v. Docket No. 99-BEP-498
BUREAU OF EMPLOYMENT PROGRAMS/
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). Additionally, where the
plain language of a policy does not compel a different result, deference must be extended
to the agency in interpreting its own policies. See Dyer v. Lincoln County Bd. of Educ.,
Docket No. 95-22-494 (June 28, 1996). 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, supra;
Edwards v. W. Va. Parkways Dev. and Tourism Auth., Docket No. 97-PEDTA-420 (May
7, 1998). See generally Blankenship, supra; Princeton Community Hosp. v. State Health
Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985); 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). Thus, DOP's interpretation of its policy is entitled to
deference by this Grievance Board, unless it is contrary to the plain meaning of the
language, is inherently unreasonable, or is arbitrary and capricious. Dyer, supra.
FISCAL and ADMINISTRATIVE MANAGEMENT
DIVISION and DIVISION OF PERSONNEL,
Respondents.
Retired May 31, 1999 cob [close of business]. Was not compensated for
May 31, 1999 holiday. Relief Sought: Be compensated for May 31, 1999
holiday.
This grievance was denied at all lower levels. Grievant appealed to Level IV, and
a hearing was held on February 24, 2000.
(See footnote 1)
This case became mature for decision at that
time, as the parties did not wish to submit proposed findings of fact and conclusions of
law.
(See footnote 2)
This grievance centers on whether Grievant should receive holiday pay for the May
31, 1999 holiday when her last day of work was Friday, May 28, 1999. Grievant argued
she should receive the holiday pay for two reasons. One reason is because she dated herretirement letter as being effective May 31, 1999. Grievant further argued she should be
given this pay because, after consultation and discussion with Tom Rardin, BEP's
Personnel Administrator, he told her that an employee in this situation would definitely
receive holiday pay. She noted Mr. Rardin is in charge of personnel matters for BEP, and
she had been directed in the past that he was the only one within the agency who was to
interpret personnel rules and regulations. Grievant also disagreed with Division of
Personnel's ("DOP") interpretation of the rules at issue in this grievance.
(See footnote 3)
Respondents argued Grievant cannot receive the holiday pay because it is against
DOP's stated rules, this rule has been consistently enforced, and to give this pay to
Grievant would be unfair to the other employees who quit or retired at the same time she
did and did not receive this compensation. Additionally, Respondents noted DOP has the
ultimate authority to interpret its rules, not BEP.
After a detailed review of the record in its entirety the undersigned Administrative
Law Judge makes the following Findings of Fact.
1. Grievant was a long-term employee with BEP with approximately 38 years
of service. At the time of her retirement, she had been employed for eleven years as the
Supervisor of Accounts Payable in the Payroll Department. 2. Grievant's work section frequently had questions about the interpretation of
various DOP rules as they related to compensation issues. While Grievant was
supervisor, it was her responsibility to insure DOP's rules and regulations were being
applied consistently.
3. Grievant testified she was not aware that the issue of payment for a holiday
after the employee had retired had ever been brought up to her during her tenure as
supervisor. Grievant noted Mildred Goble was the individual in her section who routinely
dealt with these issues.
4. Ms. Goble retired on May 28, 1999, and her last day of work or date of
separation was the same as Grievant's.
5. Shortly before her retirement, Grievant asked Mr. Rardin if an employee who
worked the day before the holiday, and then retired would receive pay for the following
holiday. Grievant did not inform Mr. Rardin she was asking the question for herself, or that
she would be retiring soon.
6. Mr. Rardin did not find out Grievant was retiring until May 28, 1999.
7. Mr. Rardin believed Grievant was asking a hypothetical question, and stated
it looked like the employee could, if the date of separation was May 31, 1999, but the rule
was unclear. He called DOP shortly thereafter to ask them about the issue, but does not
remember why he never got hold of them before Grievant retired. Grievant did not call
DOP for its interpretation of the rule.
8. Grievant was aware that DOP was the ultimate authority on its rules, and that
DOP's interpretation would take precedent over BEP's interpretation. 9. Grievant's last day of work was Friday, May 28, 1999. She did not work the
weekend, nor did she work the holiday, May 31, 1999. She also did not work the following
Tuesday, June 1, 1999.
10. Grievant wrote her retirement letter, which was dated May 31, 1999, on May
28, 1999, and gave it to her supervisor on May 28, 1999. It stated in pertinent part:
This is to advise you of my intent to retire effective May 31, 1999cob [close
of business]. I have notified the retirement board that my effective date of
retirement will be June 1, 1999.
11. She received a subsequent letter from Commissioner William Vieweg
thanking her for all her years of dedication and hard work. This letter noted that "[a]s
stated in your letter, your retirement will be effective May 31, 1999."
(See footnote 4)
12. The question of whether Grievant should be paid came to the attention of
Mark Miller, Grievant's former supervisor, shortly after Grievant retired. Four employees
had retired at the same time as Grievant. Sherry Kirk, a new payroll employee, was aware
there was an issue about paying the employee for the holiday when an employee did not
return to work after the holiday or retired prior to the holiday.
13. Ms. Kirk had been directed by Ms. Goble, before she retired, that these four
employees, who included Ms. Goble herself, were not to be paid for the May 31, 1999
holiday. Grievant had informed Ms. Kirk that she was entitled to receive payment for that
day. Ms. Kirk came to Mr. Miller for direction. 14. Mr. Miller contacted Mr. Rardin, who informed Mr. Miller that he had
discussed the issue previously with Grievant, and Mr. Rardin believed the issue was
somewhat unclear. Mr. Rardin directed Mr. Miller to call DOP.
15. Mr. Miller called DOP. DOP noted the key information in deciding the issue
was the employee's date of separation or last day of work, and since Grievant's date of
separation came before the holiday, she was not entitled to payment. After this discussion,
Mr. Miller decided the four employees were not entitled to payment for the May 31, 1999
holiday.
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 West Virginia Division of Personnel Administrative Rules which apply to the
resolution of this grievance are:
3.25. Date of Separation: Last day of work of employees separating due to
dismissal, voluntary resignation, voluntary retirement, layoff, or sudden
death; the date of death of employees who die while on paid or unpaid leave;
or the date of notification by employees resigning or retiring due to disability
as verified by a physician.
and
15.1(d) An employee must either work or be on approved paid leave for
either the full scheduled workday before or after the holiday and either work
or be on approved paid leave for any fraction of the scheduled workdaybefore or after the holiday to receive pay for the holiday. No employee is
entitled to payment for any holiday which occurs prior to the first day of work
or after the effective date of separation.
(Emphasis added).
"Generally, an action is considered arbitrary and capricious if the agency did not
rely on criteria intended to be considered, explained or reached the decision in a mannercontrary to the evidence before it, or reached a decision that was so implausible that it
cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v.
Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the
Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health
and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious
actions have been found to be closely related to ones that are unreasonable. State ex rel.
Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as
arbitrary and capricious when "it is unreasonable, without consideration, and in disregard
of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker,
547 F. Supp. 670 (E.D. Va. 1982)). While a searching inquiry into the facts is required to
determine if an action was arbitrary and capricious, the scope of review is narrow, and an
administrative law judge may not simply substitute her judgment for that of the agency.
Trimboli, supra. See generally, Harrison v. Ginsberg, 169 W. Va. 162, 286 S.E.2d 276,
283 (1982).
Although the first portion of 15.1(d) is stated somewhat confusingly, the last section
is very clear, and it is this section which pertains to Grievant's situation: "[n]o employee is
entitled to payment for any holiday which occurs prior to the first day of work or after the
effective date of separation." Grievant's effective date of separation was her last day of
work prior to her voluntary resignation, May 28, 1999. The holiday did not occur until May
31, 1999. In these circumstances, the undersigned administrative law judge must defer
to DOP's interpretation of its policy, and Grievant cannot receive compensation for theholiday. Grievant has not demonstrated that such interpretation is clearly wrong or
arbitrary and capricious. See Blankenship, supra.
As for the argument that Grievant should receive the holiday pay because Mr.
Rardin told Grievant an employee in this situation would receive this compensation, this
argument must also fail. First, Mr. Rardin did not know he was being asked for specific
advice about Grievant's particular situation, and that there was disagreement in Grievant's
department about how this issue should be handled. He gave what he thought would be
the correct answer, but also noted Section 15.1(d) was unclear. While it is understandable
Grievant would be upset after she relied upon this advice, and it was incorrect, this does
not mean she should or could be paid in violation of policy.
Additionally, even if Mr. Rardin had promised Grievant she would receive this
compensation, he would not be in a position to make this promise as final authority of the
interpretation of DOP rules resides with DOP. This promise would be seen as an ultra
vires act. "Ultra vires acts of a governmental agent, acting in an official capacity, in
violation of a policy or statute, are considered non-binding and cannot be used to force an
agency to follow such acts." Franz v. Dep't of Health and Human Resources, Docket No.
99-HHR-228 (Nov. 30, 1998). See Parker v. Summers County Bd. of Educ., 185 W. Va.
313, 406 S.E.2d 744 (1991).
The above-discussion will be supplemented by the following Conclusions of Law.
1. In a non-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. "No employee is entitled to payment for any holiday which occurs prior to the
first day of work or after the effective date of separation." W. Va. Div. of Personnel
Administrative Rule 15.1(d).
3. An employee's date of separation is last day of work prior to the "employees
separating due to dismissal, voluntary resignation, voluntary retirement, layoff, or sudden
death; the date of death of employees who die while on paid or unpaid leave; or the date
of notification by employees resigning or retiring due to disability as verified by a
physician." W. Va. Div. of Personnel Administrative Rule 3.25.
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); Security Nat'l Bank v. W. Va.
Bancorp, 166 W. Va. 775, 277 S.E.2d 613 (1981).
5. 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. v. State Health Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d164 (1985); 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).
6. "Generally, an action is considered arbitrary and capricious if the agency did
not rely on criteria intended to be considered, explained or reached the decision in a
manner contrary to the evidence before it, or reached a decision that was so implausible
that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp.
v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for
the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of
Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and
capricious actions have been found to be closely related to ones that are unreasonable.
State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996).
7. DOP's interpretation of its policy is entitled to deference by this Grievance
Board, as its interpretation of its policy is not clearly wrong or arbitrary and capricious.
See Blankenship, supra; Dyer, supra.
8. "Ultra vires acts of a governmental agent, acting in an official capacity, in
violation of a policy or statute, are considered non-binding and cannot be used to force an
agency to follow such acts." Franz v. Dep't of Health and Human Resources, Docket No.
99-HHR-228 (Nov. 30, 1998). See Parker v. Summers County Bd. of Educ., 185 W. Va.
313, 406 S.E.2d 744 (1991).
9. Grievant has not met her burden of proof and demonstrated she is entitled
to holiday pay for May 31, 1999, because her date of separation was May 28, 1999, before
the holiday in question occurred.
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.
JANIS I. REYNOLDS
ADMINISTRATIVE LAW JUDGE
Dated: April 28, 2000.
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