OPINION ISSUED MAY 19, 1992
MARY E. PARKER
DEPARTMENT OF HEALTH AND HUMAN RESOURCES
Claimant represents self.
John E. Shank, Deputy Attorney General, for respondent.
This is a claim brought to recover back wages that were withheld by Welch Emergency Hospital, a
facility of the respondent, after a reclassification of the claimant's position at the facility. It appears
uncontroverted that the claimant was performing the duties of a Procurement Officer, while
inappropriately receiving compensation at a lesser grade and title classification. The claimant seeks
to recover the underpayments that resulted from the misclassification retroactively from October 1,
1984 to September 16, 1990.
The claimant timely filed a grievance pursuant to the Education and State Employees Grievance
Procedure, in accordance with the provisions of W.Va. Code Chapter 29, Article 6A, Section 4(a),
to recover same on October 1, 1990. A representative of the respondent, David Gresham, advised
the claimant by letter dated October 10, 1990, that back wage grievances could not be paid beyond
July 1, 1988, consistent with the current case precedent as cited below. By an Agreement between
the claimant and the respondent, dated October 11, 1990, the claimant received an aggregate back
wage payment of $3,494.89, representing the underpayment of wages from the misclassification
during the period of her employment by the respondent from July 1, 1988, up to and including
September 15, 1990.
The issue of unpaid back wages from the period of October 1, 1984, to July 1, 1988, remains
unresolved and is the subject of the present claim before this Court. The claimant alleges that the
agreement for partial repayment of back wages dated October 11, 1990, did not preclude her from
not attempting to recover the remaining unpaid wages in the amount of $5,934.60.
The respondent contends that it is unable to make the requested payment for the period of October
1, 1984, to July 1, 1988. The respondent cites as its authority for their action the holding of
AFSCME v. W.Va. Civil Service Comm., 181 W.Va.8, 380 S.E.2d 43, wherein the W.Va. Supreme
Court of Appeals established a 90 day period for claimants to initiate grievances to recover back
wages for claims arising prior to July 1, 1988. The 90 day filing period began on March 28, 1989,
the date of the AFSCME decision and expired June 28, 1989. The claimant missed this filing period.
The respondent, however, suggests that the claimant may still have recourse for obtaining her back
wages by pursing a grievance with the Education and State Employees Grievance Board since the
agreement for partial back wages may be interpreted to grant such consideration.
The Court is of the opinion that grievances involving misclassification are the exclusive province
of the Education and State Employees Grievance Board. As the claimant has not exhausted her
administrative remedies, this Court has no jurisdiction to substitute its judgement for that of the
Grievance Board, nor to make findings of fact and conclusions of law in such wage matters. The
basic rule of exhaustion of remedies is found in Meyers v. Bethlehem Shipping Corporation, 303
U.S. 41 (1938), wherein the U.S. Supreme Court held that "no one is entitled to judicial relief for a
supposed or threatened injury until the prescribed administrative remedy has been exhausted." In
other words, a reviewing court does not have jurisdiction over a matter until an agency has acted
"finally." The claimant has not exhausted her administrative remedies of the W.Va. Code. The basis
for the exhaustion of remedies rule has been summarized by the U.S. Supreme Court in McKart v.
U.S., 395 U.S. 185 (1969) and followed by the W.Va. Supreme Court of Appeals for the following
It permits full development of the facts prior to judicial review;
It gives the agency a chance to employ the discretion or expertise expected of it by the Legislative
It is generally more efficient to exhaust the administrative process without premature interruptions;
The appellant might succeed before the agency, making judicial review unnecessary;
Constant resort to judicial review could weaker the agency; and,
The exhaustion of remedies rule recognizes the autonomy and primacy of the agency to make
findings of fact without undue influence and interference.
For the foregoing reasons, the Court must deny this claim in order for claimant to pursue and exhaust
the administrative remedies available to her.