Robert Scott Rhodes, II, Everette Alan Chapman, Richard Eugene Hacker, Dee Laman Maynard, Bobby C. Palmer, Lonnie Ray Cogar, James Lacy Lewis, James Allen Owens, and Joseph John Vacchio, Jr. v. Office of the State Fire Marshal, West Virginia Fire Commission, and West Virginia Division of Personnel

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

ROBERT SCOTT RHODES, II, EVERETTE ALAN CHAPMAN, FILED
RICHARD EUGENE HACKER, DEE LEMAN MAYNARD,
December 6, 2024
BOBBY C. PALMER, LONNIE RAY COGAR,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
JAMES LACY LEWIS, JAMES ALLEN OWENS, INTERMEDIATE COURT OF APPEALS
JOSEPH JOHN VACCHIO, JR., OF WEST VIRGINIA

Grievants Below, Petitioners

v.) No. 24-ICA-19 (Grievance Bd. Case No. 2022-0913-CONS)

OFFICE OF THE STATE FIRE MARSHAL,
WEST VIRGINIA FIRE COMMISSION,
Respondent Below, Respondent

and

WEST VIRGINIA DIVISION OF PERSONNEL,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioners appeal the December 13, 2023, Decision from the West Virginia Public
Employees Grievance Board (“Grievance Board”). Respondents Office of the State Fire
Marshal, West Virginia Fire Commission (“Respondent Commission”), and West Virginia
Division of Personnel (“Respondent DOP”), filed a joint response.1 Petitioners filed a
reply. On appeal, Petitioners challenge the Grievance Board’s denial of their grievances
related to Respondents’ implementation of special hiring rates to recruit assistant fire
marshals with law enforcement certifications to fill related job vacancies within the agency.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Grievance Board’s order is
appropriate under Rule 21 of the Rules of Appellate Procedure.

1
Petitioners are represented by Karen H. Miller, Esq., Joseph L. Amos, Jr., Esq.,
and Robert A. Hogue, Esq. Respondent Commission is represented by Patrick Morrisey,
Esq., and Jodi B. Tyler, Esq. Respondent DOP is represented by Patrick Morrisey, Esq.,
and Katherine A. Campbell, Esq.
1
Petitioners are employed by Respondent Commission as assistant fire marshals.
During their employment, the Legislature enacted West Virginia Code § 15A-10-1 (2020),
which transferred the Office of the State Fire Marshal to the Department of Homeland
Security. Of import here is West Virginia Code § 15A-10-1(g), which states:

Any individual who is employed by the State Fire Marshal to conduct
criminal investigations or who may become actively involved in matters of a
criminal nature shall first be required to pass a civil service examination
testing his or her competency and proficiency in the law of arrest, search and
seizure, and other criminal procedures relating to the powers granted to the
State Fire Marshal pursuant to the provisions of this article: Provided, That
all new hires to sworn positions of Fire Marshal 1, 2, or 3 and deputy fire
marshal, excluding the chief deputy as described in subdivision (f) of this
section, shall comply with the law enforcement certification requirements set
forth in § 30-29-1 et seq.

Petitioners are not certified law enforcement officers but were exempted from this
requirement due to their employment predating the effective date of the statute.

Following the enactment of West Virginia Code § 15A-10-1, Respondent
Commission began having difficulty with the retention and recruitment of assistant fire
marshals with law enforcement certifications. In response, on April 28, 2022, the West
Virginia State Personnel Board (“Personnel Board”) approved Personnel Board Proposal
3004 (“Proposal 3004”), which implemented special hiring rates for the assistant fire
marshal positions. As justification for the special hiring rates, Proposal 3004 set forth the
following rationale and proposed hiring rates:

The Office of the State Fire Marshal is having recruitment and retention
issues for the Assistant Fire Marshal in Training classification. This
classification has been posted four (4) times with 430 applicants referred in
total with no suitable candidates found. To address recruitment and retention
issues and to prevent salary compression of the higher levels of the Assistant
Fire Marshal series, the Office of the State Fire Marshall is requesting to
implement special hiring rates for the Assistant Fire Marshal in Training,
Assistant Fire Marshal 1, Assistant Fire Marshal 2, Assistant Fire Marshal 3,
and Field Deputy Fire Marshal classifications. The special hiring rates
originally proposed by the Office of the State Fire Marshal were modified to
adhere to the parameters of the wvOasis system. The current salary range and
the modified, proposed hiring rates are as follows:

Classification Current Salary Range Proposed Hiring Rate
Assistant State Fire Marshal $29,396-$54,382 $34,398 (non-certified)
in Training $39,416 (certified)
2
Assistant Fire Marshal 1 $31,146-$57,620 $37,752 (non-certified)
$42,770 (certified)
Assistant Fire Marshal 2 $32,722-$60,535 $39,182 (non-certified)
$44,174 (certified)
Assistant Fire Marshal 3 $34,688-$64,172 $41,418 (non-certified)
$46,410 (certified)
Field Deputy Fire Marshal $36,779-$68,041 $45,058 (non-certified)
$50,050 (certified)

Upon obtaining certified status, incumbents hired as non-certified in the
Assistant State Fire Marshal in Training, Assistant Fire Marshal 1, Assistant
Fire Marshal 2, Assistant Fire Marshal 3, and the Field Deputy Fire Marshal
classifications will have their salaries brought up to the certified special
hiring rates of $39,416, $42,770, $44,174, and $50,050, respectively.

Proposal 3004 became effective on May 21, 2022. According to the record,
Petitioners declined to seek law enforcement certifications because it would have required
completion of the West Virginia State Police Academy’s sixteen-week program, which
contains physical agility and residential living requirements.

Between June 16, 2022, and June 28, 2022, Petitioners began filing separate
grievances against the Commission challenging the implementation of Proposal 3004 and
arguing that it constituted discrimination in violation of West Virginia Code § 6C-2-2(d)
(2023) (“any differences in the treatment of similarly situated employees unless the
differences are related to the actual job responsibilities of the employees or are agreed to
in writing by the employees”) and favoritism in violation of West Virginia Code §§ 6C-2-
2(h) (2023)2 (“unfair treatment of an employee as demonstrated by preferential,
exceptional, or advantageous treatment of a similarly situated employee unless the
treatment is related to the actual job responsibilities of the employee or is agreed to in
writing by the employee”). Petitioners further argued that Proposal 3004 bifurcated the
salary structure for each of the assistant fire marshal classifications on criteria other than
actual job responsibilities in violation of Respondent DOP’s legislative rules and written
policy. In other words, Petitioners argued that as tenured employees, they are paid less or
the same salary as new hires. Notably, in July of 2022 the Personnel Board approved
Personnel Board Proposal 3025 (“Proposal 3025”), which provided up to $4,000.00 in
additional compensation for existing non-certified fire marshals, effective August 13,
2022.

2
We acknowledge that prior versions of these statutes were in effect at the time
Petitioners’ grievances arose; however, we cite to current version of the statute, noting that
the relevant statutory language was not changed by the amendment.
3
Respondent DOP was joined as a party on July 14, 2022. On July 22, 2022, the
Grievance Board consolidated the grievances, holding a level three administrative hearing
on August 14-15, 2023. By Decision dated December 13, 2023, the Grievance Board
denied the grievances.

In its Decision, the Grievance Board determined that the salary adjustments
implemented under Proposal 3004 constituted a pay differential as defined and authorized
by Respondent DOP’s legislative rules. W. Va. Code R. § 143-1-3.60 (2022) (defining a
pay differential as: “A type of salary adjustment specifically approved by the [Personnel]
Board to address circumstances including, but not limited to, class-wide recruitment and/or
retention problems, regionally specific geographic pay disparities, apprenticeship program
requirements, shift differentials for specified work periods, and temporary upgrade
programs.”); W. Va. Code R. § 143-1-5.4.f.4 (2022) (stating that in accordance with West
Virginia Code § 29-6-10(2) (1999),3 “[t]he [Personnel] Board may approve the
establishment of pay differentials to address circumstances which apply to reasonably
defined groups of employees.”).4 see also W. Va. Code § 29-6-10 (1999) (granting the
Personnel Board authority to promulgate, amend, or repeal legislative rules under chapter
29). The Decision also cited the recruitment and incentive language of Respondent DOP’s
Pay Plan Policy, which states:

An appointing authority may recommend an in-range salary adjustment to all
employees in a job classification, within the agency-defined organizational
work unit, for which documented salary non-competitiveness has been
established. The appointing authority shall provide documentation to

3
West Virginia Code § 29-6-10 (1999) grants the Personnel Board authority to
promulgate, amend, or repeal its legislative rules to implement the provisions of chapter
29. Relevant here is West Virginia Code § 29-6-10(2), which provides:

For a pay plan for all employees in the classified service, after consultation
with appointing authorities and the state fiscal officers, and after a public
hearing held by the board. Such pay plan shall become effective only after it
has been approved by the Governor after submission to him by the board.
Amendments to the pay plan may be made in the same manner. 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 as established hereby.
4
We acknowledge that prior versions of several of the legislative rules cited
throughout this decision were in effect at the time Petitioners’ grievances arose. However,
in this decision we cite to current versions where the relevant language has not changed.

4
include, but not be limited to, turnover rates for the last twelve (12) months,
reasons for separation from employment, the number of filled and vacant
positions in the job classification, any recruitment initiatives, the number of
internal applicants and eligibles on the register(s) and contact results for the
most recent vacancy, and tenure in class for the employees in the job
classification. This request must be presented to and approved by the
[Personnel] Board.

On this issue, the Grievance Board found that Respondent Commission complied
with Respondent DOP’s legislative rules and Pay Plan Policy in its development and
implementation of Proposal 3004. It found that the special hiring rate was based upon
documented salary non-competitiveness for certified assistant fire marshals and given the
onerous requirements of the State Police Academy’s program, it was reasonable to increase
the hiring rate for certified assistant fire marshals to attract candidates.

The Grievance Board rejected Petitioners’ argument that Proposal 3004 went
against the legislative intent of West Virginia Code § 15A-10-1 to exclude existing
assistant fire marshals from the law enforcement certification requirement. On this issue,
it was determined that the legislation did not address compensation and Respondent
Commission had not attempted to require existing fire marshals to obtain law enforcement
certification as a condition of continued employment. Thus, the special hiring rate did not
violate the statute’s legislative intent. Instead, the Grievance Board concluded that the
special hiring rate embodied the intent of the statute which was to address the recruitment
issues for existing assistant fire marshal vacancies that Respondent Commission had been
unable to fill under the former pay rates.

Next, the Grievance Board found that because Petitioners were assistant fire
marshals who did not hold law enforcement certifications, they could not prove their
salary-related claims of discrimination or favoritism because they were not similarly
situated to those assistant fire marshals who were certified. The Grievance Board found
this conclusion to be consistent with its prior decisions, as well as those of our Supreme
Court of Appeals, which established that employees performing similar work were not
required to receive identical pay, so long as they are paid in accordance with the pay scale
for their employment classification. For example, the Grievance Board’s Decision
highlighted Largent v. West Virginia Division of Health, wherein it was noted that the
language of West Virginia Code § 29-6-10(2) and Respondent DOP’s legislative rules
recognize that workers within a classification may be paid different salaries, explaining:

The [West Virginia] 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

5
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, availability of funds, or other specifically identifiable criteria that are
reasonable and that advance the interests of the employer.

Largent v. W. Va. Div. of Health, 192 W. Va. 239, 246, 452 S.E.2d 42, 49 (1994).

After finding that assistant fire marshal pay was differentiated based upon the law
enforcement certification requirements mandated by the new statute, the Grievance Board
concluded that the pay differences created by Proposal 3004 were reasonable and
consistent with reasoning in Largent. It further concluded that Petitioners were all paid
within the salary range for the pay grade assigned to their positions, and that there was no
difference in the job duties they performed versus those of certified assistant fire marshals.
As such, the Grievance Board held that the actions of Respondent Commission and
Respondent DOP regarding the implementation of Proposal 3004 were not arbitrary and
capricious. This appeal followed.

In this appeal, our governing standard of review for a contested case from the West
Virginia Public Employees Grievance Board is as follows:

A party may appeal the decision of the administrative law judge 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 administrative law judge’s 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 abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 6C-2-5(b) (2007);5 accord W. Va. Code § 29A-5-4(g) (2021) (specifying
the standard for appellate review of administrative appeal). Likewise, “[t]he ‘clearly
wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which

5
West Virginia Code § 6C-2-5 was recently amended, effective March 1, 2024.
However, the former version of the statute was in effect at the time the Board’s decision
was entered and applies to this case.

6
presume an agency’s actions are valid as long as the decision is supported by substantial
evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483
(1996); see also, Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177
(1996) (on appeal, a court may not overturn a finding simply because it would have decided
case differently); Syl. Pt. 1, Francis O. Day Co., Inc. v. Dir., Div. of Env’t Prot., 191 W.
Va. 134, 443 S.E.2d 602 (1994) (evidentiary findings should not be reversed unless clearly
wrong).

There are two assignments of error for our consideration on appeal.6 First,
Petitioners contend that the Grievance Board erred in its application of Largent, West
Virginia Code, and Respondent DOP’s legislative rules by concluding that they had failed
to prove their claims of discrimination or favoritism because they were not similarly
situated to assistant fire marshals with law enforcement certification. In support, Petitioners
argue that the law enforcement certification requirement under West Virginia Code § 15A-
10-1(g) is simply a new minimum qualification requirement for the affected fire marshal
positions and is identified as such in the relevant job descriptions. For this reason,
Petitioners maintain that they and their certified counterparts are similarly situated because
once employed, both groups are performing the same job. Further, Proposal 3004
improperly relies upon law enforcement certification as the basis for the special hiring rates
in that the certification requirement was mandated by the Legislature, and as such cannot
be considered related to the job functions of an assistant fire marshal. We are not persuaded
by this argument.

Central to Petitioners’ discrimination and favoritism claims is the requirement of
disparate treatment between similarly situated employees. As our Supreme Court of
Appeals has observed, “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” and “[a] similarly situated
determination is necessarily factual in nature.” Pritt v. W. Va. Div. of Corr., 218 W. Va.
739, 744, 630 S.E.2d 49, 54 (2006). Here, the Grievance Board, sitting as the trier of fact,
found that Petitioners failed to show that they were similarly situated to newly hired
assistant fire marshals who, as a statutory requirement for employment, held law
enforcement certification. The Grievance Board also determined that Respondent
Commission complied with Respondent DOP’s legislative rules and Pay Policy in its
development and implementation of Proposal 3004.

6
Petitioners also raise a third assignment of error, arguing that the Grievance Board
erred in its determination that Respondent DOP’s Pay Plan Policy did not permit retroactive
wages. However, Petitioners’ brief acknowledges that this issue was not addressed by the
Grievance Board’s Decision, and that the argument was only being raised out of an
abundance of caution should the Decision be reversed on appeal. Because we are affirming
the Grievance Board’s ruling, this assignment of error will not be addressed.
7
The record indicates that Proposal 3004 was adopted after Respondent Commission
experienced difficulty in filling vacant fire marshal positions after a law enforcement
certification became a mandatory requirement pursuant to statute. Petitioners were eligible
for the increased salaries upon completion of the law enforcement certification program
but chose not to obtain the certification. Indeed, Petitioners acknowledge that they
subsequently received increased compensation when Proposal 3025 was approved by the
Personnel Board. More importantly, the Grievance Board determined that Proposal 3004’s
implementation of a special hiring rate was consistent with Largent and the applicable
provisions of West Virginia Code and Respondent DOP’s legislative rules. Following our
review of the record in this case, we find the Grievance Board’s determination on this issue
to be rational and supported by the substantial evidence. As such, we decline to disturb the
Grievance Board’s ruling.

Petitioners also assign error to the Grievance Board’s conclusion that the
implementation of Proposal 3004 was not arbitrary and capricious. It is contended that the
Proposal created a new pay plan by distinguishing between certified and non-certified
employees and in doing so, failed to ensure that Petitioners received compensation equal
to that of those assistant fire marshals with law enforcement certification in violation of
West Virginia Code of State Rules § 143-1-5.4.f.1.A (2022) (“Upon adoption of a new pay
plan the Board shall require and may approve or modify a plan of implementation which
ensures incumbents in the classified service receive equal treatment based on sound
compensation practices.”) and West Virginia Code of State Rules § 143-1-5.4.f.1.B (2022)
(“An incumbent whose salary falls below the minimum rate of the new compensation range
shall have his or her salary adjusted to the new minimum.”). Petitioners acknowledge that
they received a pay increase under Proposal 3025, but they maintain that the increase was
inequitable when compared to the hiring rates approved for certified assistant fire marshals
under Proposal 3004. We find no merit in this argument.

As the Grievance Board observed, West Virginia Code § 15A-10-1(g) does not
address compensation. Further, pursuant to its interpretation of Respondent DOP’s Pay
Plan Policy, the controlling statutes, and legislative rules, the Grievance Board determined
that Proposal 3004 was not a new pay plan, but instead, it was a pay differential which was
reasonably implemented as part of a recruitment and retention incentive to assist
Respondent Commission’s hiring efforts. After review of the record, we conclude that the
implementation of Proposal 3004 was not arbitrary and capricious, nor an abuse of
discretion.

Accordingly, we affirm.

Affirmed.

ISSUED: December 6, 2024

8
CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

9