CRAIG HILL, et al.,
            Grievants,

v.                                                       Docket No. 99-HHR-449

WEST VIRGINIA DEPARTMENT OF HEALTH
AND HUMAN RESOURCES/LAKIN HOSPITAL,
            Respondents.

D E C I S I O N

      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:

      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 "
(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:



      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
      All Grievants were represented by Grievant Craig Hill, and Respondent was represented by Assistant Attorney General Dennise Smith.
Footnote: 3
      This argument will not be addressed further, as the issue before the undersigned Administrative Law Judge is the content of the statute as it was enacted.