CHARLES J. KNUREK,
Grievant,
v.
DOCKET NO. 02-PSC-184
WEST VIRGINIA PUBLIC SERVICE COMMISSION and
WEST VIRGINIA DIVISION OF PERSONNEL,
Respondents.
D E C I S I O N
Grievant, Charles J. Knurek, filed this grievance against his employer, the West
Virginia Public Service Commission (“PSC”) on or about February 28, 2002:
STATEMENT OF GRIEVANCE: On February 13, 2002, the West Virginia
Public Service Commission and the Water and Wastewater Division Director
continued a pattern of discrimination against me by failing to properly
advertise management positions in the Division and by reclassifying and/or
promoting three (3) individuals within the Division to supervisory and/or
managerial positions.
RELIEF SOUGHT: To be reclassified to a managerial or supervisory position
and to receive appropriate compensation for work and work experience in
the field and/or be promoted to a managerial or supervisory position and to
receive appropriate compensation for work and work experience in the field.
The grievance was denied at level one by Grievant's immediate supervisor, William
A. Nelson, and at level two by Amy L. Swann, Director. A level three hearing was held on
May 9 and 29, 2002, where the West Virginia Division of Personnel (“DOP”) was made a
party to the grievance, and a decision was rendered by Grievance Evaluator Franklin G.
Crabtree, Esq., on June 10, 2002. Grievant appealed to level four on June 14, 2002, anda level four hearing was held at the PSC on September 17, 2002. This matter became
mature for decision on October 31, 2002, the deadline for the parties' submission of
proposed findings of fact and conclusions of law. Grievant was represented by Spiro I.
Mitias, PSC was represented by Richard E. Hitt, Esq., General Counsel, and DOP was
represented by Robert D. Williams, Esq., Assistant Attorney General.
SUMMARY OF EVIDENCE
Level Three Grievant's Exhibits
Ex. 1 -
February 13, 2002 memorandum from Amy L. Swann to Water and
Wastewater Division Staff.
Ex. 2 -
Position Description Form of William A. Nelson.
Ex. 3 -
Position Description Form of Geert F. Bakker.
Ex. 4 -
Position Description Form of David L. Acord.
Level Three PSC (“Swann”) Exhibits
Ex. 1 -
Ex. 2 -
Grievance Form with Level One Response.
Ex. 3 -
Level Two Grievance Response, dated March 19, 2002.
Ex. 4 -
February 11, 2002, memoranda from Elizabeth A. Sharp to David Acord,
William Nelson, and Geert Bakker with WV-11s.
Ex. 5 -
Classification Specifications for Utilities Analyst I, Utilities Analyst II, Utilities
Analyst III, Utilities Analyst Supervisor, and Utility Analyst Manager.
Level Four Grievant's Exhibits
Ex. 1 -
Portion of Level Three Transcript, pp. 24-25.
Ex. 2 -
Salary Histories of Charles Knurek, William Nelson, David Acord, Geert
Bakker, and Randy Lengyel.
Ex. 3 -
Statement of Karen L. Buckley, dated September 16, 2002.
Ex. 4 -
Statement of Conrad W. Bramlee, dated September 16, 2002.
Ex. 5 -
Series of emails between Charles Knurek and Sean Ireland, David Wagner,
Geert Bakker, and William Nelson.
Level Four PSC Exhibits
None.
Testimony
Grievant testified in his own behalf, and presented the testimony of Amy L. Swann,
Victoria Hensley, Deborah L. Anderson, Elizabeth A. Sharp, William A. Nelson, Geert
Bakker, David Acord, James Williams, Caryn Short, Joseph A. Marakovits, Jack Miller, and
Sean Patrick Ireland. DOP presented the testimony of Lowell D. Basford, and PSC
presented the testimony of Amy L. Swann.
Based upon a review of the record in its entirety, I find the following facts have been
established by a preponderance of the evidence.
FINDINGS OF FACT
1. Grievant is currently employed by the PSC as a Utility Analyst III in the Water
and Wastewater Division (“Division”).
2. On February 13, 2002, Division Director Amy Swann issued a memorandum
to all staff announcing a “minor” reorganization of the Division. This minor reorganization
included the “promotions” of three Division personnel: Geert Bakker, from Utilities Analyst
Supervisor to Chief Utilities Manager; David Acord, from Utilities Analyst III to Utilities
Analyst Supervisor; and William Nelson, from Utilities Analyst III to Utilities Analyst
Supervisor. LIII G. Ex. 1.
3. After consultation with Elizabeth Sharp, Human Resources Manager, the
proposed reorganization of the management structure within the Division was approved
by Chairman James Williams.
4. Position Description Forms (“PDFs”) were completed for the three affected
positions and submitted to the Division of Personnel for review and approval. In someinstances, the PDFs indicated both existing duties and proposed duties to be assumed
once the transactions were approved. LIII G. Exs. 2, 3, 4.
5. The proposed personnel transactions were approved by the Division of
Personnel. Although Ms. Swann characterized the changes as “promotions” in her
February 13, 2002 memorandum, the personnel transactions actually involved the
reallocation of existing positions to higher pay grades.
6. The reallocations of Messrs. Bakker, Acord, and Nelson became effective
February 15, 2002. LIII PSC Exhibit 4.
7.
Grievant's employment history with the PSC is as follows:
04/01/87
Hired as Utility Analyst I
01/16/90
Promoted from Utility Analyst I to II
10/16/93
Reclassified from Utility Analyst II to III
05/29/02
LIV G. Ex. 2.
8. Geert Bakker's employment history with the PSC is as follows:
09/01/82
Hired as Utility Analyst I
12/16/86
Promoted from Utility Analyst I to II
09/01/90
Promoted from Utility Analyst II to III
12/01/98
Promoted from Utility Analyst III to Supervisor
02/15/02
Promoted from Utility Analyst Supervisor
to Manager
LIV G. Ex. 2.
9.
David Acord's employment history with the PSC is as follows:
10/01/91
Hired as Utility Analyst I
05/04/94
Promoted from Utility Analyst I to II
10/01/98
Promoted from Utility Analyst II to III
02/15/02
Promoted from Utility Analyst III to Supervisor
LIV G. Ex. 2.
10.
William Nelson's employment history with the PSC is as follows:
10/01/89
Hired as Utility Analyst I
05/01/93
Promoted from Utility Analyst I to II
03/01/97
Promoted from Utility Analyst II to III
02/15/02
Promoted from Utility Analyst III to Supervisor
LIV G. Ex. 2.
DISCUSSION
In non-disciplinary matters, the grievant must prove all the allegations constituting
his grievance by a preponderance of the evidence.
Unrue v. W. Va. Div. of Highways,
Docket No. 95-DOH-287 (Jan. 22, 1996). Grievant alleges he has been the victim of
discrimination and favoritism, as evidenced by the employment histories of himself,
Messrs. Bakker, Acord, and Nelson, and most recently by the “promotions” of those three
gentlemen, without the benefit of posting. The PSC denies these allegations.
W. Va. Code § 29-6A-2(d) defines “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.” In order to
establish a claim of discrimination, an employee must establish a
prima facie case of
discrimination by a preponderance of the evidence. In order to meet this burden, the
grievant must show: (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.
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18,
1996);
Hendricks v. W. Va. Dept. of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24,
1996). Once the grievant establishes a
prima facie case of discrimination, the burden
shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the
employment decision.
Smith,
supra;
see Tex. Dept. of Community Affairs v. Burdine, 450
U.S. 248 (1981).
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 case of favoritism,
Grievants must establish the following:
(a)
that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b)
that the other employee(s) have been given advantage or treated with
preference in a significant manner not similarly afforded him; and
(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.
Frantz v. W. Va. Dept. of Health and Human Resources, Docket No. 99-HHR-096 (Nov.
18, 1999);
Blake v. W. Va. Dept. 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 Grievant establishes a
prima facie case of favoritism, the respondent
may rebut this showing by articulating a legitimate reason for its action. However, the
Grievant can still prevail if he can demonstrate that the reason proffered by respondent
was mere pretext.
See Tex. Dept. 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);
Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
Addressing Grievant's contention that the positions given to Messrs. Bakker, Acord,
and Nelson as a result of the reorganization should have been posted, Rule 9.7 of the
Division of Personnel's Administrative Rules provides as follows:
9.7. Posting of Job Openings - Whenever a job opening occurs in the
classified service, the appointing authority shall post a notice within the
building, facility or work area and throughout the agency that candidates will
be considered to fill the job opening. The notice shall be posted for at least
ten (10) working days before making an appointment to fill the job opening.
The notice shall state that a job opening has occurred, describe the duties
to be performed, and the classification to be used to fill the job opening.
(a) The term job opening refers to any vacancy to be filled by original
appointment, promotion, demotion, lateral class change, reinstatement, or
transfer. . . . The term "vacancy" is defined as "[a]n unfilled budgetary
position in the classified service to be filled by original appointment,
promotion, demotion, lateral class change, transfer, or reinstatement."
Positions which are not budgeted cannot be vacancies, and posting is not required;
nor can the position be posted, as funds have not been allocated to bring new employees
on staff.
Workman v. W. Va. Div. of Corrections, Docket No. 97-CORR-153 (Sept. 11,
1997). A grievant challenging the reallocation of a position, arguing it should have been
posted, has the burden of demonstrating that a "budgeted 'job opening' or 'vacancy' . . .
existed."
Gillum v. W. Va. Dept. of Transp., Docket No. 01-DOH-012 (May 30, 2001);
Junkins v. W. Va. Div. of Labor, Docket No. 91-DOL-460 (May 29, 1992). Absent such ashowing, an agency is not required to post a position.
Id. Grievant presented no evidence
to demonstrate a “budgeted job opening” or “vacancy” existed. It is clear from the
testimony and evidence of record that the positions occupied by Messrs. Bakker, Acord,
and Nelson were reallocated, and thus no posting was required.
Ms. Swann admitted her use of the term “promotion” in her February 13, 2002
memorandum was incorrect. She acknowledged her error in her level two decision, stating
the positions were reallocated. Furthermore, the WV-11s clearly indicate the positions
were reallocated, and no promotion occurred as that term is defined in DOP's
Administrative Rule.
(See footnote 2)
Grievant contends he was unfairly passed over in the reallocation, and that this is
just one more example of how he has been discriminated against by the PSC, while the
others have been shown favoritism. Grievant has established a
prima facie case of
discrimination and favoritism with respect to Mr. Acord and Mr. Nelson. He was similarly
situated to them in terms of assignment, classification, experience and performance, yet
they received the benefits of reallocation to higher classifications and pay grades, while he
did not. Grievant was not similarly situated to Mr. Bakker at the time of reallocation; Mr.Bakker was a Utility Analyst Supervisor, already higher in the supervisory chain than
Grievant.
Mr. Bakker was already a Utility Analyst Supervisor at the time of reallocation, and
the reallocation of his position to Utility Analyst Manager was a natural step for him. Mr.
Acord and Mr. Nelson were selected by Ms. Swann for reallocation to supervisory
positions, one over Case Control and one over the Assistance Section of the Division, in
effect creating another layer of management below the Manager classification. Her stated
reason for this reorganization was “to provide an improved management structure for both
the day to day operation of the division and for the long term planning needs of the
Division.” LIII G. Ex. 1; LIV Test., Swann. As Director of her Division, Ms. Swann clearly
has some discretion in her choices for supervisory positions. She chose Mr. Acord and Mr.
Nelson.
Grievant testified at level four that he was not seeking the removal of the three
gentlemen from their positions. Grievant also testified he understood the reallocations
were not filling vacancies and therefore postings were not required. Grievant was not
challenging the qualifications of the three gentlemen, nor the use of reallocation by PSC
in this instance. Clearly, the only thing Grievant is seeking is an explanation why Ms.
Swann chose the other gentlemen, as opposed to him. However, that question was never
posed to Ms. Swann in any of the proceedings, and given her discretion in choosing
supervisory personnel, Grievant has failed to demonstrate her actions resulted from
discrimination or favoritism, as opposed to a legitimate business reason. Unfortunately for
Grievant, not everyone can be a “chief.” Once employees reach a certain level of
responsibility within an agency, the ranks of qualified individuals begin to thin. While thereis no dispute that Grievant is a well-qualified and well-respected employee in the Division,
it simply became a matter of choosing between qualified employees for the reallocation.
It is no doubt a hard choice for a manager, but that choice does not result in discrimination
or favoritism as those terms are defined.
Finally, Grievant points to the employment histories of himself and the other three
gentlemen as evidence of his discrimination. However, a review of those histories does
not prove Grievant's claims. All four of these employees have followed the same career
track at PSC, and any differences in their salaries are easily explained. The most
important difference that occurred in their career paths was that Grievant was reclassified
from a Utility Analyst II to III during the Statewide Reclassification Project, and as his salary
fell within the range for Utility Analyst III, he did not receive any salary increase. The other
gentlemen did not receive their Utility Analyst III classifications as a result of the Statewide
Reclassification Project, but through promotion, resulting in a salary increase.
More than anything else, that was just the result of timing in their respective careers.
Grievant was at a point in his career development at the time of the reclassification to
warrant a reclassification to Utility Analyst III. The others had either achieved that
classification prior to the reclassification (Bakker), or well after that period (Acord, Nelson).
Other than that major difference, the other differences are minor in comparison, and do not
show a pattern of discrimination or favoritism against Grievant.
CONCLUSIONS OF LAW
1. In non-disciplinary matters, the grievant must prove all the allegations
constituting his grievance by a preponderance of the evidence.
Unrue v. W. Va. Div. of
Highways, Docket No. 95-DOH-287 (Jan. 22, 1996). 2.
Rule 9.7 of the Division of Personnel's Administrative Rules provides as
follows:
9.7. Posting of Job Openings - Whenever a job opening occurs in the
classified service, the appointing authority shall post a notice within the
building, facility or work area and throughout the agency that candidates will
be considered to fill the job opening. The notice shall be posted for at least
ten (10) working days before making an appointment to fill the job opening.
The notice shall state that a job opening has occurred, describe the duties
to be performed, and the classification to be used to fill the job opening.
(a) The term job opening refers to any vacancy to be filled by original
appointment, promotion, demotion, lateral class change, reinstatement, or
transfer. . . . The term "vacancy" is defined as "[a]n unfilled budgetary
position in the classified service to be filled by original appointment,
promotion, demotion, lateral class change, transfer, or reinstatement."
3. Positions which are not budgeted cannot be vacancies, and posting is not
required; nor can the position be posted, as funds have not been allocated to bring new
employees on staff.
Workman v. W. Va. Div. of Corrections, Docket No. 97-CORR-153
(Sept. 11, 1997).
4. A grievant challenging the reallocation of a position, arguing it should have
been posted, has the burden of demonstrating that a "budgeted 'job opening' or 'vacancy'
. . . existed."
Gillum v. W. Va. Dept. of Transp., Docket No. 01-DOH-012 (May 30, 2001);
Junkins v. W. Va. Div. of Labor, Docket No. 91-DOL-460 (May 29, 1992). Absent such a
showing, an agency is not required to post a position. Id.
5.
W. Va. Code § 29-6A-2(d) defines “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.” In order to
establish a claim of discrimination, an employee must establish a
prima facie case ofdiscrimination by a preponderance of the evidence. In order to meet this burden, the
Grievant must show:
(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.
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18,
1996);
Hendricks v. W. Va. Dept. of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24,
1996). Once the grievant establishes a
prima facie case of discrimination, the burden
shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the
employment decision.
Smith,
supra;
see Tex. Dept. of Community Affairs v. Burdine, 450
U.S. 248 (1981).
6. 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 case of
favoritism, Grievants must establish the following:
(a)
that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b)
that the other employee(s) have been given advantage or treated with
preference in a significant manner not similarly afforded him;
and,
(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.
Frantz v. W. Va. Dept. of Health and Human Resources, Docket No. 99-HHR-096 (Nov.
18, 1999);
Blake v. W. Va. Dept. of Transp., 2Docket No. 97-DOH-416 (May 1, 1998).
See
McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). As
with discrimination, if Grievant establishes a
prima facie case of favoritism, the respondent
may rebut this showing by articulating a legitimate reason for its action. However, the
Grievant can still prevail if he can demonstrate that the reason proffered by respondent
was mere pretext.
See Tex. Dept. 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);
Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
7. Grievant established a
prima facie case of discrimination and favoritism as
to Mr. Acord and Mr. Nelson, as he was similarly situated to them at the time of
reallocation. Grievant was not similarly situated to Mr. Bakker.
8. The PSC established a legitimate business reason for its decision to
reallocate positions to establish a new supervisory level below the Utility Analyst Manager
positions in both the Case Control and Assistance Sections.
9. All of the individuals concerned in this grievance were qualified, with virtually
equal experience and lengths of service. At a certain higher level of responsibility within
any agency, the ranks of qualified employees begin to thin, and the decision to promote
or, in this case, reallocate one employee over another is simply left to managerial
discretion, and does not result in a showing of discrimination or favoritism. To put it simply,
not everyone can be a “chief.” 10. Grievant has failed to prove by a preponderance of the evidence that the
decision to reallocate Mr. Acord, Mr. Nelson, and Mr. Bakker was the result of
discrimination or favoritism.
Accordingly, this grievance is 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.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: December 20, 2002
Footnote: 1