City of Parkersburg v. White

1

CITY OF PARKERSBURG, Defendant Below, Petitioner v. WAYNE WHITE, MICHAEL WOOD, JOSHUA GANDEE and all others similarly Situated and INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS LOCAL 91, Plaintiffs Below, Respondents

No. 22-ICA-142

West Virginia Intermediate Court of Appeals

December 27, 2023

(Cir Ct. Wood Cnty. No. CC-54-2018-C-259

MEMORANDUM DECISION

Petitioner City of Parkersburg appeals the "Final Order from May 5^th Hearing Regarding Enforcement of the Court's October 22^nd, 2021 Order" entered on August 31, 2022, by the Circuit Court of Wood County. Respondents, Wayne White, Michael Wood, Joshua Gandee, and all others similarly situated and International Association of Fire Fighters Local 91 timely filed a response in support of the circuit court's order.^[1] The City of Parkersburg filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-11-4 (2022). After considering the parties' arguments, the record on appeal, and the applicable law, this Court finds that there is error in the circuit court's decision but no substantial question of law. Therefore, a memorandum decision reversing the circuit court's order is appropriate under the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure.

This case arises from a wage dispute initiated by the respondent firefighters against the City of Parkersburg for alleged violations of the West Virginia Wage Payment and Collection Act ("WPCA").

In 2008, the City of Parkersburg established a new longevity increment to its hourly rate of pay for fire civil service employees. The City of Parkersburg had enacted several longevity pay ordinances prior to 2008, with each new ordinance prospectively increasing longevity pay for each year worked thereafter.^[2] The 2008 longevity pay plan provided that, effective July 1, 2008 appointed part-time employees would receive longevity pay of $624.00 per year for each year of city service, while fire civil service employees working a 40-hour work week would receive longevity pay of $.30 per hour for each year of city service, those working a 48-hour work week would receive longevity pay of $.25 per hour for each year of city service and those working a 54-hour work week would receive $.2222 per hour for each year of city service, payable on their work anniversary. This longevity pay was also to be included in each fire civil service employee's base pay for the purposes of overtime. The City of Parkersburg asserts that this payment scheme was meant to result in each firefighter receiving the same amount of compensation per longevity year regardless of their number of scheduled hours, so that a person working a 40-hour work week would be eligible for $624.00 multiplied by the number of years worked, just as a person working a 48-hour work week would be eligible for $624.00 multiplied by the number of years worked, just as a person working a 54-hour work week would be eligible for $624.00 multiplied by the number of years worked. The 2008 ordinance specifically stated that it was not retroactive.

In 2008, the Parkersburg City Council also implemented a benefit for members of the City Fire Department who attained the designation of Firefighter/EMT and maintained certification as an Emergency Medical Technician. That ordinance mandated an increase in pay of $.42 per hour for all such 48-hour workweek personnel and $.50 per hour for all such day shift personnel, effective July 1, 2008. At that time, all affected City of Parkersburg firefighters were working a 48-hour workweek, and the benefit was approximately $1,040.00 per year to those who maintained their EMT certification. The ordinance did not contain a specific pay rate for 54-hour workweek personnel.

The fire civil service employees continued to accrue and receive longevity payments for each new year until July 1, 2011, when the Parkersburg City Council passed "An Ordinance Suspending the Operation of the Longevity Plan," which halted any additional years worked after 2011 from being paid under the 2008 ordinance. However, eligible employees continued to be paid the longevity benefit for each year worked according to the prior applicable ordinances. For example, the years between July 1, 2008, and July 1, 2011, were paid according to the rates established in the 2008 ordinance, and the years prior to 2008 were paid according to their respective ordinances.

The Parkersburg City Council later adopted "An Ordinance Amending and Reenacting the Compensation Plan and Section IX, Benefits, of the City of Parkersburg Policies and Procedures," on November 8, 2011, that changed the number of hours worked each week by the fire civil service employees. It changed the work week from 48 hours to 54 hours per week for all firefighters and amended and reenacted the employment policies, procedures, and compensation plan for longevity, overtime, and compensatory time accordingly.

After the firefighters became 54-hour employees in November 2011 until March 2017, the City of Parkersburg continued to calculate and pay the longevity pay and the EMT certification benefits according to the 48-hour schedule, rather than recalculating and applying the rate set for the 54-hour workweek schedule. This meant that the respondents received the $.25 longevity pay rate in the 2008 ordinance rather than the $.2222 rate for longevity pay, which the City of Parkersburg maintains was a substantial overpayment. Similarly, those who earned the EMT pay received it under the 48-hour rate proscribed by the EMT ordinance, rather than a lower prorated rate that would amount to the same yearly total of $1,040.00, which the City of Parkersburg claims was intended by the ordinance.

The City of Parkersburg continued to make these payments until 2017 when Respondent Wayne White was transitioning from a Lieutenant position to a Chief Fire Inspector position within the fire department which involved a change in pay rates. The City of Parkersburg claims that it noticed the alleged overpayments to the respondents during this record-keeping transition. Consequently, the City of Parkersburg attempted to correct what it believed were overpayments in violation of the annual amounts approved by the City Council in the respective ordinances. Notably, it did not ask the employees to pay back what it believed were overpayments, but on or about August 1, 2017, the City of Parkersburg began paying the Respondents the longevity rate of $.2222 per hour for longevity pay based on the 54-hour work week for the service years from 2008 to 2011. Similarly, it prorated the EMT benefit from $.42 per hour to $.37 per hour, to reach the same approximate yearly amount of $1,040.00 for each qualifying firefighter/EMT, although the EMT ordinance did not specifically list a rate for 54-hour weekly workers.

Less than a year after the new payments took effect, the named respondents and their fraternal group, International Association of Fire Fighters ("IAFF") Local 91,^[3] filed suit in the Circuit Court of Wood County.^[4] The Amended Complaint alleged that the City of Parkersburg incorrectly altered its longevity pay plan terms and conditions for which the plaintiffs received compensation until March 2017. The Amended Complaint also alleged that the City of Parkersburg incorrectly applied its EMT certification pay ordinance and failed to place its pay practices in writing and make them available to the plaintiffs in violation of the WPCA.

On October 22, 2021, after cross-motions for summary judgment, the circuit court entered an Amended Order granting the respondents' motion for summary judgment as to liability, finding that the City of Parkersburg's actions in reducing the respondents' pay violated the WPCA. Specifically, the order provided that, "[p]laintiffs should have received $0.25 per hour from 2017 to present for their accrued longevity pay" and "…. $0.42 per hour for the EMT certification pay from 2017 to present."

Upon entry of the Amended Order, the City of Parkersburg presented to respondents a spreadsheet that it claims reflects the recalculated back pay awards as it understood were directed by the court, as applied to the years of service between July 1, 2008, and July 1, 2011. The respondents took the position that the spreadsheet did not fully restore the pay reductions implemented in 2017. The respondents argued that the circuit court's order found that all prorated longevity years and ordinances prior to 2008 were also unlawfully corrected and that the order was not limited to the years between July 1, 2008, and July 1, 2011. The parties thereafter submitted motions to clarify the enforcement of the Amended Order. The City of Parkersburg argued that the Amended Order should be enforced as it was written, granting the relief requested in the Amended Complaint and in the respondents' motion for summary judgment, which it stated was limited to the longevity accrual rate between 2008 and 2011 and the reduction of EMT pay. The respondents argued that the Amended Order should be expanded to include all longevity pay ordinances prorated in 2017 to reflect 54-hour shifts, including all longevity years prior to 2008 which are paid at various other rates according to the other prior ordinances.

The parties argued these positions at a subsequent hearing and submitted additional briefing on the issue. The City of Parkersburg argued that the respondents were seeking recovery for back pay for time periods that were not raised in their Amended Complaint or dictated by the 2008 ordinances at issue. The City of Parkersburg further stated that the Amended Order did not contain the necessary facts needed to compute the damages that it said the respondents were belatedly seeking because...