Largent v. West Virginia Div. of Health

• Decision Date: 23 November 1994
• Docket Number: No. 21864,21864
• Citation: 452 S.E.2d 42,192 W.Va. 239
• Court: West Virginia Supreme Court
• Parties: Jacqueline LARGENT, Charlotte Kingrey, Mary Carter, Ella Roberts and Rachel Smith, Petitioners/Appellants, v. WEST VIRGINIA DIVISION OF HEALTH and West Virginia Division of Personnel, Respondents/Appellees.

Page 42

452 S.E.2d 42

192 W.Va. 239

Jacqueline LARGENT, Charlotte Kingrey, Mary Carter, Ella Roberts and Rachel Smith, Petitioners/Appellants, v. WEST VIRGINIA DIVISION OF HEALTH and West Virginia Division of Personnel, Respondents/Appellees.

No. 21864.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1994.

Decided Nov. 18, 1994.

Opinion Concurring in Part and

Dissenting in Part by Justice

McHugh Nov. 23, 1994.

Syllabus by the Court

1. Under W.Va.Code 29-6-10 [1992], the West Virginia Legislature allows agencies to consider a broad range of factors when setting the salary of a new employee.

2. The West Virginia Equal Pay Act, W.Va.Code 21-5B-1 [1965], does not apply to the State or any municipal corporation so long as a valid civil service system based on merit is in effect.

3. W.Va.Code 29-6-10 [1992], provides that employees who are performing the same tasks with the same responsibilities should be placed within the same job classification.

4. W.Va.Code 29-6-10 [1992], does not provide that employees who are performing the same tasks with the same responsibilities be placed at the same step within a job classification.

Darrell V. McGraw, Atty. Gen., Robert M. Nunley, George P. Surmaitis, Asst. Attys. Gen., Charleston, for appellees.

Larry Harless, Charleston, for appellants.

NEELY, Justice.

The Appellants in this case, Jaqueline Largent, Charlotte Kingrey, Mary Carter, Ella Roberts, and Rachel Smith filed a grievance against the West Virginia Division of Health (now the Department of Health and Human Resources) and the West Virginia Division of Personnel, after they discovered that a fellow worker, D.M., ¹ was making 18 percent more money than the Appellants were for doing the same work. The Appellants contend that because D.M. is making more money for doing the same work, the principle of "equal pay for equal work" has been violated and that their constitutional rights to equal protection and due process have also been violated. We disagree. Therefore, we affirm the ruling of the Circuit Court of Cabell County affirming the Level IV administrative law judge.

All of the employees involved in this case, including D.M., are female licensed practical nurses ("LPNs") at Huntington State Hospital ("HSH"). All the LPNs are classified as LPN II's (pay grade 11); however, D.M. is paid at step five within that grade while the other LPNs are paid at step one. The difference in pay between step one and step five is $2,600 per year.

I.

The first issue is whether it is proper for HSH to pay D.M. at step five of grade 11 according to state law governing civil servants. D.M. was originally hired in 1983 as an LPN I. When D.M. was originally hired, she was paid at step nine of the LPN I classification. HSH asserts that the reason D.M. was hired at step nine instead of step one of the LPN I classification was the shortage of qualified nurses at the time due to market competition from private employers in the Huntington area. ² Additionally, HSH points to D.M.'s experience as well above the minimum requirements for the LPN I job classification and her education. After reviewing the Code sections and Administrative Rules in question, we determine that the original hiring of D.M. at an advanced step did not violate West Virginia law for the following reasons.

The West Virginia Legislature allows agencies to consider a broad range of factors when setting the salary of a new employee. W.Va.Code 29-6-10 [1992]. Initially, to be hired at an advanced step an applicant must meet or exceed the minimum requirements for a particular job classification. Once it is determined that the applicant exceeds the minimum training and/or experience requirements by six months or more, the starting salary of the appointee may be raised to any rate within the classification so long as the employee has six months experience for each step he or she is given above the minimum. ³ The Administrative Rules of the West Virginia Division of Personnel, which are promulgated pursuant to W.Va.Code, 29-6-10 [1992], and which were in effect in 1983, provided in pertinent part that:

(b) Entry Salary--The entry salary for any employee shall be at the minimum salary for the class. However, an individual possessing qualifying training or experience above the minimum required for the class, as determined by the Director, may be appointed at a pay rate above the minimum unless otherwise limited by the Commission. For each step above the minimum, the individual must have in excess of the minimum requirements at least six months of pertinent experience or equivalent pertinent training.

Administrative Rules of the Division of Personnel § 6.04(b) (Emphasis added). ⁴

The minimum qualification for the LPN I classification is a current West Virginia license or temporary permit to practice as a licensed practical nurse. Not only did D.M. meet this qualification, she far exceeded it. At the time she was hired, D.M. had an Associate Degree in Applied Science in the Field of Practical Nursing from Hocking Technical College, 3.5 continuing education units from Marshall University, 150 quarter hours in the field of Fine Arts from Ohio University, and five years and four months of work experience as a nurse. Therefore, the original hiring of D.M. as an LPN I at an advanced step was authorized by West Virginia law. It should also be noted that none of the parties disputes the fact that D.M. was appropriately hired or that she deserved the original advanced step appointment.

After working four years as an LPN I, D.M. brought a misclassification grievance and prevailed; thus, D.M. was promoted to LPN II, the next classification above LPN I. The Rules of the Division of Personnel in effect at the time of D.M.'s reclassification stated that:

The salary of an employee who is promoted shall be adjusted to the minimum rate of the new class. If the incumbent's current pay rate is at or above the minimum rate for the new class, but coincides with a step in the new range, the salary shall be adjusted one step in the range. Where the pay rate does not coincide with a step in the new range, the salary shall be adjusted to the next higher rate which provides at least a full step increase.

Administrative Rules § 6.05(a) (emphasis added) (see note 4 above). In other words, if someone is promoted to a higher classification, he or she should not be required to take a pay cut or remain at the same salary, but get a raise--this only makes sense. Under the facts of this case, D.M. was making more money at an advanced step as an LPN I than the Appellants in this case were making at the lowest step in the LPN II classification. When Rule 6.05(a) was applied after D.M.'s reclassification, she fell into step 5 of the LPN II classification. Once again, the record and the briefs in this case reflect that none of the parties is disputing the fact that D.M. should be paid at step 5 of the LPN II classification. With this in mind, and after reviewing the specifics of D.M.'s case, we determine that HSH has done nothing inappropriate in paying D.M. at step 5 of the LPN II classification.

II.

The Appellants argue that the current system violates the "principle of equal pay for equal work." The Appellants also present additional arguments based on violations of their constitutional rights to equal protection and due process.

West Virginia's "Equal Pay for Equal Work" statute can be found at W.Va.Code, 21-5B-1 to 6 [1965]. The Code defines "employer" as "any person, partnership, firm or corporation employing one or more employees, but does not include the State, or any municipal corporation or political subdivision of the State having in force a civil service system based on merit...." W.Va.Code, 21-5B-1(1) [1965]. Because the West Virginia Division of Health and Human Services and the West Virginia Division of Personnel have in place a duty-linked civil service system, they are not covered by W.Va.Code, 21-5B-1 to 6 [1965]. The statute goes on to explain that the State may be covered by a federal "equal pay for equal work" statute.

The federal Equal Pay Act may be found at 29 U.S.C. § 206(d) (1988). ⁵ The federal act has been held constitutionally to apply to state and local government employees. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (applying all aspects of the Fair Labor Standards Act to state and local governments); Usery v. Charleston County School Dist., 558 F.2d 1169 (4th Cir.1977). More specifically, the law has been held constitutionally to apply to state-operated hospitals and their employees. Marshall v. Owensboro-Daviess County Hospital, 581 F.2d 116 (6th Cir.1978). However, the federal Equal Pay Act has not been held to extend to people of the same sex. The purpose of the Equal Pay Act of 1963 was to remedy the problem of employment discrimination against women, i.e., the fact that wage structures of many segments of American industry were based on the ancient belief that a man, because of his role in society, should be paid more than a woman even though his duties be the same. Corning Glass Works v. Brennan, 417 U.S. 188 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974). The Equal Pay Act was intended as a broad charter of women's rights in the workplace, and seeks to eliminate the depressing effect on living standards that reduced wages for female workers has and the serious economic and social consequences that flow from reduced wages. See Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 121, 38 L.Ed.2d 55 (1973).

As noted earlier, all of the persons involved in this case are women. Although the federal Equal Pay Act was designed to prohibit discrimination based on sex, there is no indication that it prohibits paying employees of the same gender different wages for the same work based on skill, education, and experience. Therefore, the Appellants cannot...