v. Docket No. 01-DOH-560
WEST VIRGINIA DEPARTMENT OF
TRANSPORTATION/DIVISION OF HIGHWAYS,
This grievance was denied at all lower levels. Grievant appealed to Level IV on November 2, 2001. A Level IV hearing was held on December 4, 2001. This case became mature for decision on that date, as the parties elected not to submit proposed findings of fact and conclusions of law. (See footnote 2)
Grievant argued DOH violated its and the Division of Personnel's ("DOP") Rules and guidelines when it gave Mr. Quintrell a 10 percent pay increase upon his reallocation to an Equipment Operator III in June or July of 2001, as he had previously received a 21/2 percent merit increase. Grievant maintains it is against the rules for an employee to receive a salary increase greater than 10 percent in a year. Grievant asserts DOH engaged in discrimination and favoritism with this action, because he did not receive the same increase in 1999, when he was promoted to the same classification.
Respondent asserts no rules or regulations were violated, and it did not engage in discrimination or favoritism in awarding Mr. Quintrell a 10 percent salary increase upon reallocation. Respondent notes this increase was in settlement of a grievance filed by Mr. Quintrell, and increases of 10 percent are common when a position is reallocated or an employee is promoted. Respondent maintained DOP's Rules limiting salary increases do not apply to reallocation or the settlement of a grievance, but only to merit increases. Further, Respondent cited to Mason v. Division of Highways, Docket No. 00-DOH-345 (March 28, 2001), which held an employee does not have standing to grieve the promotion or salary of another employee, if he cannot show harm to himself.
After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
1. Grievant has been employed by DOH since February 1988, and he is currently classified as an Equipment Operator III. 2. Grievant applied for and received a promotion to an Equipment Operator III position in 1999, pursuant to posting. Both Grievant and Mr. Quintrell applied for this position, and Grievant was selected. Grievant was promoted on December 1, 1999, and given a 5 percent increase.
3. In January 2001, one of the Equipment Operator III's quit, creating a vacancy in that classification.
4. Mr. Quintrell, an Equipment Operator II, filed a grievance in 2001 requesting reallocation to an Equipment Operator III, and a 10 percent salary increase.
5. Wilson Braley, District Engineer for District 2, asked to post the vacant position and was given permission to do so.
6. In the interim, Jeff Black, Human Resources Director, decided it could be possible to resolve Mr. Quintrell's grievance by reallocating him to the Equipment Operator III position. Grt. Ex. No. 3, at Level II. Affidavit, Jeff Black, Human Resources Director, dated December 4, 2001.
7. Before a final decision was reached on this issue, the position was posted, and Mr. Quintrell was the only applicant. Mr. Braley recommended Mr. Quintrell for the position in June or July of 2001, with a 5 percent raise. Grt. Ex. No. 3, at Level II; Test. of Mr. Braley, Level III Hearing.
8. Through discussion and after mediation, DOH decided to grant Mr. Quintrell a 10 percent increase upon his reallocation/promotion as a settlement of his grievance. Grt. Ex. No. 3, at Level II. Mr. Quintrell then withdrew his grievance at Level IV on October 12, 2001. (See footnote 3)
9. In October 2001, Mr. Quintrell received a 21/2 percent merit increase.
10. It is not unusual for an employee to receive a 10 percent increase upon promotion. Test. of Mr. Braley, Level III Hearing.
As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2000); Howell v. W. Va. Dep't of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990). See W. Va. Code § 29-6A-6. See also Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988).
The parties raise several issues. The first relates to Grievant's standing.
Grievant also contested Mr. Quintrell's reallocation and 10 percent increase. Respondent alleged Grievant did not have standing to contest these issues.
"Standing, defined simply, is a legal requirement that a party must have a personal stake in the outcome of the controversy." Wagner v. Hardy County Bd. of Educ., Docket No. 95-16-504 (Feb. 23, 1996); See Jarrell v. Raleigh County Bd. of Educ., Docket No. 95-41-479 (July 8, 1996). In order to have a personal stake in the outcome, Grievant musthave been harmed or suffered damages. Farley v. W. Va. Parkway Auth., Docket No. 96-PEDTA-204 (Feb. 21, 1997). It is necessary for Grievant to "allege an injury in fact, either economic or otherwise, which is the result of the challenged action and shows that the interest [he seeks] to protect by way of the institution of legal proceedings is arguably within the zone of interests protected by the statute, regulation or constitutional guarantee which is the basis for the lawsuit." Shobe v. Latimer, 162 W. Va. 779, 253 S.E.2d 54 (1979). Without some allegation of personal injury, Grievant is without standing to pursue this grievance. Lyons v. Wood County Bd. of Educ., Docket No. 89-54-601 (Feb. 28, 1990). Even if the employer has misapplied applicable regulations regarding the classification and/or a corresponding salary increase to another employee, where a grievant is not personally harmed, there is no cognizable grievance. See Cremeans v. Bd. of Trustees, Docket No. 96-BOT-099 (Dec. 30, 1996); Pomphrey v. Monroe County Bd. of Educ., Docket No. 94-31-183 (July 1, 1994); Mills v. W. Va. Dep't of Transp., Docket No. 92-DOH-053 (Apr. 24, 1992).
Grievant has not demonstrated how he has been personally injured by Mr. Quintrell's reallocation and 10 percent increase, aside from the possible morale problems that could be created within the organization. Without injury, Grievant does not have standing to contest Mr. Quintrell's reallocation, which did not personally harm him. Mason, supra.
II. Salary advancement Grievant alleged DOH violated the following DOP Rules: 4.7, 5.5, and 5.8.
(See footnote 4)
5.8. Salary Advancements/[Merit Increases]
Once a grievant establishes a prima facie case of discrimination or favoritism, the
employer can offer legitimate reasons to substantiate its actions. Thereafter, the grievant
may show the offered reasons are pretextual. Hickman, supra. See Tex. Dep't of
Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human
Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Hendricks v. W. Va. Dep't of Tax
& Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996); Runyon v. W. Va. Dep't of Transp.,
Docket Nos. 94-DOH-376 & 377 (Feb. 23, 1995). Grievant has not met his burden of proof and established a prima facie case of
discrimination or favoritism. Grievant is not similarly situated to Mr. Quintrell. Grievant was
promoted in 1999, and Mr. Quintrell was reallocated/promoted in 2001. (See discussion
Section II). Mr. Quintrell's 10 percent increase was the result of a settlement of a
grievance and a reallocation which resulted in a promotion. Grievant was promoted and
did not challenge his 5 percent increase at the time it occurred. Accordingly, Grievant has
not met his burden of proof.
The above-discussion will be supplemented by the following Conclusions of Law.
8. Once a grievant establishes a prima facie case of discrimination and/or
favoritism, the employer can offer legitimate reasons to substantiate its actions.
Thereafter, the grievant may show the offered reasons are pretextual. Hickman, supra.
See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store
v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Hendricks v.
W. Va. Dep't of Tax & Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996); Runyon v. W.
Va. Dep't of Transp., Docket Nos. 94-DOH-376 & 377 (Feb. 23, 1995).
9. Grievant has not met his burden of proof and established a prima facie case of discrimination and/or favoritism. Grievant is not similarly situated to Mr. Quintrell.
Accordingly, this grievance is DENIED.
Any party, or the West Virginia Division of Personnel, may appeal this decision to the Circuit Court of Kanawha County, or to the "circuit court of the county in which the grievance occurred." Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 29-6A-7 (1998). 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. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.
JANIS I. REYNOLDS
ADMINISTRATIVE LAW JUDGE
Dated: January 14, 2002