Darrell V. McGraw, Esq.
Robert M. Nunley, Esq.
George P. Surmaitis, Esq.
Assistant Attorneys General
Charleston, West Virginia
Attorneys for the Appellees
Larry Harless, Esq.
Charleston, West Virginia
Attorney for the Appellants
JUSTICE NEELY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE McHUGH dissents, in part, and concurs, in part, and reserves the right to file a dissenting and concurring opinion.
1. Under W. Va. Code 29-6-10 , the West Virginia
Legislature allows agencies to consider a broad range of factors
when setting the salary of a new employee.
2. The West Virginia Equal Pay Act, W. Va. Code 21-5B-1
, does not apply to the State or any municipal corporation so
long as a valid civil service system based on merit is in effect.
3. W. Va. Code 29-6-10 , provides that employees
who are performing the same tasks with the same responsibilities
should be placed within the same job classification.
4. W. Va. Code 29-6-10 , does not provide that
employees who are performing the same tasks with the same
responsibilities be placed at the same step within a job
The Appellants in this case, Jaqueline Largent, Charlotte
Kingrey, Mary Carter, Ella Roberts, and Rachel Smith filed a
grievance against the West Virginia Division of Health (now the
Department of Health and Human Resources) and the West Virginia
Division of Personnel, after they discovered that a fellow worker,
D.M.,See footnote 1 was making 18 percent more money than the Appellants were
for doing the same work. The Appellants contend that because D.M.
is making more money for doing the same work, the principle of
"equal pay for equal work" has been violated and that their
constitutional rights to equal protection and due process have also
been violated. We disagree. Therefore, we affirm the ruling of
the Circuit Court of Cabell County affirming the Level IV
administrative law judge.
All of the employees involved in this case, including
D.M., are female licensed practical nurses ("LPNs") at Huntington
State Hospital ("HSH"). All the LPNs are classified as LPN II's
(pay grade 11); however, D.M. is paid at step five within that
grade while the other LPNs are paid at step one. The difference in
pay between step one and step five is $2,600 per year.
The first issue is whether it is proper for HSH to pay
D.M. at step five of grade 11 according to state law governing
civil servants. D.M. was originally hired in 1983 as an LPN I.
When D.M. was originally hired, she was paid at step nine of the
LPN I classification. HSH asserts that the reason D.M. was hired
at step nine instead of step one of the LPN I classification was
the shortage of qualified nurses at the time due to market
competition from private employers in the Huntington area.See footnote 2
Additionally, HSH points to D.M.'s experience as well above the
minimum requirements for the LPN I job classification and her
education. After reviewing the Code sections and Administrative
Rules in question, we determine that the original hiring of D.M. at
an advanced step did not violate West Virginia law for the
The West Virginia Legislature allows agencies to consider
a broad range of factors when setting the salary of a new employee.
W. Va. Code 29-6-10 . Initially, to be hired at an advanced
step an applicant must meet or exceed the minimum requirements for
a particular job classification. Once it is determined that the applicant exceeds the minimum training and/or experience
requirements by six months or more, the starting salary of the
appointee may be raised to any rate within the classification so
long as the employee has six months experience for each step she is
given above the minimum.See footnote 3 The Administrative Rules of the West
Virginia Division of Personnel, which are promulgated pursuant to
W. Va. Code, 29-6-10 , and which were in effect in 1983,
provided in pertinent part that:
(b) Entry Salary -- The entry salary for any employee shall be at the minimum salary for the class. However, an individual possessing qualifying training or experience above the minimum required for the class, as determined by the Director, may be appointed at a pay rate above the minimum unless otherwise limited by the Commission. For each step above the minimum, the individual must have in excess of the minimum requirements at least six months of pertinent experience or equivalent pertinent training.
Administrative Rules of the Division of Personnel § 6.04(b) (Emphasis added).See footnote 4
The minimum qualification for the LPN I classification is
a current West Virginia license or temporary permit to practice as
a licensed practical nurse. Not only did D.M. meet this qualifica
tion, she far exceeded it. At the time she was hired, D.M. had an
Associate Degree in Applied Science in the Field of Practical
Nursing from Hocking Technical College, 3.5 continuing education
units from Marshall University, 150 quarter hours in the field of
Fine Arts from Ohio University, and five years and four months of
work experience as a nurse. Therefore, the original hiring of D.M.
as an LPN I at an advanced step was authorized by West Virginia
law. It should also be noted that none of the parties disputes the
fact that D.M. was appropriately hired or that she deserved the
original advanced step appointment.
After working four years as an LPN I, D.M. brought a
misclassification grievance and prevailed; thus, D.M. was promoted
to LPN II, the next classification above LPN I. The Rules of the
Division of Personnel in effect at the time of D.M.'s reclassifica
tion stated that:
The salary of an employee who is promoted shall be adjusted to the minimum rate of the new class. If the incumbent's current pay rate is at or above the minimum rate for the new class, but coincides with a step in the new range, the salary shall be adjusted one step in the range. Where the pay rate does not coincide with a step in the new range, the salary shall be adjusted to the next higher rate which provides at least a full step increase.
Administrative Rules § 6.05(a) (emphasis added) (see note 4 above). In other words, if someone is promoted to a higher classification, she should not be required to take a pay cut or remain at the same salary, but get a raise-- this only makes sense. Under the facts of this case, D.M. was making more money at an advanced step as an LPN I than the Appellants in this case were making at the lowest step in the LPN II classification. When Rule 6.05(a) was applied after D.M.'s reclassification, she fell into step 5 of the LPN II classification. Once again, the record and the briefs in this case reflect that none of the parties is disputing the fact that D.M. should be paid at step 5 of the LPN II classification. With this in mind, and after reviewing the specifics of D.M.'s case, we determine that HSH has done nothing inappropriate in paying D.M. at step 5 of the LPN II classification.
The Appellants argue that the current system violates the
"principle of equal pay for equal work." The Appellants also
present additional arguments based on violations of their constitu
tional rights to equal protection and due process.
West Virginia's "Equal Pay for Equal Work" statute can be
found at W. Va. Code, 21-5B-1 to 6 . The Code defines
"employer" as "any person, partnership, firm or corporation employing one or more employees, but does not include the State, or
any municipal corporation or political subdivision of the State
having in force a civil service system based on merit . . . ." W.
Va. Code, 21-5B-1(1) . Because the West Virginia Division of
Health and Human Services and the West Virginia Division of
Personnel have in place a duty-linked civil service system, they
are not covered by W. Va. Code, 21-5B-1 to 6 . The statute
goes on to explain that the State may be covered by a federal
"equal pay for equal work" statute.
The federal Equal Pay Act may by found at 29 U.S.C.
§ 206(d) (1988).See footnote 5 The federal act has been held constitutionally
to apply to state and local government employees. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)
(applying all aspects of the Fair Labor Standards Act to state and
local governments); Usery v. Charleston County School Dist., 558
F.2d 1169 (4th Cir. 1977). More specifically, the law has been
held constitutionally to apply to state-operated hospitals and
their employees. Marshall v. Owensboro-Daviess County Hospital,
581 F.2d 116 (6th Cir. 1978). However, the federal Equal Pay Act
has not been held to extend to people of the same sex. The purpose
of the Equal Pay Act of 1963 was to remedy the problem of employ
ment discrimination against women, i.e., the fact that wage
structures of many segments of American industry were based on the
ancient belief that a man, because of his role in society, should
be paid more than a woman even though his duties be the same.
Corning Glass Works v. Brennan, 417 U.S. 188 (1974). The Equal Pay
Act was intended as a broad charter of women's rights in the
workplace, and seeks to eliminate the depressing effect on living
standards that reduced wages for female workers has and the serious
economic and social consequences that flow from reduced wages. See
Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir), cert. denied,
414 U.S. 822 (1973).
As noted earlier, all of the persons involved in this
case are women. Although the federal Equal Pay Act was designed to
prohibit discrimination based on sex, there is no indication that
it prohibits paying employees of the same gender different wages for the same work based on skill, education, and experience.
Therefore, the Appellants cannot establish a prima facie case under
the federal Equal Pay Act or the West Virginia Equal Pay Act.
Thus, the Appellants must look elsewhere in the Code for relief.
The Appellants cite W. Va. Code, 29-6-10(2)  for
the proposition that any discrepancy in pay among public employees
must be linked to demonstrable differences in the employees' duties
responsibilities, or qualifications. The Appellants also cite this
section as mandating equal pay for equal work, thus making it
illegal to hire a new employee at a higher step than incumbent
employees in the same classification. Because the Appellants put
so much weight on W. Va. Code, 29-6-10 , we will examine it
in depth. W. Va. Code, 29-6-10 (2)  states in pertinent
The board shall have the authority to promul gate, amend or repeal rules . . .
(2) For a pay plan for all employees in the classified service, after consultation with appointing authorities and the state fiscal officer, and after a public hearing held by the board . . . . Each employee shall be paid at one of the rates set forth in the pay plan for the class of position in which he is employed. The principle of equal pay for equal work in the several agencies of the state government shall be followed in the pay plan established hereby.
This Court has interpreted this Code section as not necessarily being sex-linked, but rather, duty-linked. See AFSCME v. CSC, 174 W. Va. 221, 324 S.E.2d 363 (1984) ("AFSCME I"); AFSCME v. CSC, 176 W. Va. 73, 341 S.E.2d 693 (1985) ("AFSCME II"); AFSCME v. CSC, 181 W. Va. 8, 380 S.E.2d 43 (1989) ("AFSCME III"). That is, employees who are performing the same tasks with the same responsibilities should be in the same job classification regardless of gender.
In AFSCME I, a group of Economic Service Worker I's and
II's were found to be performing the same work as Economic Service
Worker III's. Because the employees were working out of their
classification, this Court ruled that the employees were entitled
to the difference in pay between the Economic Service Worker I or
II classification and the Economic Service Worker III classifica
tion. AFSCME I, only required the employees be paid the same
schedule of pay as those in the higher classification and did not
set the step within the higher classification they should be paid.
This Court has never commented on the propriety of having different
steps within a classification.
However, after reviewing Title 143, Series 1 of the West
Virginia Civil Service Rules & Regulations, issued under the
authority of W. Va. Code, 29-6-10, Ser. 1 (1981) (amended 1993), we
conclude that it does not violate the principle of pay equity for
the state to pay employees within the same classification differing amounts. Indeed, a policy under which the Civil Service Commission
was mandated to pay every individual within the same class the
exact same pay would be in direct conflict with the intent
expressed in the Preamble to 143 C.S.R. §1 et seq. (1981)(amended
Sec. 2.01. Preamble. The general pur pose of the Civil Service System is to attract to the service of this State personnel of the highest ability and integrity by the estab lishment of a system of personnel administra tion based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, removal, discipline, classi fication, compensation, and welfare of its Civil Service employees, and other incidents of state employment. All appointments and promotions to positions in the classified service shall be made solely on the basis of merit and fitness. All employment positions not in the classified service, with the excep tion of the Board of Regents, are included in a classification plan known as classified- exempt service. [Emphasis added.]
The Appellants basically contend that each person within the same classification should be paid the exact same dollar amount because they are performing the same work, irrespective of diversity of educational background and past work experience. However, administrative and statutory authority negates such a conclusion. Classification itself is duty based. Therefore, the reason D.M. and the appellants are all classified as Licensed Practical Nurse II's at Division of Personnel, pay grade 11, is because they are expected to perform essentially the same duties.
However, as expressed in the Preamble, supra, the Legislature clearly contemplated a system that recognized and rewarded merit. Thus, within a classification, salaries are subdivided into different pay steps. Each step is accorded a pay rate within the overall minimum and maximum range per classifica tion. All of the relevant language in the definition section of the Administrative Rules and Regulations of the West Virginia Civil Service System reflects the Legislative intent to allow the state to maintain a certain degree of flexibility in setting employee compensation within a classification. 143 C.S.R. §3 (1981)(amended 1993).
Class or Class of Positions: One or more
positions sufficiently similar in duties,
training, and responsibilities so that the
same title, the same qualifications, and the
same schedule of compensation and benefits may
be equitably applied to each position.
Compensation Plan: The official schedule of pay rates, the range assigned to each class of positions and the salary regulations used in pay administration by the Civil Service agencies.
Pay Plan: The official schedule of salaries approved by the Governor consisting of multiple pay grades with minimum, maximum, and intervening rates of pay for each grade.
Pay Rate: One of the fixed steps or increments listed in a pay plan.
Salary Range: The approved monthly and annual salary for a class which includes the initial, maximum, and intervening steps.
Specification: The official description of a class of position which defines the class, provides examples of work performed, knowledges [sic], skills, and abilities, and the minimum qualifications required for em ployment.
Step for Step: The movement of an em ployee's salary to the same or corresponding step or pay rate in a higher or lower pay grade.
The mere fact that D.M. was promoted into LPN II, at pay step five, thereby paid more than the incumbent Appellants who were classified as LPN II, at pay step one, does not automatically give rise to an inference of discrimination. See Hollingsworth v. State of Louisiana, 354 So. 2d 1058 (La. App. 1 Cir. 1978)(allowing different salaries within a classification); Gaspard v. Dept. of State Civil Service, 634 So.2d 14 (La. App. 1 Cir. 1994)(civil service commission was not mandated to pay employees within the same class the exact same pay; equal pay for equal work was not violated) D.M. was initially hired as an LPN I. In view of the market competition, the shortage of qualified nurses, and over five years of relevant work experience, she was appointed well above the minimum pay rate for an LPN I, permissible under 143 C.S.R. §6.04(b) (1981). (Tr. at 98, 103-105).
Four years later, D.M. won a misclassification grievance
resulting in promotion to LPN II. Since her salary as an LPN I was
higher than the minimum rate offered at pay step one for an LPN II,
the Civil Service Rules and Regulations mandated her salary be
adjusted one step above the step where her previous salary fit into
the range accorded for an LPN II. 143 C.S.R. §6.05(a) (1981).
This assured that D.M., and any other person promoted to a higher
classification, would not receive a decrease in salary as a result.
The appellant's have not challenged the propriety of placing D.M. at pay step five, within the classification of LPN II. They simply feel that it is unlawful discrimination to pay her more than they are paid for the same work. We disagree. The record reflects that the manner in which D.M. is receiving more pay than the Appellants is a result of the discretionary mechanics of the system, not from any discriminatory application or implementation of the pay plan. Hollingsworth, supra at 1060. D.M. was promoted to LPN II at a step level which was based upon the amount of her previous salary as an LPN I, thus the nondiscretionary application of 143 C.S.R. §6.05(a) (1981) resulted in her placement at pay step five.
W. Va. Code, 29-6-10(2)  recognizes the fact that within a classification there may be different rates.
6.02. Preparation of Plan - After consultation with the appointing authorities and State fiscal officers and after a public hearing, the Director and the Commission shall prepare and submit to the Governor for his approval an annual revision of the pay plan. The pay plan shall include salary schedules containing multiple pay grades with initial, intervening, and maximum rates of pay for each grade. Periodic amendments to the pay plan may be made in the same manner.
See 143 C.S.R. §6.02 (1981). Thus, the Legislature allowed for a system in which workers would be doing the same work but paid at different rates within a classification.
The Code establishes a multi-step pay plan and the implementing regulations set forth procedures to assist in determining where on that pay plan an individual employee can be placed. This system allows some flexibility in the hiring process and aids the state in attracting quality people to public service. Moreover, this flexibility allows for fluctuations in market conditions allowing the State to take into consideration other factors when hiring new employees such as the applicant's education and work experience. In short, employees who are doing the same work must be placed within the same classification, but within that classification there may be pay differences if those differences are based on market forces, education, experience, recommendations, qualifications, meritorious service, length of service, availabil ity of funds, or other specifically identifiable criteria that are reasonable and that advance the interests of the employer. See generally West Virginia University v. Decker, ___ W. Va. ___, 477 S.E.2d 259 (1994). Accordingly, we do not find that this system violates the principle of pay equity set out in W. Va. Code, 29-6- 10, et seq. .
The Appellants' equal protection rights have not been
violated here. Governmental decisions that are based upon
legitimate economic considerations are not violative of equal
protection. Moody v. Gainer, 180 W. Va. 514, 377 S.E.2d 648 (1988)
(permitting salary differences for magistrates based on popula
tion). As shown above, the multi-step plan described in W. Va.
Code, 29-6-10 , is based on legitimate economic consider
ations that bear a rational relationship to the governmental
objective of attracting qualified applicants to employment in the
Furthermore, because there is a reasonable relationship
to a legitimate governmental interest, substantive due process is
not violated either. See McGowan v. Maryland, 366 U.S. 420, 81
S.Ct. 1101, 6 L.Ed.2d 393 (1961); Means v. Sidiropolis, 185 W. Va.
170, 401 S.E.2d 447 (1990); DeCoals, Inc. v. Board of Zoning
Appeals of City of Westover, 168 W. Va. 339, 284 S.E.2d 856 (1981)
(holding that if there is any rational connection between the legislation's legitimate ends and the means by which the ends are
to be reached, the legislation will be upheld). The State's
interpretation of the statutes and administrative rules in this
case adhere to the reasonable relationship test that traditionally
applies to statutes that do not affect suspect categories such as
race or gender. For this reason, neither the Code sections nor the
administrative rules questioned by Appellants, violate substantive
For all of the reasons discussed above, the judgment of
the Circuit Court of Cabell County is affirmed.
Footnote: 1 This employee is know in these proceedings by her initials, D.M.
Footnote: 2 Huntington, West Virginia, has a large number of hospitals for a city its size. In addition to HSH, there is St. Mary's Hospital, Cabell Huntington Hospital, HCA River Park Hospital, and a Veterans Administration Medical Center.
Footnote: 3 This law was changed after D.M. was hired. According to current policy, "the Director, may [appoint a new employee] at a pay rate above the minimum, up to the mid-point of the salary range . . . ." 143 CSR1 § 143-1-5(5.4(b)).
Footnote: 4 These rules were filed pursuant to the authority of W. Va. Code, 29-6-10 and became effective 1 December 1981. For some strange reason the only copy available from the Secretary of State was filed 27 December 1982, although the document sets forth the 1 December 1981 effective date.
Footnote: 5 The federal Equal Pay Act states that:
No employer having employees subject to any
provisions of this section shall discriminate,
within any establishment in which such
employees are employed, between employees on
the basis of sex by paying wages to employees
in such establishment at a rate less than the
rate at which he pays wages to employees of
the opposite sex in such establishment for
equal work on jobs the performance of which
requires equal skill, effort, and
responsibility, and which are performed under
similar working conditions, except where such
payment is made pursuant to (i) a seniority
system; (ii) a merit system; (iii) a system
which measures earnings by quantity or
equality of production; or (iv) a differential
based on any factor other than sex . . . .
29 U.S.C. § 206(d)(1) (1988).