American Federation of State, County and Mun. Employees v. CSC of W.Va.

• Decision Date: 18 December 1985
• Docket Number: 16790,Nos. 16738,s. 16738
• Citation: 341 S.E.2d 693,176 W.Va. 73
• Court: West Virginia Supreme Court
• Parties: , 27 Wage & Hour Cas. (BNA) 1171 AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, et al. v. CSC OF W.VA. and Dept. of Human Services of W.Va. Sandra PERRY, Brenda DeLauder, and Betty Campbell v. W.VA. CIVIL SERVICE COMMISSION and Dept. of Human Services of W.Va.

Page 693

341 S.E.2d 693

176 W.Va. 73, 27 Wage & Hour Cas. (BNA) 1171

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, et al. v. CSC OF W.VA. and Dept. of Human Services of W.Va.

Sandra PERRY, Brenda DeLauder, and Betty Campbell v. W.VA. CIVIL SERVICE COMMISSION and Dept. of Human Services of W.Va.

Nos. 16738, 16790.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1985.

Dissenting Opinion Dec. 19, 1985.

Rehearing Denied April 4, 1986.

Syllabus by the Court

1. " 'A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.' Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969)." Syl. pt. 1, Allen v. State Human Rights Commission, 174 W.Va. 139, 324 S.E.2d 99 (1984).

2. " 'A peremptory writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty.' Syl. pt. 4, Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612 (1939)." Syl. pt. 3, Allen v. State Human Rights Commission, 139 W.Va. 174, 324 S.E.2d 99 (1984).

3. "An administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs." Syl. pt. 1, Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977).

James M. Haviland, Charleston, for A.F.S.C.M.E.

Grant Crandall, Charles F. Donnelly, Bradley J. Pyles, Crandall, Pyles & Crandall, Charleston, for Perry, DeLauder and Campbell.

Thomas B. Bennett, Nicholas L. DiVita, Bowles, McDavid, Graff & Love, Charleston, for CSC.

Charlie Brown, Atty. Gen., Mary Beth Kershner, Asst. Atty. Gen., Charleston, for Dept. of Human Services.

PER CURIAM:

These are consolidated mandamus actions against the West Virginia Civil Service Commission (CSC) and the West Virginia Department of Human Services (DHS), brought by two groups of DHS employees, all of whom are protected by the provisions of our civil service law. W.Va.Code, 29-6-1, et seq. The first group, containing 19 members of the American Federation of State, County and Municipal Employees (AFSCME), were appellants in AFSCME v. CSC, 174 W.Va. 221, 324 S.E.2d 363 (1984) (hereinafter referred to as "AFSCME I" ) where this Court ordered that the appellants be awarded back pay for the period of time they performed work at a higher classification level than that to which they were appointed. In AFSCME I, we remanded the case to the CSC for a determination of the amount of back pay to which each worker was entitled.

The AFSCME petitioners contend that this Court clearly directed the CSC to award back pay for the entire period during which they worked out of classification and that the CSC has willfully and contumaciously ignored that directive by arbitrarily limiting the back pay awards. They move this Court to hold the CSC in contempt and they also seek fully retroactive back pay awards. We do not find that the CSC was contemptuous. However, the AFSCME petitioners' request, i.e., that we compel the CSC to comply with our earlier order, will be treated as a petition for a writ of mandamus.

The second group, containing three members of the Communications Workers of America (CWA), one of whom was an appellant in AFSCME I, filed grievances similar to those filed by the AFSCME petitioners, but did not appeal the CSC orders denying them relief.

The CWA petitioners seek a Writ of Mandamus to compel the CSC and DHS to award them back pay. They contend that under this Court's decision in AFSCME I, they are entitled to such relief.

I

This Court's conclusion in AFSCME I was founded on the principle of "equal pay for equal work" as established by W.Va.Code, 29-6-10(2) [1977]. ¹ AFSCME I, supra, 174 W.Va. at 225, 324 S .E.2d at 367.

Pursuant to its rulemaking authority, W.Va.Code, 29-6-10 [1977], the Civil Service Commission has promulgated procedural rules pertaining to appeals from demotions, suspensions for more than 30 days, and dismissals. W.Va. Civil Service Rules and Regulations § 14.01 [1981]. The commission has also, by rule, established a grievance procedure, which "applies to any matter which is subject to the control of agency management and which is of concern or dissatisfaction to an employee." Rules and Regulations § 23.01. Those matters which are directly appealable to the Civil Service Commission, pursuant to W.Va.Code, 29-6-15 [1977] and Rules and Regulations § 14.01, namely demotion, suspension for more than 30 days, or dismissal, are expressly not subject to the grievance procedure. Rules and Regulations § 23.01(c).

II

Each of the petitioners filed a grievance, pursuant to Rules and Regulations § 23, alleging generally that she worked outside of classification and requesting back pay, retroactive to the date such service began. Some of the grievants specified dates; others did not; still others simply asked to be "made whole."

The grievances moved through the various stages and ultimately were reviewed by the Civil Service Commission. The Commission denied back pay in all but one case, and the appeal in AFSCME I followed. Our review in AFSCME I was predicated on the appeal provisions of W.Va.Code, 29-6-15 [1977]. ² We said in footnote 5 of AFSCME I:

The petitioners have raised the issue of whether their status, prior to the reclassification, constituted a "demotion" in terms of their classification as Economic Service Workers I or II compared to the work they actually performed. We thus review the action of the Civil Service Commission concerning those petitioners pursuant to W.Va.Code, 29-6-15 [1977]. Although the petitioners initially sought relief in the forms of mandamus and judicial review, this action is now solely a matter of judicial review, inasmuch as the parties have resolved the mandamus aspects of this action.

AFSCME Petitioners

On remand, the CSC limited the recovery of back pay by applying the 30-day filing period of W.Va.Code, 29-6-15 [1977] to the cases involving the following petitioners: Allene Baker, Doris Bias, Roberta Boggs, Darlene Butcher, Darlene Cremeans, Emma Crites, Constance Dana, Gail Fry, Brenda Gilbert, Elizabeth Kennedy, April Moyers, Linda Seals, Rose Truex, Rose Ann Vincent, Randa Watson, Kenda Weaver and Victoria Wilson. Although the 30-day filing limitation was based on W.Va.Code, 29-6-15 [1977], the Civil Service Commission used the date each petitioner filed her grievance, from which to count back 30 days. ³

Two of the AFSCME petitioners, Helen Floyd and Betty Gill, were denied back pay because, according to the CSC's order, they failed to meet the minimum qualifications for the position of Economic Service Worker III. Rather than simply grant the back pay awards to those petitioners who received them, the Commission ordered retroactive "promotions." Those who did not qualify for such "promotions" received no back pay.

The Commission interpreted our opinion as applying only to the Economic Service Worker class. This interpretation resulted in the denial of back pay to one additional petitioner, Patricia Weaver, who was a Case Aide II, working in a higher classified position as a Social Service Worker I.

CWA Petitioners

Sandra Perry, initially a petitioner in AFSCME I, withdrew from that action on August 2, 1984. Following the remand, however, the Commission awarded Ms. Perry back pay, effective 30 days prior to the filing of her grievance. Upon notification to the Commission that Ms. Perry had withdrawn, the Commission rescinded the back pay order.

Brenda DeLauder was not one of the AFSCME I petitioners. She filed a grievance on May 22, 1983, complaining that she was working out of classification and requesting retroactive pay from July of 1979. As in most of the other grievance decisions the Commission found that Ms. DeLauder performed the full range of economic service tasks, but the Commission denied back pay. ⁴

Betty Campbell has the distinction of being the only petitioner in either of these consolidated actions who was awarded back pay prior to this Court's order in AFSCME I. Ms. Campbell filed her grievance in July of 1983, requesting back pay from the date she became eligible for the position of social service worker. The hearing board recommended that she be awarded retroactive pay effective June 1, 1981. The commission in an order dated June 1, 1984 found that Ms. Campbell should be classified as an Economic Service Worker I, rather than a Case Aide II, and directed that she be given back pay from May 25, 1983 (the date on which the reclassification study was completed) up to, but not including July 1, 1984 (the date on which the new plan was to be implemented). ⁵

III

Respondents contend that mandamus relief should be denied because it is not the appropriate remedy. We disagree.

"A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a clear legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

Syl. pt. 1, Allen v. State Human Rights Commission, 174 W.Va. 139, 324 S.E.2d 99 (1984).

" 'A peremptory writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty.' Syl. pt. 4, Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612 (1939)." Syl. pt. 3, Allen v. State Human Rights Commission, supra.

The petitioners legal entitlement to back pay and the respondents' corresponding legal duty to compute the amount of back pay due and ensure that such amount be paid to the petitioners was established in AFSCME I. ⁶

The petitioners have not failed to exhaust other legal remedies. The AFSCME petitioners are now challenging orders denying them fully retroactive awards of pay for the...