Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30,
1992).
Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30,
1992).
___________________________
Dated: February 23, 1995
This is a grievance by Dennis C. Runyon and James C. Markle
(Grievants) against the West Virginia Department of Transportation,
Division of Highways (DOH), alleging discrimination in violation of
W. Va. Code § 29-6A-2(d) in regard to their not being provided DOH
vehicles to commute from the DOH headquarters nearest their
residence to their place of employment, a benefit purportedly
extended to other DOH employees holding the same job title.
Grievants further allege that this discrimination is motivated, at
least in part, based upon their Republican political affiliation.
Grievant Markle's grievance was initiated on December 6, 1993,
while Grievant Runyon filed his grievance on December 12, 1993.
After their grievances were denied at Levels I and II, a joint
hearing was held at Level III on May 12, 1994. On July 26, 1994,Fred VanKirk, Commissioner of the Division of Highways, denied the
grievances at Level III. Thereafter, Grievants timely appealed to
this Grievance Board where the grievances were duly consolidated on
August 12, 1994, and a Level IV hearing was conducted in this
Board's Charleston office on September 14, 1994. Upon receipt of
Respondent's post-hearing submission on October 31, 1994, this
matter became mature for decision.
(See footnote 1)
Grievant Runyon testified that he was similarly transferred
from County Supervisor in Boone County to Area Maintenance Manager
in Charleston. He further testified that he had been promised a
"commuting" vehicle at the time of his transfer but no vehicle was
ever assigned. However, Grievant Runyon's testimony differed
slightly from Grievant Markle in that the only former County
Supervisors who were issued vehicles were the ones "that we have
been in contact with." Grievants both indicated that they were
registered as Republicans and acknowledged that they agreed to
accept their transfers in 1989. However, Grievants were the only
former County Supervisors transferred to Area Maintenance Manager
positions in District One at Charleston. Grievant Runyon acknowledged that there are two other Area Maintenance Managers in
District One, one of whom has a "commuting" vehicle assigned while
the other does not.
DOH initially argues that since Grievants have been denied a
vehicle to commute to their work site in District One since their
transfer in 1989, this grievance was not timely filed in December
1993. If Grievants were simply grieving their transfer, DOH would
have a valid defense as to timeliness. See Magnone v. Hancock
County Bd. of Educ., Docket No. 15-87-007-3 (Sept. 3, 1987).
However, W. Va. Code § 29-6A-4(a) permits an employee to file a
grievance "within ten days of the most recent occurrence of a
continuing practice giving rise to a grievance."
Grievants have never had a "commuting" vehicle assigned since
they transferred to District One although the evidence indicatesthat they have made repeated requests, receiving varying responses
that may best be summarized as "we'll see." The undersigned
administrative law judge is persuaded by the evidence of record
that failure to assign a "commuting" vehicle to each of the
Grievants, under the circumstances here,
(See footnote 3) constitutes a "continuing practice" within the meaning of § 29-6A-4(a). See
Blankenship v. Summers County Bd. of Educ., Docket No. 92-45-133/134/135 (Nov. 30, 1992). Accordingly, Respondent DOH's defense
of timeliness is rejected and this grievance will be considered on
its merits.
Grievants complain that other DOH employees who are classified
as "Area Maintenance Managers," the same job title held by
Grievants, are assigned DOH vehicles which they are permitted to
drive from a DOH headquarters or other facility near their homes,
while Grievants do not receive such a benefit. Grievants submit
that this represents discrimination against them by DOH, and
further contend that this discrimination is politically motivated.
Discrimination is defined 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 § 29-6A-2(d). This Grievance Board has
determined that a grievant, seeking to establish a prima facie case
of discrimination under W. Va. Code § 29-6A-2(d), must demonstrate
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.
Applying this prima facie analysis to the facts presented
here, Grievants have demonstrated that they are similarly situated
to one or more other employees who are employed by DOH as Area
Maintenance Managers. Likewise, the fact that DOH has not assigned
them a state-owned vehicle for their use under terms comparable to
other employees, represents detrimental treatment in a significant
particular. See Sullivan v. Jackson County Bd. of Educ., Docket
No. 93-18-369 (Jan. 26, 1994).
(See footnote 4) However, Grievants' evidence
falls short of meeting the third requirement for establishing a
prima facie case.
DOH notes that state-owned vehicles are assigned in accordance
with written policies set forth in Volume IV, Chapter 8, of the
DOH's Administrative Operating Procedures (A Ex 6 at L III), andthat these policies only authorize assignment of such vehicles
based upon job duties assigned to an individual and not the job
title of the individual. Beyond demonstrating that their job title
is the same as one or more DOH employees assigned a state-owned
vehicle, Grievants have not met the third requirement for establishing a prima facie case by demonstrating that the assignment
of vehicles is unrelated to the job duties of any employee
allegedly receiving this benefit. The record here indicates that
Grievants are now "district-based employees" and that such
employees are only to be issued vehicles "for commuting to and from
work" in accordance with the DOH Administrative Operating Procedures. A Ex 6 at L III. Beyond requiring that anyone holding the
classification of Area Maintenance Manager must hold a valid West
Virginia driver's license, the Area Maintenance Manager position
classification specification does not indicate that all Area
Maintenance Managers are necessarily assigned duties that qualify
them for a "commuting" vehicle under the DOH vehicle assignment
policy. See A Ex 3 at L III.
The undersigned administrative law judge has reviewed DOH's
written policies on assignment of vehicles and finds that these
policies are consistent with DOH's claim that the primary basis for
assigning vehicles is the assigned job functions of the employee.
Thus, the fact that one Area Maintenance Manager is assigned to
snow removal duties and another Area Maintenance Manager's duties
do not include snow removal, establishes a rational basis for
differentiation in assigning a "commuting" vehicle for purposes of"emergency response" or similar job-related reasons. Grievants did
not provide any credible evidence that this explanation was merely
pretextual. See Tex. Dept. of Community Affairs v. Burdine, 450
U.S. 248 (1981); Graley v. W. Va. Parkways Economic Dev. & Tourism
Auth., Docket No. 91-PEDTA-225 (Dec. 23, 1991).
It is noted that DOH offered a new theory at Level IV why some
Area Maintenance Managers were issued vehicles and some were not.
DOH's counsel presented evidence, primarily through cross-examination of Grievants, that former County Supervisors who declined to
accept their transfers in 1989 may have been given "commuting"
vehicles while employees who voluntarily accepted their transfers,
such as Grievants, were not given this benefit. While this may
have been a prudent and pragmatic consideration at the time the
transfers were effected, it does not relate to "the actual job
responsibilities of the grievant[s] and/or the other employee(s)"
as required by § 29-6A-2(d). Had Grievants established a prima
facie case of discrimination, and DOH proffered this theory as the
sole justification for its actions, Grievants would have prevailed.
Thus, if DOH has modified its policies on assigning vehicles since
this grievance was initiated, the employer is encouraged to review
the assignment of vehicles to all Area Maintenance Managers,
including Grievants, and determine if circumstances now warrant
authorizing vehicles for Grievants and other similarly-situated
Area Maintenance Managers.
The remainder of this decision will be presented as formal
findings of fact and conclusions of law.
2. Some former County Supervisors transferred to Area
Maintenance Manager positions at other locations were issued
state-owned vehicles which allowed them to commute to work at their
new duty location from the DOH headquarters or facility nearest to
their home.
3. Under DOH policies in effect at the time, such "commuting"
vehicles may only be assigned to district-based employees if they
perform certain duties which warrant issuance of such a vehicle.
A Ex 6 at L III.
4. In addition to Grievants, at least one other individual
employed in District One as an Area Maintenance Manager does not
have a "commuting" vehicle assigned.
2. In order to establish a prima facie case of discrimination
under W. Va. Code § 29-6A-2(d), a grievant must demonstrate 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.
3. Grievants did not establish a prima facie case of
discrimination under W. Va. Code § 29-6A-2(d) in that they failed
to demonstrate that other Area Maintenance Managers who were
assigned "commuting" vehicles had substantially similar job
responsibilities.
4. If, for the sake of argument, Grievants did establish a
prima facie case of discrimination in regard to DOH's assignment of
"commuting" vehicles to individuals employed as Area Maintenance
Managers, DOH established legitimate, non-discriminatory reasons
for its differentiation based upon the specific job duties of the
personnel assigned vehicles. See Tex. Dept. of Community Affairs
v. Burdine, 450 U.S. 248 (1981); Graley v. W. Va. Parkways Economic
Dev. & Tourism Auth., Docket No. 91-PEDTA-225 (Dec. 23, 1991).
Accordingly, this grievance is DENIED.
Any party may appeal this decision to the circuit court of the
county in which the grievance occurred and such appeal must be
filed within thirty (30) days of receipt of this decision. W. Va.
Code § 29-6A-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. Any
appealing party must advise this office of the intent to appeal and
provide the civil action number so that the record can be prepared
and transmitted to the appropriate court.
LEWIS G. BREWER
Administrative Law Judge
Footnote: 1At the close of the hearing on September 14, 1994, the
parties agreed that any post-hearing briefs would be postmarked not
later than October 28, 1994. Inexplicably, Grievants' post-hearing
submission was not submitted until February 15, 1995, and received
in this office until February 16, 1995. Nonetheless, this
submission was given appropriate consideration.
Footnote: 2Such vehicles will be referred to as "commuting" vehicles,
as we are not addressing vehicles which are provided to employees
for official use once they arrive at their assigned work location.
Footnote: 3The only remedy Grievants seek is prospective relief in the
form of assignment of a "commuting" vehicle, consistent with their
position that this is a continuing violation.
Footnote: 4Sullivan involved issuance of school-owned vehicles to
school service employees. Although Sullivan arose under the
education grievance procedure, W. Va. Code § 18-29-1, et seq.,
provisions in the education employee grievance procedure are
generally parallel to those in the state employee grievance
procedure. See Hays v. W. Va. Div. of Employment Sec., Docket Nos.
91-ES-505 & 92-ES-003 (Dec. 31, 1992).