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


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      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:



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 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:



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
      Although notified of this proceeding, the Division of Personnel did not appear or participate.
Footnote: 2
      Apparently, Grievant and Patricia Queen are not related.