RANDY ADKINS
v. DOCKET NO. 92-DOH-146 WEST VIRGINIA DIVISION OF HIGHWAYS/
DEPARTMENT OF TRANSPORTATION

DECISION

Randy Adkins (hereinafter Grievant) is employed as an Equipment Operator III in the Lincoln County Maintenance Organization of the Division of Highways (hereinafter DOH). On October 17, 1991 Grievant filed this claim against DOH alleging that he had not been offered the ability to work an equal amount of overtime when compared to other DOH employees as required by DOH policy. Grievant's initial claim read as follows: Overtime is not being distributed evenly among

employees. Overtime is being offered to and worked by temporary employees and to a select few on a consistent basis for evenings, weekends and holidays during SRIC work.
Grievant's claim was denied at Level one and he subsequently appealed to Level two where he attached the following statement of relief requested: "Request overtime be offered to everyone evenly. Request to be made whole for all overtime work [sic] by other employees including temporary and regular employees." Grievant's claim was further denied at Levels two and three and he appealed to Level four where an evidentiary hearing was held on June 2, 1992. Grievant's claim was significantly broader whne presented at Level IV. It is clear from the record established at Level four that Grievant is requesting compensation corresponding to the amount of overtime worked by those employees who received more overtime than he for the years 1990 and 1991.

Grievant's claim, in essence, is one of favoritism. "Favoritism" is defined by W.Va. Code 29-6A-2(h) as the "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees." This Grievance Board adopted a test to determine whether a grievant has established a prima facie case of favoritism in Britner v HHR/Div. of Personnel, Docket No. 91-DHS-059 (Jun. 13, 1991), citing, Prince v. Wayne Co. Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990). In the instant case, Grievant is required to establish by a preponderance of the evidence

(a) that he is similarly situated in a pertinent way, to one or more other employee(s);
(b) that the other employee(s) has/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. Once Grievant establishes a prima facie case of favoritism, DOH can then offer a legitimate reason to substantiate its actions; thereafter, Grievant must show that the offered reasons are pretextual. Prince.

The Level four hearing in this matter contained very sparse and unorganized testimony by Grievant. Grievant basically chose only to utilize (as an exhibit) a computer printout of the Lincoln County Overtime Calendar for the years 1990 and 1991 to prove that other employees had been favored over him. Grievant then responded to various questions on cross-examination. Indeed, this computer printout reveals that Grievant worked 39.00 hours of overtime during 1990 and 60.00 hours of overtime during 1991 while various other employees worked much more overtime. More specifically, during 1990, 10,918.5 hours of overtime were worked and, out of 44 employees, 26 received over 174.5 hours while 5 worked over 533 hours overtime. For 1991, 4,912 hours of overtime were worked and 27 employees received over 95 hours while 9 worked over 209.5 hours overtime. The evidence demonstrates that Grievant worked under the average for overtime hours awarded and was far below the maximum hours worked for these two years in question.

Initially, DOH argued that the grievance was not filed timely. Grievant testified that he became aware that overtime was not being distributed evenly at the end of 1990. Thereafter, as a result of constant questioning in order to ascertain the exact time when Grievant became aware of this pertinent fact, he stated that he became aware overtime was not being distributed evenly sometime in late 1989 or early 1990, sometime after Tim Pullen became supervisor. W.Va. Code 29-6A-4(a) states in pertinent part,
Within ten days following the occurrence of the

event upon which the grievance is based, or within ten days of the date on which the event became known to the grievant, or within ten days of the most recent occurrence of a continuing practice giving rise to a grievance, the grievant or the designated representative, or both, may file a written grievance with the immediate supervisor of the grievant. Grievant could not establish the specific date of when he became aware that he was not receiving or being offered overtime on an equal basis whem compared to the other employees. However, Grievant's claim of favoritism is generally one of a continuing nature and the evidence indicates that overtime was not being equally distributed at the time the grievance was filed. Therefore, DOH's argument that this grievance was untimely filed must be rejected. See, generally, Holcomb v. W.Va. Dept. of Highways, Docket No. 89-DOH-398 (Oct. 31, 1989).

Regarding the prima facie showing of favoritism, DOH argues that Grievant is not similarly situated with all of the employees included in the computer printout because the printout contains various classifications of employees ranging from storekeepers to crew leaders and supervisors. DOH contends that Grievant is only similarly situated with respect to other Equipment Operator IIs and IIIs. Further, DOH argues that, this being the case, Grievant earned closer to the average in wages paid for overtime in 1990 and over the average of earnings during 1991 when compared to the other Equipment Operators and, therefore, that he has not made a prima facie showing of favoritism.

DOH's argument must be rejected. Although the testimony did not establish the complete organizational structure of DOH's headquarters and subheadquarters in Lincoln County or the numbers of and classifications of the employees in those respective structures, the record does establish that the employees who work in Lincoln County, regardless of the district where they are stationed, can be called upon to work at all locations both inside and outside of Lincoln County. Therefore, because all of the employees are basically competing for the same overtime hours, they are all deemed to be similarly situated. See, generally, Parsons v. W.Va. Div. of Highways, Docket No. 91-DOH-246, (April 30, 1992).

The testimony of Mr. Pullen established that overtime is not awarded to employees based solely upon their job classification or current duties. Grievant stated that even though his normal work assignment involves the running of a grader, he often performs other duties not directly associated with the operation of equipment contained within the job classification of Equipment Operator III. Following a review of the record, it is hereby determined that Grievant has established a prima facie case of favoritism by a preponderance of the evidence through demonstrating that other similarly situated employees have been offered the ability to work a greater amount of overtime than he and that this offering of overtime has caused Grievant to suffer a substantial inequity without apparent justification.

Grievant argues that DOH has the duty to offer overtime work equally to all employees according to its own policy. Grievant stated that DOH's overtime policy was contained in a memorandum but that he was not sure who prepared the memorandum or to whom it was directed. DOH countered by arguing that no such official policy exists and that even if such a memo had been prepared it did not create a binding policy because only its Commissioner Fred VanKirk has the authority to promulgate official DOH policies. The memorandum is question is a memo dated January 1, 1989, from Ivan Browning, Assistant District Engineer - Maintanence, to all District No. 2 Supervisors. The memo stated as follows:
It has been brought to my attention that several

of our employees have complained that overtime is not being equally and fairly distributed to all personnel. We are required by operating Procedures to see

that all employees are given the opportunity to share in any overtime that is available. Due to operational skills and the nature of work

to be performed at times, you must understand that it is impossible to absolutely balence the overtime to the nth degree.
However, it is incumbant on the supervisor to show

fairness and evenhandedness in the allocation of overtime.
It is strongly recommended that the offering of

overtime amd refusal of avalaible overtime be documented in writing by personnel diaries, sign up sheets, notes to file or some other definite record. This memorandum definately calls for overtime to be offered on a equalization basis. Perhaps the issuance of this memorandum could not have created a binding Policy upon all DOH headquarters but it did create a valid policy for overtime distribution for all DIstrict No. 2 maintanence supervisors. Apart from this issue, DOH could not favor one or other employees over Grievant with regard to awarding overtime for to do so would be to violate the duty to treat its employees fairly and would be an unreasonable exercise of its managerial discretion.

DOH offers various justifications for why Grievant was not offered the ability to work as much overtime as other employees. DOH argues that Grievant has not asked to work overtime. In response, Grievant maintains that DOH has the duty to offer overtime to him as opposed to him being required to ask for it. Grievant is correct in his assumption. Jeff Black, Director of Human Resources for DOH, testified that DOH maintains no official policy on the offering of overtime opportunities. Nevertheless, DOH cannot use the fact that it does not have a written policy as a reason to favor one employee over another. There is no recognized principle which requires that an employee must request to work overtime before he can be assigned such. In fact, just the opposite would be more practical. In most cases, DOH would have the information on the type and amount of overtime available; therefore, it would be more reasonable to require DOH to take affirmative action in the offering of overtime and not to require the employee to request overtime on an equal basis. The employee would then have the ability to accept or to decline to work the overtime.

Mr. Pullen testified that Grievant requested that he not be asked to work overtime during the summer of 1991 because he (Grievant) had to be available to pick up his son after work. Even though Grievant was not able to work overtime during a portion of the summer of 1991, this unavailability would not explain the vast difference in the overtime worked by the other employees for the rest of the time-period in question. Further, Mr. Pullen should have been aware that by the end of the summer of 1991, Grievant's request was no longer be applicable and that he (Mr. Pullen) should then have started to offer Grievant overtime absent his (Grievant's) further request not to be assigned such. DOH's argument on this point is not persuasive.

DOH avers that Grievant has not been a victim of favoritism with regard to overtime worked during 1991 because he worked enough overtime to accumulate wages equal to the average wages that the other Equipment Operators earned. This argument is also not compelling. Again, it has already been determined that Grievant is similarly situated with more employees of DOH than just the other Equipment Operators. Additionally, for the purposes of this discussion, the assignment of overtime should be evaluated in terms of hours offered and worked as opposed to wages earned. Assigning overtime in a method which would result in the payment of equalized wages could also result in favoritism because those employees who make less per hour would have to work longer to achieve the same pay as those paid at a higher rate. Therefore, DOH's argument must be rejected. The key is the number of hours of overtime which is offered and not that which are worked.

DOH also argues that Grievant, along with all employees, has always been allowed to work overtime in order to finish a job if that job could be performed within an hour from the set quitting time. This practice would obviously not have given Grievant the ability to work the same amount of overtime as that worked by a number of other employees during 1990 and 1991. Secondly, it is not reasonable to assume, given the number of overtime hours worked during the period in question, that Grievant could possibly have made up the difference based soley upon his ability to work after his normal quitting time in order to just finish one job. Also, Grievant testified that on several occasions he was requested to leave a job site at quitting time which was near completion and then other employees were called out to work in his place. This testimony was uncontradicted. Therefore, regarding the majority of jobs where overtime was awarded, Mr. Pullen would have been responsible for determining who was offered the opportunity to work overtime and he should have been more fair in his offering and assignment of overtime in that regard. Clearly, the disparity on overtime worked in this case is due to Mr. Pullen's offering and assignment of overtime and not the overtime worked at the completion of the normal work day.

DOH argues that Grievant was not offered overtime because it was assumed that he would not want to perform duties such as flagging for construction in order to accumulate overtime hours. Consistent with the above discussion, it was Mr. Pullen's obligation to have offered Grievant the opportunity to work overtime regardless of the type of work involved. It would then have been Grievant's option to decline the work for whatever reason. The computer printouts of overtime hours contain a column which numerically describes the type of duty performed corresponding to the number of hours each employee worked. A review of these records for 1990 reveals that all of Grievant's overtime was accumulated under one job duty; however, for 1991, Grievant accumulated overtime by performing 7 different types of duties. It is also recognized that with at least the other Equipment Operators, both the employees who worked more and those who worked less overtime than Grievant, each of them worked the majority of their overtime hours under the same one or two job duties. It can be assumed that Mr. Pullen, at least with respect to 1991, should have been aware that Grievant was willing to perform different job duties in order to work overtime and, therefore, he should have tried to equalize the offering of overtime by offering Grievant the ability to work different tasks. Mr. Pullen testified that he attempted to call Grievant at least twice in order to offer him the opportunity to work overtime but that he could not reach him at his home by phone. There is no reason to dispute Mr. Pullen's testimony in this regard but it is also not persuasive in this case based upon the disparity of the overtime offered and worked by other employees.

Finally, DOH argues that Grievant was not called to work as much overtime as other employees because he lives farther from the garage than some of the others. DOH argues that it is not practical to call Grievant to work during emergency situations because he cannot get to the garage in a timely manner. It was established that Grievant lives approximately 35 to 40 minutes from the garage. DOH did not provide evidence of the percentage of overtime work that was performed as a result of emergency situations. It is hard to imagine that in one county; enough emergency situations could arise which would require a DOH substation to delve out approximately 15,000 hours of overtime during a two-year period. Mr. Pullen testified that Grievant is not readily available to be called to work overtime during snow and ice removal because the area where Grievant lives becomes impassible. However, he also stated that there had only been one or two bad snowfalls since he became supervisor in December 1989. It is also doubtful that the majority of overtime worked during 1990 and 1991 was the result of much snow and ice removal. Therefore, DOH's argument is also not persuasive. Based upon the record, the majority of overtime worked during 1990 and 1991 was was not worked as a result of emergency situations.

Secondly, Grievant established that at least one other employee who lives farther from the garage than he received 209.5 hours of overtime in 1991 and 560.5 hours overtime in 1990. DOH countered by arguing that this employee was a crew leader I who normally works at a different job station than Grievant. However, it is evident from Grievant's testimony that this employee had at various times also worked out of the same garage as did Grievant. Further, it was not established that a crew leader is assigned or works overtime through any different procedure than other employees. Therefore, the record does not support the argument that this employee should have been able to work more overtime than Grievant based upon his classification alone.

In conclusion, although DOH has offered numerous reasons for why Grievant was offered the ability to work less overtime than many other employees during 1990 and 1991, the undersigned finds that Grievant has proven by a preponderance of the evidence that DOH has engaged in favoritism in its method of offering and distributing overtime. Thus, the next question becomes one of relief.

Grievant stated at the hearing that he wished to receive backpay for approximately 1000 to 1200 hours due to the inequity of the overtime earned by the other employees for the full years 1990 and 1991. Although DOH's timeliness defense was previously rejected, the delay in Grievant's filing of his claim will have some effect on the relief for which he is entitled. This Grievance Board previously held that "the general rule applicable to grievances involving continuous violations is to limit any back pay award to fifteen days prior to initiation of grievance proceedings." Allman v. Harrison Co. Bd. of Educ., Docket No. 89-17-215 (June 29, 1990), citing, Elkouri and Elkouri, How Arbitration Works, at p. 614 (1985). The administrative law judge went on to say in Allman that "extraordinary cases may present circumstances that dictate broader remedial relief . . ." Id. at p. 8. There appear to be no extraordinary circumstances in this case which would have prevented Grievant from filing his claim earlier than he did, at least none of record. Therefore, the proper remedy to be assessed in this case is to award Grievant a monetary amount corresponding to the average of the overtime hours worked for the ten day period preceeding the date on which he filed his initial claim which was October 17, 1991.

The foregoing discussion of the facts of this case and of the pertinent law applicable to those facts is hereby supplemented by the following formal findings of fact and conclusions of law.

Findings of Fact

1. Randy Adkins is employed as an Equipment Operator III in the Lincoln County Maintenance Organization of the Division of Highways.
2. Grievant worked 39.00 hours of overtime during 1990 and 60.00 hours of overtime during 1991 while various other employee received much more overtime.
3. During 1990, 10,918.5 hours of overtime were worked and out of 44 employees, 26 received over 174.5 hours overtime while 5 worked over 533 hours overtime. For 1991, 4,912 hours of overtime were worked and 27 employees worked over 95 hours while 9 worked over 209.5 hours overtime.
4. In December 1989, Tim Pullen became Grievant's supervisor. Mr. Pullen required those employees who wished to work overtime to notify him of their intention and Grievant did not do so.
5. Grievant became aware of the fact that overtime was not being distributed or offered equally sometime during 1990 after reviewing a computer printout of the overtime worked by all DOH employees.

   Conclusions of Law

6. "Favoritism" is defined by W.Va. Code 29-6A-2(h) as the "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees."
7. Grievant proved by a preponderance of the evidence that DOH showed favoritism to other employees through its practice of offering and awarding overtime during 1990 and 1991.

   Therefore, this grievance is GRANTED and DOH is hereby ORDERED to calculate the average number of overtime hours worked for the ten day period before October 17, 1991, and to award Grievant a monetary amount corresponding to that calculation, less any hours overtime Grievant actually worked, plus interest, minus any withholdings that are appropriate.

   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.

   

   ALBERT C. DUNN, JR. Administrative Law Judge

September 3, 1992