RAYMOND CANFIELD, et al.,
Grievants,
v. Docket No. 02-CORR-269
DIVISION OF CORRECTIONS/
HUTTONSVILLE CORRECTIONAL
CENTER,
Respondent.
DECISION
Raymond Canfield, Gary Roy, and Richard Teter (“Grievants”) initiated separate
grievances in July of 2002, alleging entitlement to restoration of leave, holiday pay,
increment pay, and seniority credit which they did not earn while off work and receiving
Workers' Compensation benefits. The grievances were denied at level one, then
consolidated and denied at level two on July 31, 2002. A level three hearing was held on
August 9, 2002, followed by a written decision denying the grievance dated August 12,
2002. Grievants appealed to level four separately on August 29, 2002, where they were
consolidated by Order dated September 17, 2002. A hearing was held in the Grievance
Board's office in Elkins, West Virginia, on January 10 and February 21, 2003. Grievants
represented themselves, and Respondent was represented by Charles Houdyschell Jr.,
Assistant Attorney General. This matter became mature for consideration upon receipt of
the parties' fact/law proposals on March 11, 2003.
The following findings of fact are made based upon a preponderance of the credible
evidence of record.
Findings of Fact
1. Grievants are employed by Huttonsville Correctional Center (“HCC”). Each
suffered a work-related injury which caused him to be absent from work temporarily.
2. Grievant Roy's injury occurred in 1997, and Grievants Canfield and Teter
suffered injuries which occurred in 2001.
3. Each Grievant initialy drew sick leave until he began to receive temporary
total disability benefits. Once the Workers' Compensation benefits began, Grievants
“bought back” their sick leave, meaning that they reimbursed their employer the amount
of pay they received while on sick leave due to their injuries, and that sick leave time was
restored to them.
4. While receiving Workers' Compensation benefits, Grievants did not accrue
sick leave, annual leave, or seniority time. They did continue to accrue time credit for
annual increment pay.
5. Brian Simmons, Charles Collett, and John Miller are also HCC employees
who suffered on-the-job injuries in 1992, 1999, and 1992, respectively. Due to an error in
the payroll office, these employees continued to accrue leave time and seniority credit
during the time they were receiving Workers' Compensation benefits. As a result of the
instant grievance, HCC officials have corrected the seniority time for these employees,
deducting the time period they were on Workers' Compensation. HCC officials have not
deducted the applicable amount of sick and annual leave from these employees' records,
because it could result in them losing all their leave time.
Discussion
As this grievance does not involve a disciplinary matter, Grievants have the burden
of proving their grievance by a preponderance of the evidence. Procedural Rules of theW. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2000);
Payne v. W.
Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code
§ 29-6A-6.
Grievants contend that they have been deprived of benefits to which they were
entitled, in violation of
W. Va. Code § 23-5A-1, which prohibits employers from
discriminating against employees because of their receipt of or attempt to receive Workers'
Compensation benefits. They also contend that, although DOC claims to be correcting the
“mistake” it made in allowing other employees to continue to accrue leave and seniority
time, they have been subjected to discrimination because of this practice.
DOC's position is based upon the policies and administrative regulations of the
Division of Personnel (“DOP”), which apply to all classified state employees. By
administrative rule, 143 CSR 3 (2000), DOP has addressed employees' receipt of
temporary total disability benefits in detail, providing that, once sick leave has been
exhausted, employees may “buy back” that leave,
(See footnote 1)
just as Grievants did. In addition, the
rule specifically provides that an employee who elects to receive temporary total disability
benefits must apply for a medical leave of absence without pay. These employees do
continue to accrue credit for increment pay, but do not receive years of service credit,
annual leave, or sick leave, in accordance with DOP's “Workers' Comp/Sick Leave Policy”
(2000). This policy comports with DOP's Administrative Rule §§ 14.3 and 14.4, whichprovide that both annual leave and sick leave accrue at the end of each pay period and
“cannot be accrued for hours not paid[.]”
Much of Grievants' argument is based upon a prior decision of this Grievance
Board,
McCauley v. West Virginia Division of Corrections, 97-CORR-354 (March 5, 1999),
in which it was held that to allow employees to accrue seniority while receiving sick leave,
yet not allow the same for employees who are on Workers' Compensation, was
discriminatory in violation of
W. Va. Code § 23-5A-1. However, as Grievants are aware,
the
McCauley decision was expressly overruled in the subsequent decision of
Lohr v. West
Virginia Division of Corrections, Docket No. 99-CORR-191 (Aug. 31, 1999). The pertinent
portion of that decision states:
Unfortunately, the McCauley decision did not include consideration of
[DOP's policy], which requires an employee electing to receive TTD benefits
to request a Medical Leave of Absence Without Pay. This important factor
places employees receiving TTD benefits in exactly the same circumstances
as every other employee who is absent from work for medical reasons, and
is off the payroll. As stated in the policy, employees on a medical leave of
absence without pay experience a break in their employment, during which
time they do not accrue leave and seniority, and do not receive holiday pay.
Under these circumstances, employees receiving TTD benefits are not
subject to discrimination . . . . Because the [DOP] policy is a controlling
factor in these matters, but was not considered, it is concluded that
McCauley was clearly wrongly decided, and it is therefore overruled.
As Grievants have correctly noted, Kanawha County Circuit Judge Stucky was not
persuaded by the reasoning in
Lohr when he upheld the Grievance Board's prior decision
in
McCauley.
W. Va. Division of Corrections v. McCauley, Civil Action No. 99-AA-72
(Circuit Court of Kanawha County, Apr. 17, 2000). He reasoned that, because the
employee would have continued to accrue annual leave, sick leave, and seniority time if
he utilized sick leave instead of temporary total disability benefits, he was beingdiscriminated against for electing to receive Workers' Compensation, in violation of
West
Virginia Code § 23-5A-1.
As a general rule, this Grievance Board adheres to the doctrine of
stare decisis in
adjudicating grievances that come before it.
Chafin v. W. Va. Dep't of Health & Human
Resources, Docket No. 92-HHR-132 (July 24, 1992), citing
Dailey v. Bechtel Corp., 157
W. Va. 1023, 207 S.E.2d 169 (1974). This adherence is founded upon a determination
that the employees and employers whose relationships are regulated by this agency are
best guided in their actions by a system that provides for predictability, while retaining the
discretion necessary to effectuate the purposes of the statutes applied. Consistent with
this approach, this Grievance Board follows precedents established by the Supreme Court
of Appeals of West Virginia as the law of this jurisdiction. Likewise, prior decisions of this
Grievance Board are followed unless a reasoned determination is made that the prior
decision was clearly in error.
Shaffer v. Kanawha County Bd. of Educ., Docket No. 00-20-
085 (June 12, 2000);
Belcher v. W. Va. Dep't of Transp., Docket No. 94-DOH-341 (Apr. 27,
1995). A decision from a circuit court reversing a Grievance Board decision, while
instructive, does not mandate that the circuit court's reasoning be followed by the
Grievance Board in future cases dealing with the same issue.
See Lane v. Raleigh County
Bd. of Educ., Docket No. 02-41-176 (Aug. 29, 2002).
Reviewing the reasoning set forth in
Lohr,
supra, the undersigned is not persuaded
that the decision in that case is legally incorrect. The circuit court opinion in
McCauley
neither discusses nor addresses the reasoning set forth in
Lohr regarding the status of
employees receiving Workers' Compensation vis-a-vis all other employees who are in a
non-paid status due to a medical leave of absence. Accordingly, the circuit court's reversalof
McCauley does not present a reasoned determination sufficient to overrule the
Grievance Board's decision in
Lohr, finding that employees receiving temporary total
disability benefits are not victims of discrimination, because they are treated equally to all
other employees on leave of absence.
Grievants further contend that, because three other employees at HCC were
allowed to continue to accrue seniority credit, annual leave and sick leave while receiving
temporary total disability benefits, DOC has engaged in discrimination in violation of
West
Virginia Code § 29-6A-2(d). That statute defines “discrimination” as "any differences in the
treatment of employees unless such differences are related to the actual job
responsibilities of the employees or agreed to in writing by the employees." In order to
establish a
prima facie case of discrimination, Grievants must show:
(a) that they are similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that they have, to their detriment, been treated by their employer in a
manner that the other employee(s) has/have not, in a significant particular;
and
(c) that such differences were unrelated to actual job responsibilities of the
grievants and/or the other employee(s) and were not agreed to by the
grievants in writing.
Smith v. W. Va. Bureau of Employment Programs, Docket No. 94-BEP-099 (Dec. 18,
1996);
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215 (Sept. 24,
1996). Once Grievants establish a
prima facie case of discrimination, the burden shifts to
the employer to demonstrate a legitimate, non-discriminatory reason for the employment
decision.
Smith,
supra;
see Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248
(1981). While DOC has conceded that its prior granting of leave and seniority credit was a
mistake, such an error does not necessarily constitute discrimination,
Ritchie v. W. Va. Div.
of Corrections/Huttonsville Correctional Center, Docket No. 98-CORR-105 (Nov. 30, 1998);
Ritchie v. W. Va. Dep't of Health and Human Resources, Docket No. 96-HHR-181 (May
30, 1997);
McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15,
1996), nor is DOC obliged to commit further mistakes with Grievants .
See Akers v. W. Va.
Dep't of Tax and Revenue, 194 W. Va. 956, 460 S.E.2d 702 (1995). Mistakes by
employers do not usually entitle a grievant to relief.
White v. Div. of Highways, 00-DOH-
313D (Jan. 17, 2001);
Crosston v. W. Va. Div. Highways, Docket No. 96-DOH-503 (Oct.
31, 1997). Specifically, it is not discriminatory for an employer to refuse to grant a benefit
to an employee that was granted to another in error.
White,
supra. The Grievance Board
has consistently refused to grant the type of relief Grievants seek because of a mistake or
a violation of a policy, because such actions constitute
ultra vires acts, and because two
wrongs do not make a right.
See Guthrie v. W.Va. Dep't of Health and Human Resources
Docket No. 95-HHR-277 (Jan. 31, 1996);
Earnest and Hatfield v. Southern W.Va.
Community College, Docket Nos. 91-BOD-352/290 (Sept. 30, 1992),
rev'd, Circuit Court
of Kanawha County, Civil Action No. 92-AA-296 (Apr. 23, 1993);
Froats v. Hancock County
Bd. of Educ., Docket No. 89-15-414 (Dec 18, 1989).
See also Roberts v. W.Va. Dep't of
Transp., Docket No. 96-DOH-017 (May 2, 1996),
aff'd, Circuit Court of Kanawha County,
Civil Action No. 96-AA-72 (May 25, 1997);
Gilliam v. W.Va. Dep't of Transp., Docket No.
96-DOH-511 (Apr. 24, 1997).
Accordingly, Grievants have not established entitlement to the relief requested. The
following conclusions of law support the decision reached.
Conclusions of Law
1. In non-disciplinary matters, Grievants have the burden of proving their
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);
Payne v. W. Va. Dep't of
Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code § 29-6A-6.
2.
W. Va. Code § 23-5A-1 prohibits employers from discriminating against
employees because of their receipt of or attempt to receive Workers' Compensation
benefits.
3. A state employee who suffers an on-the-job injury and elects to receive
Workers' Compensation benefits rather than using sick leave is placed in a medical leave
of absence without pay, experiencing a break in employment, and does not accrue annual
leave, sick leave, or seniority time credit. West Virginia Division of Personnel Workers'
Compensation Temporary Total Disability Rule, 143 CSR 3 (2000); West Virginia Division
of Personnel “Workers' Comp/Sick Leave Policy;”
Lohr v. W. Va. Division of Corrections,
Docket No. 99-CORR-191 (Aug. 31, 1999).
4. Mistakes by employers do not usually entitle a grievant to relief.
White v. Div.
of Highways, 00-DOH-313D (Jan. 17, 2001);
Crosston v. W. Va. Div. Highways, Docket No.
96-DOH-503 (Oct. 31, 1997). Specifically, it is not discriminatory for an employer to refuse
to grant a benefit to an employee that was granted to another in error.
White,
supra.
5. Grievants have failed to prove by a preponderance of the evidence that they
are entitled to credit for sick leave, annual leave, and seniority time while off work and
receiving Workers' Compensation benefits.
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, and 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.
Date: April 18, 2003 ________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1