1. Grievants are employed by Respondent West Virginia Department of
Transportation, Division of Highways (DOH) in a number of classifications, including
Senior Engineering Technician (SET), Associate Engineering Technician, Engineering
Technician NICET (National Institute for Certification of Engineering Technicians), Bridge
Safety Inspector II and III, Geologist II, and Chemist I. 2. Effective September 15, 1998, DOH obtained approval from the West
Virginia Division of Personnel to implement a pay increase ranging from a minimum of
11% to a maximum of 19% for employees in the Engineering series of classifications,
including Highway Engineer Trainee, Engineer-in-Training II, and Highway Engineer I
through VI (Engineers). More specifically, Engineer classifications received the following
pay increases: Highway Engineer in Training, 19%; Engineer-in-Training II, 18%; Highway
Engineer I, 17%; Highway Engineer II, 16%; Highway Engineer III, 15%; Highway Engineer
IV, 14%; Highway Engineer V, 12%; and Highway Engineer VI, 11%. G Ex E at L IV.
3. In addition to increasing the minimum starting salaries for each Engineering
classification by the percentages indicated, DOH obtained approval from DOP to apply the
same percentage increase to the current salary of all incumbent employees in the affected
classifications.
4. DOH subsequently obtained approval to implement a 7% pay raise for
employees in the classifications held by Grievants (Technicians). Grievants classified as
Associate Engineering Technician, Engineering Technician NICET, SET, Geologist II, and
Chemist I, received a 7% pay raise effective November 1, 1998. Grievants classified as
Bridge Safety Inspector II and III received a 7% pay raise effective January 1, 1999.
5. Prior to the pay increases described in Findings of Fact 2 and 4, the base
salaries for positions classified as Engineers were generally higher than for positions
classified as Technicians. In addition, Engineers were more likely to be paid a salary at
a higher level within their assigned pay grade, usually at or above the mid-point levelwithin their pay range, while Technicians were more likely to be paid a salary at a lower
level within their pay range, usually below the mid-point level.
6. In a number of situations, employees in classifications held by Grievants,
particularly SET's, supervise one or more Engineers, usually employees classified as
Highway Engineer Trainees, Engineers-in-Training II, and Highway Engineer I (HE I).
7. Employees in classifications held by Grievants, primarily SET's, are
responsible for training employees in certain Engineering classifications, primarily Highway
Engineer Trainees and Engineers-in-Training II.
8. The SET and HE I classifications are in the same pay grade (Pay Grade 16
at the time this grievance was filed; currently Pay Grade 17 as a result of a subsequent
adjustment).
9. Highway Engineer Trainee and Engineering-in-Training II are considered
training classifications. As a result, an employee hired as a Highway Engineer Trainee
receives a non-competitive promotion to Engineer-in-Training II upon completion of certain
experience requirements. Upon successful completion of the professional engineering
examination, employees who are classified as Engineers in Training II receive a non-
competitive promotion to Highway Engineer I.
10. Personnel in the various classifications held by Grievants must compete for
promotion on a best-qualified basis as vacancies arise in DOH. They do not receive non-
competitive promotions.
11. DOH has a number of employees in the Highway Engineer Trainee and
Engineer-in-Training classifications who have failed to advance into Highway Engineerclassifications. These long-term employees received the benefit of the pay raise awarded
to all employees in their classifications.
12. At the time DOH requested the 11 to 19% pay raise for Engineers, DOH had
lost the services of 25 Engineers in the previous 6 months. Of those losses, 6 were
retirements. However, 4 of the 6 retirees left to accept other employment following their
retirement.
13. Prior to August 1998, the turnover among DOH Technicians was less than
the turnover among DOH Engineers.
14. At the time DOH requested the pay raise for Engineers at issue in this
grievance, it was anticipated that the sale of road bonds and passage of a new federal
highway authorization bill would increase the demand for engineers and the salaries
private sector firms would be willing to pay to obtain such employees.
15. In recommending a pay raise for Engineers, DOH relied upon a 1997 salary
survey conducted under the auspices of the American Association of State Highway and
Transportation Officials (AASHTO). That survey indicated that DOH salaries ranked ninth
out of eleven states reporting for the benchmark position of Graduate Engineer, eighth out
of nine states reporting for the benchmark position of Registered Engineer, and tenth out
of eleven states reporting for the benchmark position of Engineer Administrator. G Ex E
at L IV.
16. According to the AASHTO survey, DOH Engineers were being paid at a level
21% below the average for the states reporting in the southeast region. According to a
separate survey conducted by the West Virginia Division of Personnel, the starting salaryDOH pays to entry-level engineers is 34% below the average starting salary paid entry-
level engineers in the private sector, while the average salary DOH pays entry-level
engineers is 44% below the private sector average.
17. Since 1991, AASHTO has been predicting a shortage of civil engineers will
arise in the early 21st century which will impact on the ability of state transportation
organizations to find enough qualified personnel to meet their mission requirements.
18. DOH did not consider pay equity data relating to the various classifications
held by Grievants generated by AASHTO or any other source prior to recommending the
pay raise for Engineers.
19. Not all districts or offices within DOH have experienced a loss of qualified
Engineers. The total number of Engineers employed by DOH has remained relatively
constant for the past several years.
20. In proposing and implementing the pay raises at issue in this grievance, DOH
made a conscious attempt to treat all employees in the same classification alike. Likewise,
DOH recognized that employees in one classification receiving a 7% pay raise would be
offended when co-workers in other classifications received across-the-board pay raises
ranging from 11 to 19%.
21. In order to be classified in one of the Engineer classifications which received
the benefit of the disputed pay raise, an employee must, except for certain limited
exceptions, have received a specified college degree in accordance with licensingrequirements for engineers in training and registered professional engineers. No such
degree requirement is attached to the Technician classifications held by most Grievants.
(See footnote 2)
22. The nature of work performed by the Division of Highways primarily involves
an engineering function. At the highest levels, DOH requires positions to be filled only by
registered professional engineers. At lower levels in the hierarchy, DOH has a preference
for registered professional engineers, but fills positions interchangeably between
Engineers and qualified Technicians, including several Grievants and their peers.
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.
W. Va. Code § 29-6-10 generally embraces the concept of "equal pay for equal
work."
See AFSCME v. Civil Service Comm'n, 181 W. Va. 8, 380 S.E.2d 43 (1989).
However, employees performing similar work need not receive identical pay, so long as
they are paid in accordance with the pay scale for their proper employment classification.
Largent v. W. Va. Div. of Health, 192 W. Va. 239, 452 S.E.2d 42 (1994);
W. Va. Univ. v.
Decker, 191 W. Va. 567, 447 S.E.2d 259 (1994);
Hickman v. W. Va. Dep't of Transp.,
Docket No. 94-DOH-435 (Feb. 28, 1995);
Tennant v. W. Va. Dep't of Health & HumanResources, Docket No. 92-HHR-453 (Apr. 13, 1993);
Acord v. W. Va. Dep't of Health &
Human Resources, Docket No. 91-H-177 (May 29, 1992).
In a previous decision involving a similar action by DOH,
Aultz v. West Virginia
Department of Transportation, Docket No. 90-DOH-522 (Feb. 28, 1991), this Grievance
Board refused to find that the equal pay for equal work concept embodied in
W. Va. Code
§ 29-6-10 requires comparison across classification lines. The grievance in
Aultz, filed by
a group of SET's contending they should have received the same upward salary
adjustments awarded to employees in the Highway Engineer II, Chemist IV and Geologist
IV classifications, was rejected. The Administrative Law Judge in
Aultz denied the
grievance because the grievants did not establish that they should be paid the same as
employees in another classification, or that their employer and DOP abused their
discretion in setting rates of compensation for employees in other classifications based
upon perceived recruitment and retention problems.
In this matter, Grievants are being paid in accordance with their current employment
classification, and there is no contention in this grievance that any Grievant is currently
misclassified.
(See footnote 3)
Grievants also contend DOH's decision to award a substantially greater
pay raise to employees who hold various Engineer and related classifications constitutes
discrimination prohibited under
W. Va. Code § 29-6A-2(d). Discrimination is defined
therein 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 theemployees."
W. Va. Code § 29-6A-2(d). This Grievance Board has determined that
grievants, seeking to establish a
prima facie case
(See footnote 4)
of discrimination under § 29-6A-2(d),
must demonstrate the following:
(a) that they are similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that they have, to their detriment, been treated by their 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
grievants and/or the other employee(s) and were not agreed to by the
grievants in writing.
Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30, 1992). Once the
grievants establish a
prima facie case of discrimination, the employer can then offer a
legitimate reason 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).
Grievants do not hold the same classifications as any of the DOH employees who
received the pay increases at issue in this grievance. In a recent decision involvingapplication of
W. Va. Code § 18-29-2(m), the parallel provision in the grievance procedure
for school employees prohibiting generic discrimination,
(See footnote 5)
Flint v. Board of Education, No.
25898 (W. Va. Sup. Ct. of Appeals Dec. 10, 1999), the West Virginia Supreme Court of
Appeals determined that service employees in one classification were not similarly
situated to service employees in a separate classification for purposes of establishing a
prima facie case of discrimination or favoritism.
(See footnote 6)
Notwithstanding that Respondent may
select employees in Grievants' classifications to fill positions when no suitable applicant
who holds the desired Engineer classification is available, or assign certain tasks
interchangeably between Engineers and Technicians, the
Flint analysis and this Grievance
Board's established precedent in
Aultz applies to these facts and circumstances.
(See footnote 7)
This Grievance Board attempts to follow the well-recognized legal doctrine of
stare
decisis,
(See footnote 8)
in adjudicating grievances that come before it.
Wargo v. Dep't of Health & Human
Resources, Docket Nos. 92-HHR-441/445/446 (Mar. 23, 1994);
Chafin v. W. Va. Dep't of
Health & Human Resources, Docket No. 92-HHR-132 (Jul. 24, 1992), citing
Dailey v.
Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974). This adherence is founded upon
a determination that the employees and employers whose relationships are regulated by
this agency are best guided in their actions by a system that provides for predictability,
while retaining the discretion necessary to effectuate the purposes of the statutes applied.
Consistent with this approach, this Grievance Board follows precedents established by the
Supreme Court of Appeals of West Virginia as the law of this jurisdiction. Likewise, prior
decisions of this Grievance Board are followed, unless a reasoned determination is made
that the prior decision was clearly in error.
Belcher v. W. Va. Dep't of Transp., Docket No.
94-DOH-341 (Apr. 27, 1995).
DOH recognized at the time the decision was made to seek a significant pay raise
for Engineers that this initiative would likely have a negative impact on the morale of the
remaining work force which did not receive the benefit of this initiative.
(See footnote 9)
This grievance
typifies the kind of unhealthy rivalry which can arise when two groups of related employees
are forced to compete for a limited pool of benefits. A similar undercurrent of animositysometimes impedes working relationships between professionals and para-professionals
such as doctors and nurses, lawyers and paralegals, commissioned officers and non-
commissioned officers, and pilots and flight attendants. Although Grievants' evidence
indicates that the difference between their salaries and DOH employees in the Engineer
classifications is greater than any explicable difference between the value of work the two
categories perform for their employer, this variance does not violate any current statute,
regulation, or policy applicable to Grievants.
This Grievance Board previously attempted to redress a pay disparity between two
separate classifications of employees in
Skeen v. West Virginia Bureau of Employment
Programs, Docket No. 92-CLER-183 (Mar. 18, 1993). There, Employment Security Tax
Examiners were paid substantially more than Workers Compensation Fund Field Auditors,
although their duties were similar in several ways. This Grievance Board granted relief to
the lower-paid employees on the basis that those employees were not receiving equal pay
for equal work. However, this decision was reversed on appeal.
W. Va. Bureau of
Employment Programs v. Skeen, No. 93-AA-91 (Cir. Ct. of Kanawha County Dec. 1, 1993).
Since
Skeen, the West Virginia Supreme Court of Appeals has noted that this
Grievance Board's jurisdiction to resolve grievances, as defined in
W. Va. Code § 29-6A-
2(i), does not provide authority for an Administrative Law Judge to substitute his
management philosophy for that of the employer.
Skaff v. Pridemore, 200 W. Va. 700, 490
S.E.2d 787 (1997). Ultimately, the pay scale assigned to a given classification reflects a
value judgement by the employing agency or agencies as to the essentiality of having
employees with specific knowledge, skills, and abilities available to perform the agency'swork, and the effects of the law of supply and demand upon its ability to recruit and retain
such personnel. While Grievants extensively documented the important contributions they
make to the DOH mission on a routine basis, contrasting their value to DOH with
employees in various Engineer classifications inevitably requires an apples to oranges
comparison which this Grievance Board has no legal basis to make.
See Flint,
supra;
Aultz,
supra.
See also Largent,
supra.
For these same reasons the undersigned Administrative Law Judge is unable to
conclude that the failure of DOH to include Grievants in the classifications of employees
targeted for greater pay raises was an arbitrary and capricious exercise of the employer's
otherwise broad discretion in matters of pay and compensation equity. In applying an
"arbitrary and capricious" standard of review to decisions such as this, a reviewing body
applies a narrow scope of review, limited to determining whether relevant factors were
considered in reaching that decision, and whether there has been a clear error of
judgment.
Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974);
Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). Moreover, a decision of
less than ideal clarity may be upheld if the agency's path in reaching that conclusion may
reasonably be discerned.
Bowman,
supra, at 286.
DOH, through its Director of Human Resources, Jeff Black, explained that the
decision to substantially raise the pay levels for Engineers was based on a determination
that this was necessary to insure an adequate supply of qualified personnel could be
recruited and retained in the coming years to meet the needs of the agency. Mr. Black
looked at regional salary surveys, current attrition, and turnover. He also consideredinformation regarding the number of new civil engineering graduates that will be entering
the labor pool in the immediate future. Moreover, several SET's, including some
Grievants, are already filling positions where a qualified Engineer was initially solicited for
the vacancy. Although the information presented to DOP in support of this proposal may
be less than compelling, and some of the data is subject to alternative interpretations, the
rationale presented is sufficient to withstand the test for overturning a discretionary
decision on the basis of arbitrary and capricious decision making.
See Holmes v. W. Va.
Dep't of Transp., Docket No. 97-DOH-553 (June 30, 1998);
Travis v. W. Va. Dep't of
Health & Human Resources, Docket No. 96-HHR-518 (Jan. 12, 1998);
Swick v. W. Va.
Div. of Highways, Docket No. 95-DOH-049 (June 30, 1995);
Aultz,
supra.
Consistent with the foregoing discussion, the following Conclusions of Law are
made in this matter.
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 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. In order for grievants to establish a
prima facie case of discrimination under
§ 29-6A-2(d), they must demonstrate the following:
(a) that they are similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that they have, to their detriment, been treated by their 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
grievants and/or the other employee(s) and were not agreed to by the
grievants in writing.
Travis v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-518 (Jan. 12,
1998);
Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30, 1992).
4. Grievants failed to establish a
prima facie case of discrimination under
W. Va. Code § 29-6A-2(d), because they are not similarly situated to DOH employees who
hold various Engineering classifications.
See Flint v. Bd. of Educ., No. 25898 (W. Va.
Sup. Ct. of Appeals Dec. 10, 1999);
Aultz v. W. Va. Dep't of Transp., Docket No. 90-DOH-
522 (Feb. 28, 1991).
5. [E]mployees who are doing the same work must be placed within the same
classification, but within that classification there may be pay differences if those
differences are based on market forces, education, experience, recommendations,
qualifications, meritorious service, length of service, availability of funds, or other
specifically identifiable criteria that are reasonable and that advance the interests of the
employer.
Largent v. W. Va. Div. of Health, 192 W. Va. 239, 452 S.E.2d 42 (1994). Stateagencies and the West Virginia Division of Personnel have similar discretion in
compensating employees who hold different classifications.
See Aultz,
supra.
6. Grievants failed to establish that the failure of Respondent DOH to include
employees in their technical classifications in a pay raise directed at Engineers violated
W. Va. Code §§ 29-6-10, 29-6A-2(d), 29-6A-2(h), or any other statute, rule, or regulation.
7. Respondents DOH and DOP did not abuse their discretion, or act in an
arbitrary and capricious manner, by proposing and approving a pay raise directed at
raising the starting salaries for new employees and the current salaries of incumbent
employees in various Engineering classifications, relegating Grievants in various
Technical classifications to a subsequent and lesser pay raise.
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.
LEWIS G. BREWER
ADMINISTRATIVE LAW JUDGE
Dated: March 17, 2000
Footnote: 1