RODNEY UNDERWOOD, et al.,
Grievants,
v. Docket No. 99-DOH-204
WEST VIRGINIA DIVISION OF
HIGHWAYS and DIVISION
OF PERSONNEL,
Respondents.
DECISION
Grievants
(See footnote 1)
are Bridge Safety Inspectors employed by the West Virginia Division of
Highways (DOH). They allege that a seven percent pay increase they received on March
1, 1999, should have been implemented earlier, because of the Division of Personnel's
(DOP) allegedly improper grouping of their positions in the Labor/Crafts, Equipment
Operation and Institutional Services occupational group. They seek back pay to July of
1998. This grievance was initiated on January 14, 1999. Although Grievants' immediate
supervisor supported their claim, he was unable to grant relief at level one on January 19,
1999. A level two conference was held on January 27, 1999, followed by a level two
decision denying the grievance dated February 1, 1999. Upon appeal to level three, a
hearing was held on February 22, 1999. The grievance was denied at that level on May
15, 1999. Grievants appealed to level four on May 20, 1999. After several continuances
granted for good cause shown, a level four hearing was conducted in the Grievance
Board's office in Morgantown, West Virginia, on December 14, 1999. Grievants wererepresented by Grievant David McConnell; DOH was represented by counsel, Krista
Duncan; and DOP was represented by counsel, Stephanie Schulz. This matter became
mature for consideration on January 7, 2000, the deadline for the parties' fact/law
proposals.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievants are employed by DOH in the Bridge Safety Inspector job
classifications.
(See footnote 2)
2. Effective June 16, 1998, the Transportation Worker job classifications, along
with Transportation Crew Chiefs and Transportation Crew Chief Supervisors, received a
seven percent pay increase due to recruitment and retention problems in that particular
series of classifications.
3. Beginning in the fall of 1998, DOP began implementation of a plan to raise
all DOH classified jobs to higher pay grades. The overall plan was to implement the salary
increases by occupational groups, in order to allow DOH time to obtain the necessary
funding to compensate employees under the revised pay grade plan.
4. In 1994, DOP implemented a statewide reorganization of the classification
system. As part of that reclassification project, all job classifications were grouped into
occupational groups, which would be used for purposes of layoffs and recall. Theoccupational groups created were very broad, based upon similarities in types of job
duties. Only six occupational groups were created for approximately 750 jobs.
5. The Bridge Safety Inspector job series was placed in the occupational group
for Labor/Crafts, Equipment Operation and Institutional Services (labor group), because
their duties were viewed as labor-intensive, although somewhat technical in nature.
6. The first occupational group of DOH employees to receive a pay grade
adjustment was the Engineering, Environmental Protection and Applied Sciences group
(engineering group), effective November 1, 1998.
7. Job classifications included in the engineering occupational group are
engineers, engineering technicians, geologists, architects, and environmental inspectors.
8. To be included in the engineering group, job classifications had to either
require an engineering license or licensing by NICET, the National Institute for the
Certification of Engineering Technicians, or be related to environmental protection or
applied sciences, such as geology.
9. Bridge Safety Inspectors are not required to be certified by NICET, although
many of the employees holding those classifications have NICET certifications.
10. Bridge Safety Inspectors are responsible for determining the structural
integrity and safety of state highway bridges. They must successfully complete a bridge
inspectors' certification test formulated by DOH. Their jobs require strenuous manual labor
in rigging scaffolds and ladders to access the bridges they inspect.
11. Effective March 1, 1999, the labor group received the same pay grade
adjustment given to the engineering group in November.
Discussion
As this grievance does not involve a disciplinary matter, Grievants bear the burden
of proving their claims 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. A preponderance of the evidence is generally recognized as evidence of greater
weight, or which is more convincing than the evidence which is offered in opposition to it.
Morrison v. W. Va. Bureau of Commerce, Docket No. 97-DOL-490 (Jan. 15, 1998);
Miller
v. W. Va. Dept. of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30, 1997);
Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).
The initial issue to be addressed in this grievance is Respondent DOH's contention
that this grievance is untimely. Where the employer seeks to have a grievance dismissed
on the basis that it was not timely filed, the employer has the burden of demonstrating such
untimely filing by a preponderance of the evidence.
Harvey v. Bureau of Employment
Programs, Docket No. 96-BEP-484 (Mar. 6, 1998). Once the employer has demonstrated
that a grievance has not been timely filed, the employee has the burden of demonstrating
a proper basis to excuse his failure to file in a timely manner.
Kessler v. W. Va. Dept. of
Transp., Docket No. 96-DOH-445 (July 29, 1997);
Higginbotham v. W. Va. Dept. of Public
Safety, Docket No. 97-DPS-018 (Mar. 31, 1997);
Sayre v. Mason County Health Dept.,
Docket No. 95-MCHD-435 (Dec. 29, 1995),
aff'd, Circuit Court of Mason County, No.
96-C-02 (June 17, 1996).
See Ball v. Kanawha County Bd. of Educ., Docket No. 94-20-384
(Mar. 13, 1995);
Woods v. Fairmont State College, Docket No. 93-BOD-157 (Jan. 31,1994);
Jack v. W. Va. Div. of Human Serv., Docket No. 90-DHS-524 (May 14, 1991).
A grievance must be filed within ten days following the occurrence of the event upon
which the grievance is based.
W. Va. Code § 29-6A-4(a). DOH contends that Grievants
delayed until January of 1999 to file this grievance, and they should have known that the
engineering occupational group received a pay grade adjustment in November of 1998.
However, there is no evidence which establishes Grievants actually knew of the pay raise
given to other employees prior to January of 1999. Moreover,
W. Va. Code § 29-6A-
3(a)(2) states that an employer asserting a timeliness defense must assert it at or before
the level two hearing. Grievants offered unrebutted evidence that the timeliness of their
grievance was not discussed or mentioned at any time during the level two conference or
before. Therefore, DOH has failed to raise this affirmative defense in a timely fashion.
Grievants have concentrated their efforts in this case on proving that their jobs
should have been placed in the engineering occupational group. Therefore, they argue,
they should have received a salary adjustment on November 1, 1998, when the
engineering group received the pay grade adjustment.
(See footnote 3)
Alternatively, they contend that
they should have received the seven percent raise that the Transportation Workers and
their supervisors received in June of 1998. However, they have provided little evidence
on this issue.
Grievants have not alleged the violation of any law, policy, rule or regulation in this
case. Accordingly, this case will be examined under the arbitrary and capricious standard,which essentially amounts to an allegation that the agency abused its discretion in making
a particular decision. Generally an agency's action is arbitrary and capricious if it did not
rely on factors that were intended to be considered, entirely ignored important aspects of
the problem, explained its 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 view.
Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir.
1985). In this case, it appears that Grievants believe Respondents acted in an arbitrary
and capricious manner by placing their jobs in the labor occupational group.
Grievants introduced numerous, voluminous exhibits in their effort to prove the
technical nature of their jobs in bridge inspection. However, as stated by Lowell Basford,
head of DOP's classification and compensation unit, in his level four testimony, the fact
that Grievants' jobs are technical is not the point. The issue is that bridge inspection is not
a position which is engineering, environmental protection, or applied sciences, which are
the three types of positions placed in the engineering occupational group. To rebut Mr.
Basford's statements, Grievants contend that, because many of them are NICET certified,
and because they are required to complete a state bridge inspection test, they should be
grouped with the engineering job classifications.
The evidence submitted by Respondents establishes that all of the job
classifications in the engineering occupational group
require an engineering license or
NICET certification as a job qualification. That is not the case with Bridge Safety
Inspectors, although many of them voluntarily obtain NICET certification in bridge safety
inspection. In addition, the employees in the engineering group are either engineers,engineers in training, or engineering technicians. Bridge Safety Inspectors act in a very
important capacity
in support of and
under the supervision of engineers, but they are not
engineers or engineering technicians. Grievants have not established that the placement
of their positions in the labor occupational group was an arbitrary and capricious decision.
As to the failure of Respondents to grant Grievants the seven percent pay raise
given to the Transportation Worker and Crew Chief classifications, it is assumed that
Grievants believe this decision was discriminatory. Discrimination is defined by
W. Va.
Code § 29-6A-2(d) 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."
This Grievance Board has determined that a grievant, seeking
to establish a
prima facie case
of discrimination under
Code § 29-6A-2(d), must
demonstrate the following:
(a) that she is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that she has, to her detriment, been treated by her 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. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992). Once a
grievant establishes a
prima facie case of discrimination, the employer can offer legitimate
reasons to substantiate its actions. Thereafter, the grievant 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).
Respondents' evidence establishes that the Transportation Workers, Transportation
Crew Chiefs and Transportation Crew Chief Supervisors were suffering retention and
recruitment problems in their job classifications, due to higher salaries for similar jobs in
the private sector. Pay differentials are authorized by DOP's Administrative Rule in
Section 5.4(f), which allows salary increases to be approved to address circumstances
such as class-wide recruitment and retention problems. Grievants have offered no
evidence that similar circumstances existed within the Bridge Safety Inspector
classifications, so they have failed to make a
prima facie case of discrimination with regard
to the pay differential granted to the Transportation Worker classifications in June of
1998.
Consistent with the foregoing findings and discussion, the following conclusions of
law are made.
Conclusions of Law
1. In non-disciplinary matters, Grievants bear the burden of proving their claims
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. Generally an agency's action is arbitrary and capricious if it did not rely onfactors that were intended to be considered, entirely ignored important aspects of the
problem, explained its 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 view.
Bedford
County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985).
3. Grievants failed to establish by a preponderance of the evidence that
Respondents' decision to place their jobs in the occupational group for Labor/Crafts,
Equipment Operation and Institutional Services was arbitrary and capricious.
4. To establish a
prima facie case
of discrimination under
Code § 29-6A-2(d),
a grievant 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.
Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992).
5. Pay differentials are authorized by DOP's Administrative Rule in Section
5.4(f), to address circumstances such as class-wide recruitment and retention problems.
6. Grievants failed to make a
prima facie case of discrimination with regard to
Respondents' decision to grant a pay differential to the Transportation Worker,
Transportation Crew Chief and Transportation Crew Chief Supervisor job classifications.
7.
An employer asserting a timeliness defense must assert it at or before the
level two hearing.
W. Va. Code § 29-6A-3(a)(2). 8. Respondent failed to assert its timeliness defense at or before the level two
hearing, so it is barred from asserting this affirmative defense.
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: January 28, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1