D. Scott Bellomy, Esq.
Ryan Turner, Esq.
Bellomy & Turner
Huntington, West Virginia
Attorneys for Gary Lambert
George A. Stolze, Esq.
Huntington, West Virginia
Attorney for Hercil Gartin
William T. Watson, Esq.
Huntington, West Virginia
Attorney for Richards, Egnor & Blankenship
The Opinion of the Court was delivered PER CURIAM.
“Where employees of the Department of Human Services of West Virginia were classified for purposes of civil service as Economic Service Worker I or II, and the work performed by those employees was not distinguished by the Department of Human Services from the work performed by an Economic Service Worker III (a higher salaried position), such employees were entitled to the difference in compensation between their Economic Service Worker I or II classifications and the Economic Service Worker III classification.” Syllabus Point 2, AFSCME v. Civil Serv. Com'n of W.Va., 174 W.Va. 221, 324 S.E.2d 363 (1984).
Per Curiam:
Gary Lambert, the appellant,
appeals the May 7, 2001 order of the Circuit Court of Cabell County which
dismissed his complaint against the Sheriff, Jail Administrator, and Commissioners
of Cabell County pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure. In his complaint, the appellant, a correctional officer who holds
the rank of sergeant, alleged that he is entitled to additional compensation
for duties he performed which were regularly performed by a captain. Because
we find that the appellant has stated a claim upon which relief can be granted,
we reverse and remand.
On December 22, 2000, the appellant
filed suit in the Circuit Court of Cabell County against the Cabell County Sheriff,
Cabell County Jail Administrator, and the members of the Cabell County Commission.
In count one of the complaint, the appellant alleged that according to AFSCME
v. Civil Service Commission of W.Va., 174 W.Va. 221, 324 S.E.2d 363 (1984),
he is entitled to the difference in compensation between the ranks of sergeant
and captain of the Sheriff's Department. In count two, he alleged that his service
as shift commander de facto constituted his promotion to the rank of
captain in the Sheriff's Department, and his subsequent reassignment from shift
commander was without just cause and in violation of W.Va. Code § 7-14B-6,
et seq.
By order dated May 7, 2001,
the Circuit Court of Cabell County granted the appellees' motion to dismiss
pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Specifically,
the circuit court found:
1. That
Plaintiff is a “Correctional Officer” as defined by West Virginia
Code § 7-14B-2(a)(2).
2. That
Plaintiff, as a Correctional Officer, is an employee of the Cabell County Sheriff.
3. That
because Plaintiff is an employee of an officer elected by popular vote, West
Virginia Code § 29-6- 4(c)(3) finds Plaintiff to be employed in a position
of “classified-exempt service.”
4. That
Plaintiff is not a classified civil service employee as contemplated by
AFSCME et al. v. Civil
Services Commissions of West Virginia, et al., [sic]
174 W.Va. 221, 324 S.E.2d 363 (1984).
5. That
Plaintiff is not entitled to the difference in compensation as would be had
between a sergeant and a captain.
The appellant now appeals to this Court.
As noted above, the
appellant's complaint was dismissed pursuant to Rule 12(b)(6) of the West
Virginia Rules of Civil Procedure. We have held that “[a]ppellate review
of a circuit court's order granting a motion to dismiss a complaint is de
novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). Further, we
construe the factual allegations in the light most favorable to the plaintiff.
Id., 194 W.Va. at 776, 461 S.E.2d at 522. Finally, “[t]he policy
of the rule is thus to decide cases upon their merits, and if the complaint
states a claim upon which relief can be granted under any legal theory, a
motion under Rule 12(b)(6) must be denied.” John W. Lodge Dist. Co.,
Inc. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158-59 (1978).
On appeal, the appellant
raises two assignments of error. First, the appellant claims that the trial
court erred in granting the appellees' Rule 12(b)(6) motion to dismiss by
finding the appellant is classified exempt under W.Va. Code § 29-6-4(c)(3).
According to the appellant, W.Va. Code § 29-6-4(c)(3) is not applicable
to the appellant because it applies only to elected state officers
and their employees, whereas the appellant is a correctional officer governed
by W.Va. Code § 7-14B-1, et seq. The appellees agree that W.Va.
Code § 29-6-4(c)(3) does not apply to the appellant although they maintain
that the circuit court's ruling is correct.
We agree with the parties
that the circuit court improperly based its ruling below on W.Va. Code §
29-6-4(c)(3) (1999). A review of Chapter 29, Article 6 of the Code indicates
that it applies to state employees. For example, W.Va. Code §
29-6-1 (1977) provides that the purpose of the article is,
to
attract to the service of this state personnel of the highest ability
and integrity by the establishment of a system of personnel administration
based on merit principles and scientific methods governing the appointment,
promotion, transfer, layoff, removal, discipline, classification, compensation
and welfare of its civil employees, and other incidents of state
Second, the appellant argues
that the rule announced in Syllabus Point 2 of AFSCME v. Civil Service
Commission of W.Va., 174 W.Va. 221, 324 S.E.2d 363 (1984), is controlling
here. In Syllabus Point 2 of AFSCME, we held:
Where
employees of the Department of Human Services of West Virginia were classified
for purposes of civil service as Economic Service Worker I or II, and the
work performed by those employees was not distinguished by the Department
of Human Services from the work performed by an Economic Service Worker III
(a higher salaried position), such employees were entitled to the difference
in compensation between their Economic Service Worker I or II classifications
and the Economic Service Worker III classification.
The appellant points specifically to the Court's statement in AFSCME that
the “result in this action is particularly necessitated by the requirement
of the civil service system of this State, as reflected in W.Va. Code,
29-6-10 [1977], that the principle of 'equal pay for equal work in the several
agencies of the state government shall be followed[.]'” AFSCME, 174
W.Va.
The
appellant asserts that his situation is largely analogous to the situation
in AFSCME in that just as the Department of Health and Human Resources
(See footnote 1)
classified its workers in AFSCME, the appellant's employers, the
Cabell County Sheriff, the Cabell County Commission, and the Cabell County
Correctional Officer's Civil Service Commission classifies its correctional
officers into different ranks. The appellant explains, however, that unlike
AFSCME, where the employer had established differing pay scales but
failed to distinguish the job duties of each pay level, the appellees have
distinguished job duties commensurate with each rank, but forced him to do
the duties of a higher rank without the corresponding pay. After careful consideration
of the issues, we find the appellant's position to be the most persuasive.
We recognize, as pointed out by the appellees, that W.Va. Code §§
7- 14B-1 et seq. establishes only the single classification of correctional
officer. We further recognize that AFSCME is not directly on point
because it concerns W.Va. Code §§ 29-6-1 et seq. which is
not applicable to the appellant. However, we believe that the principles
on which AFSCME is based are equally applicable here. In AFSCME, the petitioners
were classified as Economic Service Worker I or II in the Department of Human
Services. The petitioners filed a grievance in which they alleged that they
had been working out of classification, specifically, they had been performing
the duties of an Economic Service Worker III while receiving less pay than
Economic Service Worker IIIs. This Court held that the petitioners were entitled
to retroactive pay for the period during which Economic Service Workers I,
II and III performed the same duties. In reaching this conclusion, the Court
quoted with approval language from Theroux v. State, 152 Cal.App.3d
1, 199 Cal.Rptr. 264 (1984), in which the California Court of Appeals denounced
the arbitrary exclusion of certain state employees
The appellees respond that
the problem with the appellant's argument that he worked out of his classification
is that the applicable statute establishes but a single classification, that
of correctional officer. They
further assert that AFSCME is
not applicable because the appellant is not a state employee and even if he
were, the provisions of W.Va. Code § 29-6-4 would exempt him because he
is an employee of an officer elected by popular vote. The appellees also aver
that had the Legislature intended to require that the appellant
receive the pay of a higher ranking officer under these circumstances, it
easily could have provided by law for such payment, but did not do so. Finally,
the appellees contend that the appellant was merely asked to do the work contemplated
by statute for correctional officers.
Our
result in this action is particularly necessitated by the requirement of the
civil service system of this State, as reflected in W.Va. Code, 29-6-10
[1977], that the principle of “equal pay for equal work in the several
agencies of the state government shall be followed. . . .”
AFSCME, 174 W.Va. at 225, 324 S.E.2d at 367.
In
the instant case, the appellees
have established a classification for correctional officers that specifies
different ranks with corresponding duties and pay scales. The appellant, who
has the rank of sergeant, was assigned to work as a shift commander, a duty
which, according to policy and/or practice, was to be performed by a captain.
The appellant served as shift commander for a significant period of time,
but was denied the rank and additional compensation of a captain during that
time period.
In other words, the appellant performed
the duties of a higher rank without receiving the pay of that higher rank. We
conclude that this violates the principle of equal pay for equal work, inherent
in civil
service law, as set forth in AFSCME. Accordingly, we find that the
appellant has stated a claim upon which relief can be granted. We have carefully considered
all of the well-stated arguments of the appellees. However, we believe that
to find otherwise would allow government employers governed by the civil service
system to create a classification of different ranks, with corresponding duties
and rates of pay, and then arbitrarily ignore the classification at their
convenience.
(See footnote 2) Such a result would be decidedly inimical
to the principles of fairness undergirding our civil service laws. For the above reasons, this
Court finds that the facts as alleged by the appellant entitle him to retroactive
pay for the period during which he performed the duties of shift commander.
Specifically, he is entitled to the difference in compensation between his
rank of sergeant and the rank of correctional officer who, according to the
appellees' policy and/or practice regularly performed the role of shift commander.
Therefore, we find that it was
error for the circuit court to dismiss the appellant's complaint at the pleading
stage. Instead, the circuit court must try the facts to determine whether the
facts are as alleged in the appellant's pleading. If the facts are as alleged
by the appellant, he is entitled to retroactive pay as stated above.
Accordingly,
we reverse the May 7, 2001 order of the Circuit Court of Cabell County, and
this action is remanded to the circuit court for proceedings consistent with
this opinion.
Reversed and remanded with directions.