MURLDENE LEMASTERS and
MARION R. WHITE,
                  Grievants,

v.                                                      Docket No. 00-48-121

TYLER COUNTY BOARD OF EDUCATION,
                  Respondent.

D E C I S I O N

      Grievants, Murldene LeMasters and Marion White, employed by the Tyler County Board of Education (TCBOE or Respondent) as an Accountant III/Clerk II/Secretary III, and Executive Secretary, respectively, filed a level one grievance on February 2, 1999, in which they alleged violations of W. Va. Code §§18A-4-5b, and 18-29-2(m) and (o), in that they are employed with 240-day contracts while similarly situated employees hold 261 day employment terms. Grievants requested instatement of 261-day employment terms, retroactive wages and benefits, and retroactive and prospective interest on all monetary sums.
      TCBOE Superintendent Sandy M. Weese denied the grievance at level one.   (See footnote 1)  Following an evidentiary hearing, the matter was denied at level two. TCBOE waived consideration at level three, as is permitted by W. Va. Code §18-29-4(c). Appeal was made to level four on April 6, 2000, and a hearing was held at TCBOE's offices, at the request of Respondent with the agreement of Grievants, on October 24, 2000. Grievants were represented by John E. Roush, Esq., of WVSSPA, and Respondent was representedby Kathy Finsley, Esq. The matter became mature for decision upon receipt of Respondent's proposed findings of fact and conclusions of law on December 18, 2000.   (See footnote 2) 
      The following findings of fact are made based upon a review of the record in its entirety, including the level two transcript and exhibits, as well as evidence provided at level four.
Findings of Fact
      1.      Grievant Murldene LeMasters is employed by TCBOE, and has been classified as an Accountant III/Clerk II since March 1997. At Grievant's request, her classification title was amended in July 24, 1998, to include Secretary III. She has continuously held a 240-day employment contract
      2.      Grievant Marion White is employed by TCBOE, and has been classified as an Executive Secretary, also holding a 240-day contract, since March 20, 1997.
      3.      TCBOE provides employees with a 261-day employment term a paid vacation of up to 24 days per year, based on years of service. Employees with a 240-day employment term do not receive a paid vacation, but receive 21 days off without pay each year.
      4.      Grievant LeMasters' primary assignment is payroll. She processes all time sheets, personal leave and vacation forms, and prepares the checks for all employees. TCBOE's Service Personnel Employment List filed with the State Department of Education(SDOE list), reports that she is employed half-time as an Accountant III, with the remaining half-time as a .25 Clerk II, and a .25 Secretary III.
      5.      Mindy Leasure, an Accountant III, processes Accounts Payable. She receives and processes all requisitions throughout the system, and writes checks for all expenditures not related to payroll. Ms. Leasure shares the same office, schedule, and supervisors with Grievant LeMasters. Ms. Leasure holds a 261-day employment contract.
      6.      Grievant White serves as Superintendent Weese's Executive Secretary and processes employee insurance matters.
      7.      TCBOE's SDOE list indicates that Rhonda Burton serves as Executive Secretary (half-time)/Secretary III (half-time). Her job description states that she works as an Executive Secretary half-time, and as a half-time Receptionist. Prior to her retirement in 1999, Barbara Smith served as Executive Secretary to the Assistant Superintendent and Transportation Director. Ms. Smith held, and Ms. Burton currently holds, a 261-day employment contract.       
      8.      Due to shrinking financial resources, TCBOE reduced all 261-day contracts to 256 days, effective July 1, 2000. This amendment did not affect the employees' vacation benefit.
      Discussion
      As this grievance does not involve a disciplinary matter, Grievants have the burden of proving each element of 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); 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.
      Grievants argue that their assignments are substantially similar to those of co- workers who hold the longer contract, and thereby receive a paid vacation, in violation of W. Va. Code §18A-4-5b and §18-29-2-(m) and (o). TCBOE asserts that Grievants do not hold the same classification titles, or perform similar duties as the employees to whom they compare themselves, and are not entitled to the same benefits. Respondent further asserts that Grievants were aware of their contract terms when they accepted the positions; therefore, the grievance was not timely filed.
      W. Va. Code §18A-4-5b provides that boards of education may provide salaries in excess of the state minimums so long as they are uniform “with regard to any training classification, experience, years of employment, responsibility, duties, pupil participation, pupil enrollment, size of buildings, operation of equipment or other requirements. Further, uniformity shall apply to all salaries, rates of pay, benefits, increments or compensation for all persons regularly employed and performing like assignments and duties within the county.”
      Discrimination is defined by W. Va. Code §18-29-2(m) 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.”      In order to establish a prima facie case of discrimination or favoritism, grievants must establish the following:
(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 grievant in writing.

Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).

      Once the grievants establish a prima facie case of discrimination, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason to substantiate its actions. Thereafter, grievants 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. Dep't 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).
      Grievants rely upon Weimer-Godwin v. Board of Education of Upshur County, 179 W. Va. 423, 369 S.E.2d 726 (1988) in support of their claim that TCBOE must provide uniform vacation benefits to similarly situated service employees. The West Virginia Supreme Court of Appeals determined in Weimer-Godwin that it was not necessary for employees to perform identical duties to meet the “like assignments and duties” requirement in W. Va. Code §18A-4-5b, but rather, found that when the assignments andduties are “substantially similar” the uniformity requirement applies. Covert v. Putnam County Bd. of Educ., Docket No. 99-40-463 (Feb. 29, 2000).
      However, in a recent case with remarkable factual similarity, the Court held that multiclassified “employees who do not have the same classifications are not performing 'like assignments and duties.' Even those employees who have some classifications in common with another service employee would not be performing 'like assignments and duties' because they have additional duties in relation to the other classification they hold.” On that basis, the board of education was not required to provide petitioners the same contract terms as the 261-day employees with whom they compared themselves. Claims of favoritism and discrimination were denied for the same reason. Flint v. Bd. of Educ. of Harrison, ___ W. Va. ____, 531 S.E.2d 76 (1999).
      Grievants argue that Flint requires they be granted the vacation benefit because they hold the same titles as employees who receive the benefit. While the record includes what appears to be conflicting documentation of Grievant LeMasters' classification title, Bob Wilt, Executive Director for Personnel, testified that the omission of the “Clerk” portion of her title on a list prepared for the level two hearing had simply been an oversight. The Notice of Vacancy posted for the position Grievant LeMasters currently holds was for an Accountant III/Clerk II. Superintendent Weese stated at level four that the Secretary III title was later added at Grievant's request to protect her transfer rights, but that Grievant's duties in this classification were minimal. In any event, Grievant LeMasters does not claim to be misclassified as an Accountant III/Clerk II/Secretary III. Applying the reasoning of Flint, Grievant LeMasters does not hold the same multiclassified title as Ms. Leasure, and is not entitled to the same vacation benefit.      Grievant White is not multiclassified, and does not hold the same classification title as Ms. Burton; however, she does hold the same classification as Barbara J. Smith, Ms. Burton's predecessor. Comparison with Ms. Smith is appropriate because she was employed as an Executive Secretary with a 261-day employment term at the time Grievant attained that classification, and thereafter, until her retirement. Although Ms. Smith was assigned to work for two individuals, the Assistant Superintendent and the Transportation Director, she testified that she was responsible for the typical duties associated with an Executive Secretary. Grievant's duties also appear to be typical of that classification.       Grievant White has established that she performed assignments and duties like those performed by Ms. Smith, as contemplated by the uniformity provision of W. Va. Code §18A-4-5b. Grievant has further demonstrated that she was similarly situated to Ms. Smith, and has received disparate, less favorable, treatment because she has a shorter employment term, and thereby receives no vacation benefits enjoyed by Ms. Smith and other 261-day employees. TCBOE explains that the position now held by Grievant was posted with a shorter employment term as an effort to cope with declining resources. Accepting that boards of education are facing declining resources, TCBOE has offered no nondiscriminatory reason for the difference in treatment; therefore, Grievant White prevails on the claims of discrimination and favoritism.
      Addressing Respondent's timeliness argument, this grievance involves a continuing practice, as addressed in W. Va. Code §18-29-4(a)(1), and was timely filed. However, as noted in Superintendent Weese's level one decision, back pay and other appropriate relief may be limited to a period of one year prior to the filing of the grievance. W. Va. Code §18- 29-3(v). See Flint, supra.       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, 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); 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 §18A-4-5b states that "uniformity shall apply to all salaries, rates of pay, benefits, increments or compensation for all persons regularly employed and performing like assignments and duties within the county."
      3.      Boards of education must provide uniform vacation benefits to similarly situated service employees, meaning those who have "like classifications, ranks, assignments, duties and actual working days." Airhart v. Wood County Bd. of Educ., Docket No. 99-54-419 (May 19, 2000); Covert v. Putnam County Bd. of Educ., Docket No. 99-40-463 (Feb. 29, 2000); Stanley v. Hancock County Bd. of Educ., Docket No. 95-15-217 (Sept. 29, 1995).
      4.      Multiclassified employees who do not hold the exact same multiclassification as employees to whom they compare themselves do not perform “like assignments and duties,” and are not entitled to the same contract terms. Flint v. Bd. of Educ. of Harrison, ___ W. Va. ___, 531 S.E.2d 76 (1999).      5.      Discrimination is defined in W. Va. Code §18-29-2(m) 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."
      6.      Favoritism is defined in W. Va. Code §18-29-2(o) as "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees."
      7.      In order to establish a prima facie case of discrimination or favoritism under W. Va. Code §§18-29-2(m) and (o), a grievant must demonstrate the following:
(a) that she is similarly situated, in a pertinent way, to one or more other employee(s);

(b) that the other employee(s) have been given advantage or treated with preference in a significant
manner not similarly afforded her; and,

(c) that the difference in treatment has caused a substantial inequity to her, and that there is no
known or apparent justification for this difference.

Byrd v. Cabell County Bd. of Educ., Docket No. 96-06-316 (May 23, 1997); McFarland v.
Randolph County Bd. of Educ.
, Docket No. 96-42-214 (Nov. 15, 1996). See Prince v. Wayne County Bd. of Educ., Docket Nos. 90-50-281/296/296/311 (Jan. 28, 1991); Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      8.      Once a grievant establishes a prima facie case of discrimination or favoritism, the employer can then offer a legitimate reason to substantiate its actions. Thereafter, the 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. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178W. Va. 53, 365 S.E.2d 251 (1986); Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
      9.      Grievant White has proven by a preponderance of the evidence that she is similarly situated to another Executive Secretary in Respondent's Central Office who held a 261-day employment contract in that she performs like assignments and duties. Respondent's reason for the difference in treatment, i.e., financial difficulties, is not a legitimate reason for engaging in discrimination and/or favoritism.
      10.      Grievant LeMasters does not hold the exact same multiclassification title as the employees with whom she compares herself, and is not entitled to the same contract under the uniformity provisions of W. Va. Code §18A-4-5b. For the same reason, she has not proven discrimination or favoritism as defined by W. Va. Code §18-29-2 (m) or (o).
       Accordingly, Grievant is entitled to the same employment term as the 261-day Executive Secretary and her grievance is GRANTED. Respondent Tyler County Board of
Education is hereby ORDERED to instate Grievant White to a 261-day employment contract, effective February 2, 1998, back pay, with interest, and all other benefits to which she would be entitled. The grievance filed by Ms. LeMasters is DENIED.

Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Tyler County and 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: December 19, 2000 __________________________________
SUE KELLER
SENIOR ADMINISTRATIVE LAW JUDGE



Footnote: 1
      Superintendent Weese granted the grievance as it related to a third grievant.
Footnote: 2
      Respondent's proposals were originally postmarked on November 28, 2000, the due date for submission. However, the Postal Service failed to forward the document to the Grievance Board's office, which had relocated on November 1, 2000. After they were returned to counsel, the proposals were hand delivered on December 18, 2000.