v. Docket No. 00-HHR-097
DEPARTMENT OF HEALTH & HUMAN SERVICES and
DIVISION OF PERSONNEL,
Respondents.
For relief, Grievant requested a salary advancement to the mid-point in the Safety & Loss
Control Specialist III classification, pay grade 18, and to stop the creation of a new class
for my position.
The parties agreed to waive consideration at levels one and two. Grievant
appealed to level four, and the matter was remanded to level three by Order dated
November 22, 1999. An evidentiary hearing was conducted on February 23, 2000, and
the grievance was subsequently denied in a decision dated March 1, 2000. Appeal to
level four was made on March 13, 2000, and a hearing was conducted at the Grievance
Board's Morgantown office on May 25, 2000. Grievant represented himself, DHHR wasrepresented by B. Allen Campbell, Esq., Assistant Attorney General, and the Division of
Personnel (Personnel) was represented by Lowell D. Basford, Assistant Director. The
matter became mature for decision with the submission of proposed findings of fact and
conclusions of law submitted by all three parties on or before June 19, 2000.
The essential facts of this matter are undisputed and may be set forth as the
following formal findings of fact.
(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.
Favoritism is similarly defined by W. Va. Code §29-6A-2(h), as "unfair treatment of
an employee as demonstrated by preferential, exceptional or advantageous treatment of
another or other employees." In order to establish a prima facie showing of favoritism, a
grievant must establish the following:
(a) that they are similarly situated, in a pertinent way, to one or
more other employee(s);
(b) that the other employee(s) have been given advantage or
treated with preference in a significant manner not similarly
afforded them; and,
(c) that the difference in treatment has caused a substantial
inequity to them and that there is no known or apparent
justification for this difference.
Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18,
1999); Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998). See
McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996).
Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30, 1992).
Once the grievant establishes a prima facie case of discrimination or favoritism, the
employer can then offer a legitimate reason to substantiate its actions. Thereafter, thegrievant 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).
Applying this prima facie analysis to the facts presented here, the undersigned finds
that Grievant established a prima facie case of discrimination by demonstrating that he is
similarly situated to other Workers' Compensation employees in the SLCS III classification,
that those other employees received a significant benefit in the form of a pay differential,
a benefit which was not extended to Grievant, and that this differential was not directly
related to any differences in their job responsibilities. See Morris v. W. Va. Dep't of
Transp., Docket No. 97-DOH-167 (Aug. 22, 1997).
Nonetheless, as previously discussed, DOP demonstrated that the action taken in
establishing a pay differential for the Workers' Compensation employees was specifically
sanctioned by discretionary authority contained in § 5.04(f)(4) of its Administrative Rule.
DOP's explanation represents a legitimate, non-discriminatory reason for the differential
treatment at issue. Grievant failed to present sufficient persuasive evidence that the
reason proffered by DOP was merely a pretext for prohibited discrimination or favoritism.
See Burdine, supra; Frank's Shoe Store, supra; Hoffer v. State Fire Comm'n, Docket No.
95-SFC-441 (June 18, 1996). Further, Grievant has not established that the salarydisparity which he is challenging violates any statute, policy, rule, regulation, or written
agreement under which he works. See W. Va. Code § 29-6A-2(i).
Finally, Grievant argues that DOP's efforts to create a classification for his position
is arbitrary and capricious and will circumvent the decision issued in Kimble I, which
determined that he was entitled to the classification of SLCS III, and would deny him
compensation which he might otherwise obtain. Respondents assert that the
reclassification is being processed in compliance with Kimble I.
An action is arbitrary and capricious if the agency making the decision did not rely
on criteria intended to be considered; explained or reached the 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 opinion. See Bedford County Memorial Hosp.,769
F.2d 1017 (4th Cir. 1985). An action may also be arbitrary and capricious if it is willful and
unreasonable without consideration of facts. Black's Law Dictionary, at 55 (3d Ed. 1985).
Arbitrary is further defined as being synonymous with bad faith or failure to exercise
honest judgment. Id, Trimboli v. W. Va. Dep't of Health and Human Servs./Div. of
Personnel, Docket No. 93-HHR-322 (June 27, 1997).
In Kimble I, the ALJ stated, Grievant's responsibilities are not accurately described
by either of the classification specifications [Inspector III and SCLS III] at issue. She
suggested [t]he logical conclusion to be drawn is that a classification needs to be created
for Grievant's position, and that of the Inspector III at Huntington Hospital which better
describes the advanced duties of these positions, and is in a higher pay grade than . .
.Inspector III's. The ALJ did not order the creation of a new classification because it hadnot been requested, and simply placed Grievant in the SCLS III classification because it
better described his duties, and was more in line with the pay grade to which he should
be assigned. DOP is responsible for the proper classification of individuals employed
under the Civil Service System, and has elected to act upon the suggestion to ensure that
Grievant and another employee are correctly classified and compensated. This action was
not arbitrary and capricious, nor will it circumvent the holding in Kimble I. Since all
classified employees should be compensated commensurate with their classification,
Grievant will not be deprived of any compensation to which he would be entitled.
Consistent with the foregoing discussion, the following Conclusions of Law are
appropriately made in this matter.
Parsons v. W. Va. Div. of Highways, Docket No. 91-DOH-246 (Apr. 30, 1992).
5. In order to establish a prima facie showing of favoritism, a grievant must
establish the following:
(a) that they are similarly situated, in a pertinent way, to one or
more other employee(s);
(b) that the other employee(s) have been given advantage or
treated with preference in a significant manner not similarly
afforded them; and,
(c) that the difference in treatment has caused a substantial
inequity to them and that there is no known or apparent
justification for this difference.
6. Although Grievant established a prima facie case of discrimination/favoritism
under W. Va. Code § 29-6A-2(d)and (h), in regard to the award of a pay differential to
SLCS IIIs employed by Workers' Compensation, DOP established legitimate,
non-discriminatory reasons for the action. See Tex. Dep't of Community Affairs v. Burdine,
450 U.S. 248 (1981); Salmons v. W. Va. Dep't of Transp., Docket No. 94-DOH-555 (Mar.
20, 1995); Graley v. W. Va. Parkways Economic Dev. & Tourism Auth., Docket No.
91-PEDTA-225 (Dec. 23, 1991).
7. Grievant failed to establish that the reason given by DOP was pretextual.
8. Grievant failed to prove that the creation of a classification which would
accurately represent his duties and responsibilities is contrary to any statute, rule,
regulation, is arbitrary and capricious, or otherwise improper.
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. 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 §29-
5A-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing
party must also provide the Grievance Board with the civil action number so that the record
can be prepared and transmitted to the circuit court.
Date: July 20, 2000 _______________________________________
Sue Keller
Senior Administrative Law Judge