KAREN QUEEN,
Grievant,
v. Docket No. 99-HHR-412
DEPARTMENT OF HEALTH & HUMAN
RESOURCES/WILLIAM R. SHARPE,
JR., HOSPITAL,
Respondent.
DECISION
Karen Queen (Grievant) initiated this grievance on July 12, 1999, alleging she has
been subjected to pay discrimination by the Department of Health & Human Resources
(DHHR) upon her promotion to a Nurse IV position at William R. Sharpe, Jr., Hospital
(Sharpe Hospital). She seeks a promotional increase that recognizes my tenure and
experience. The grievance was denied at level one on July 19, 1999. Upon appeal to
level two, a conference was held on August 11, 1999, followed by a written decision,
denying the grievance, dated August 17, 1999. A level three hearing was held on
September 23, 1999, and the grievance was subsequently denied at that level on
September 30, 1999. Grievant appealed to level four on October 8, 1999. A level four
hearing was conducted in the Grievance Board's office in Morgantown, West Virginia, on
January 7, 2000. Grievant was represented by Mike McCall of District 1199, SEIU, and
Respondent was represented by counsel, B. Allen Campbell, Assistant Attorney General.
(See footnote 1)
This matter became mature for consideration at the conclusion of that hearing. The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant has been employed by Respondent since August 1, 1979, as a
nurse.
2. In early 1999, Sharpe Hospital administrators determined that a restructuring
of the nursing units was needed. Accordingly, several Nurse IV positions were created.
These positions were posted only within Sharpe Hospital, so that only current employees
could be considered. Each employee selected for one of the new Nurse IV positions was
to be reallocated to that position, with their prior position being eliminated. Therefore, no
new budgeted positions would be needed.
3. Grievant applied for and received one of the Nurse IV positions, which was
posted on March 15, 1999.
4. Beginning in July of 1999, Grievant's prior position of Nurse III was
reallocated to the Nurse IV classification.
5. The Nurse III classification is in pay grade 15, with a salary range from
$25,944 to $42,204.
6. The Nurse IV classification is in pay grade 16, with a salary range from
$27,768 to $45,168.
7. Upon reallocation, Grievant's prior salary of $31,392 was raised to $32,964,
a 5% increase.
Discussion
The following portions of the West Virginia Division of Personnel's Administrative
Rule (7/1/98) are pertinent to the resolution of this grievance:
Section 3. Definitions
3.77. Reallocation: Reassignment by the Director of Personnel of a
position from one classification to a different classification on the basis of a
significant change in the kind or difficulty of duties and responsibilities
assigned to the position.
* * *
5.4 Implementation of Plan
(b) Entry Salary _ The entry salary for any employee shall be at the
minimum salary for the class. However, an individual possessing pertinent
training or experience above the minimum required for the class, . . . may be
appointed at a pay rate above the minimum, up to the mid-point of the salary
range. . . .
3. Pay on Position Reallocation: When a position is
reallocated to a different class, the salary of the incumbent shall be adjusted
in accordance with salary regulations for promotion, demotion and lateral
class change.
* * *
5.5 Pay on Promotion _ When an employee is promoted, the employee's
pay shall be adjusted as follows:
(a) Minimum Increase _ An employee who salary is at the minimum
rate for the pay grade of the current classification shall receive an increase
to the minimum rate of the pay grade for the job classification to which the
employee is being promoted. An employee whose salary is within the range
of the pay grade for the current classification shall receive an increase of
one increment, as established by the State Personnel Board, per pay grade
advanced to a maximum of 3 pay grades, or an increase to the minimum rate
of the pay grade for the job classification to which the employee is being
promoted, whichever is greater, but in no case shall an employee receive an
increase which causes the employee's pay to exceed the maximum for the
pay grade to which he or she is being promoted;
(b) Additional Increase _ The appointing authority may grant
additional incremental increases, as established by the State Personnel
Board, to an employee being promoted if the employee has sufficient
qualifications in excess of the minimum required for the new class. . . .
Grievant contends that she has been subjected to discrimination, because several
individuals were hired during 1998 as Nurse IIs, and were given beginning salaries higher
than hers. All of these individuals were hired from outside the agency. She further argues
that she should have received not only the 5% incremental increase provided for by §
5.5(a) of the Administrative Rule, but also an additional increase, which would recognize
her experience and abilities. 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).
Grievant has failed to establish a
prima facie case of discrimination, because she
has failed to identify any employees with whom she is similarly situated. The individuals
she has named who were previously hired to fill Nurse II positions were not similarly
situated to Grievant. The Nurse IV position for which Grievant applied and was selected
was filled in 1999 as part of an internal reorganization, and no outside employees were
considered. Accordingly, the entry salaries which the Nurse IIs received are irrelevant to
the selection and salary process utilized for the Nurse IV reallocations. Moreover,
Grievant's evidence indicates that all of the Nurse IIs were hired at salaries within the
applicable salary range for the Nurse II classification, and she provided no evidence
regarding their experience. Therefore, Grievant has not established that their salaries
were contrary to the provisions of the Administrative Rule regarding entry salaries.
Furthermore, so long as a new employee's salary is within the applicable pay range for
their job classification, and is based upon appropriate considerations, no violation of law
has occurred.
See Largent v. W. Va. Div. of Health, 192 W. Va. 239, 452 S.E.2d 42
(1994).
Grievant also contends that her situation is identical to that presented to this
Grievance Board in
Queen v. W. Va. Dep't of Health & Human Resources, Docket No. 98-HHR-238 (Jan. 26, 1999). In that case, it was concluded that DHHR had engaged in
discrimination with regard to the hiring of the grievant, Patricia Queen,
(See footnote 2)
to fill a Nurse IV
position at Huntington Hospital. The administrative law judge stated in Conclusion of Law
3, as follows:
Grievant established a prima facie case of discrimination . . . by
showing that, upon promotion to Nurse IV, she was denied a recommended
pay increase, based upon her level of training and experience, where her
employer routinely grants similar recommended salaries to similarly situated
persons hired from outside state government. . . .
Grievant believes that her situation is the same as that which occurred at
Huntington Hospital, because DHHR has admitted in this case that Grievant was not
considered for more than the 5% incremental increase, due to the verbal policy of not
granting additional increases above the required minimum for promotions. However, there
is an important distinction between this case and the situation presented in
Queen,
supra.
The Nurse IV position at issue in that case was advertised and posted for incumbent and
outside applicants, and it was a vacant, budgeted position. Accordingly, as stated in
Finding of Fact 10 in
Queen,
supra, if the grievant had been an outside applicant for the
same position she would have received a higher salary, based upon her experience and
qualifications. That was not a possibility in the instant case, because there was no vacant
position, and only current employees were to be considered and reallocated to the Nurse
IV positions. This Grievance Board has previously recognized that it is permissible for
state agencies to fill unbudgeted positions through reallocation of present employees,
because these are not true vacancies to be filled through competitive posting.
Workmanv. W. Va. Div. of Corrections, Docket No. 97-CORR-153 (Sept. 11, 1997).
The evidence of record does not establish a
prima facie case of discrimination.
Grievant was reallocated to a Nurse IV position, just as other incumbent employees at
Sharpe Hospital were, and she received the required incremental salary increase provided
for in the Administrative Rule for reallocations. Absent any evidence that other reallocated
employees received additional raises for experience and qualifications, Grievant has not
met her burden of proof. Her reallocation complied with the applicable portions of the
Administrative Rule.
Consistent with the foregoing findings and discussion, the following conclusions of
law are made.
Conclusions of Law
1. In a grievance which does not involve a disciplinary matter, the grievant has
the burden of proving her 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. In order to establish a
prima facie case of discrimination under
W. Va. Code
§ 29-6A-2(d), a grievant 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 thegrievant 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).
3. Grievant failed to establish a prima facie case of discrimination with regard
to her salary upon reallocation to a Nurse IV position at Sharpe Hospital.
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