JIMMY SETTLE, et al.,
Grievants,
v v.
WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,
Respondent.
DECISION
Jimmy Settle, Tommy Graley, and Greg Wriston (Grievants) filed this grievance
pursuant to W. Va. Code §§ 29-6A-1, et seq., on November 9, 1999, alleging that
Respondent West Virginia Parkways Economic Development and Tourism Authority
(Parkways) engaged in discrimination by using seniority to determine the shift assignments
of other Parkways employees while not using seniority to determine their shift assignments.
This grievance was denied at Level I, on or about November 19, 1999, by Samuel
P. Rahall; and at Level II, on or about December 2, 1999, by Administrator William K.
Forrest. A Level III hearing was held on December 17, 1999. Grievants were represented
at this hearing by Boyd Lilly and Jerry 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 January 11, 2000.
A Level IV hearing was held before the undersigned administrative law judge at the
Grievance Board's Beckley office on March 10, 2000. At that hearing, Parkways was again
represented by A. David Abrams, Jr., Esq., and Grievants were again represented by Boyd
Lilly and Jerry Lilly. The parties were given until May 15, 2000, to submit proposed findingsof fact and conclusions of law, both parties did so, and this grievance became nature 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.
FINDINGS OF FACT
1. Grievant Settle works at Parkways' Standard maintenance facility, and has
some 22 years seniority. Grievant Wriston also works there, and has some 20 years
seniority. In Winter, they work removing ice and snow.
2. Grievant Graley also works at Parkways' Standard maintenance facility, and
has some 13 years seniority. He works as a night watchman.
(See footnote 1)
3. On September 15, 1998, Parkways instituted a new policy for assigning
employees to day and night shifts for snow and ice removal duties. The policy provided
that employees would rotate between day and night shifts in alternate winters.
(See footnote 2)
4. In previous years, employees with the greatest seniority could usually choose
between day or night shift snow and ice removal duty.
5. The new policy had the effect of giving some less-senior employees more
desirable shift assignments than some employees with greater seniority.
6. Although Parkways informally recognizes seniority when it assigns shifts atsome of its facilities, it has no written policy or procedure requiring that shift assignments
ever be assigned by seniority.
DISCUSSION
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);
Payne v. W.
Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code § 29-6A-
6. A preponderance of the evidence is defined as "evidence which is of greater weight or
more convincing than the evidence which is offered in opposition to it; that is, evidence
which as a whole shows that the fact sought to be proved is more probable than not."
Black's Law Dictionary (6th ed. 1991);
Leichliter v. W. Va. Dep't of Health & Human
Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally
supports both sides, a party has not met its burden of proof.
Id.
Grievants claim that Parkways engaged in discrimination by using seniority to
determine the shift assignments of other Parkways employees while not using seniority to
determine their shift assignments. As relief, they seek to be made whole and complete,
and that they be allowed to select their shift assignments for snow and ice removal duty
based upon their seniority.
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 moreother 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).
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).
Grievants established that they were similarly situated to other Parkways employees
subject to shift assignment by Parkways. They also established that they were treated
differently, in a significant particular, than those employees who may select their shift
based upon their greater seniority. However, Parkways proved that their different
treatment was related to their actual job responsibilities.
The credible testimony of Parkways' Highway Production Manager Walter Brubaker,
Standard maintenance facility Supervisor Sam Rahall, and General Manager Laurence
Cousins, established that Grievants' work is different than that of Parkways employees who
can choose their shifts based on seniority, because of the unpredictable nature of snow
and ice removal work, with each snow and/or ice storm being of varying duration, intensity,
and expanse. In the past, the lack of a regularly assigned night snow and ice removal crew
meant that employees would sometimes work a full day, and then be held over to battlean afternoon, evening, or night storm. These irregular assignments resulted in fatigued
workers and decreased public safety. Parkways soundly reasoned that allowing senior
workers their choice of shift makes more sense in the utterly predictable work of, for
example, toll collectors, who perform repetitious duties in a controlled environment.
Parkways' witnesses also established that it takes years for an employee to become
proficient at snow and ice removal work, because some types of storms only occur once
in a decade. Accordingly, it is desirable for each snow and ice removal shift to contain a
balance of more and less senior employees, which will be less likely to happen if the most
senior employees can all choose the more desirable day shift. The new policy also gives
the Supervisor more flexibility in considering qualities such as leadership and degree of
knowledge, in addition to seniority. 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, as one Grievant put it, "the younger man shouldn't get the choice over
an older man." 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 for Parkways'. 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).
Parkways Director of Human Resources Carrie Roaché credibly testified that
Parkways informally recognizes seniority when it assigns shifts at some of its facilities, buthas no written policy or procedure requiring that shift assignments ever be assigned by
seniority. Parkways Personnel Policy III-1, dated March 1, 1994, provides that
"[m]anagement has the right to establish work schedules necessary to achieve the goals
and objectives of the Parkways Authority. Scheduled shifts may vary according to the
operational requirements of the Parkways Authority, such as the seasonal work load." By
rotating employees between day and night shifts for snow and ice removal duties in
alternate winters, Parkways exercised this right to schedule Grievants' work. Therefore,
this grievance must be denied.
This result is consistent with Olson v. Bd. of Trustees/Marshall Univ., Docket No. 99-
BOT -513 (Apr. 5, 2000), in which security officers were held not to be entitled to shift
assignment by seniority, because that would result in the most senior employees selecting
day shift, and the least senior employees being assigned the more dangerous and difficult
night shift, compromising safety and morale. See Shannon v. W. Va. Div. of Corrections,
Docket No. 97-CORR-466 (Apr. 29, 1998).
Consistent with the foregoing discussion, the following Conclusions of Law are
made in this matter.
CONCLUSIONS OF LAW
1. In a non-disciplinary grievance, the grievant has the burden of proving his
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).
2. Parkways Personnel Policy III-1, dated March l, 1994, provides that[m]anagement has the right to establish work schedules necessary to achieve the goals
and objectives of the Parkways Authority. Scheduled shifts may vary according to the
operational requirements of the Parkways Authority, such as the seasonal work load."
3. 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).
4.
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. 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 bythe respondent was mere pretext. Steele v. Wayne County Bd. of Educ., Docket No. 89-
50-260 (Oct. 19, 1989).
6. Grievants failed to establish, by a preponderance of the evidence, that they
were the victims of discrimination with respect to their shift assignments.
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
Dated: May 23, 2000
Footnote: 1 Due to the outcome of this grievance, it is unnecessary to decide whether Grievant
Graley has standing to pursue this grievance.
See Hundley v. W. Va. Div: of Corrections,
Docket No. 97-CORR-197C (May 4, 1999).
Footnote: 2 Due to the outcome of this grievance, it is unnecessary to decide whether it was
timely filed. The record appears to reflect that Grievants did not grieve this issue when the
relevant policy was first implemented in 1998, but only in 1999, when its annual rotating
shift feature caused Grievants to have to work the night shift.