JOSEPH KOMOROWSKI,
                  Grievant,

v.                                                Docket No. 99-25-349

MARSHALL COUNTY BOARD OF EDUCATION,
                  Respondent.

D E C I S I O N

      Grievant, Joseph Komorowski, employed by the Marshall County Board of Education (MCBOE) as an Assistant Principal, filed a level one grievance on May 17, 1999, in which he alleged violations of W. Va. Code §§18-29-2(m) and (o), 18A-4-14, and 18A-4-16, as well as MCBOE's Policy 3.1.11.6, when he was denied compensatory time off. The grievance was denied at levels one and two, and MCBOE waived consideration at level three, as is permitted by W. Va. Code §18-29-4(c). The matter was advanced to level four on August 19, 1999, and an evidentiary hearing was conducted in the Grievance Board's Wheeling office on October 5, 1999. Grievant was represented by James F. Companion, Esq. of Schrader Byrd & Companion. MCBOE was represented by Howard E. Seufer, Jr., Esq. of Bowles Rice McDavid Graff & Love. The grievance became mature for decision with the submission of proposed findings of fact and conclusions of law by both parties on November 8, 1999.
      The following findings of fact are derived from the record in its entirety, including the level two transcript, and the evidence presented at level four.
Findings of Fact
      1.      Grievant has been employed by MCBOE as an Assistant Principal for thirteen years.
      2.      In 1995, Grievant applied for, and received, the assignment of “AssistantPrincipal (Including Athletic Director and Evening Activities Director Duties)” at John Marshall High School (JMHS). Grievant held that position at all times pertinent to this grievance.
      3.      The job description for the position held by Grievant included duties which would necessarily be performed after school hours, such as “general supervision of the facility beyond the school day.”
      4.      Pursuant to the job description, Grievant is required to schedule his time “in a non-traditional manner” to accommodate the needs of the position.
      5.      From November 19, 1998, through December 1, 1998, Grievant was absent from work due to illness for a total of seven working days.
      6.      Upon his return to work Grievant had an unused personal leave balance of more than 400 days; however, he requested that he not be required to use any of this time for the absence, but rather that the hours be considered “administrative comp time”.
      7.      JMHS Principal Samuel Barberio advised Grievant that there was no such thing as “administrative compensatory time”. Superintendent Nick P. Zervos also denied the request, but noted that because one of the days during Grievant's absence was an “out-of-calendar” day, and another was a continuing education/faculty senate day for which Grievant could obtain alternative continuing education, only five days of personal leave would be charged.
Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of his grievance by a preponderance of the evidence. ProceduralRules 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 that MCBOE had established a practice of allowing employees to accrue compensatory time, and that to deny his request violates a number of statutory provisions as well as MCBOE's own policy on compensatory time. MCBOE argues that Grievant has failed to prove that W. Va. Code §§18A-4-14, 18A-4-16, or County Policy 3.1.11.6, apply to the facts of this matter, or that he was subject to discrimination or favoritism.   (See footnote 1) 
      In support of his claim of discrimination or favoritism, Grievant offered the testimony of Fred Oelschlager, Vocational and Adult Education Director, who stated that in 1997 he suffered severe injuries from a fall from a ladder. As a result of the accident, he was absent from work for many months. During that part of his recuperation when he was home, he performed his usual duties for one-half day, every day. On these days, Mr. Oelschlager testified that he was paid for one-half day of work, and the remaining half-day was charged to his personal leave.
      Alfred Renzella, Director of Special Education and Attendance, testified that when he suffered a heart attack several years ago, he was absent for a period of time torecuperate, and was given permission to work half-days from home, once he recovered sufficiently to do so, and was paid for that time.
      Thomas Garner, Administrative Assistant/Personnel Director, and formerly an Assistant Principal, testified that he had attended the state basketball tournament for several years and had never had his pay docked, but that he had used time accrued on snow days or vacation time. Mr. Garner stated that he was not aware of the use of compensatory time by other employees, and conceded that he had neglected to fill out “Return To Work” forms at times.
      David Takach, Assistant Principal at JMHS, testified that he had attended the state basketball tournaments for several years. Mr. Takach admitted that the first two years he had reported no leave time, but that in 1999 he had used time accrued on snow days. He further stated that he had taken some half-days off during 1999 to attend his wife's chemotherapy treatments, and did not deduct the time from his accrued personal leave.
      James Asplund, another Assistant Principal at JMHS, testified that he had never requested compensatory time, and was not aware that it was available, other than for snow days worked. He did not recall whether he had used a snow day in February 1999, when he attended a funeral. Samuel Barberio, Principal at JMHS, responded to inquiries regarding his own documents reflecting that he had used compensatory time, by stating that the time had been earned on snow days.   (See footnote 2)        Testifying on his own behalf, Grievant, stated that during a principals' meeting several years ago, the superintendent had advised that no one would mind if they took a day now and then to compensate for the time spent working after the normal school day. Grievant claims that he understood this to constitute compensatory time. Second, during the 1996-97 school year, Mr. Barbario had approved a request that Grievant not report five days absence because he had worked additional hours previously. Having established the practice, Grievant cited the amount of time he had worked in excess of eight hours per day and concluded that he could apply the time to his absence in November-December 1998.
      Grievant stated that the time of his absence was a transition sporting period, during which he was certifying student eligibility. Two of the days he was absent, Grievant arrived at his office after school hours to work on these records. He completed this task on the third day, and made preparations for an upcoming Marine Band concert. In addition, he received calls daily at home from school personnel seeking advice or information.
      Although Grievant concedes that he had not discussed working at home with Mr. Barbario prior to the absence, he asserts that he is entitled to credit for the time, consistent with that granted to other employees.   (See footnote 3)  Grievant recalls being twice told that he could take a day now and then, and opines that he is entitled to “time for time”. He concludes that heis entitled to compensation for anything more than an eight hour day, but notes that he is not asking for an hour for hour credit.
      Testifying on behalf of MCBOE, Assistant Superintendent Donald Yost stated that employees do not earn compensatory time, with the sole exception of snow days, and that Grievant was made aware of the demands of his position before he accepted the assignment. Mr. Yost noted that school administrators were advised to “use good common sense” when staff members needed to take short absences, a practice which helped reduce the need for substitute employees.
      After considering all the evidence of record, the undersigned concludes that Grievant is a dedicated employee who frequently works more than eight hours a day because his responsibilities demand that he frequently be on site during evening hours. MCBOE has indicated that some informal schedule adjustment may be made by Grievant in consideration of his responsibilities; however, as this grievance illustrates, a more formal approach may be required. In any event, Grievant has failed to prove that he is entitled under county policy, or by statute, to a five day absence without any deduction from his personal leave.
MCBOE Policy 3.1.11.6 provides that:

[w]hen it becomes necessary to close a school or schools in Marshall County due to prevalence of contagious disease, conditions of weather or any other calamitous cause, the following work schedule shall be mandatory for professional and auxiliary service personnel. . . . Employees who are required to work on 'snow days' will be compensated for such services by being excused from work on some later day mutually agreed upon by the employee and his/her supervisor. . . .
      This policy is explicitly limited to days an employee works when school has been canceled to due inclement weather, and does not apply to the facts of this matter. Any interpretation of this policy to establish a general creation or acceptance of compensatory time by MCBOE would be improper.
      W. Va. Code §18-29-2(m) 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.”
      W. Va. Code §18-29-2(o) defines favoritism as “unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees.”
      An employee seeking to establish unlawful discrimination or favoritism must first establish a prima facie case by demonstrating the following:
(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 v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Once the grievant establishes a prima facie case of discrimination or favoritism, the burden shifts to the employer to demonstrate a legitimate, non-discriminatory reason to substantiate its actions. Thereafter, a grievant may show that the offered reasons are pretextual. Deal v. Mason County Bd. of Educ., Docket No. 96-26-106 (Aug. 30, 1996). See Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
      Grievant has failed to establish a prima facie case of discrimination or favoritism, in that he is not similarly situated to any of the employees who testified. Unlike Mr. Oelschlager and Mr. Renzella, Grievant was not absent for an unusually prolonged period of time, nor did he obtain prior permission to work at home. The remaining individuals were not absent from work due to illness, and during the 1998-99 school year, they had used snow days to cover their absences. Neither is Grievant's situation similar to those employees who left work for a relatively short period of time to attend a doctor's appointment, or a funeral. There is no evidence that any of the employees identified by Grievant claimed to be using compensatory time during their absences.
      Grievant was afflicted with an illness and remained home during regular school hours for a final total of five days. Absent a county policy which permits the accrual and usage of compensatory time, past practice established by clear and convincing evidence, or his receiving permission to work at home, Grievant is required to deduct the absence from his personal leave. Grievant has failed to establish a practice by MCBOE occurring a sufficient number of times under the same conditions, which would support his claim that an entire week of absence need not be claimed. See Adkins v. Gatson, 192 W. Va. 561, 453 S.E.2d 395 (1994). Neither has he established that MCBOE administrators had made any representation that he could take an entire week of leave at a time without charging it to his personal leave. If such an event had occurred once before, it did not constitutea practice binding MCBOE to any future occurrences. Even if MCBOE has allowed some informal compensatory time for employees, Grievant failed to establish that it was required by law to continue any such prior practice. See Isaacs v. Lincoln County Bd. of Educ., Docket No. 89-22-555 (Jan. 12, 1990). If other employees have failed to report time taken off work, such failure does not support Grievant's claim that MCBOE has established a practice of allowing compensatory time to be accrued and used, or that he need not use personal leave time.   (See footnote 4) 
      In addition to the foregoing findings of fact and discussion it is appropriate to make the following formal conclusions of law.

Conclusions of Law
      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving each element of 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). See W. Va. Code §18-29-6.
      2.      W. Va. Code §18-29-2(m) 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.”      3.      W. Va. Code §18-29-2(o) defines favoritism as “unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees.”
      4.      An employee seeking to establish unlawful discrimination or favoritism must first establish a prima facie case by demonstrating the following:
(a)that he is similarly situated, in a pertinent way, to one or more other employee(s);

(b)that he has, to her 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 v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      5.      Grievant failed to establish a prima facie case of discrimination or favoritism by showing that any other employee has been awarded compensatory time, or that he was similarly situated to any other employee who had been allowed to work at home.
      Accordingly, the grievance is DENIED.

      Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Marshall 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.

Date: January 31, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE



Footnote: 1
      Grievant did not address W. Va. Code §18A-4-14, which discusses duty-free lunch and daily planning periods for employees, or W. Va. Code §18A-4-16, which addresses extracurricular assignments, at level four and appears to have abandoned those arguments. Neither provision applies to the facts of the case and no further discussion of these claims is warranted.
Footnote: 2
      At level two, Grievant testified that two other administrators may have also taken time off without a deduction in their personal leave; however, neither appeared at level two or level four, and the matter regarding those individuals was otherwise unsubstantiated.
Footnote: 3
      The issue of working at home was not raised prior to the level four hearing, and, as a general rule, would not be considered at this time without having been reviewed at the lower levels. Hess v. W. Va. Dept. of Health and Human Resources, 189 W. Va. 357, 432 S.E.2d 27 (1993); Fine v. W. Va. Dept. of Transp., Div. of Highways, Docket No. 99- DOH-259 (Jan. 21, 2000). However, because the facts are undisputed, and MCBOE counsel responded fully to the claim, it is included in this decision so that a final ruling on this matter may be rendered.
Footnote: 4
      W. Va. Code §18A-4-10 provides that “[a]t the beginning of the employment term, any full-time employee of a county board of education shall be entitled annually to at least one and one-half days personal leave for each employment month or major fraction thereof in the employee's employment term. Unused leave shall be accumulative without limitation . . . .”