W. Va. Dep't of Health & Human Res. v. E.H.

• Decision Date: 09 June 2017
• Docket Number: No. 16-0781,16-0781
• Court: West Virginia Supreme Court
• Parties: West Virginia Department of Health and Human Resources, Bureau for Behavioral Health and Health Facilities, Respondent Below, Petitioner v. E.H., et al., Petitioners Below, Respondents

West Virginia Department of Health and Human Resources,Bureau for Behavioral Health and Health Facilities, Respondent Below, Petitioner v. E.H., et al., Petitioners Below, Respondents

No. 16-0781

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

June 9, 2017

(Kanawha County 81-MISC-585)

MEMORANDUM DECISION

Petitioner and respondent below West Virginia Department of Health and Human Resources, Bureau for Behavioral Health and Health Facilities ("the Department"), by counsel Elbert Lin, Andrew S. Dornbos, Charles R. Bailey, and Kelly C. Morgan, appeals the July 21, 2016, order of the Circuit Court of Kanawha County that granted the motion to enforce and for sanctions filed by respondents and petitioners below E.H., et al. Respondents, by counsel Lydia C. Milnes and Jennifer S. Wagner filed a response. Petitioner submitted a reply.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

This institutional reform case began in 1981, in the Circuit Court of Kanawha County, to address the deplorable conditions at the State's two psychiatric hospitals, Mildred Mitchell Bateman Hospital ("Bateman") and William R. Sharpe, Jr., Hospital ("Sharpe"). Because this Court recently recounted the case's long and extensive history in West Virginia Department of Health and Human Resources v. E.H., et al., 236 W. Va. 194, 778 S.E.2d 643 (2015), the lengthy procedural facts that are not pertinent to this appeal will not be repeated here.

The instant appeal involves staffing and staff pay as part of the effort to improve patient care at the two hospitals. Following a hearing conducted before the circuit court in April 2009, which included evidence of chronic and severe understaffing, the parties entered into an Agreed Order that was designed to remedy a host of problems, including the staff-related issues. Relevant to this appeal is that portion of the July 2, 2009, Agreed Order that provided as follows:

10. Facilities:

(a) [The Department] shall provide for increased pay for direct care workers at Bateman and Sharpe in order to (i) be able to recruit staff and retain existingstaff and (ii) preclude the practices of mandatory overtime and reliance on temporary workers (except in exceptional and infrequent contexts). (See Attachment B.)

(Emphasis added). Attachment B is a chart that, inter alia, set forth mandatory salary increases,¹ including the agreement to increase the pay of Health Service Trainees by $1,000, and Health Service Workers and Health Service Assistants by $2,000.²

Thereafter, in October of 2012, respondents filed a request for resolution in which it alleged, among other things, that the Department had not increased pay for health service trainees, workers, and assistants as set forth in Attachment B to the 2009 Agreed Order. Following a hearing thereon, the circuit court entered an order on December 11, 2012, in which it ordered, inter alia, that the Department must comply with paragraph 10(a) of the 2009 Agreed Order, above, regarding increased pay for health service employees at the two hospitals; that the increased pay "shall be for the exact amount listed in 'Attachment B' under the Proposed Increase column[;]"³ that this pay increase "shall be implemented on or before January 1, 2013[;]" and that it is "prospective, meaning it shall be for those workers at Sharpe and Bateman Hospitals who are employed in the classes listed in 'Attachment B' on January 1, 2013 . . . ."

The Department subsequently filed a motion to alter or amend the December 11, 2012, order and a hearing was conducted. By order entered December 18, 2012, the circuit court denied the Department's motion and clarified that health service trainees, workers, and assistants employed on or after January 1, 2013, are entitled to pay raises effective January 1, 2013, as provided in the December 11, 2012, order. The December 18, 2012, order provided further that "[t]his Order applies equally to those whose employment continues as to those whose employment with the Department ends after January 1, 2013 . . . ." Finally, the order provided "that starting January 31, 2013, the Department will be held in contempt at the rate of $50 per day, per affected employee, for each day the employee does not receive funds for the raises effective January 1, 2013."

Following an April 24, 2014, hearing addressing the Department's efforts to recruit and retain full time employees at Bateman and Sharpe, the circuit court entered an order on June 3,2014, in which it found that the base starting salaries for health service trainees, workers and assistants were the same as they were prior to the 2009 Agreed Order and that the Department continued to hire employees in those three classifications at pre-2009 Agreed Order base salaries. In other words, the Department failed to pay these employees the salary increases required by Paragraph 10(a) and Attachment B of the 2009 Agreed Order, and the December 18, 2012, order. Accordingly, in subparagraph (b) of the June 3, 2014, order, the circuit court directed that the Department

immediately implement a special starting salary for the three categories of health service workers as reflected in Attachment B to the 2009 Agreed Order. Employees in those three categories who have been hired and/or promoted to a new position since January 1, 2013, and who did not receive the benefit of the increased base salary must be retroactively compensated. This additionally includes newly hired employees who were paid above the base salary as a result of prior experience, the percent of their increases based on prior experience must be increased to reflect the appropriate base wage. Moreover, the retroactive compensation must include changes to amounts paid in overtime (which should have been paid at 150% of the higher salary) and changes in amounts paid to retirement benefits on behalf of the employee.

(Emphasis added).

In subparagraph (a) of the June 3, 2014, order, the circuit court also directed that the Department

develop a plan to (1) significantly reduce the number of staff vacancies at Sharpe and Bateman[;] (2) discontinue the practice of mandatory overtime except in exceptional and infrequent contexts; and (3) discontinue the reliance on temporary employees and contract workers to fill the vacant positions. Among other things, the plan should utilize the currently available options, as set forth in the policies of the Division of Personnel, to implement special hiring rates and incentives in order to recruit fulltime direct care employees. In doing so, [the Department] shall consider prevailing market wages in the respective market areas for the two hospitals. The plan shall further include requests to the Division of Personnel for retention incentives to encourage retention of existing hospital employees. The plan must provide a schedule for future proposals to the Division of Personnel to ensure that base salaries remain competitive and that additional retention incentives are distributed . . . .

The Department appealed the June 3, 2014, order to this Court.

Meanwhile, the Department developed a salary plan directed at recruiting and retaining employees as required by subparagraph (a) of the June 3, 2014, order, which plan was approved by the West Virginia Division of Personnel on October 10, 2014. On January 1, 2015, the Department implemented the new salary plan, which included new starting salaries for new hires in nearly all classes of direct care employees (i.e., doctors, nurses, and health service employees).

This Court affirmed the June 3, 2014, order in an opinion filed October 7, 2015. See E.H., et al.

Subsequently, in response to discovery requests seeking information on the Department's implementation of subparagraph (b) of the June 3, 2014, order, the Department stated, inter alia, that (1) it implemented a special starting salary for the three categories of health service employees as reflected in Attachment B of the Agreed Order, effective January 1, 2015; (2) it "issued salary increases in compliance with Attachment B of the Agreed Order effective January 1, 2013;" (3) no qualifying employee was excluded for any reason from the three categories of health service employees as reflected in Attachment B from receiving the January 1, 2013, salary increases; (4) overtime was paid in compliance with the January 1, 2013, salary increases and in compliance with Attachment B; and (5) retirement benefits were paid in compliance with Attachment B. The Department further stated that it was unaware of any employee who was owed retroactive compensation and "request[ed] specificity as to any specific individual who is alleged to have not received retroactive pay."

Thereafter, respondents provided the Department with information on a sampling of nine employees who were hired into the health service employee categories at issue⁴ after January 1, 2013, and who were being paid the starting base salary in effect before the 2009 Agreed Order.⁵ These employees were not receiving the increased salary required by the 2009 Agreed Order, and the December 18, 2012, order. Nevertheless, counsel for the Department thereafter advised respondents' counsel that none of the spot-checked employees were entitled to retroactive compensation.

On April 25, 2016, respondents filed a motion to enforce and for sanctions in which they alleged that the Department failed to comply with subparagraph (b) of the June 3, 2014, order. Specifically, respondents' motion alleged that the Department failed to immediately implement a new...