SHARON RANDALL, ET AL., .
v. . Docket Number: 94-PSC-001
WEST VIRGINIA PUBLIC SERVICE .
D E C I S I O N
I. Procedural History
This grievance comes about because of the consolidation at level four of three
separate grievances filed at level one of the Grievance Procedure for State Employees, West
§§29-6A-1, et seq
. In March 1993, Sharon Randall, Barry Hudnall, Jerry
Walker, Robert Runner, Gary Hellems, Gary Butcher, Gary Miller, Lee Roy Dean, Jr.,
Patrick Barker, Ronald Adkins, Thomas Marlow, Roger Bowen, Samuel Doss, Jeffrey Birch
and Fred Foster, all Utility Inspectors in the Public Service Commission's (PSC) Motor
Carrier Section of its Transportation Division, each filed a grievance alleging that they were
victims of salary discrimination when compared to the other Utility Inspectors assigned tothe PSC's other three sections in the Transportation Division. They also claimed that they
had not been receiving job vacancy notices from the PSC as required by law. These claims
were consolidated and answered at level two on October 28, 1994, by Franklin Crabtree,
Director of the Transportation Division. Mr. Crabtree denied the claims relating to salary
discrimination and recommended that the PSC attempt to take all practical steps in notifying
its employees of job openings. Appeal to level three was made and a denial of the claims
was issued on March 7, 1994, by the PSC's Chairman Boyce Griffith. Appeal of this
decision was received by the Grievance Board on March 14, 1994, and the case was assigned
to Administrative Law Judge Lewis G. Brewer. The case was styled Randall v. PSC
In early May, 1994, the PSC gave raises to all of its Utility Inspectors. Samuel Doss,
Robert Runner, Jerry Walker, Patrick Barker, Robert Hatfield, Edward Pritt and Argul Stull
each filed grievances on different dates in May 1994, challenging the amount of the raise
that they had received. A level one decision denying each grievance was issued on May 31,
1994. Thereafter, by separate letter dated either June 8, 1994, or June 15, 1994, each
grievance was also denied at level two. The seven grievances were consolidated at level
three and a hearing was held on October 24, 1994; after that, the claim was denied at that
level on December 15, 1994. An appeal to level four was perfected on December 22, 1994,
and the case was assigned to the Undersigned. This grievance was styled Doss, et al. v. PSC
Docket No. 94-PSC-1136.
As noted, salary increases were issued to the Utility Inspectors on or about May 1,
1994. Inspector Barry Hudnall received a $2,940.00 salary increase at this time. During theprocessing of the grievances filed at level one in May 1994, it was found that the amount
awarded to Mr. Hudnall was in error and that his raise should have been $504.00. In Mr.
Griffith's December 15, 1994, level three decision, it was concluded that Mr. Hudnall's raise
was to be rescinded and his salary was, therefore, reduced. Mr. Hudnall filed a grievance
over this reduction in his salary on December 27, 1994. This claim was denied at the lower
three levels and appeal was made to this Grievance Board on February 28, 1995. This case
was assigned to Administrative Law Judge Mary Jo Swartz and styled Hudnall v. PSC
Docket No. 95-PSC-086.
Ultimately, after many continuances in each appeal, Grievants' counsel requested that
the three cases be consolidated for hearing at level four. This motion was granted and by
Order dated March 7, 1995, the three cases were consolidated and styled Randall, et al. v.
, Docket No. 94-PSC-001. An evidentiary hearing was conducted in the Grievance
Board's Charleston, West Virginia office, on May 10, 1995. The case became mature for
decision on that date. The record also includes the transcripts and exhibits from the level
three hearings previously held by the PSC.
II. Claims Presented
The PSC's Transportation Division comprises four sections: Motor Carrier, Gas
Pipeline Safety, Railroad Safety and Solid Waste. Each of these sections has different
numbers of Utility Inspector Is, IIs and IIIs. Grievants are all Utility Inspectors assigned
to the Motor Carrier Section. They claim that the PSC has engaged in discriminatory pay
practices as the starting salaries within their section are lower than the starting salaries in
the other three sections. Second, they contend that the raises issued in May 1994, wereimproper because they were not based upon merit, and because they were not evenly
distributed. Third, Grievants contend that the PSC has violated W. Va. Code
not assuring they are properly notified of all job openings. Grievants work out of their
homes and the job vacancy notices have not been mailed to them. Finally, Mr. Hudnall
claims that the PSC was not justified in rescinding the $2,940.00 raise given him in May,
1994, and that the reduction in his pay amounted to reprisal.
The PSC avers that the differences in the salaries between the inspectors in the four
sections are based upon the differences in the job duties; therefore, it contends that no
discrimination has been shown. It also maintains that the job posting issue is now moot as
it started sending job vacancy notices to the homes of the inspectors in early 1993. It
contends that the raises given in May 1994, were proper and that they were not merit raises.
Finally, it asserts that the deduction in Mr. Hudnall's salary was appropriate given that the
initial amount of the raise was derived in error. It maintains that it would have been unfair
to all of the other employees for it not to have rescinded the raise.
A. Job Postings
Grievants argue that they would have bid upon and received various Utility Inspector
positions had they been properly notified of the vacancies. They argue that the PSC was
required to send notices of job vacancies to their home so that they would be informed of
vacancies. As relief, they seek monetary damages in the amount of the differences fromtheir respective current salaries and the salaries they would have received had they known
of the various job vacancies. The record contains numerous copies of West Virginia
Division of Personnel Job Postings Summaries from 1993 through 1995, copies of various
Public Service Announcements of job vacancies and copies of Career Opportunity notices
of the PSC. Most of these job postings contain reference to several vacant positions
throughout state government. The PSC argues that this issue is moot as it began sending
notices of job vacancies to Grievants in early 1993.
Grievants are correct that pursuant to W. Va. Code
§29-6-24, and the Division of
Personnel's Administrative Rule, 143 C.S.R. 1.9.06, job openings in classified positions are
required to be posted by the appointing authority. Both this Code
Section and Rule require
that job vacancy notices be posted within the building or facility where the duties of the job
are to be performed and "throughout the agency." As noted, Grievants work out of their
Whether it could be determined that the PSC is, and was, required to send notices
of job openings to Grievants' homes pursuant to Code
§29-6-24 and Personnel's
Administrative Rule, Grievants have not proven by a preponderance of the evidence that
they have suffered any harm. The conclusory claim that Grievants would each be in a
higher paying job had they each received copies of various job postings at their home is not
sufficient evidence to support a finding of monetary damages based upon a comparison of
their current salaries and that of other unidentified positions. No Grievant has shown a
particular entitlement to any specific position at an identified salary. To provide Grievants,as a group, with any amount of monetary damages, based upon this claim, would be entirely
speculative and inappropriate.
B. Grievant Hudnall's 1994 Raise
Grievant Hudnall was given a $2,940.00 raise in salary effective May 1, 1994. The
PSC reduced his salary effective January 1, 1995, after learning in another employee's level
two grievance hearing that his raise was as large as it was. The PSC contends that Grievant
Hudnall's raise should have been $504.00, and it made a mistake in granting him a larger
raise. Therefore, it lowered his salary by $2,436.00. The PSC argues that it was legally
permitted, if not obligated, to reduce his salary after it discovered its error.
Grievant Hudnall appears to make several arguments why the PSC should not have
lowered his salary. He argues that he had relied upon receiving the increased salary
amount; therefore, the PSC should be estopped from reducing it. He also contends that the
lowering of his salary was the result of retaliation because the error was discovered during
the grievance process. Finally, he seems to aver the PSC could not establish that his raise
was made in error because no documentation used in the decision-making process could be
Regardless of whether the PSC produced documentation to verify that Grievant
Hudnall's raise was higher than intended, the Undersigned finds, based upon the testimony
presented, that such was the case. Second, the record does not establish that the lowering
of his salary was the result of retaliation because his exercise of a protected right was not
the proximate cause of his salary being decreased. His salary was not lowered because he
filed a grievance or participated in a grievance hearing. While Grievant Hudnall had joinedthe grievance filed in March 1993, there is no evidence to establish that this was the
motivation for the decreasing of his salary after it was learned that a mistake had been
made. His salary was decreased based upon information discovered during a grievance
hearing but not because of he had joined in the grievance.
Finally, the PSC cannot be estopped from correcting its negligent act or clerical error,
although it is understandable that Grievant Hudnall had come to rely upon receiving the
increased salary for approximately six months. "The doctrine of estoppel should be applied
cautiously, only when equity clearly requires that it be done, and this principle is applied
with especial force when one undertakes to assert the doctrine of estoppel against the state."
McFillan v. Beckeley County Planning Commission
, 190 W. Va. 458, 465 (1993), citing
Samsell v. State Line Development Co.
, 174 S.E.2d 318 (W. Va. 1970). Here, the equities
do not call for an application of the doctrine of estoppel.
C. 1994 Raises
In late April or early May 1994, the PSC gave its Utility Inspectors raises that it
designated as merit raises. The official forms that were sent to the Division of Personnel
for the approval of these raises showed that they were salary advancements/merit raises.
Many Utility Inspectors received a raise of approximately $500.00 per year, while a few
employees received larger raises of between $2,000.00 and $3,000.00 per year, to bring their
salaries to a minimum level for all inspectors. The testimony on behalf of the PSC
establishes that these raises were not based upon merit; moreover, no current performance
evaluations had been performed. Grievants contend that these raises should have been based upon merit, and because
they were not, they were discriminated against in that they received smaller raises than other
Utility Inspectors. They rely upon language contained within both the Division of
Personnel's Administrative Rule, 143 C.S.R. 1, and in an undated, PSC Employees'
Handbook that indicates all salary advancements are to be based upon performance,
supported by performance evaluations. Grievants seek an increase in salary based upon the
conclusion that all of the raises should have been comparable to the larger ones given the
minority of inspectors. The PSC denies that any discrimination has been established.
The evidence establishes that the raises complained of were not intended to be merit
raises. The Legislature had appropriated some additional funds to the PSC in order for it
to meet its financial responsibilities for the 1994 fiscal year. Close to the end of that fiscal
year, the PSC concluded that it had more money than it needed and would be required to
relinquish it at the end of the fiscal year if not spent. Therefore, it gave its Utility
Inspectors raises. The evidence also supports the finding that the Employee Handbook
relied upon by Grievants was not in effect at this time.
Grievants do not contend that the 1994 raises should be rescinded; therefore, it is
not necessary to determine whether the PSC acted appropriately under the applicable
administrative regulations in giving the raises, though they were not merit raises butclassified as such.
(See footnote 1)
The remedy they seek does not flow from the argument presented.
Therefore, their request for relief must be denied.
Further, the argument that the raises were discriminatory must also fail. Grievants
seek to compare themselves to those employees who received substantially larger raises than
they. However, the key distinction is that the larger raises were given to those employees
who were not paid consistent with what the PSC thought the minimum salary should be for
the position of Utility Inspector I, $18,000.00. Grievants have not established that they were
not paid at this level at the end of the 1994 fiscal year. Therefore, they have not established
that they were treated differently than other similarly situated employees.
D. Salary Compared to other Utility Inspectors
1. Starting salary
Grievants, all Utility Inspectors assigned to the PSC's Motor Carrier Section in its
Transportation Division, claim that they are being discriminated against because the starting
salaries for positions within their section have been lower than the starting salaries for
positions within the other three sections. They claim that their current salaries are also
lower than those of the other inspectors because of the cumulative effect of having been
assigned lower starting salaries, plus being granted lower pay raises. They seek to have their
salaries increased to levels comparable with that of the other inspectors, attorney fees and
an order prohibiting the PSC from maintaining discriminatory pay practices. The PSC denies that any discrimination exists between the salaries paid to the various
inspectors in the four divisions. It also argues that its Utility Inspectors are not required to
be paid consistent with the Division of Personnel's pay plan because it has exempted them
from coverage by general order. Boyce Griffith, the PSC's chairman testified that he
attempts to pay all of the inspectors consistent starting salaries.
The majority of Utility Inspectors hired by the PSC have started as Utility Inspector
Is. The Motor Carrier Section also has the most employees, and the most Utility Inspector
Is, twenty-three. The Solid Waste Section has been assigned seven Utility Inspector Is. The
evidence establishes that the highest starting salary given to a Utility Inspector I in the
Motor Carrier Section was $16,656.00. This employee was hired on August 3, 1992. The
highest starting salary of any Utility Inspector I assigned to one of the other three sections
was $23,604.00, and this employee was hired on March 31, 1992. Only two Utility Inspector
Is have been hired into the Railroad Safety Section, one was hired on October 16, 1991, at
a salary of 22,608.00, and the other was hired on November 1, 1991, at a salary of
(See footnote 2)
The first Utility Inspector I hired within the Motor Carrier Section was hired on
August 2, 1971, at a salary of $6,840.00. Next, the PSC hired an employee for the Railroad
Safety Section on March 1, 1972 at the same salary. The next employee was hired on May
03, 1977 at $7,656.00. After that, most Utility Inspector Is were hired between 1982 and
1993. Eight employees were hired between 1985 and 1987 at $12,768.00; one of theseemployees was assigned to the Gas Pipeline Safety Section (the only Utility Inspector I who
started in this section). Ten employees, including three in the Solid Waste Section, were
hired between 1991 and 1993 at the same salary, $14,424.00, while nine other employees
have been hired between 1991 and 1993 at a salary higher than $14,424.00. Of
approximately thirty-six Utility Inspector Is who have been hired by the PSC, many of them
have started at the same or comparable salaries to their peers hired at similar times.
However, of those employees, six of the eleven hired but not assigned to the Motor Carrier
Section have started at a salary of greater than $19,000.00. Also, none of these six
employees was hired after August 3, 1992, when the Utility Inspector I hired in the Motor
Carrier Section with the highest starting salary ($16,656.00) was hired.
Pursuant to W. Va. Code
§24-1-1(f)(5), the PSC has the authority to exempt its
employees from the "salary schedules or pay plan" adopted by the Division of Personnel
§29-6-10. The PSC has exempted the Utility Inspectors positions from the
Division of Personnel's pay ranges and has established, by General Order, pay ranges of its
own for these classifications. In 1982, the pay range for Utility Inspector I was set at
$12,768 to $23,040.60. In 1991, this range was changed to $14,424.00 to $25,212,00.
(See footnote 3)
Between 1982 and 1991, most of the Utility Inspector Is were hired at or slightly above the
starting salary of $12,768.00. In 1991 and thereafter, ten employees were hired at the
minimum for the position or slightly higher, and eight employees were hired at a salary
significantly higher. Of these eight employees, two were assigned to the Motor CarrierSection and given salaries of $15,756.00 and $16,656.00. Of the other six employees, the
lowest starting salary was $19,400.00.
It is not readily apparent from the testimony of Commissioner Griffith whether the
PSC has exempted its Utility Inspectors from the pay plan and
salary schedules of the
Division of Personnel. Copies of the PSC's General Orders establishing its Rules of
Reorganization were introduced into the record. The latest Order, dated April 27, 1995,
contains the following findings of fact and conclusion of law:
Findings of Fact
1. The Commission believes it is necessary that its existing pay scales
for its exempt employees be upgraded to reflect current conditions.
2. In 1993, the Division of Personnel undertook a reclassification of
all Commission employees, which resulted in changes in job titles and salary
3. Following an appeal of the Commission, the Division of Personnel
agrees that Personnel's pay ranges would not apply to the Commission's
4. This order is issued, in part, to clarify the exempt employees by
their new job titles and Commission salary range.
5. This order adopted as a range, the current minimum and the
maximum range as set forth in General Order 195.20, adjusted by 105%.
6. Regarding job titles, the Commission has simply translated the old,
previously exempted titles to their new titles. No new class of employee has
Conclusion of Law
The Commission concludes, as a matter of law, that it is reasonable for
its [sic] to establish the annual salary ranges reflected in attachment A for its
exempt employee positions as provided for under West Virginia Code §2-1-
1(f)(5) and West Virginia Code §24-1-4.
The previously adopted General Orders included in the record contain substantially similar
findings and conclusions. Based upon the language of these General Orders, it is found that
the PSC has exempted its employees in the Utility Inspector classification series from the
salary schedules adopted by the Division of Personnel. It is further found that the PSC hasnot exempted these positions from coverage of the Division of Personnel's entire pay plan.
Therefore, the rules on starting or entry salary, pay on promotion, demotion, reclassification,
etc., are still applicable to the PSC.
(See footnote 4)
At first glance, it appears that Grievants are correct that the Utility Inspectors in the
Motor Carrier Section have been started at lower salaries than inspectors in the other three
sections of the Transportation Division. However, upon a closer review, apparently the only
significant differences in starting salary can be traced to the six positions referenced above.
The documentary evidence from the PSC's personnel files is not sufficient for the
Undersigned to determine why these six individuals were paid higher starting salaries than
(See footnote 5)
Also, there was no explanation given by any of the PSC's witness to explain
or justify the salary given these employees. There is no evidence that the nature of the work
these employees perform is different from that of any of the other Utility Inspectors. The
statistical evidence, the Utility Inspector I classification specification and various documents
from the inspectors' personnel files represent the majority of the evidence presented on
behalf of Grievants to support their claim on this issue.
Although Grievants have submitted evidence to show that some Utility Inspector Is
hired by the PSC have been started at higher salaries than their peers in the Motor Carrier
Section of the Transportation Division, they have not established by a preponderance of the
evidence that they have been victims of discrimination. Generally, pursuant to the Divisionof Personnel's Administrative Rule, classified employees are to be hired and are hired at the
entry level salary for their classifications. The PSC has followed this practice for many of
its Utility Inspector Is by hiring them at the entry level of the salary range it has created
pursuant to general order. However, classified employees may be hired above the minimum
salary, pursuant to the Division of Personnel's rule, if certain circumstances exist.
Employers may start newly-hired employees at salaries above the minimum, up to or above
the minimum dependent upon the individual's qualifications above those established for the
position or upon substantiated severe or unusual hiring difficulties. Grievants have not
shown that such was not true in regard to the six employees who have been started at
substantially higher salaries than they. Therefore, their argument on this issue cannot be
2. Current Salary
Grievants contend that the PSC has discriminated against them by paying the Utility
Inspectors in the other three sections higher salaries. They assert that the difference in
salaries is based upon starting salaries being higher for those in other sections and larger
raises being given to those in the other sections over time.
(See footnote 6)
Again, the PSC simply denies
that any discrimination has occurred.
It has been recognized that a state employee's salary, at any given time, is a product
of his history of employment and changes to his starting salary. Salmons v. W. Va. Dept.of Trans.
, Docket No. 95-DOH-004 (Apr. 20, 1995); Tomlinson v. W. Va. Dept. of Trans.
Docket No. 94-DMV-209 (Oct. 20, 1994). Grievants have presented salary figures for all
of the Utility Inspectors employed by the PSC and the date of each employee's last raise
that was given in either 1991 or 1992. The documents also establish the amount of the raise
for each employee. It is noted that all these raises were not the same. The majority were
classified as merit raises, but others were given as a result of the employee gaining
permanent status, having transferred from one section to another, or having had his position
reclassified. The salary information also covers all three positions within the Utility
Again, Grievants basically contend that the salary information speaks for itself. It is
understandable how a Utility Inspector assigned to the Motor Carrier Section would
question the salary he/she receives after looking at a list of the salaries of the other
inspectors. For example, there are only three (out of twenty-two) inspectors making less
than $20,000.00 per year in the other three sections combined. And while it is true that
these three employees are Utility Inspector Is, there are twenty inspectors in the Motor
Carrier Section who make less than $20,000.00 per year. This includes seven Utility
Inspector IIs who were all employed prior to the date the three Utility Inspector Is who
make more than $20,000.00 were hired. Further, of the nine Utility Inspectors who were
found eligible and who received a merit raise in 1991, who work in either the Gas Pipeline
Safety and Railroad Safety Sections, the lowest raise was $900.00. However, only five out
of twelve Utility Inspectors in the Motor Carrier Section received a raise greater than$900.00 at the time of their last increase. In general, the salaries for the Utility Inspectors
in the three sections other than Motor Carrier may be higher than those in Motor Carrier.
Even though Grievant's concerns are understandable, the evidence does not establish
that their salaries have been the product of discrimination. The evidence in no way explains
how any of these employees have come to make the yearly salaries they do. Grievants have
each received more than one salary increase since their date of hire. A cursory review and
comparison of their salaries, at a set point in time, with that of other employees, cannot
support a finding by a preponderance of the evidence that they have been discriminated
against. Even in the classified service of state government, governed by the many
regulations of the Division of Personnel, all employees holding the same classification with
similar years of service do not receive identical salaries. Salaries can vary based upon many
factors and Grievants have not established that the differences in their salaries, when
compared to those of other PSC employees, are not based upon permissible factors.
Therefore, this claim is denied.
Findings of Fact
1. As of early 1993, Grievants have received copies of all notices of job openings, by
mail, at their homes.
2. Effective January 1, 1995, Grievant Hudnall's salary was reduced by $2,436.00 per
year, as his salary was increased by that amount, by mistake, effective May 1, 1994.
3. The raises given by the PSC to its Utility Inspectors in April or May, 1994, were
not intended to be merit raises although they were designated as such. 4. Through the raises referred to in finding of fact number 3, the PSC assured that
the salaries of all of its Utility Inspector Is were at least $18,000.00 per year.
5. Generally, the PSC attempts to hire Utility Inspectors at or near the minimum
annual salary that it has adopted for those positions.
7. Not all of the Utility Inspectors employed by the PSC make comparable salaries
based solely upon a comparison of their hire date and work section assignment.
8. The PSC, by General Order, has exempted its Utility Inspector positions from
coverage under the Division of Personnel's salary schedules.
Conclusions of Law
1. Grievants bear the burden of proving their claims by a preponderance of the
evidence. W. Va. Code
2. Grievants' claim concerning a violation of W. Va. Code
§29-6-4 is moot.
3. Assuming Arguendo
, Grievants' claim that they should have recieved notices of
job openings at their homes is not moot, their claim for damages resulting from any alleged
violation of W. Va. Code
§29-6-4 has not been established to a reasonable degree of
4. Grievant Hudnall has failed to establish any violation, misapplication or
misinterpretation of law with regard to a reduction in his salary effective January 1, 1995.
5. Grievants have failed to establish that they have been discriminated against with
regard to either their starting or current salaries. See
, Goff v. State Board of Education,
Docket No. 93-DOE-446 (Sep. 9, 1994).
Therefore, this grievance is hereby DENIED
. Any party or the West Virginia Division of Personnel may appeal this decision to the
"circuit court of the county in which the grievance occurred," and such appeal must be filed
within thirty (30) days of receipt of this decision. W. Va. Code
§29-6A-7. Neither the West
Virginia Education and State Employees Grievance Board nor any of its Administrative Law
Judges is a party to such appeal and should not be so named. Any appealing party must
advise this office of the intent to appeal and provide the civil action number so that the
record can be prepared and transmitted to the appropriate court.
ALBERT C. DUNN, JR.
Administrative Law Judge
February 28, 1996