CINDY PRICE,
Grievant,
v. Docket No. 99-HHR-238
WEST VIRGINIA DEPARTMENT OF
HEALTH & HUMAN RESOURCES/
BUREAU FOR CHILD SUPPORT
ENFORCEMENT and WEST VIRGINIA
DIVISION OF PERSONNEL,
Respondents.
DECISION
Cindy Price (Grievant) 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, plus interest. This grievance was initiated on August
6, 1998, and was denied by Grievant's immediate supervisor on August 7, 1998. Grievant
appealed to level two, where the grievance was again denied on August 13, 1998. Upon
appeal to level three, the grievance was held in abeyance, pending the outcome of the
level four grievance in Bush v. W. Va. Dep't of Health and Human Resources and Div'n
of Personnel, Docket No. 97-HHR-568 (Nov. 13, 1998). A level three hearing was held on
April 9, 1999, followed by a written decision, denying the grievance, dated May 4, 1999.
Grievant appealed to level four on June 9, 1999. After several continuances granted for
good cause shown, the parties agreed on September 13, 1999, that this matter could be
submitted for a decision based upon the record developed below, supplemented by
proposed findings of fact and conclusions of law. Grievant was represented by Kevin
Church of the West Virginia State Employees' Union; the Department of Health andHuman Resources (DHHR) was represented by counsel, B. Allen Campbell; and the
Division of Personnel did not appear. The parties' written proposals were submitted by
November 19, 1999. This grievance was reassigned to the undersigned administrative law
judge for a final decision on December 20, 1999.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant is employed by DHHR's Bureau of Child Support Enforcement as
a Child Advocate Legal Assistant.
2. On February 28, 1998, Grievant suffered a heart attack, for which she used
her own accrued sick leave from February 28, 1998, through March 31, 1998.
3. Grievant exhausted her own leave on March 31, 1998, but continued to be
disabled, due to her medical condition. Therefore, she requested and received money
from the Division of Personnel's (DOP) Donated Leave Program, under the provisions of
which she received pay from March 31, 1998, until her return to work on June 1, 1998.
4. DOP's donated leave policy does not allow an employee receiving money
under the program to receive tenure credit for the purposes of calculating annual
increment pay.
5. Grievant had eighteen full years of employment with the State of West
Virginia as of June 30, 1998.
6. Pursuant to DOP's Annual Increment Policy, Grievant's increment pay for
the 1997-1998 fiscal year was prorated. Instead of receiving full increment pay foreighteen years of service, i.e. $900 (18 X $50), she received 10/12ths of that amount,
$752.02, because she had only worked ten months of the 1997-1998 fiscal year.
Discussion
The issue of proration of increment pay has been addressed by this Grievance
Board on numerous occasions. In the instant case, Grievant does
not contest the fact that
the two months when she was on donated leave was not counted for increment pay
purposes. Rather, she contends that DOP is without authority to promulgate policies
regarding increment pay, and she also contests the manner in which her pay was prorated.
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.
Full Years of Service: Full years of total service as an
employee of the State of West Virginia (1 year equals 12
months): . . .
3.
This excludes any time during the year that an
employee is off the payroll in a no-pay status for
unauthorized leave, leave of absence (personal,
medical, or parental), Workers' Compensationtemporary total disability benefits, or suspension.
III. POLICY
. . .
A.
Effective the fiscal year beginning July 1, 1996, every
eligible employee with 3 or more full years of service
shall receive an annual salary increase equal to $50
times the employee's years of service, not to exceed 20
years of service. . . .
7.
An eligible employee who is or has been on a
leave of absence without pay during a fiscal year
shall be paid concurrently with all other eligible
State employees a pro rata share for the portion
of time for which he/she worked regardless of
whether or not the employee has returned to
duty at the time the annual increment is paid.
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 Smith v. W. Va. Div. of Highways,
Grievance Docket No. 96-DOH-083 (Aug. 2,
1996) and Cavender, et al. v. W. Va. Bureau of
Employment Programs and Division of
Personnel, Grievance Docket No. 96-BEP-142
(Sept. 9, 1996).]
L III, Resp. Ex. 6 (emphasis in original).
In the recent decision in Rule v. W. Va. Dep't of Health and Human Resources and
Division of Personnel, 99-HHR-130 (Oct. 25, 1999), the administrative law judge provided
a detailed review and discussion of many of the Grievance Board's decisions regardingincrement 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, and Bush, supra). 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 1)
), 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, 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 identical tothose raised by the grievant in
Bush and many of the other cases cited. Therefore, her
claim that DOP's method of proration is improper must be denied.
As to DOP's authority to promulgate policies regarding increment pay, Grievant
contends that
W. Va. Code § 29-6-10, which delineates the areas in which DOP may
promulgate legislative rules, does not provide authority for a policy regarding increment
pay. Likewise, Grievant argues, the provisions of the
Code dealing with increment pay
itself,
Code §§ 5-5-1,
et seq., also give no authority to DOP to promulgate such a policy.
Therefore, she contends that DOP does not have the authority to enact any policies
regarding increment pay, let alone the current policy, which she believes contradicts the
increment pay statute.
This Grievance Board has consistently held that DOP is responsible for the
administration of
W. Va. Code § 5-5-2.
See Rule,
supra,
Bush, supra, and
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.
See Courtney,
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. It is well established that a government agency's determination regardingmatters 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. 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).
Accordingly, as stated in
Rule,
supra, Grievant has not established that 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. Consistent with the foregoing findings and discussion, the following
conclusions of law are appropriate.
Conclusions of Law
1. 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. 2. "Interpretations 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, 424 S.E.2d 775 (W. Va. 1992); Syl. Pt. 3,
Smith v. Bd. of Educ. of County of
Logan, 341 S.E.2d 685 (W. Va. 1985); Syl. Pt. 4,
Security Nat'l Bank and Trust Co. v. First
W. Va. Bancorp, Inc., 277 S.E.2d 613 (W. Va. 1981).
4. "'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, Docket
No. 93-DOH-011 (June 10, 1993),
aff'd, Circuit Court of Kanawha County, Civil Action No.
93-AA-201 (Feb. 7, 1994).
5. 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 Division
of Personnel, 99-HHR-130 (Oct. 25, 1999);
Bush v. W. Va. Dep't of Health and Human
Resources and Div'n of Personnel, Docket No. 97-HHR-568 (Nov. 13, 1998).
6. Grievant's annual increment was correctly calculated based on the Division
of Personnel's Annual Increment Policy. Therefore, Respondents did not violate
W. Va.
Code § 5-5-2 in calculating Grievant's annual increment for fiscal year 1997-1998.
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 grievanceoccurred, 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: January 24, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1