THOMAS SMITH,
Grievant,
v.
DOCKET NO. 99-HHR-439
WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN RESOURCES and
DIVISION OF PERSONNEL,
Respondents.
D E C I S I O N
Grievant, Thomas Smith, filed this grievance on August 5, 1999, against
Respondents West Virginia Department of Health and Human Resources (DHHR) and
the Division of Personnel (DOP):
The Division of Personnel refuses to submit my name for payment of the
increment pay. Attached is a copy of my time sheet showing that I have
three years service as of June 30,1999. They state that because my first six
months of service as a temp that I don't qualify for the increment pay even
though I received annual and sick leave.
Relief sought: I feel that because I have been a State employee for over
three years, receiving State benefits, that I should receive increment pay for
three years of service.
A level one decision was issued on August 13, 1999, and Grievant appealed to level
two that same date. A level two decision was issued on August 23, 1999. Grievant then
appealed to level four, improperly bypassing level three. Since
W. Va. Code § 29-6A-4
does not allow for an appeal from level two to level four, this Grievance Board remandedthis matter to level three by Order of Remand dated September 1, 1999. DOP was joined
as an indispensable party, and the level three hearing on this matter was held on
September 29, 1999. The level three decision denying the grievance was issued on
October 5, 1999, and Grievant appealed to level four on October 13, 1999. The parties
agreed that the matter could be submitted on the record developed at level three, to be
supplemented by proposed findings of fact and conclusions of law by no later than January
7, 2000. At level three, Grievant appeared
pro se, DHHR was represented by David Alter,
and DOP was represented by Jack Sells, Senior Personnel Specialist.
SUMMARY OF EVIDENCE
Grievant's Exhibits
Ex. 1 -
Individual Attendance Report for Thomas B. Smith (November 1996).
Ex. 2 -
Individual Attendance Report for Thomas B. Smith with attached note
(November 1996).
Ex. 3 -
Individual Attendance Report for Thomas B. Smith (July 1999).
Ex. 4 -
West Virginia Division of Personnel Annual Increment Policy.
DHHR Exhibits
None.
DOP Exhibits
Ex. 1 -
W. Va. Code § 5-5-1 entitled Definitions.
Ex. 2 -
West Virginia Public Employees Retirement Act (W. Va. Code § 5-10-2).
Ex. 3 -
Public Employees Retirement System's Administrative Rule, § 162-5-7, Full-
time employment defined.
Ex. 4 -
West Virginia Division of Personnel's Annual Increment Policy (DOP-P5)
(original effective date 3/1/92 and latest revision 6/17/99).
Ex. 5 -
West Virginia Department of Health and Human Resources'
Exempt/Temporary Employment Appointment Form (PSO-15) (signed by
Thomas B. Smith on January 3, 1996).
Ex. 6 -
West Virginia Division of Personnel's Personnel Action Forms (WV-11):
.
6-month temporary appointment, dated 12/8/95, effective 01/02/96
.
corrected 6-month temporary appointment, dated 01/16/96, effective
01/03/96
.
termination of 6-month temporary appointment, dated 06/18/96,
effective 07/03/96
.
original appointment for permanent employment, dated 10/01/96,
effective 11/01/96.
Ex. 7 -
West Virginia Division of Personnel's Personnel Transaction Card
(KARDEX Card).
Testimony
Grievant testified in his own behalf. Respondents presented the testimony of Jack
Sells.
FINDINGS OF FACT
1. Grievant is employed by DHHR in its Child Support Enforcement Division as
a Legal Assistant.
2. Grievant was employed by DHHR as a six-month temporary employee
serving as Legal Assistant, on January 3, 1996. DOP Exs. 5, 6.
3. Grievant's six-month temporary appointment terminated on July 3, 1996.
DOP Ex. 6.
4. On November 1, 1996, Grievant began working for DHHR as a full-time
permanent employee. DOP Ex. 6.
5. As of June 30, 1999, Grievant had three (3) years and fifty-nine (59) days'
tenure with the State of West Virginia. G. Ex. 3.
6. Despite Grievant's three years of service with the State of West Virginia, he
did not receive annual increment pay for the 1998-99 fiscal year.
DISCUSSION
Grievant maintains he should have received fifty dollars ($50.00) times his total
three full years of service in the 1998-99 fiscal year, because notwithstanding the fact he
served under a temporary appointment from January 3 through July 3, 1996, he meets the
definition of an eligible employee as defined by DOP's Annual Increment Policy.
Respondents argue that, although Grievant had the required three years' tenure
with the State on June 30, 1999, he is not entitled to annual increment for fiscal year 1998-
99 because the period of time he served as a temporary employee does not count toward
increment pay eligibility.
Pursuant to
W. Va. Code § 5-5-2, effective July 1, 1996, every eligible employee
of the State of West Virginia with three or more years of service shall receive fifty dollars
times the employee's number of years of service. No more than twenty years of service
with the State can be applied toward the calculation of increment pay for eligible
employees.
W. Va. Code § 5-5-1 defines years of service as full years of totaled service
as an employee of the State of West Virginia.
In accordance with
W. Va. Code § 5-5-1, DOP developed a policy which covers the
payment of annual salary increments. Pursuant to the
Code and DOP's policy, an eligible
employee is defined as any regular full-time employee of the State or any spending unit
thereof who is eligible for membership in any State retirement system of the State of West
Virginia or any other retirement plan authorized by the State. . .. DOP Ex. 1.
The West Virginia Public Employees Retirement Act defines an employee as any
person who serves regularly as an officer or employee, full time, on a salary basis, whosetenure is not restricted as to
temporary or provisional appointment . . ..
See W. Va.
Code § 5-10-2(6)(emphasis added); DOP Ex. 2. The West Virginia Public Employees
Retirement System's Administrative Rule,
§ 162-5-7, defines full-time employment as
[e]mployment of an employee by a participating public employer in a position which
normally requires
twelve (12) months per year service and/or requires at least one
thousand forty (1,040) hours per year service in that position . . .. DOP Ex. 3.
It is well established that [i]nterpretations of statutes by bodies charged with their
administration are given great weight unless clearly erroneous. Syl. Pt. 7,
Lincoln County
Bd. of Educ. v. Adkins, 188 W. Va. 430, 424 S.E.2d 775 (W. Va. 1992); Syl. Pt. 3,
Smith
v. Bd. of Educ. of County of Logan, 176 W. Va. 63, 341 S.E.2d 685 (1985); Syl. Pt. 4,
Security Nat'l Bank and Trust Co. v. First W. Va. Bancorp, Inc., 166 W. Va. 775, 277
S.E.2d 613 (1981). DOP is responsible for the administration of
W. Va. Code § 5-5-1,
et
seq., and Grievant has failed to demonstrate DOP abused the authority conferred upon
it.
CONCLUSION OF LAW
After careful consideration of all evidence presented at level three, along with the
applicable law, the undersigned finds Grievant has failed to prove by a preponderance of
the evidence that he is entitled to annual increment pay for the fiscal year ending June 30,
1999. As the evidence revealed, Grievant served under a six-month temporary
appointment from January 3, 1996 through July 3, 1996. During this period, Grievant was
not eligible for membership in the Public Employees Retirement System. Although the
tenure Grievant accrued during the period in question entitled him to State benefits suchas annual and sick leave, it is clear that the legislature did not intend time spent serving
under a temporary appointment to be considered when calculating annual increments.
Accordingly, this grievance is
DENIED.
Any party 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: January 31, 2000