form that he was not satisfied with her decision to purchase smocks rather than a shirt and pants for a uniform. The evidence clearly establishes that this observation form does not go into Grievant's personnel file, nor is it considered an official “evaluation.” The observation is merely a tool to facilitate the ongoing evaluation process of a supervisor vis-a-vis his employees. Mr. Smith, asGrievant's supervisor, is entitled to express his dissatisfaction with Grievant's choice regarding the uniform, and this does not constitute harassment on his part.
CONCLUSIONS OF LAW

      1.      Grievant has failed to meet her burden of proof that her supervisor, Robert Smith, engaged in harassment with respect to directives given within his authority as supervisor.
      2.      Grievant has also failed to show that she has suffered any adverse consequences with regard to her October 27, 1999, observation form, as that form is not maintained in her personnel file, nor does it become part of her official evaluation.

      Accordingly, this grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of the Putnam 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 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: May 4, 2000