JAMES M. KINGSBURY
v. DOCKET NO. 95-HHR-330
WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES
(See footnote 1)
, James M. Kingsbury, is employed by the West Virginia Department of
Health and Human Resources (Respondent) as an Employment Service Worker, of the
Work and Training Unit. Grievant filed his grievance on April 13, 1994, alleging that hewas forced to use annual leave while attending a public hearing scheduled by Respondent
addressing a new pay plan and employee classification system for classified service.
On the Level IV grievance form, Grievant alleges that:
Vacation time was extracted from Grievant because he attended the
Clarksburg Reclassification hearing. He attended under the belief that he
represented the agency. Vacation time was taken by agency, agency claiming
otherwise. Grievant has been discriminated against by agency.
As relief, Grievant desires to be credited with the return of eight hours of annual leave
which he used to attend the public meeting. Grievant was denied relief at Levels I, II,
and III, and appealed to Level IV by letter dated July 27, 1995. At Level IV, an evidentiary
hearing was held at the Grievance Board's Elkins office on November 28, 1995. The case
became mature on January 18, 1996, upon receipt of Respondent's reply brief.
FINDINGS OF FACT
1. Grievant is employed by Respondent as an Employment Service Worker.
2. Five public hearings were scheduled by Respondent to address the new pay plan
and employee classification system for classified service.
3. Mr. Robert L. Stephens, Jr., Director of the Division of Personnel, issued a
memorandum in regard to the public hearings to all Cabinet Secretaries and Agency Heads,
dated March 4, 1994, which states, in pertinent part:
Employees who are speaking on behalf of their employing agencies shall be
permitted to perform that duty as work time. Otherwise, employees wishing
to attend the public hearings either as a presenter or viewer will be required
to use annual leave for any time off work. Written comments may also be
made on the proposed plan. All comments, oral or written, will be considered
by the [Personnel] Board. 4. Grievant was not selected by his supervisor, or Respondent, to represent his work
unit or Respondent at the public hearing.
5. Grievant requested to take annual leave prior to attending the April 5, 1995,
6. Grievant attended the April 5, 1995, public hearing and spoke at the hearing.
7. Grievant attended the public hearing: (1) because he desired to see that a public
hearing actually since he initiated litigation against Respondent for its failure to hold public
hearings on the employee classification and pay plan
(See footnote 2)
, and (2) because he did not want to
submit written documentation, but wanted to express his concerns orally at the public
In a nondisciplinary action, Grievant has the burden of proving his case by a
preponderance of the evidence. Crow v. W.Va. Dept. of Corrections
, Docket No. 89-CORR-
116 (June 30, 1989); Bonnett v. W.Va. Dept. of Highways
, Docket No. 89-DOH-043 (Mar.
29, 1989). In this case, Grievant alleges discrimination. W.Va. Code
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." A prima facie
showing of discrimination, under W.Va. Code
consist of Grievant establishing:
(a) that he is similarly situated, in a pertinent way, to one or more other
(b) that the other employee(s) have been given advantage or treated with
preference in a significant manner not similarly afforded him;
(c) that the difference in treatment has caused a substantial inequity to him
and that there is no known or apparent justification for this difference.
If Grievant successfully proves a prima facie
case, a presumption of discrimination
exists, which respondent can rebut by articulating a legitimate reason for its action.
(See footnote 3)
However, Grievant may still prevail if he can demonstrate the reason proffered by
Respondent was mere pretext. See W.Va. Inst. of Technology v. WVHRC & Zavareei
S.E.2d 490 (W.Va. 1989); Prince v. Wayne Co. Bd. of Educ.
, Docket No. 90-50-281 (Jan. 28,
(See footnote 4)
Grievant failed to prove by a preponderance of the evidence that he was similarly
situated to other employees who attended the April 5, 1995, public hearing. Grievant did
prove the second prong of the test, by establishing that some employees were allowed to
attend the meeting without taking annual leave, while other employees had to take annual
leave. While Grievant testified that "a show of hands was 50-50" as to those employees that
were taking annual leave as opposed to those that were being credited with work time for
attending the April 5, 1995, public hearing. That "neutral" testimony unsupported by otherevidence, e.g., evidence of non-representatives being credited with work time, does not
advance Grievant's claim of discrimination. Furthermore, Grievant failed to provide the
Undersigned with any specific evidence of a non-representative who attended the public
hearing while being credited with work time.
Grievant also established the first half of the third prong of the test by proving that
he had to take annual leave while other employees in attendance were allowed to count this
same attendance time as work time. However, Grievant failed to prove beyond a
preponderance of the evidence, the second half of the third prong of the test, that there was
not an apparent justification for this difference. Therefore, Grievant failed to establish a
case of discrimination.
Furthermore, the record is also clear: (1) that Grievant was not asked by anyone to
represent his unit or Respondent; (2) that Grievant's response to this lack of directive by
Respondent was "no one told me I wouldn't be [representing the agency]"; (3) that Grievant
asked his supervisor for annual leave in advance of attending the April 5, 1995, public
hearing; and (4) Grievant could have resolved any misunderstanding or questions that he
might have had before asking for the annual leave. However, as discussed above in Finding
of Fact number seven, Grievant had his own motives for attending the April 5, 1995, public
Furthermore, Grievant explained his position, at the Level IV hearing, as follows:
I feel there needs to be guidelines. Now, if you're going to send out a
memorandum like that, make it clear what's expected. As I read that
memorandum, if I felt that I was representing the Agency, representing my
unit, I was representing that unit. I didn't write the memorandum. Even though Respondent did not issue guidelines for unit supervisors to use in selecting
which employees would represent Respondent at the public hearing, the record is clear that
Grievant realized that he had questions concerning the memorandum and failed to inquire.
However, Grievant's misunderstanding of the memorandum is not a proper reason to grant
In addition to the foregoing findings of fact and narration, it is appropriate to make
the following formal conclusions of law.
CONCLUSIONS OF LAW
1. In non-disciplinary matters the grievant must prove all of the allegations
constituting the grievance by a preponderance of the evidence. Crow v. W.Va. Dept. of
Corrections, Docket No. 89-CORR-116 (June 30, 1989); Bonnett v. W.Va. Dept. of
Highways, Docket No. 89-DOH-043 (Mar. 29, 1989).
2. Discrimination is defined in W.Va. Code §29-6A-2(d) 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. Grievant failed to establish a prima facie case of discrimination under W. Va.Code
4. Grievant failed to prove by a preponderance of the evidence that he was entitled
to the relief sought as a matter of law.
5. Grievant failed to show a violation, misapplication or misinterpretation of any
statute, policy, rule, or regulation.
Accordingly, the grievance must be DENIED.
DATED 2/21/96 Jeffrey N. Weatherholt, Admn. Law Judge
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.
DATED: 2/21/96 JEFFREY N. WEATHERHOLT, ADMN. LAW JUDGE
At the Level IV hearing, Grievant made a motion to add Harold Langevin and Juanita
Simmons as grievants. All three grievances were consolidated at Level III, however, neither
Mr. Langevin nor Ms. Simmons appealed to Level IV. That motion was taken under
advisement and is DENIED by the Undersigned. It should be noted that Mr. Kingsbury was
the only grievant below: (1) to complete a grievance form at Level IV, (2) to notify the
Grievance Board of his desire to appeal the Level III decision, and (3) to appear for the
Level IV hearing. Furthermore, before Grievant made his motion, there was nothing in the
Grievance Board's file which indicated that Mr. Langevin or Ms. Simmons desired to appeal
the Level III decision.
See generally, State Ex Rel. Kingsbury v. Caperton
, 190 W.Va. 699 (1994).
While the burden of production may shift, the overall burden of proof never does. See
Texas Dept. of Comm. Aff. v. Burdine
, 450 U.S. 248 (1981).
Even though "school" cases are cited, the applicable law in determining discrimination
is the same, whether it is analyzed under W.Va. Code §18-29-2(m) or W.Va. Code § 29-6A-