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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
____________
No. 32851
____________
CECIL PRITT, et al.,
Appellants Below, Appellees
V.
WEST VIRGINIA DIVISION OF CORRECTIONS,
and HUTTONSVILLE CORRECTIONAL CENTER,
Appellees Below, Appellants.
______________________________________________________
Appeal from the Circuit Court of Randolph County
The Honorable John Henning, Judge
Case Action No. 03-C-72
REVERSED AND REMANDED
_____________________________________________________
Submitted: February 14, 2006
Filed: April 11, 2006
Darrell V. McGraw, Jr.
Attorney General
John H. Boothroyd
Assistant Attorney General
Charleston, West Virginia
Attorneys for Appellants
|
Kelly R. Reed
Reed Kimble, P.L.L.C.
Morgantown, West Virginia
Attorneys for Appellees |
The opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “Grievance
rulings involve a combination of both deferential and plenary review. Since a
reviewing court is obligated to give deference to factual findings rendered by
an administrative law judge, a circuit court is not permitted to substitute its
judgment for that of the hearing examiner with regard to factual determinations.
Credibility determinations made by an administrative law judge are similarly
entitled to deference. Plenary review is conducted as to the conclusions of law
and application of law to the facts, which are reviewed de novo.” Syllabus
Point 1,
Cahill v. Mercer County Board of Education, 208 W. Va. 177,
539 S.E.2d 437 (2000).
2. “A
final order of the hearing examiner for the West Virginia Education and State
Employees Grievance Board, made pursuant to
W. Va. Code, 29-6A-1,
et
seq. [1988], and based upon findings of fact, should not be reversed unless
clearly wrong.” Syllabus,
Quinn v. West Virginia Northern Community College,
197 W. Va. 313, 475 S.E.2d 405 (1996).
Per Curiam:
The West
Virginia Division of Corrections and Huttonsville Correctional Center (collectively
referred to herein as “Corrections”) appeal from a January 14, 2005
order of the Circuit Court of Randolph County, which reversed an April 3, 2003,
decision of the West Virginia Education and State Employees Grievance Board (herein
referred to as “Board”). In its April 3, 2003, decision, the Board
held that the Appellee correctional officers at the Huttonsville Correctional
Center had not met their burden of proving a prima facie case of discrimination.
Appellees had filed a grievance against Corrections claiming discrimination because
they did not receive a five-percent salary increase that certain other correctional
officers had received solely for completion of the mandatory Officers Apprenticeship
Program (“OAP”). The Board found the Appellees were not similarly situated
to the other correctional officers. The Board had found that the other correctional
officers were entitled to the five-percent salary increase based upon the Board's
decision in Whorton v. Division of Corrections, Docket No. 96-CORR-078
(June 25, 1996).
Appellees
appealed the Board's decision to the Circuit Court of Randolph County. The circuit
court reversed the Board's decision finding a prima facie case of discrimination
had been established, that Whorton had not obligated Corrections to award
a five-percent salary increase solely for completion of the OAP to any
correctional officer, and that Corrections' reliance upon Whorton was
a pretext for discrimination. Finding discrimination had been established, the
circuit court held that Appellees were entitled to a
five-percent salary increase retroactive to their completion of the OAP, with
interest. Corrections timely appealed the circuit court's January 14, 2005,
order to this Court. On September 8, 2005, we accepted Corrections' appeal
for further review. Upon consideration of the record created below, the parties'
written and oral arguments and pertinent legal authorities, we reverse the
circuit court's January 14, 2005, order and remand this matter for further
proceedings as set forth herein.
I.
FACTUAL AND PROCEDURAL HISTORY
In
1994, the State of West Virginia undertook a process of reclassifying state
employees, including correctional officers. During this reclassification process,
Corrections made the previously voluntary OAP a requirement for all correctional
officers.
(See footnote
1) At the time this requirement became effective on April 1, 1994,
a number of correctional officers had completed the program voluntarily or
were about to complete it. Persons classified as a Correctional Officer - I
(“CO-I”)
(See
footnote 2) who had voluntarily completed the OAP were reclassified
to a Correctional Officer - II (“CO-II”) and given a salary increase
to the entry level CO-II
salary unless the person's salary exceeded that level, in which case no increase
was initially provided. No consideration/salary adjustment was given to correctional
officers classified at CO-II or higher who had completed OAP voluntarily. In
response to complaints, Corrections thereafter provided an overall five-percent
salary increase to all reclassified CO- II's retroactive to April 1, 1994.
Correctional officers who had attained a rank of CO-II or higher at the time
of the reclassification and who had voluntarily completed the OAP, or were
about to complete the same, filed a grievance in 1995 arising from the decision
to award a five-percent salary increase to CO-I's who had voluntarily completed
the OAP prior to the new policy. Upon consideration of the grievants' arguments,
Corrections awarded them a prospective merit five-percent salary increase,
effective September 1, 1995.
Those
grievants in the case known as
Wharton pursued their claim to a Level
IV hearing before the Board alleging discrimination because the reclassified
CO-Is received a retroactive increase, while grievants' increase was prospective
only. The Board agreed with the grievants and held, in
Whorton, that Corrections
had no legal duty to award the re- classified CO-I's a higher salary than that
required by Division of Personnel regulations or to make the same retroactive
to April 1, 1994. The Board likewise found that Corrections had no legal duty
to grant grievants a salary increase for completion of the OAP. However, the
Board went on to hold that once Corrections decided to grant a salary increase
solely for the voluntary completion of the OAP, it was required to do so evenly
among all those entitled to the increase. Therefore, Corrections' decision to
award the raise retroactively to one group
and prospectively to another similarly situated group discriminated against
the latter. Thus, pursuant to
Whorton, the five-percent salary increase
for correctional officers ranked higher than CO-I on April 1, 1994, who had
voluntarily completed or were about to complete the OAP was made retroactive
to April 1, 1994.
The decision
in
Whorton was followed by
Livesay v. Division of Corrections,
96-CORR-459 (November 4, 1997), which found discrimination arising from the failure
to grant the grievants therein a five-percent salary increase for completion
of the OAP. The Board rejected Corrections' alleged non-discriminatory reason
that the OAP was required to be completed by all CO-I's and upon completion,
the CO-I would automatically be reallocated to CO-II (with additional salary)
as pretextual. According to the Board, the reclassification therein was based
upon a change in duties, not simply by completing the OAP. Citing
Whorton,
the Board found the grievants in
Livesay entitled to a five-percent salary
increase for completion of OAP.
Subsequent to the
Whorton and
Livesay decisions,
Corrections implemented Policy Directive 442, effective April 1, 1998, specifically
setting forth the salary adjustment for reclassification from a CO-I to a CO-II,
including the prerequisite completion of the OAP. Policy Directive 442
(See
footnote 3) was amended and reenacted as Policy Directive 145, effective
December 1, 1999. Policy Directive 145 states, in pertinent part:
3.
The Director of Training, Corrections Academy, shall request a certificate of
completion of apprenticeship from the Bureau of Apprenticeship and Training upon
the officer's completion of the program.
c. The
Certificate of Completion shall be the basis for initiating the process to reallocate
the correctional officer to the appropriate classification in accordance with
Section 4.07 of the WV Division of Personnel Administrative Rule.
d. Each
incumbent shall be compensated as specified in Section 5.05 of such rule.
e. Additional
pay or promotion shall not be effective until final approval of a WV Personnel
Action Form WV-11.
The Division of Personnel rules cited in the policy directive govern position
reallocation and pay on promotion.
(See
footnote 4)
Cecil
Pritt was hired by Corrections sometime after 1994. He completed the OAP on June
23, 1998 after Corrections implemented Policy Directive 442, and was reallocated
to CO-II on September 16, 1998, receiving a five-percent salary increase. Joseph
Daniels began employment with Corrections in April 2000, completed the OAP
on May 23, 2002, after Corrections amended Policy Directive 442 and reenacted
it as Policy Directive 145, and was reallocated to CO-II on June 15, 2002,
receiving a five-percent salary increase. On January 21, 2002, over three years
after his reallocation to CO-II, Mr. Pritt, together with 22 other correctional
officers, filed a grievance alleging discrimination because certain other employees
had received an additional five-percent salary increase solely for completion
of the OAP while they had not. Mr. Daniels filed a similar grievance on July
22, 2002, one month after his reallocation to CO-II. These grievances were
denied at Levels I, II, and III. Prior to the Level IV Hearing, numerous other
correctional officers at the Huttonsville Correctional Center joined the grievances,
which were consolidated for Level IV hearing.
(See
footnote 5)
At the
Level IV hearing, the correctional officers presented evidence that nine other
correctional officers had received a five-percent salary increase solely for
completion of the OAP since 1998. Each of those nine correctional officers were
employed as correctional officers in April 1994 at a rank higher than CO-I and
completed the OAP after it became a mandatory requirement. Corrections argued,
and the Board found, as a matter of fact, the raises were given to those nine
correctional officers pursuant to the
Whorton decision. The Board also
found that correctional officers who have been hired and who have completed the
OAP after implementation of the 1998 policy directive have not received a
separate salary increase solely for completion of the OAP. It appears from
the record before this Court that no evidence was presented to the Board to
demonstrate the date of hire of any grievant other than Mr. Pritt and Mr. Daniels,
their rank, or the date they completed the OAP. Ultimately, the Board held
the grievants had not established a
prima facie case of discrimination
in that they are not similarly situated to the class of employees entitled
to a five-percent increase under
Whorton.
The grievant
correctional officers appealed to the Circuit Court of Randolph County arguing
the Board's decision was (1) contrary to law or lawfully adopted rule or written
policy of employer; (2) clearly wrong in light in view of the evidence on the
record; and (3) arbitrary, capricious and an abuse of discretion. While conceding
the applicable policy directive and administrative rules did not expressly authorize
a five-percent salary increase for completion of the OAP, the grievants argued
such an increase was likewise not expressly precluded. The circuit court accepted
this argument and found a
prima facie case of discrimination had been
established. The circuit court further found Correction's reliance on
Whorton to
be mere pretext for discrimination. In its conclusions of law, the circuit court
found Corrections' proffered legitimate, non-discriminatory reason for not awarding
a five- percent salary increase for completion of the OAP to the grievants to
be “pretextual” because (1) Policy Directive 145 and Rules 4.7 and
5.5 do not prohibit such an increase; and (2) even if they did prohibit it, Corrections
should not have awarded such an increase to any employee regardless of hire date.
The circuit court concluded neither
Whorton nor
Livesay obligate
Corrections to award a five-percent salary increase solely for completion of
the OAP to any employee. Therefore, the circuit court found that Corrections
engaged in discrimination by awarding such an increase to some, but not all,
correctional officers. Finding the correctional officers were entitled to a
five-percent salary increase solely for completion of the now mandatory OAP,
the circuit court remanded the matter to the Board for additional findings
necessary to calculate the amount each was due and owing.
II.
STANDARD OF REVIEW
The
instant matter involves the circuit court's reversal of the Board's decision,
a decision made after a full evidentiary hearing and briefing by the parties.
An appeal of a final Board decision to the circuit court is permitted on the
grounds that the decision:
(1)
Is contrary to law or a lawfully adopted rule or written policy of the employer;
(2)
Exceeds the hearing examiner's statutory authority;
(3)
Is the result of fraud or deceit;
(4)
Is clearly wrong in view of the reliable, probative and substantial evidence
on the whole record; or
(5)
Is arbitrary or capricious or characterized by an abuse of discretion or clearly
unwarranted abuse of discretion.
W. Va. Code § 29-6A-7(b) (1998). In light of the statutory standard,
this Court held in Syllabus Point 1 of Cahill v. Mercer County Board of
Education, 208 W. Va. 177, 539 S.E.2d 437 (2000), that:
[g]rievance
rulings involve a combination of both deferential and plenary review. Since a
reviewing court is obligated to give
deference to factual findings rendered by an administrative law judge, a circuit
court is not permitted to substitute its judgment for that of the hearing examiner
with regard to factual determinations. Credibility determinations made by an
administrative law judge are similarly entitled to deference. Plenary review
is conducted as to the conclusions of law and application of law to the facts,
which are reviewed de novo.
Further, we have concluded that:
[a]
final order of the hearing examiner for the West Virginia Education and State
Employees Grievance Board, made pursuant to W. Va. Code, 29-6A-1, et
seq. [1988], and based upon findings of fact, should not be reversed unless
clearly wrong.
Syllabus, Quinn v. W. Va. Northern Community College, 197 W. Va.
313, 475 S.E.2d 405 (1996). In reviewing a circuit court decision, this Court
is bound by the same standards which the circuit court was obligated to follow
in reviewing the Board's decision. Martin v. Randolph County Bd. of Educ., 195
W. Va. 297, 304, 465 S.E.2d 399, 406 (1995); Cahill, 208 W. Va.
at 180, 539 S.E.2d at 440. Thus, to the extent the Board's decision is based
upon a factual determination, it may not be reversed unless such determination
is clearly wrong.
II.
DISCUSSION
In
reversing the Board's decision, the circuit court determined that the correctional
officers had established a
prima facie case of discrimination. Our statutes
governing state employee grievances define 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.” W. Va.
Code § 29-6A-2(d) (1988). When discussing an identical definition of discrimination
contained within the statutes governing educational employees,
(See
footnote 6) this Court recently noted:
the
policy underlying uniformity and discrimination claims under the education statutes
is to prevent discrimination against similarly situated education employees regardless
of the basis for discrimination. The crux of such claims is that the complainant
was treated differently than similarly situated employees[.]
Board of Education of the County of Tyler v. White, 216 W. Va.
242, 246, 605 S.E.2d 814, 818 (2004). Accordingly, a critical component of
any discrimination claim is the determination that the person or persons alleging
improper discrimination are similarly situated to those allegedly receiving
preferential treatment.
A similarly
situated determination is necessarily factual in nature.
See,
Graham
v. Long Island R.R., 230 F.3d 34, 39 (2
nd Cir. 2000) (“Whether
two employees are similarly situated ordinarily presents a question of fact for
the jury.”);
George v. Leavitt, 407 F.3d 405, 414-15 (D.C. Cir. 2005)
(quoting
Graham);
Mandell v. City of Suffolk, 316 F.3d 368, 379
(2
nd Cir. 2003). In the instant matter, the Board specifically found
the evidence on the record did not demonstrate that any grievant was similarly
situated to the correctional officers who received a five-percent raise solely
for completion of the OAP. In order to reverse the Board's finding that grievants
failed to establish a
prima facie case, the circuit court must find the
Board's finding that the grievants were not similarly situated to those allegedly
receiving preferential treatment to be clearly wrong. The circuit court did not
make such a finding.
Absent
the circuit court finding that the factual determination by the Board was clearly
wrong in light of the evidence on the record, the circuit court erred in finding
that the grievants had established a
prima facie case of discrimination.
This Court's independent review of the record before the Board and the circuit
court does not support a determination that the Board's finding that grievants
were not similarly situated to those receiving a five- percent increase for completion
of the OAP was clearly wrong.
The evidence
on the record indicates that the only correctional officers who received a five-percent
salary increase solely for completion of the OAP after
implementation of the 1998 policy directive were employed as correctional officers
in 1994 at a rank higher than CO-I and that they completed the OAP after it
became a mandatory requirement. The Board found that those officers were entitled
to such an increase pursuant to prior Board decisions. The circuit court disagreed,
finding that prior Board decisions did not mandate the increase and that Corrections'
reliance upon the same to award salary increases to certain correctional officers
was a mere pretext for discrimination. The question of pretext, however, only
arises once a
prima facie case of discrimination has been established.
Having found that the circuit court erred in reversing the Board's finding
that a
prima facie case of discrimination had not been established because
grievants were not similarly situated to those allegedly receiving preferential
treatment, we likewise find that the circuit court erred in deeming Corrections'
reliance upon prior Board decisions,
(See
footnote 7) the policy directive and administrative rules to be
mere pretexts for discrimination. The question of pretext was not properly
before the circuit court.
We, thus,
reverse the decision of the Circuit Court of Randolph County and
reinstate the Board's April 7, 2003 Decision. However, we note from our review
of the record in this matter that evidence regarding rank, dates of employment
and completion of the OAP appears to have been presented to the Board only
on behalf of Mr. Pritt and Mr. Daniels. To the extent the remaining seventy-eight
(78) correctional officers who joined this grievance can establish that they
were employed as correctional officers at a rank higher than CO-I in 1994,
that they completed the OAP after it became a mandatory requirement and that
they have not received a five-percent salary increase for completion of the
OAP, such individuals may be able to establish that they are similarly situated
to those receiving such an increase and establish a
prima facie case
of discrimination. We, therefore, remand this matter to the circuit court with
directions that this case be remanded to the Board for the taking of evidence
and the entry of a determination as to whether the remaining 78 grievants are
similarly situated to those receiving a five-percent salary increase for completion
of the OAP and are entitled to a similar salary increase.
IV.
CONCLUSION
Accordingly,
the Circuit Court of Randolph County's January 14, 2005, order is reversed
and the West Virginia Education and State Employees Grievance Board's April
7, 2003, decision is reinstated, with the caveat that the Board must determine
whether any of the remaining 78 grievants can satisfy the similarly situated
requirement and establish a prima facie case of discrimination. This
matter is remanded to the circuit court with
directions that this case be remanded to the West Virginia Education and State
Employees Grievance Board for further proceedings consistent with this opinion.
Effective April 1, 1994,
all newly hired correctional officers were required to enroll in the OAP and
complete it within two years of enrollment. Current correctional officers who
had not previously enrolled in the program voluntarily were required to do
so pursuant to the new policy.
Footnote: 2 Of the four levels of
correctional officer classifications CO-I is the entry level correctional officer
classification.
Footnote: 3 Under Policy Directive
442, reallocation or promotion could not take effect without
a certificate of completion of the OAP. Salary increases were to be governed
by applicable Division of Personnel rules.
Footnote: 4 The policy directive refers
to Division of Personnel administrative rules 4.07 and 5.05. These rules are
currently codified as 143 W. Va. C.S.R. 1-4.7 (2005) and 143 W. Va.
C.S.R. 1-5.5 (2005).
Footnote: 5 It appears from the record
before this Court that 78 correctional officers, in addition to Mr. Pritt and
Mr. Daniels, are currently parties to this grievance proceeding.
Footnote: 6 W. Va. Code §18-29-2(m)
(1992), contained within the Article governing grievance procedures for education
employees, 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.”
Footnote: 7 We pause to note that
we are making no determination as to whether the prior Board decisions require
Corrections to continue to provide five-percent salary increases solely for
completion of the OAP to correctional officers employed in 1994 at a rank higher
than CO-I and who completed the OAP after it became a mandatory requirement.
The Board found, as a matter of fact, that Corrections continued to give such
increases only to those meeting that criteria. Even if Corrections is mistaken
as to its legal duties under the prior Board decisions, this Court will not
institutionalize such a mistake. We will only require Corrections to act consistently
with respect to those fulfilling the applicable criteria regarding date of
hire, rank and OAP completion.