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W.Va. SC upholds pay increase for region's DOH workers

By Jessica M. Karmasek | May 14, 2012

CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals, in a ruling last week, affirmed a circuit court order upholding a wage increase for Division of Highways employees in the state's Eastern Panhandle.

The state's high court, in its May 9 opinion, agreed with the Kanawha County Circuit Court and the West Virginia Public Employees Grievance Board, finding no merit to the appellants' contention that they were victims of "unlawful discrimination" because of the DOH's failure to also provide them with a wage increase.

The appellants in this case are several DOH employees. Their actual names, or exactly how many are involved in the appeal, were not disclosed.

However, according to an administrative order, they are members of the American Federation of State, County and Municipal Employees, or AFSCME. They also work in the DOH's District 1; that is, Boone, Clay, Kanawha, Mason and Putnam counties.

They filed administrative grievances with the board and have continued to argue that they were discriminated against after the DOH decided to provide a wage increase for current and newly hired employees in three counties that are part of its District 5 operations. These counties include Berkeley, Jefferson and Morgan.

The DOH contends it increased wages for workers in those three counties in order to attract more applicants.

The state agency had found that the private sector in those areas were offering higher wages than its own District 5 positions, thus creating problems in the recruiting of and retaining workers.

No matter, the appellants argued before the Court that the board and the lower court erred in finding that they were not "similarly situated" as the District 5 workers; that no management employee at District 1 complained of recruitment and retention programs; and that some grievances were not timely filed.

In its per curiam opinion, the Court sided with the board and the circuit court.

"In the instant proceeding, the appellants argue that White implicitly overruled Largent and therefore prohibited government employers from using retention and recruitment for a specific geographical area as a factor in pay differentials. The appellants misinterpret White," the justices wrote in the 12-page ruling.

Even if retention and recruitment were found to be valid factors by the Court, the appellants argued they presented sufficient evidence to establish that District 1 had similar problems.

But the Court didn't buy that argument.

"This evidence was deemed insufficient by the board and the circuit court," the justices wrote, adding that the board's order "succinctly" addressed the matter.

"Contrary to Grievants' assertions, a similar situation did not exist in District One. Virtually every DOP certification sought for vacancies in District One contained multiple pages of available applicants, and in most cases dozens and dozens more were available," the board wrote.

Given the evidence, the Court said it was not provided with a basis on which to find that the board's decision was "arbitrary or capricious so as to represent an abuse of discretion."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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