Hammond v. W. Va. Dep't of Transp., 11–0284.

• Decision Date: 09 May 2012
• Docket Number: No. 11–0284.,11–0284.
• Citation: 229 W.Va. 108,727 S.E.2d 652
• Court: West Virginia Supreme Court
• Parties: Randy HAMMOND, et al., Appellants v. WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS and The Division of Personnel, Appellees.

229 W.Va. 108

727 S.E.2d 652

Randy HAMMOND, et al., Appellants

v.WEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS and The Division of Personnel, Appellees.

No. 11–0284.

Supreme Court of Appeals of

West Virginia.

Submitted April 18, 2012.

Decided May 9, 2012.

Syllabus by the Court

1. “When reviewing the appeal of a public employees grievance, this Court reviews decisions of the circuit court under the same standard as that by which the circuit court reviews the decision of the administrative law judge.” Syl. pt. 1, Martin v. Barbour County Board of Education, 228 W.Va. 238, 719 S.E.2d 406 (2011).

2. “Grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.” Syl. pt. 1, Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000).

Andrew J. Katz, Esq., Charleston, WV, for Appellants.

Krista D. Black, Esq., Charleston, WV, for Appellees.

PER CURIAM:

The appellants in this case, several employees of the Division of Highways, ¹ have brought this appeal from an order of the Circuit Court of Kanawha County affirming a decision by the West Virginia Public Employees Grievance Board (hereinafter the Board). This case involves a decision by the West Virginia Department of Transportation, Division of Highways (hereinafter DOH) to provide a wage increase for current and newly hired employees in three counties that are part of its District 5 operations.² The appellants, who work in DOH's District 1 counties,³ filed administrative grievances contending that they were victims of unlawful discrimination because of DOH's failure to provide them with a wage increase. The Board and the circuit court found no merit to the appellants' contention. In this appeal the appellants argue that the lower tribunals erred in finding (1) that they were not similarly situated as the District 5 workers, (2) that no management employee at District 1 complained of recruitment and retention problems, and (3) that some grievances were not timely filed. After a careful review of the briefs, record submitted on appeal and listening to the arguments of the parties, we affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

The record in this case indicates that beginning in 2002, District 5 management complained to DOH that there was a shortage of applicants for positions in the counties of Berkeley, Jefferson and Morgan. In response to the complaints, DOH performed a study to determine the possible causes for the shortage of applicants. Ultimately DOH concluded that the private sector offered higher wages to potential District 5 workers. In order to remedy the problem of recruiting and retaining workers for District 5, DOH submitted a proposal to the Division of Personnel (hereinafter DOP) on May 16, 2005, requesting a pay differential for a defined group of District 5 employees. ⁴ The proposalrequested a 15% wage increase for employees in the defined group, and a 25% pay differential for incoming employees.

The pay differential proposal submitted by DOH to DOP was approved and became effective on July 1, 2005.⁵ In approving the pay differential DOP noted that “[w]e have seen similar recruitment problems for other agencies in these counties due to the generally better economic climate and proximity to higher paying jobs in the nearby states of Maryland and Virginia.”

Subsequent to DOP approving DOH's pay differential proposal, the appellants filed grievances alleging DOH unlawfully discriminated against them by failing to provide them with the same pay increase.⁶ After administrative evidentiary hearings were held, a final decision was rendered by the Board on February 14, 2008, rejecting the appellants' grievances. The appellants filed an appeal with the circuit court. By order entered December 22, 2009, the circuit court affirmed the Board's decision. This appeal followed.

II.STANDARD OF REVIEW

In this proceeding we are called upon to review a decision of the circuit court that affirmed a decision of the Board. ⁷ We have held that “[w]hen reviewing the appeal of a public employees grievance, this Court reviews decisions of the circuit court under the same standard as that by which the circuit court reviews the decision of the administrative law judge.” Syl. pt. 1, Martin v. Barbour County Board of Education, 228 W.Va. 238, 719 S.E.2d 406 (2011).

Grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.

Syl. pt. 1, Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000). With these standards in mind we will consider the issues presented in this appeal.

III.DISCUSSION

Similarly Situated Employees

The dispositive issue raised by the appellants is that DOH's failure to provide them with the wage increase given to District 5 workers constituted unlawful discrimination within the meaning of W.Va.Code § 6C–2–2(d) (2008). ⁸ For the purposes of W.Va.Code § 6C–2–2(d), discrimination “means any differences in the treatment of similarly situated employees, unless the differences are related to the actual job responsibilities of the employees or are agreed to in writing by the employees.” The appellants contend that the lower tribunals erred in finding that they were not “similarly situated” as District 5 workers for purposes of receiving a raise in wages. The trial court and the Board found that the appellants were not similarly situated to District 5 workers because (1) appellants work in different geographic areas, and (2) that to the extent DOH received any complaints regarding the inability to attract employees in District 1, such complaints did not rise to the level of those received by DOH for District 5.

The first argument that the appellants make is that the lower tribunals should not have considered the problem of retention and recruitment for a specific geographical area, in determining whether they were similarly situated to District 5 workers. The appellants contend that all that should have been considered is whether they were “doing the same basic work as those employees to which they are comparing themselves.” We reject this contention. It is provided under 143 C.S.R. 1 § 5.4.f.4 that DOP “may approve the establishment of pay differentials to address circumstances such as class-wide recruitment and retention problems, regionally specific geographic pay disparities, shift differentials for specified work periods, and temporary upgrade programs. In all cases, pay differentials shall address circumstances which apply to reasonably defined groups of employees (i.e. by job class, by participation in a specific program, by regional work location, etc.), not individual employees.” In addition to the pay differential recognized by the latter regulation, we addressed the issue of pay differences in Largent v. West Virginia Div. of Health, 192 W.Va. 239, 452 S.E.2d 42 (1994).

In Largent this Court recognized that, although State employees doing same work had to be placed in same classification, there could be pay differences within that classification.

The Code establishes a multi-step pay plan and the implementing regulations set forth procedures to assist in determining where on that pay plan an individual employee can be placed. This system allows some flexibility in the hiring process and aids the state in attracting quality people to public service. Moreover, this flexibility allows for fluctuations in market conditions allowing the State to take into consideration other factors when hiring new employees such as the applicant's education and work experience. In short, employees who are doing the same work must be placed within the same classification, but within that classification there may be pay differences if those differences are based on market forces, education, experience, recommendations, qualifications, meritorious service, length of service, availability of funds, or other specifically identifiable criteria that are reasonable and that advance the interests of the employer.

Largent, 192 W.Va. at 246, 452 S.E.2d at 49. The appellants contend that Largent's recognition of using different factors to justify paying employees differently for doing the same work, was overruled in part by the decision in Board of Educ. of The County of Tyler v. White, 216 W.Va. 242, 605 S.E.2d 814 (2004). We disagree.

In White the grievant was an executive secretary for the Tyler County Board of Education (the County). Unlike other executive secretaries with the County who had 261–day contracts, the grievant in White was given a 240–day contract, which had fewer benefits. The grievant filed a grievance alleging that she was similarly situated with the other executive secretaries, and therefore the County could not discriminate against her by only offering her a 240–day contract.⁹ The administrative grievance Board found that the County had unlawfully discriminated against the grievant. However, on appeal to the circuit court, the decision of the Board was reversed. The circuit court found that the County had articulated a legitimate...