WILLIAM A. KIMBLE,
                  Grievant,

v.                                                      Docket No. 00-HHR-097

DEPARTMENT OF HEALTH & HUMAN SERVICES and
DIVISION OF PERSONNEL,
                  Respondents.

D E C I S I O N

      Grievant, William A. Kimble, employed by the Department of Health and Human Resources as a Safety & Loss Control Specialist III (SLCS III) at the William R. Sharpe, Jr., Hospital, filed a complaint on November 9, 1999, in which he alleged:
I feel that by allowing the salaries of employees at the Worker[s] Compensation Division with the Safety & Loss Control Specialist III classification to be advanced to the mid- point in the pay range for retention purposes and denying me the same is an act of favoritism and/or discrimination. I believe that the attempt to create a classification for my position is arbitrary and capricious action, and is also an act of bad faith in that it will circumvent an Administrative Law Judge's order, and it would deny me compensation which I may otherwise obtain.

For relief, Grievant requested a “salary advancement to the mid-point in the Safety & Loss Control Specialist III classification, pay grade 18, and to stop the creation of a new class for my position.”
      The parties agreed to waive consideration at levels one and two. Grievant appealed to level four, and the matter was remanded to level three by Order dated November 22, 1999. An evidentiary hearing was conducted on February 23, 2000, and the grievance was subsequently denied in a decision dated March 1, 2000. Appeal to level four was made on March 13, 2000, and a hearing was conducted at the Grievance Board's Morgantown office on May 25, 2000. Grievant represented himself, DHHR wasrepresented by B. Allen Campbell, Esq., Assistant Attorney General, and the Division of Personnel (Personnel) was represented by Lowell D. Basford, Assistant Director. The matter became mature for decision with the submission of proposed findings of fact and conclusions of law submitted by all three parties on or before June 19, 2000.
      The essential facts of this matter are undisputed and may be set forth as the following formal findings of fact.

Findings of Fact
      1.      Grievant was initially employed by DHHR at the William R. Sharpe, Jr., Hospital in February 1996, classified as an Inspector III, with the working title of Safety Director. Pursuant to a level four grievance decision, Kimble v. Department of Health and Human Resources/William R. Sharpe, Jr., Hospital and Division of Personnel, Docket No. 99-HHR-153 (September 16, 1999)(Kimble I), Grievant was reclassified as a Safety & Loss Control Specialist III (SLCS III).
      2.      In August 1999, William F. Vieweg, Commissioner of the Bureau of Employment Programs, requested the State Personnel Board grant a special salary adjustment to employees of the Safety and Loss Control Section of the Workers' Compensation Division. The request had been based upon a severe retention problem within the classification. At that particular time, of the five employees classified as SLCS III, one employee had received a written job offer from the private sector with a salary of $45,000.00, and another employee had recently interviewed with an insurance company.
      3.      To retain qualified and trained employees, the request for a special pay differential was granted to bring the salaries of SLCS III's employed by Workers''Compensation in line with salaries offered in the private sector. Those employees receiving the pay differential ultimately realized a salary adjustment to $46,824.00.
      4.      DHHR employs two SLCS IIIs, Grievant at Sharpe Hospital and another at the Mildred Mitchell-Bateman Hospital in Huntington. The SCLS III in Huntington recently resigned, and the position was posted and filled from within the facility by the previous incumbent.
      5.      DHHR has not advised Personnel that it has experienced a recruiting or retention problem relating to its SLCS III positions, nor has it requested a pay differential for this classification.
      6.      Respondents are in the process of developing a new classification for Grievant's position.
Discussion
      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his 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.
      Grievant argues that the failure of Respondents to advance his salary to the mid- point of salary range for the SCLS III classification, while granting the same consideration to the SCLS III's employed by Workers' Compensation, violates the principle of equal pay for equal work, and results in discrimination and favoritism. He notes that Personnel's argument that DHHR has not requested a salary differential is not relevant, and no such request is required since it is the responsibility of Personnel to insure an equitableclassification and compensation plan for all state employees. Grievant also asserts that the justification for the salary increase, problems with retention of trained and experienced employees, is not valid because no SCLS III has resigned from Workers' Compensation. By comparison, he points out that both of the DHHR positions have been vacated since 1995, resulting in a 100% turnover rate. Grievant argues that Personnel's decision was arbitrary and capricious as evidenced by the fact that no effort was made to determine if retention problems extend class-wide, and ignored the fact that he is also actively seeking employment in the private sector. Respondents assert that the granting of differential pay to the SCLS IIIs at Workers' Compensation was properly implemented, and that the creation of a classification for Grievant's position is being processed in compliance with a strong suggestion by the ALJ in Kimble I.
      W. Va. Code § 29-6-10 generally embraces the concept of "equal pay for equal work." See AFSCME v. Civil Serv. 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 & Human Resources, 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 this particular situation, DOP's Assistant Director for Classification and Compensation, Lowell Basford, testified at Level IV that Grievant, and the other employeeswith whom Grievant compares his salary, are being properly compensated according to DOP's Administrative Rule governing compensation within the classified service. See 143 C.S.R. 1 § 5 (1995). Specifically, Mr. Basford cited the two individuals employed by Workers' Compensation, one of whom had a job offer, and the other who had an interview scheduled with an outside company. These facts signaled the potential loss of two out of five agency employees employed by the agency who were classified as SLCS IIIs. By comparison, Mr. Basford noted that DHHR had not experienced a vacancy since early 1996, until recently, and that position was promptly filled. Finally, Mr. Basford stated that DHHR had not made Personnel aware that it was experiencing difficulty in retention or recruitment, therefore, no salary adjustment had been requested or approved.
      This Grievance Board has previously recognized that DOP has broad discretion to perform its administrative functions so long as it does not exercise this discretion in an arbitrary or capricious manner. Travis v. W. Va. Dep't of Health and Human Resources and W. Va. Dep't of Administration, Div. of Personnel, Docket No. 96-HHR-518 (Jan. 12, 1998); Crowder v. W. Va. Dep't of Tax & Revenue, Docket No. 94-T&R-545 (Feb. 28, 1995). See Smith v. W. Va. Div. of Corrections, Docket No. 94-CORR-624 (Feb. 27, 1995). Further, the rules promulgated by DOP pursuant to its delegated authority are given the force and effect of law, and are presumed valid unless shown to be unreasonable or not to conform with the authorizing legislation. See Callaghan v. W. Va. Civil Serv. Comm'n, 166 W. Va. 117, 273 S.E.2d 72 (1980). Moreover, 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 Security Nat'l Bank & Trust Co. v. First W. Va. Bancorp, Inc., 166 W. Va. 775, 277 S.E.2d 613 (1981); appeal dismissed, 454 U.S. 1131 (1982). This principle has been specifically extended to DOP's exercise of its discretionary judgment in matters involving classification and compensation. See W. Va. Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993). Indeed, DOP's interpretations in such matters as compensation and classification must be reviewed under a "clearly erroneous" standard. Blankenship, supra. See, e.g., Shahan v. W. Va. Bureau of Commerce, Docket No. 95-DNR-146 (Aug. 31, 1995); Page v. W. Va. Dep't of Transp., Docket No. 94-DMV-240 (Nov. 23, 1994); Arthur v. W. Va. Dep't of Commerce, Labor & Envtl. Resources, Docket No. 93-BEP-527 (July 13, 1994).
      A preponderance of the credible evidence of record indicates that DOP properly acted within its discretion in interpreting and applying § 5.04 of its Administrative Rule pertaining to pay differentials.   (See footnote 1)  Grievant's comparison of two DHHR positions being filled over a period of five years with the potential simultaneous loss of two of five employees at Workers' Compensation does not establish that DHHR was having a retention problem within the SCLS III classification. The recent resignation of the SCLS III at HuntingtonHospital, and the prompt filling of the position illustrate that recruitment is not a problem for DHHR. On the contrary, these facts establish that the recruitment problem being experienced by Workers' Compensation was not class wide, but limited to a reasonably defined group of employees in a specific program, a segment which can be carved out for special treatment under § 5.04. In particular, the SLCS III's employed by Workers' Compensation appear to comprise "a reasonably defined group of employees" for which the Rule authorizes special treatment in appropriate circumstances. While the decision of DOP may result, as Grievant claims, in a deterioration of his morale, and result in his seeking employment elsewhere, the undersigned administrative law judge is unable to substitute her judgment for that of the State Personnel Board and DOP where the decision at issue has a rational basis. See Largent, supra. See generally Bedford County Memorial Hosp. v. Health & Human Serv., 769 F.2d 1017 (4th Cir. 1985); and Staton v. Wyoming County Bd. of Educ., 184 W. Va. 369, 400 S.E.2d 613 (1990).
      Grievant maintains that his disparate treatment, in regard to selective application of DOP's pay differential authority to award a pay enhancement to his counterparts in Workers' Compensation, but not to him, constitutes discrimination and favoritism prohibited under W. Va. Code § 29-6A-2(d) and (h). 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 the employees." W. Va. Code §29-6A-2(d). This Grievance Board has determined that a grievant seeking to establish a prima facie case of discrimination must demonstrate the following: (a) that he is similarly situated, in a pertinent way, to one or more other employee(s);

(b) that he has, to his detriment, been treated by his employer in a manner that the other employee(s) has/have not, in a significant particular; and,

(c) that such differences were unrelated to actual job responsibilities of the grievant and/or the other employee(s) and were not agreed to by the grievant in writing.

      Favoritism is similarly defined by W. Va. Code §29-6A-2(h), as "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of
another or other employees." In order to establish a prima facie showing of favoritism, a grievant must establish the following:
(a) that they are similarly situated, in a pertinent way, to one or more other employee(s);

(b) that the other employee(s) have been given advantage or treated with preference in a significant manner not similarly afforded them; and,

(c) that the difference in treatment has caused a substantial inequity to them and that there is no known or apparent justification for this difference.

Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999); Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998). See McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30, 1992).
      Once the grievant establishes a prima facie case of discrimination or favoritism, the employer can then offer a legitimate reason to substantiate its actions. Thereafter, thegrievant 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).
      Applying this prima facie analysis to the facts presented here, the undersigned finds that Grievant established a prima facie case of discrimination by demonstrating that he is similarly situated to other Workers' Compensation employees in the SLCS III classification, that those other employees received a significant benefit in the form of a pay differential, a benefit which was not extended to Grievant, and that this differential was not directly related to any differences in their job responsibilities. See Morris v. W. Va. Dep't of Transp., Docket No. 97-DOH-167 (Aug. 22, 1997).
      Nonetheless, as previously discussed, DOP demonstrated that the action taken in establishing a pay differential for the Workers' Compensation employees was specifically sanctioned by discretionary authority contained in § 5.04(f)(4) of its Administrative Rule. DOP's explanation represents a legitimate, non-discriminatory reason for the differential treatment at issue. Grievant failed to present sufficient persuasive evidence that the reason proffered by DOP was merely a pretext for prohibited discrimination or favoritism. See Burdine, supra; Frank's Shoe Store, supra; Hoffer v. State Fire Comm'n, Docket No. 95-SFC-441 (June 18, 1996). Further, Grievant has not established that the salarydisparity which he is challenging violates any statute, policy, rule, regulation, or written agreement under which he works. See W. Va. Code § 29-6A-2(i).
      Finally, Grievant argues that DOP's efforts to create a classification for his position is arbitrary and capricious and will circumvent the decision issued in Kimble I, which determined that he was entitled to the classification of SLCS III, and would deny him compensation which he might otherwise obtain. Respondents assert that the reclassification is being processed in compliance with Kimble I.
       An action is arbitrary and capricious if the agency making the decision 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 is so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp.,769 F.2d 1017 (4th Cir. 1985). An action may also be arbitrary and capricious if it is willful and unreasonable without consideration of facts. Black's Law Dictionary, at 55 (3d Ed. 1985). Arbitrary is further defined as being “synonymous with bad faith or failure to exercise honest judgment.” Id, Trimboli v. W. Va. Dep't of Health and Human Servs./Div. of Personnel, Docket No. 93-HHR-322 (June 27, 1997).
      In Kimble I, the ALJ stated, “Grievant's responsibilities are not accurately described by either of the classification specifications [Inspector III and SCLS III] at issue.” She suggested “[t]he logical conclusion to be drawn is that a classification needs to be created for Grievant's position, and that of the Inspector III at Huntington Hospital which better describes the advanced duties of these positions, and is in a higher pay grade than . . .Inspector III's.” The ALJ did not order the creation of a new classification because it hadnot been requested, and simply placed Grievant in the SCLS III classification because it better described his duties, and was more in line with the pay grade “to which he should be assigned.” DOP is responsible for the proper classification of individuals employed under the Civil Service System, and has elected to act upon the suggestion to ensure that Grievant and another employee are correctly classified and compensated. This action was not arbitrary and capricious, nor will it circumvent the holding in Kimble I. Since all classified employees should be compensated commensurate with their classification, Grievant will not be deprived of any compensation to which he would be entitled.
      Consistent with the foregoing discussion, the following Conclusions of Law are appropriately made in this matter.

Conclusions of Law
      1.       In a grievance which does not involve a disciplinary matter, the grievant has the burden of proving each element of his 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.       The West Virginia Division of Personnel (DOP) has broad discretion to perform its administrative functions, so long as it does not exercise this discretion in an arbitrary or capricious manner. Crowder v. W. Va. Dep't of Tax & Revenue, Docket No. 94-T&R-545 (Feb. 28, 1995). See Smith v. W. Va. Div. of Corrections, Docket No. 94-CORR-624 (Feb. 27, 1995); Howell v. W. Va. Dep't of Health & Human Resources, Docket No. 93-HHR-101 (Sept. 21, 1993).       3.       DOP's explanation that, consistent with its lawfully promulgated Administrative Rule, a salary differential is paid to SLCS III's employed by Workers' Compensation in order to address a specific recruitment and retention problem in that agency, provides a legitimate, non-discriminatory reason for its hiring and compensation practices.
      4.       In order for a grievant to establish a prima facie case of discrimination under § 29-6A-2(d), he must demonstrate the following:
(a) that he are similarly situated, in a pertinent way, to one or more other employee(s);
(b) that he has, to his detriment, been treated by his employer in a manner that the other employee(s) has/have not, in a significant particular; and,
(c) that such differences were unrelated to actual job responsibilities of the grievant and/or the other employee(s) and were not agreed to by the grievant in writing.

Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30, 1992).
      5.      In order to establish a prima facie showing of favoritism, a grievant must establish the following:
(a) that they are similarly situated, in a pertinent way, to one or more other employee(s);

(b) that the other employee(s) have been given advantage or treated with preference in a significant manner not similarly afforded them; and,

(c) that the difference in treatment has caused a substantial inequity to them and that there is no known or apparent justification for this difference.
      6.      Although Grievant established a prima facie case of discrimination/favoritism under W. Va. Code § 29-6A-2(d)and (h), in regard to the award of a pay differential to SLCS IIIs employed by Workers' Compensation, DOP established legitimate, non-discriminatory reasons for the action. See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Salmons v. W. Va. Dep't of Transp., Docket No. 94-DOH-555 (Mar. 20, 1995); Graley v. W. Va. Parkways Economic Dev. & Tourism Auth., Docket No. 91-PEDTA-225 (Dec. 23, 1991).
      7.      Grievant failed to establish that the reason given by DOP was pretextual.
      8.      Grievant failed to prove that the creation of a classification which would accurately represent his duties and responsibilities is contrary to any statute, rule, regulation, is arbitrary and capricious, or otherwise improper.
             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 §29- 5A-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Grievance Board with the civil action number so that the record can be prepared and transmitted to the circuit court.
Date: July 20, 2000 _______________________________________
                   Sue Keller
       Senior Administrative Law Judge


Footnote: 1
      Section 5.04 provides that:
[t]he Board, by formal action, may approve the establishment of pay differential to address circumstances such as class- wide recruitment and retention problems, regionally specific geographic pay disparities, apprenticeship program requirement, shift differentials for specified work periods, and temporary upgrade programs. In all cases, pay differentials shall address circumstances which apply to reasonably defined groups of employees (i.e., by job class, by participation in a specific program, by regional work location, etc.), not individual employees.