v. Docket No. 99-HHR-449
Grievants
(See footnote 1)
are Health Assistants at Lakin Hospital, employed by the West Virginia
Department of Health and Human Resources. They filed individual grievances in mid-
September of 1999, all of which had the same Statement of Grievance, which read:
Statement of Grievance: Discrimination based upon the inequity and
unfairness in which the pay equity raises were distributed among the
employees of the Department of Health and Human Resources.
Relief Sought: To be made whole in every way including but not limited to
a more equitable distribution of monies throughout the Department of Health
and Human Resources including any and all back pay.
These grievances were denied at Levels I and II as the Supervisors did not have
the authority to grant them. They were consolidated at Level III. A Level III hearing was
held on October 13, 1999, and a Level III Grievance Decision dismissing the grievance
was issued on October 14, 1999. Grievants appealed to Level IV on October 25, 1999.
A pre-hearing telephone conference was held on November 24, 1999, to clarify the
grievance and to offer the parties an opportunity to argue their case, as the issue before
the undersigned Administrative Law Judge is a legal one. During that hearing, the partieswere also given an opportunity to submit written arguments to support their case. This
grievance became mature for decision on December 15, 1999. The parties elected not to
submit written arguments.
(See footnote 2)
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
Findings of Fact
1. Grievants are all Health Assistants employed by West Virginia Department
of Health and Human Resources at Lakin Hospital.
2. They did not receive an equity pay raise as the result of the enactment of
W. Va. Code § 5-5-4.
3.
W. Va. Code § 5-5-4 directed a pay equity salary adjustment be provided to
employees of West Virginia Department of Health and Human Resources.
4. Not all West Virginia Department of Health and Human Resources
employees received this pay equity salary adjustment.
Issues and Arguments
Respondent argues the equity pay raises directed by
W. Va. Code § 5-5-4 are not
grievable, and notes the statute specifically states the raises are not subject to the
grievance procedure. Respondent contends these the grievances must be dismissed.
Grievants argue they are not grieving the statute, which granted the salary increases, but
argue they are grieving they were discriminated against when their classification, Health
Assistants, was not fairly considered for these pay equity increases. They believe thediscussions they had with Secretary Joan Ohl about the effects of the equity pay increases
were different from the Bill passed by the Legislature.
(See footnote 3)
Discussion
The focus of the grievance is W. Va. Code § 5-5-4, which is entitled "
Department
of health and human resources pay equity salary adjustment." This Code section states:
The Legislature hereby directs that a pay equity salary adjustment be
provided for employees of the various agencies of the department of health
and human resources. This salary adjustment shall be provided from the
funding appropriated to the department in the fiscal year two thousand and
may not be construed to require additional appropriations from the
Legislature. In the event any provision of this section conflicts with any rule,
policy or provision of this code, the provisions of this section shall control.
In determining the pay equity salary adjustments, the department may give
consideration to employee tenure, relevant average salaries and such other
factors as may be determined relevant by the secretary. Due to the limits of
funding, the results of the pay equity salary adjustments shall not be subject
to the provisions of article six-a [§ 29-6A-1 et seq.], chapter twenty-nine of
this code. The provisions of this section are rehabilitative in nature and it is
the specific intent of the Legislature that no private cause of action, either
express or implied, shall arise pursuant to the provisions or implementation
of this section.
(Emphasis added.)
W. Va. Code §§ 29-6A-1 et seq., are the Code Sections governing and explaining
the grievance procedure for state employees. Typically, issues of compensation and
discrimination may be grieved through the grievance procedure as the definition of what
is a grievance is broad. See Franz v. W. Va. Dep't of Health and Human Resources,
Docket No. 98-HHR-220 (Nov. 30, 1998); Hammond v. W. Va. Dep't of Health and HumanResources, Docket No. 98-HHR-220 (Nov. 30, 1998); Sturgis v. W. Va. Dep't of Health
and Human Resources, Docket No. 98-HHR-220 (Nov. 30, 1998).
W. Va. Code § 29-6A-2(i) defines a grievance as:
(i) "Grievance" means any claim by one or more affected state employees
alleging a violation, a misapplication or a misinterpretation of the statutes,
policies, rules, regulations or written agreements under which such
employees work, including any violation, misapplication or misinterpretation
regarding compensation, hours, terms and conditions of employment,
employment status or discrimination; any discriminatory or otherwise
aggrieved application of unwritten policies or practices of their employer; any
specifically identified incident of harassment or favoritism; or any action,
policy or practice constituting a substantial detriment to or interference with
effective job performance or the health and safety of the employees.
Any pension matter or other issue relating to public employees insurance in
accordance with article sixteen [§ 5-16-1 et seq.], chapter five of this code,
retirement, or any other matter in which authority to act is not vested with the
employer shall not be the subject of any grievance filed in accordance with
the provisions of this article.
Unfortunately for Grievants in this instance, the West Virginia Legislature has
statutorily mandated that these specific equity pay increases are not grievable events.
Indeed, the Legislature also statutorily removed the possibility of even a private cause of
action. Accordingly, the equity pay increases referred to in
W. Va. Code § 5-5-4 cannot
be grieved through the grievance procedure, and this grievance must be dismissed.
The above-discussion will be supplemented by the following Conclusion of Law.
Conclusion of Law
The equity pay increases directed by the Legislature in
W. Va. Code § 5-5-4 "shall
not be subject to the provisions of article six-a, chapter twenty-nine of [the
West Virginia
Code]."
Accordingly, this grievance is
DISMISSED.
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: February 18, 2000
Footnote: 1 The names of the Grievants as listed on the Level III Dismissal Order are: Jennifer
Bates, Pat Blankenship, Mary Bugg, Kathy Chadwell, Beverly Collins, Shirley Dunny, Mary
Fetty, Helen Gardner, Craig Hill, Phyllis Hoffman, Brenda Jividen, Cora Kimes, Kimberly
King, Carolyn Knapp, Samuel Legg, Carol McClure, Linda Neal, Sylvia Pearson , Bernice
Pike, Deborah Roush, Maxine Smith, Tabatha Swisher, Tammie Taylor, Elizabeth Ungaro,
and Joyce Wooten.
Footnote: 2