DENNY SULLIVAN, ET AL.,
v. Docket No. 96-18-087
JACKSON COUNTY BOARD OF EDUCATION,
D E C I S I O N
Grievants, Denny Sullivan, John Sayre, William Goodson, Bryan
Rogers, and James Hamilton, filed this grievance alleging:
Employee(s) within the same department was/were permitted
to stay home on a "snow" day, when other employees within
the maintenance department were required to work or take
personal, sick, or vacation day. In all respects
pertaining to this situation, said employee(s) perform
like assignments & duties. This violates W. Va. Code(18-
29-2 favoritism & discrimination) and W. Va Code(18A-4-
5b[)] and past county practice and policy. We seek
compensation for this day and clear policy for similar
This grievance was denied at all lower levels, and Grievants
appealed to Level IV. A hearing was held on May 8, 1996
(See footnote 1)
, and the
case became mature for decision on June 7, 1996, the deadline for
the parties' proposed findings of facts and conclusions of law.
On January 8, 1996, West Virginia experienced such a heavy
snowfall that Governor Gaston Caperton declared a state of
emergency and requested that employers ask only essential personnel
to report to work. The Jackson County Board of Education("JCBOE")
has three Codes it uses to notify its personnel to report when
schools are delayed or closed. In Code A, schools are closed, but
county office, maintenance, custodial, and mechanical personnel are
to report, as well as principals and assistant principals. Due to
the emergency situation and the Governors' request, JCBOE decided
not to use any of its codes, and to request only the individuals
involved in snow removal, the custodians and the maintenance
employees, to report. All other employees were to remain at home.
Some of the Grievants were able to report to work and some were
not. The employees who were unable to report were required to take
a sick or personal day, or a day without pay.
Grievants contend that three maintenance employees were not
required to follow this procedure, and thus JCBOE is guilty of
favoritism and discrimination, and violated W. Va. Code §18A-4-5b,
the uniformity of pay section. JCBOE states that the three
employees at issue are not in the Maintenance Department, and were
not required to report to work on January 8, 1996.
The three individuals that Grievants state are in the
maintenance department and were not required to report to work are:
Sandy Pence, Charles Wise, and Tom Lawrence. Grievants state Ms.
Pence is the Maintenance Department secretary, and, as such, should have been required to report and help with snow removal.
Mr. Keith Winter is the Assistant Superintendent in charge of non-
instructional services. His areas of responsibilities include
transportation, maintenance, technology, and food and health
services. He testified Ms. Pence is his secretary, his direct
supervisee, and is considered part of the county office staff.
Since one of his supervisory areas is maintenance, Ms. Pence does,
at times, work on Maintenance issues at his direction. This does
not make her an employee of the Maintenance Department.
Mr. Charles Wise is multi-classified as an AV Technician/Clerk
II/ Truck Driver. He is a direct supervisee of Mr. Winter, and is
considered an employee of the county office. He is not, and never
has been, a member of the Maintenance Department. Because he was
placed on JCBOE's Service Personnel Staff Development Council in a
seat designated for a representative of Maintenance, Grievants
incorrectly assumed Mr. Wise was a member of their department. At
Level IV, Mr. Skip Hackworth, former Assistant Superintendent for
JCBOE, stated that after several unsuccessful attempts to get
maintenance employees to nominate an employee from their
department, he appointed Mr. Wise, with his consent, to fill the
position. Clearly, Mr. Wise is a county office employee and not an
employee of the Maintenance Department.
The third employee in question is Mr. Tom Lawrence, an
Electronics Technician II employed in the Technology Department
under the direct supervision of Mr. Larry Koenig, the supervisor of
that department. Some confusion among Grievants about Mr.Lawrence's status was caused by the fact that when Mr. Lawrence was
originally hired, he was listed in the Board minutes as an employee
of the Maintenance Department. In subsequent years, this error was
repeated because the same computer disk, listing probationary
employees and their departments, was reused each year when these
employees were rehired.
The testimony of record makes it clear that Mr. Lawrence is an
employee of the Technology Department. First, Mr. Lawrence's name
in the phone book is listed in the Technology Department. Second,
Mr. Koenig is Mr. Lawrence's direct supervisor, not Mr. Wayne
Eagle, the Supervisor of the Maintenance Department. This fact is
borne out by the fact that Mr. Koenig completes Mr. Lawrence's
evaluations, approves his leave slips, and assigns his work.
Third, the job description identifies that the supervisor of an
Electronic Technician II is the Director of the Technology
Department. Grievants make much of the fact that Mr. Lawrence is
listed in Board minutes as a Maintenance employee. "[B]oard
minutes, like every other written record, are subject to error."
Harmon v. Mingo County Bd. of Educ., Docket No. 95-29-447 (Mar. 29,
1996). Mr. Eagle, Supervisor of Maintenance, Mr. Winter, Assistant
Superintendent in charge of non-instructional duties, and Mr.
Hackworth, former Assistant Superintendent in charge of non-
instructional duties, all testified Mr. Lawrence is, and always has
been, a member of the Technology Department, not the Maintenance
Issues and Discussion
Grievants allege discrimination and favoritism saying they
were treated differently than similarly situated employees. W. Va.
Code §18-29-2(m) defines discrimination as "differences in the
treatment of employees unless such differences are related to the
actual job responsibilities of the employees or agreed to in
writing." W. Va. Code §18-29-2(o) defines favoritism as "unfair
treatment of an employee as demonstrated by preference, exceptional
or advantageous treatment of another or other employee." The last
violation cited by Grievants is W. Va. Code §18A-4-5b which
requires uniformity of pay for "all persons . . . performing like
assignments and duties within the county."
(See footnote 2)
It is clear Grievants cannot prove their case. To prove
discrimination or favoritism a grievant must establish a prima
facia 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;
(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
If a grievant establishes a prima facie case, a presumption of
discrimination or favoritism exists, which the respondent can rebut
by presenting a legitimate, nondiscriminatory reason for the
action. However, a 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).
Grievants have failed to establish a prima facie case. They
were not similarly situated to the employees who were allowed to
stay home on January 8, 1996. The three employees at issue were
all employed in departments or areas other than theirs. They were
not considered "essential employees", and, as such, were not called
out to work. It must be remembered that a county board may, in
cases of emergency, "provide alternate work schedules" for
employees which may or may not comport with the previously
designated work codes. W. Va. Code §18A-5-2. JCBOE provided
alternate work schedules, and this act was in compliance with W.
Va. Code §18A-5-2, and the Governor's directive.
Additionally, Grievants have failed to demonstrate JCBOE
violated Code §18A-4-5b, the uniformity of pay provision. Since
Ms. Pence, Mr. Wise and Mr. Lawrence do not perform "like
assignments and duties", this provision does not allow for
comparison of these individuals to Grievants. The above-discussion will be supplemented by the following
formal Findings of Fact and Conclusions of Law.
Findings of Fact
1. Grievants are employed in the maintenance department of
the Jackson County Board of Education("JCBOE").
2. Ms. Sandy Pence and Mr. Charles Wise are employed in
JCBOE's county office.
3. Mr. Tom Lawrence is employed in the Technology
4. On January 8, 1996, pursuant to a state of emergency
declared by the Governor, JCBOE called only maintenance and
custodial employees to work, as they were considered essential to
maintain the premises and to remove snow.
5. Employees in the departments referred to in Finding of
Fact 4 were required to take some form of leave time if they were
unable to report on January 8, 1996.
Conclusions of Law
1. Grievants in a non-disciplinary action have the burden of
proving their case by a preponderance of the evidence. Napier v.
Logan County Bd. of Educ., Docket No. 94-23-541 (Apr. 25, 1995).
2. Grievants failed to demonstrate that JCBOE engaged in any
discrimination or favoritism, as Grievants were not similarly
situated to the other employees who did not have to report.
3. Grievants failed to prove JCBOE violated W. Va. Code
§18A-4-5b. 4. A county board of education may establish "alternate work
schedules" for employees during a time of emergency. W. Va. Code
Accordingly, this grievance is DENIED.
Any party may appeal this decision to the Circuit Court of
Kanawha County or to the Circuit Court of Jackson 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. 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: August 30, 1996
This case was heard together with Rogers v. Jackson County
Bd. of Educ.
, Docket No. 96-18-104, because some of the testimony
was similar. The cases were separated for decision.
Grievants also appear to argue that JCBOE cannot establish a
separate Technology Department, with a separate supervisor, because
W. Va. Code §18A-1-1(e) does not list technology as a designated
area, and there is no listing for a Supervisor of Technology in
W. Va. Code §18A-4-8. This argument is without merit as the areas
listed in Code §18A-1-1 are not considered all inclusive.
Additionally, while Code §18A-4-8 does not list a Supervisor of
Technology, it also does not identify a supervisor for each of the
other areas identified in Code §18A-1-1(e). Further, Code §18A-4-8
does provide for the position of director or coordinator for
individuals "assigned to direct a department or division."