v. Docket No. 99-HHR-417
Grievant, Lois Viars, is employed by the West Virginia Department of Health and
Human Resources ("DHHR"). She challenges the method by which her annual increment
pay was prorated by Respondents. She seeks payment of the full amount of increment
pay to which she believes she is entitled. This grievance was initiated on August 13, 1999,
and waived to Level II. A Level II conference was held on August 20, 1999, with a
Decision denying the grievance issued on August 27, 1999.
A Level III hearing was held
on September 13, 1999, followed by a written Decision denying the grievance on
September 30, 1999. Grievant appealed to Level IV on October 8, 1999. A hearing was
scheduled for December 15, 1999, but the parties agreed this matter could be submitted
for a decision based upon the record developed below, supplemented by the parties'
proposed findings of fact and conclusions of law.
(See footnote 1)
This case became mature for decision
on January 28, 2000, after receipt of the parties' proposed findings of fact and conclusions
of law. The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant is employed by DHHR in the Bureau of Behavioral Health and
Health Facilities at the Mildred Mitchell-Bateman Hospital and is currently classified as a
Secretary I.
2. Grievant had been employed by the DHHR for approximately eleven years,
as of June 30, 1999.
3. During 1998, Grievant took an approved, unpaid, family medical leave for
approximately two months.
4. Grievant was in "no-pay status" from September 15, 1998, to November 15,
1998.
5. Pursuant to the Division of Personnel's ("DOP") Annual Increment Policy,
Grievant's increment pay for the 1998 - 1999 fiscal year was prorated. Instead of
receiving full increment pay for eleven years of service, i.e. $550 (11 X $50), she received
10/12ths of that amount, $468.25, because she had only worked ten months of the 1998-
1999 fiscal year.
Issues and Arguments
Grievant argues that only the last $50.00 of her annual increment, or only the
eleventh year during which she was off on leave should be prorated, and that she should
receive her entire annual increment ($500.00) for her first ten years of employment. She
argues the correct calculation would be to receive $500.00 for the first ten years, and the$50.00 for the eleventh year should be prorated to reflect the time she was off. She
maintains that DOP's interpretation of the statute is incorrect and does not reflect the
wishes of the Legislature. She also argues the calculations are incorrect because the
annual increment is a bonus and not an increase in her salary.
Respondents argue DOP has the authority to establish and interpret the Annual
Increment Policy, DOP's interpretation is correct, and the Policy was duly followed.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving her 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);
Howell v. W.
Va. Dep't of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990).
See W.
Va. Code § 29-6A-6. The issue of proration of increment pay has been addressed by this
Grievance Board on numerous occasions.
Pursuant to
W. Va. Code § 5-5-2 (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.
In
accordance with
W. Va. Code § 5-5-1, DOP developed a policy which covers the payment
of annual salary increments. Pursuant to this policy, the total annual increment must be
prorated when the employee works less than the entire year. Specifically, the Policy states
as follows:
II. DEFINITIONS . . .
B. Years of Service: means full years of totaled service as an employee
of the State of West Virginia. Employees who work less than half-time (0.5
FTE) shall not receive years of service credit for such employment. Years of
service excludes any period in which an employee is in a no-pay status for
unauthorized leave, leave of absence (personal, medical or parental) or
suspension: Provided, however, that, effective March 11, 1999, employees
of the State of West Virginia continue to accrue tenure for the calculation of
annual increment pay while receiving temporary total disability (TTD)
benefits during absences from work due to a work-related compensable
injury.
III. POLICY
A. Effective for the fiscal year beginning July 1, 1996, every eligible
employee with three or more years of service shall receive an annual salary
increase equal to fifty dollars ($50) times the employee's years of service,
not to exceed 20 years of service. In each fiscal year thereafter and on the
first day of July, each eligible employee shall receive an annual increment
increase of fifty dollars for that fiscal year. . . .
. . .
4. An eligible employee who has been in no-pay status (for reasons
other than leave without pay while receiving Workers' Compensation
temporary total disability benefits) during the fiscal year for which payment
is being made shall receive a pro-rated payment, based on the percentage
of time in paid status during that fiscal year.
Example: If an employee had 10 years service, he would be entitled to an
annual increment of $500.00 (10 years x $50.00 increment), as if he were
being paid a salary of $500.00 per year. If that employee did not work [i.e.
was in a no pay status] for 6 months in one year, he would not be entitled to
a full year's salary. Therefore, he would only be entitled to one-half of the
$500.00 increment, or $250.00 for 6 months he actually worked. [See
Cavender, et al. v. W. Va. Bureau of Employment Programs and Division of
Personnel, Grievance Docket No. 96-BEP-142 (Sept. 9, 1996).]
. . .
B. The annual increment shall be paid on a pro rata basis for the portion
of service rendered by the employee during the current fiscal year of
employment.
L III, Grt. Ex. 1
The recent decision of Price v. West Virginia Department of Health and Human
Resources and Division of Personnel, Docket No. 99-HHR-238 (Jan. 24, 2000), addressed
a similar argument. The administrative law judge in Price, supra, noted another recent
decision, Rule v. West Virginia Department of Health and Human Resources and Division
of Personnel, Docket No. 99-HHR-130 (Oct. 25, 1999), where the administrative law judge
provided a detailed review and discussion of many of the Grievance Board's decisions
regarding increment pay since 1996. That discussion will not be repeated here.
Nevertheless, the "bottom line" regarding increment pay is that "during the years [an
employee] did not work the full year, or was not in pay status, his annual increment must
be prorated." Rule, supra (citing Cavender, supra; Bush v. W. Va. Dep't of Health and
Human Resources and Div. of Personnel, Docket No. 97-HHR-568 (Nov. 13, 1998)).
Additionally, the following portions from Bush, supra, are helpful in understanding the
Grievance Board's reasoning regarding the proration issue:
The reason the current method of calculating increment pay is correct
is because the annual increment is not a bonus, but is a salary increase.
The "'[a]nnual salary increase,' referred to in W. Va. Code § 5-5-2, means
increment pay is part of the employee's salary." [Miller v. W. Va. Div of
Highways and W. Va. Div. of Personnel, Docket No. 93-DOH-011 (June 30,
1993), aff'd, Circuit Court of Kanawha County, Civil Action No. 93-AA-201
(Feb. 27, 1994), cert. denied W. Va. Supreme Court of Appeals, No. 940998
(Sept. 8, 1994)].
. . .
Furthermore, the Supreme Court of Appeals of West Virginia in
analyzing W. Va. Code § 5-5-2 has twice held that the annual increment
represents an adjustment in salary. See Courtney v. State Dep't of Health,
388 S.E.2d 491 (W. Va. 1989). Because increment pay is part of the
employee's salary, an employee cannot receive increment payment for
services not rendered. For example, if an employee had 10 years' service,he would be entitled to an annual increment of $360.00 (10 years x $36.00
increment
(See footnote 2)
), as if he were being paid a salary of $360.00 per year. If that
employee did not work for 6 months in one year, he would not be entitled to
a full year's salary. Therefore, he would only be entitled to one-half of the
$360.00 increment, or $180.00 for the six months he actually worked. See
Cavender, supra; Smith [v. W. Va. Div. of Highways/W. Va. Div. of
Personnel, Docket No. 96-DOH-083 (Aug. 2, 1996), rev'd Kanawha County
Circuit Ct., Civil Action No. 96-AA-127 (Oct. 14, 1997), ref'd W. Va. Supreme
Ct. of Appeals, No. ____ (May 14, 1998)], supra.
In conclusion, to award Grievant an increment check based on a full
year or twelve months of service when she only worked approximately 10
months that fiscal year would clearly violate the statute, as well as contradict
the prior rulings of the West Virginia Supreme Court of Appeals.
The same logic applies to the instant case. Grievant's protest to proration is similar to
those raised by the grievants in
Price and
Bush and many of the other above-cited cases.
Therefore, her claim that DOP's method of proration is improper must be denied.
As to DOP's interpretation of the policies regarding increment pay, Grievant
contends DOP has incorrectly interpreted
W. Va. Code §§ 5-5-1,
et seq. and thus, DOP's
intrepretation should not be followed.
This Grievance Board has consistently held that DOP is responsible for the
administration of
W. Va. Code § 5-5-2.
See Price,
supra;
Rule,
supra;
Bush, supra;
Cavender,
supra. "As the agency responsible for providing and administering a fair and
consistent compensation system for classified state employees, it is certainly within DOP's
purview to implement a policy for the purpose of ensuring that the various state agencies
uniformly administer increment pay, which has been held by the West Virginia Supreme
Court to be part of an employee's annual salary, i.e. compensation."
Price,
supra.
SeeCourtney,
supra. "Moreover, DOP's Administrative Rule, a properly promulgated
legislative rule which has been debated and approved by the West Virginia legislature,
provides in Section 5.9 that the State Personnel Board 'may establish uniform procedures
which shall be followed by all State Agencies . . . for compensating eligible employees .
. . for the annual increment increase.'"
Price,
supra.
It is well established that a government agency's determination regarding matters
within its expertise is entitled to substantial weight.
Princeton Community Hosp. v. State
Health Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985).
See W. Va.
Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993);
Security Nat'l
Bank v. W. Va. Bancorp, 166 W. Va. 775, 277 S.E.2d 613 (1981). Where the language
in a policy is
either ambiguous or susceptible to varying interpretations, this Grievance
Board will give reasonable deference to the agency's interpretation of its own policy.
See
Dyer v. Lincoln County Bd. of Educ., Docket No. 95-22-494 (June 28, 1996)
;
Edwards v.
W. Va. Parkways Dev. and Tourism Auth., Docket No. 97-PEDTA-420 (May 7, 1998).
See
generally Blankenship,
supra;
Princeton Community Hosp.,
supra;
Jones v. Bd. of
Trustees, Docket No. 94-MBOT-978 (Feb. 29, 1996);
Foss v. Concord College, Docket No.
91-BOD-351 (Feb. 19, 1993).
Accordingly, as stated in
Price,
supra, and
Rule,
supra,
Grievant has not established DOP's interpretation of its policy, or the increment pay
statute, is contrary to the plain meaning of the language, is inherently unreasonable, or is
arbitrary and capricious.
See Dyer,
supra.
The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law
1. As this grievance does not involve a disciplinary matter, Grievant has the
burden of proving her 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);
Howell
v. W. Va. Dep't of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990).
See W. Va. Code § 29-6A-6.
2. Every eligible employee of the State of West Virginia with three or more
"years of service" shall receive annual increment pay equal to 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 calculating increment pay for eligible employees.
W. Va.
Code § 5-5-2.
3. "Interpretations of statutes by bodies charged with their administration are
given great weight unless clearly erroneous." Syl. Pt. 7, in part,
Lincoln County Bd. of
Educ. v. Adkins, 188 W. Va. 430, 424 S.E.2d 775 (1992); Syl. Pt. 3,
Smith v. Bd. of Educ.
of Logan County , 176 W. Va. 65, 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).
4. A government agency's determination regarding matters within its expertise
is entitled to substantial weight.
Princeton Community Hosp. v. State Health Planning &
Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985).
See W. Va. Dep't of Health v.
Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993).
5. "'Annual salary increase,' referred to in
W. Va. Code § 5-5-2, means
increment pay is part of the employee's salary."
Miller v. W. Va. Div. of Highways, DocketNo. 93-DOH-011 (June 10, 1993),
aff'd, Circuit Court of Kanawha County, Civil Action No.
93-AA-201 (Feb. 7, 1994).
6. Because
W. Va. Code § 5-5-2 states the annual increment is an "annual
salary increase," one can only receive the annual increment for time actually worked
during the fiscal year.
Rule v. W. Va. Dep't of Health and Human Resources and Div. of
Personnel, 99-HHR-130 (Oct. 25, 1999);
Bush v. W. Va. Dep't of Health and Human
Resources and Div. of Personnel, Docket No. 97-HHR-568 (Nov. 13, 1998).
7. Grievant's annual increment was correctly calculated based on DOP's
Annual Increment Policy. Therefore, Respondents did not violate
W. Va. Code § 5-5-2 in
calculating Grievant's annual increment for fiscal year 1998-1999.
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, and 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.
Date: February 28, 2000 ___________________________________
JANIS I. REYNOLDS
Administrative Law Judge
Footnote: 1