Converted W. Va. Grievance Board Decision

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); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29- 6A-6. Grievants have alleged a variety of work-related problems, including discrimination, favoritism, and harassment.
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." This Grievance Board has determined that grievants, seeking to establish a prima facie case (See footnote 3) of discrimination under Code § 29-6A-2(d), must demonstrate the following:

Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992). Once a grievant establishes a prima facie case of discrimination, the employer can offer legitimate reasons to substantiate its actions. Thereafter, the grievants may show that the offered reasons are pretextual. Hickman v. W. Va. Dep't of Transp., Docket No. 94-DOH-435 (Feb. 28, 1995). 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); Hendricks v. W. Va. Dep't of Tax & Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996); Runyon v. W. Va. Dep't of Transp., Docket Nos. 94-DOH-376 & 377 (Feb. 23, 1995).
Favoritism is similarly defined by W. Va. Code § 29-6A-2(h), 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 showing of favoritism, grievants must establish the following:

Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999); Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998). See McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). Aswith discrimination, if grievants establish a prima facie case of favoritism, a respondent may rebut this showing by articulating a legitimate reason for its action. However, the grievants can still prevail if they can demonstrate that the reason proffered by respondent was mere pretext. See Burdine, supra; Frank's Shoe Store, supra; Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
       W. Va. Code § 29-6A-2(l) defines "harassment" as "repeated or continual disturbance, irritation or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession." In order to establish harassment in violation of W. Va. Code § 29-6A-2(l), the grievants must show a pattern of conduct, rather than a single improper act. See Hall v. W. Va. Dep't of Transp., Docket No. 96-DOH-433 (Sept. 12, 1997); Phares v. W. Va. Dep't of Public Safety, Docket No. 91-CORR-275 (Dec. 31, 1991). See also Thompson v. Bd. of Trustees, Docket No. 96-BOT-097 (Dec. 31, 1996).
      Grievants are employed in the Dietary Department at Lakin Hospital, where they are assigned to the afternoon shift. Grievants are variously classified as Cooks or Food Service Workers. Their immediate supervisor on the afternoon shift is Ginger Vanmeter, a Food Service Supervisor. Martha Mynes, a Nutritionist II, is the overall supervisor for the Dietary Department, and serves as Grievants' second-level supervisor. Edna Patterson, another Food Service Supervisor, supervises the Dietary Department staff on the morning shift. Because of an “overlap” between the two shifts, Ms. Patterson also has supervisory authority over Grievants. In addition, Ms. Patterson and Ms. Vanmeter take turns preparing the staffing schedule for the Dietary Department.      Some of the scheduling problems identified at Level III apparently resulted from this shared responsibility, inasmuch as Ms. Mynes would approve requested days off for one or more of Grievants, but this approval was either not communicated to Ms. Patterson or Ms. Vanmeter, or they overlooked that information when they made out the work schedule, requiring an employee to choose between working on a day that had been approved as leave, or forcing his or her fellow employees to work short-handed.
      Because a number of remedies were granted to Grievants while this matter was being pursued through the lower levels of the Grievance Procedure, and another portion of the grievance was resolved by agreement between the parties prior to the Level IV hearing, Grievants were asked to clearly indicate at the Level IV hearing what remedies they were still seeking in this matter.
      Grievant Board contended that, despite the remedies previously granted through Level III, a problem remains with scheduling in the Dietary Department. In support of this contention, she noted that on September 2, 1999, as a result of vacation and sick leave, there were four employees available to work on the morning shift, but only three employees assigned to the evening shift. Rather than find additional workers for the evening shift, Grievants' supervisors approved the use of “paperware,” so that it was not necessary to wash dishes after the evening meal. Grievants Varian and Bugg testified that the normal practice was to have four employees on each shift. When only three employees are available, the remaining employees have to perform the work that would have been done by the fourth employee. Grievants contend this practice creates a hardship for the three employees who work that shift, and contributes to low morale in theDietary Department. Grievants only established one instance where this situation occurred since this grievance was filed. Although Grievants asked for “equal treatment” in scheduling matters, they did not indicate what specific additional remedy, over and above the corrective actions ordered at Levels I through III, was required to resolve this issue.
      Grievant Varian stated that she was given a job description by Ms. Mynes that was prepared by another Food Service Worker. In addition, the job description she received was incomplete, because it did not include instructions for putting away the items on the salad bar after the evening meal. At Grievant Varian's request, Ms. Mynes clarified the job description the following day. Although it would obviously be helpful to a new employee to have something more than a generic job description, none of the Grievants indicated any policy, rule, or regulation that requires DHHR to provide an employee with a detailed job description setting forth each element of their daily job duties. Likewise, there was no explanation as to why a job description could not be prepared by an employee in the position, and approved by the supervisor, rather than being prepared exclusively by the supervisor.
      Grievant Varian also complained about the manner in which she was spoken to over the phone by a “supervisor” that she did not identify, when she was called a “God damn lazy shift worker.” She reiterated a complaint from Level III that Ms. Patterson called her sister a pig, when the sister, also a Lakin employee, was coming through the line for lunch. Although such comments by a supervisor to Grievant Varian were demeaning and contrary to the demeanor expected by a professional supervisor, this incident does not equate to a pattern of improper conduct directed at her by Ms. Patterson. See Hall, supra; Phares,supra. Even assuming that Grievants established harassment in violation of W. Va. Code § 29-6A-2(l), none of the Grievants indicated what remedy would be more appropriate than the remedies previously granted at the lower levels to assure that this would not happen again.
      Grievant Varian also complained that there had not been weekly department meetings, despite statements that regular meetings would be held with the staff. Grievants did not indicate any rule, policy, or regulation which requires the supervisors to meet with the staff at any time, although such meetings would appear to be preferable to grievance hearings for ironing out disagreements between staff and management.
      Another complaint involved the way the Grievants' absences were recorded on the sign-in sheet in the Dietary Department. Initially, it was argued that Grievants were being treated differently in regard to the use of red and green “marks” on these attendance sheets. However, a preponderance of the evidence of record indicates that red indicates an employee has scheduled leave in advance, while green indicates the employee called in to take leave, either sick leave or annual leave, shortly before their shift, or they left during their shift due to illness or some other unexpected development.
      The record indicates that these color-coded entries are made to track possible leave abuse. However, none of the Grievants have ever been counseled or disciplined for leave abuse, none of the Grievants have had their annual evaluation lowered because of alleged leave abuse, and none of the Grievants have ever been charged with an unauthorized absence. One of the Grievants expressed resentment that her green marks (green indicating an “unscheduled” absence) were larger than others. It was not shown how thesize of these marks operated to give any other employee any substantial advantage, or worked to the detriment of any of the Grievants to a significant degree. Moreover, it was not shown that any particular entry was ever made with regard to the Grievants which was not in accordance with Lakin Hospital's written policies and procedures regarding leave and attendance. Indeed, Grievants did not introduce those policies to establish what rules their supervisors were required to follow.   (See footnote 4)
       Grievant Stover complained that he has been asked to work over when the afternoon shift is understaffed, noting that none of the employees from the morning shift will agree to work over. Grievant Stover agreed that he voluntarily works over when asked, because he does not want his fellow workers to be overwhelmed. However, he did not indicate that he was not properly compensated for the hours he worked, or that any policy, rule or regulation was being violated in these circumstances.
      The jurisdiction of this Grievance Board is limited to the resolution of grievances as defined in W. Va. Code § 29-6A-2(i). Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997) (per curiam). See Vest v. Bd. of Educ., 193 W. Va. 222, 455 S.E.2d 781 (1995). “Grievance” is broadly defined in the grievance procedure for state employees to include:

W. Va. Code § 29-6A-2(i).
While this grievance procedure provides state employees with a mechanism to pursue complaints regarding a variety of terms and conditions of employment, it does not empower this Grievance Board with authority to simply substitute its judgment for that of agency management in the day-to-day supervision of its workforce. See Skaff, supra. Grievants did not establish that they were being treated differently from any other employee, or any group of employees, in a manner which would constitute discrimination under W. Va. Code § 29-6A-2(d). Likewise, Grievants did not demonstrate that any other employee or group of employees was receiving preferred treatment in any significant matter, so as to establish favoritism in violation of W. Va. Code § 29-6A-2(h). Further, there was evidence that certain comments were made to one or more Grievants on various occasions which were contrary to the demeanor expected from a professional supervisor. However, Grievants did not demonstrate a pattern of conduct sufficient to establish that Grievants have been subjected to harassment in violation of W. Va. Code § 29-6A-2(l). Therefore, Grievants failed to establish any entitlement to relief beyond those remedies previously granted in the Level III decision in this matter, or attained as a result of the partial resolution of this matter at Level IV. See Hall, supra.
Consistent with the foregoing discussion, the following Findings of Fact and Conclusions of Law are made in this matter.

      1.      Grievants are employed by Respondent Department of Health and Human Resources (DHHR) in the Dietary Department at Lakin Hospital (Lakin).
      2.      Grievants are all assigned to the “afternoon” shift. Their immediate supervisor is Food Service Supervisor Ginger Vanmeter. Their second-level supervisor is Nutritionist II Martha Mynes. Because of an overlap of shifts, Grievants also fall under the supervision of Food Service Supervisor Edna Patterson. Ms. Patterson is primarily responsible for supervising the “morning” shift in the Dietary Department.
      3.      Ms. Patterson and Ms. Vanmeter have been delegated shared responsibility for preparing the staffing schedule in the Dietary Department.
      4.      Due to either oversight or a breakdown in communication, one or more Grievants have been scheduled to work by Ms. Vanmeter or Ms. Patterson on days when they had received approval from Ms. Mynes to be off.
      5.      Lakin normally staffs each shift with a minimum of four employees.
      6.      Grievant Stover has been asked to work beyond his normal shift on one or more occasions when no employees from the morning shift volunteered to stay over to cover for an absence on the afternoon shift. In each such case, Grievant Stover voluntarily agreed to work, despite a personal preference to go home at the end of his scheduled shift.
      7.      On at least one occasion in 1999, three Grievants have been required to complete the duties normally performed by four employees on the afternoon shift, with theonly concession being that “paperware” was employed to serve and deliver food, so that less cleanup was required after the evening meal.
      8.      On one occasion, Grievant Varian was provided a written job description, prepared by an unidentified co-worker, which did not include all of her job duties. When this problem was brought to Ms. Mynes' attention by Grievant Varian, the problem was corrected the following day.
      9.      On one occasion since her employment at Lakin, Grievant Varian was cursed over the phone and spoken to in a harsh and unprofessional manner by one of her supervisors.
      10.      On one occasion, in Grievant Varian's hearing, Ms. Patterson referred to Lakin employees going through the food line as “pigs.” Grievant Varian's sister, who is also employed at Lakin, was one of the employees in the food line at that time.
      11.      The Dietary Department does not hold regular meetings with the staff. It was not established that a meeting with employees from both shifts would be feasible during normal working hours, given the meal schedule and the duties Grievants must perform.
      12.      Lakin uses “red” and “green” marks to track scheduled and unscheduled absences by its employees. No adverse actions have been taken against any Grievant based upon the number of red or green marks appearing on their attendance sheets.

CONCLUSIONS OF LAW

1. In a grievance which does not involve a disciplinary matter, the 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); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
2. "Discrimination" is defined by W. Va. Code § 29-6A-2(d) as “

3. W. Va. Code § 29-6A-2(h) defines favoritism as “unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees.”
4. In order to establish a prima facie case of discrimination under W. Va. Code § 29-6A-2(d), grievants must demonstrate the following:

Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992).
5. In order to establish a prima facie showing of favoritism, grievants must establish the following:

Accordingly, Respondent, West Virginia Department of Health and Human Resources, is hereby ORDERED to implement all remedies granted to Grievants at Levels I through III of the grievance procedure, not later than thirty (30) days from the date of this Decision. All other relief requested by Grievants is hereby DENIED.
Any party, or the West Virginia Division of Personnel, may appeal this decision to the Circuit Court of Kanawha County, or to the "circuit court of the county in which the grievance occurred." Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 29-6A-7 (1998). 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.

LEWIS G. BREWER
ADMINISTRATIVE LAW JUDGE
Dated: February 2, 2000

Footnote: 1