EARL GUTHRIE,
Grievant,
v. Docket No. 95-HHR-277
DEPARTMENT OF HEALTH AND HUMAN
RESOURCES/OFFICE OF MATERNAL AND
CHILD HEALTH and DIVISION OF PERSONNEL,
Respondents.
D E C I S I O N
Grievant, Earl Guthrie, alleges he was discriminated against when
his request for sick leave to attend his companion's surgery was
denied. He was required to take annual leave for this absence. He
believes this act was taken because he is involved in a homosexual
relationship. He requests as relief that the time "be charged against
sick leave and removed from annual leave." This grievance was waived
at Level I and denied at Levels II and III. It was appealed to Level
IV, and a hearing was held November 11, 1995. The case became mature
for decision on that date, as the parties elected to submit this
grievance on the record and chose not to submit proposed findings of
fact and conclusions of law.
The material facts in this grievance are not in dispute, and this
case involves a question of law.
Findings of Fact
1. Grievant and his male companion participated in a "Service
of Union" on May 12, 1990, performed by Rev. Judith Smith-Valley, the
minister of the Unitarian Universalist Church of Charleston, West
Virginia. G. Exh. 1.
2. This ceremony is "equivalent to marriage within [the
Unitarian Universalist Church]." G. Exh. 1.
3. On September 7, 1994, Grievant filled out a request to take
September 8 and 9, 1994, as sick leave for his "companion's" surgery.
G. Exh. 1.
4. Grievant's supervisor, Ms. Joan Faris, approved his leave
slip.
5. Some days later, the Personnel Coordinator in their office
approved Grievant's leave.
6. On October 13, 1994, Ms. Edith Baker, in the Department of
Health and Human Resources' ("HHR") Division of Personnel, denied
Grievant's leave request and changed the sick leave to annual leave.
She noted, "At this time, The Administrative Rules of The Division of
Personnel do not address this particular situation in the list of
family members."
7. Grievant received notice on October 17, 1994, that his
request for sick leave had been denied.
Additionally, evidence taken at hearing revealed the following.
Grievant testified that at least one other individual in Grievant's
agency has been granted sick leave when she assisted her ex-husband
during and after his surgery.
Mr. Joe E. Smith, Division of Personnel's ("DOP") representative,
testified that no one should be allowed to take sick leave unless it
is for themselves or a member of the immediate family as defined by
DOP's Administrative Rules. He stated that if an individual had been
allowed to use sick leave for significant others or "common law"
spouses, this leave would be in violation of the rules. He further
stated he knew of no instances where leave had been approved under
these circumstances.
Discussion
At the time Grievant requested sick leave, employees were allowed
to take sick leave for illness within the immediate family. W. Va.
DOP Administrative Rules, §3(f)6. Immediate family included "only the
father, mother, son, daughter, brother, sister, husband or wife,
mother-in-law, father-in-law, son-in-law, daughter-in-law,
grandmother, grandfather, granddaughter, grandson, step-mother, step-father, and step-children."
(See footnote 1) Id. at §3(f)2.
In West Virginia an individual is not considered legally married
unless he or she has a license issued by the State. W. Va. Code §48-1-5. Other forms of union, including common-law marriage, are not
recognized. Goode v. Goode, 183 W. Va. 468, 396 S.E.2d 430 (1990).
Accordingly, DOP's decision to refuse to allow Grievant to take
sick leave for a companion's illness cannot be seen as violating any
rule, regulation, or statute. Grievant and his companion do not meet
the legal definitions of husband, wife, or spouse. However, if otherindividuals were allowed to take sick leave to be with their
companions or significant others and Grievant was not, this could
establish a pattern of discrimination.
W. Va. Code §29-6A-2(d) defines discrimination as "any difference
in the treatment of employees unless such differences are related to
the actual job responsibilities of the employee or agreed to in
writing." To prove discrimination a grievant is required to establish
a prima facie case which consists of demonstrating.
(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 other
employee(s), and were not agreed to by the grievant in
writing.
If a grievant establishes a prima facie case, a presumption of
discrimination exists, which the Respondent can rebut by presenting
a legitimate, nondiscriminatory reason for the action. However, the
Grievant may still prevail if he can demonstrate the reason given by
the Respondent was pretextual. Steele, et al. v. Wayne County Bd. of
Educ., Docket No. 89-50-260 (Oct. 19, 1989).
The only evidence to support Grievant's claim that he was treated
differently is his unrebutted hearsay testimony that one individual
was allowed one time to take sick leave to be with her ex-husband.
The undersigned does not necessarily disbelieve that this situation
occurred, but without having further knowledge about the circumstancesand dates, and without the form this individual filled out to verify
that she clearly indicated she was no longer related to the gentleman
in question, this hearsay testimony is insufficient to support a prima
facie case.
Additionally, if this individual was knowingly approved for sick
leave, this act by her supervisor would constitute an ultra vires act
and as such could not be utilized to grant Grievant his requested
relief. Ultra vires acts of a governmental agent, acting in an
official capacity, in violation of a policy or statute, are considered
non-binding and cannot be used to force an agency to repeat such
violative acts. Parker v. Summers County Bd. of Educ., 406 S.E.2d 744
(W. Va. 1991).
The undersigned sympathizes with Grievant in his inability to
utilize his sick leave to care for his life-companion and suggests a
possible alternative may be to work with DOP and his employer to enact
a change in the policy, within closely identified parameters.
The above discussion will be supplemented by the following
conclusions of law.
Conclusions of Law
1. In a non-disciplinary action, a grievant has the burden of
proving his case by a preponderance of the evidence. Tucci v. Dept.
of Transp./Div. of Highways, Docket No. 94-DOH-592 (Feb. 28, 1995).
2. Grievant has failed to demonstrate that Respondents violated
any rule, regulation, or statute when they disallowed his sick leave.
3. Grievant did not meet his burden of proof and establish a
prima facie case of discrimination.
4. Unauthorized actions by a governmental agency that violate
policy are not binding and cannot be used to require an agency to
violate the established policy again. Parker v. Summer County Bd. of
Educ., 406 S.E.2d 744 (W. Va. 1991).
Accordingly, this grievance is DENIED.
Any party or the West Virginia Division of Personnel 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.
___________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: January 31, 1996
Footnote: 1This section was rewritten in 1995. The term "only" was
removed, and the terms "husband and wife" were replaced with the word
"spouse."