Full Opinion (html_with_citations)

       IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
                                                                                FILED
CITY OF PARKERSBURG,                                                       December 27, 2023
Defendant Below, Petitioner                                                  EDYTHE NASH GAISER, CLERK
                                                                           INTERMEDIATE COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

vs.) No. 22-ICA-142         (Cir. Ct. Wood Cnty. No. CC-54-2018-C-259)

WAYNE WHITE, MICHAEL WOOD,
JOSHUA GANDEE and all others similarly
Situated and INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS LOCAL 91,
Plaintiffs Below, Respondents


                             MEMORANDUM DECISION

       Petitioner City of Parkersburg appeals the “Final Order from May 5th Hearing
Regarding Enforcement of the Court’s October 22nd, 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

       1
        Petitioner is represented by Johnnie E. Brown, Esq., and Donovan M. Powell, Esq.
Respondents are represented by Walt Auvil, Esq., Kirk Auvil, Esq., and Anthony
Brunicardi, Esq.

                                             1
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.


       2
         City of Parkersburg Finance Director Eric Jiles testified that for the years 1994
through 1996, the annual longevity increment was $250.00 per year of service. For the
years 1997 through 2001, the longevity increment was described as “twenty ($.20) cents
per hour ($416.00 per year) for each year” of service. In 2002 through 2007, the longevity
increment was $416.00 per year of service for appointed part-time employees, $.20 per
hour for each year of service for 40-hour employees, and $.17 per hour for each year of
service for 48-hour employees.
                                            2
       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

       3
          Respondent IAFF Local 91 is a fraternal organization that represents the
firefighters, which the circuit court ruled has representative standing in the suit below.
       4
        Prior to this legal action, Respondent White filed a grievance related to the pay
reduction with the Fire Civil Service Commission of the City of Parkersburg.
                                             3
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 there was no evidence or factual
predicate regarding the lawfulness of prorating for years accrued prior to 2008.
Respondents, in contrast, argued that the City of Parkersburg was inappropriately and
belatedly attempting to inject the prior ordinances’ pay rates into the litigation when it had
not raised these ordinances as a defense in its answer to the complaint, had not produced
the ordinances in discovery, or testified that it relied on the ordinances in its 2017
recalculation of longevity rate increment pay.

      Following the hearing, the circuit court entered its “Final Order from May 5th
Hearing Regarding Enforcement of the Court’s October 22nd, 2021 Order” on August 31,
2022, which expanded the scope of back pay due to plaintiffs to all prior longevity
                                              4
ordinances, not just the 2008 ordinance. On September 28, 2022, the circuit court entered
an “Agreed Order Staying the August 31st Order and Declaring the August 31st Order a
Final Appealable Order as to Liability” that ratified the parties’ agreement to stay the
enforcement of the August 31st order and its prospective pay changes, and affirmed that
although final damages were not calculated, the August 31st order was declared a final
appealable order as to liability. 5 The City of Parkersburg now appeals the Final Order
entered August 31, 2022.

        In its appeal, the City of Parkersburg raises assignments of error that challenge the
circuit court’s substantive rulings in the October 22, 2021, order, which was not appealed,
in addition to the clarifying rulings in the August 31, 2022, order. Although the circuit
court did not certify the October 22, 2021, order as a final appealable order, we do not find

       5
       We note that, ordinarily, an order determining liability without a determination of
damages is not a final adjudication of a claim and is not immediately appealable.

       However, an immediate appeal from a liability judgment will be allowed if
       the determination of damages can be characterized as ministerial. That is, a
       judgment that does not determine damages is a final appealable order when
       the computation of damages is mechanical and unlikely to produce a second
       appeal because the only remaining task is ministerial, similar to assessing
       costs.

Syl. Pt. 3, in part, C & O Motors, Inc. v. W. Va. Paving, Inc.,
223 W. Va. 469
,
677 S.E.2d 905
 (2009). Our Supreme Court has found the ministerial exception to finality to be
satisfied where the amount of damages was already ascertained or readily ascertainable.
See, e.g., Marcus v. Staubs,
230 W. Va. 127, 142
,
736 S.E.2d 360, 375
 (2012) (finding
damages issue ministerial where amount had been fixed by agreement of the parties upon
a finding of liability); Karpacs-Brown v. Murthy,
224 W. Va. 516, 525, n. 6
,
686 S.E.2d 746, 755, n. 6
 (2009) (“In the instant case, because all of the appellee’s attorney fees,
expenses, and costs were awarded, the only remaining task is ministerial, i.e., the
calculation of these sums, which is unlikely to produce a second appeal.”).

        In the case below, the circuit court determined liability and the method of
calculating damages before entering the Agreed Order Declaring the August 31st Order a
Final Appealable Order as to Liability, thus demonstrating that it considered the
computation of damages to be ministerial. The circuit court further heard discussion of
counsel and their agreement to appeal liability prior to calculating damages on the basis
that “a calculation of damages would be an ineffective use of the parties’ monies in light
of an appeal as damages would have to be recalculated after appeal regardless of any
appeal’s outcome” prior to declaring the order a final appealable order. We defer to the
circuit court’s analysis and determination on that issue.

                                             5
that the City of Parkersburg exceeded the scope of this appeal by challenging the circuit
court’s rulings from the October 22, 2021, order. Our Supreme Court of Appeals has held
that:
       [w]here an appeal is properly obtained from an appealable decree either final
       or interlocutory, such appeal will bring with it for review all preceding non-
       appealable decrees or orders, from which have arisen any of the errors
       complained of in the decree appealed from, no matter how long they may
       have been rendered before the appeal was taken.

Syl. Pt. 6, Riffe v. Armstrong,
197 W. Va. 626, 631
,
477 S.E.2d 535, 540
 (1996), holding
modified by Moats v. Preston Cnty. Comm’n,
206 W. Va. 8
,
521 S.E.2d 180
 (1999)
(internal citations omitted).

        As is well-established, “[a] circuit court's entry of summary judgment is reviewed
de novo.” Syl. Pt. 1, Painter v. Peavy,
192 W.Va. 189
,
451 S.E.2d 755
 (1994). Moreover,
“‘“[a] motion for summary judgment should be granted only when it is clear that there is
no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to
clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v.
Federal Insurance Co. of New York,
148 W.Va. 160
,
133 S.E.2d 770
 (1963).’ Syllabus
Point 1, Andrick v. Town of Buckhannon,
187 W.Va. 706
,
421 S.E.2d 247
 (1992).” Id. at
190,
451 S.E.2d at 756
, syl. pt 2. “The circuit court’s function at the summary judgment
stage is not to weigh the evidence and determine the truth of the matter, but is to determine
whether there is a genuine issue for trial.”
Id. at 190
,
451 S.E.2d at 756
, syl. pt. 3.

       Accordingly, we turn to the City of Parkersburg’s assignments of error raised in the
instant appeal. Namely, the City of Parkersburg alleges that the circuit court erred in
finding that the City of Parkersburg’s 2017 corrective and prospective action was not the
legal and correct application of the 2008 longevity ordinance.

        The City of Parkersburg argues that the 2008 longevity ordinance unambiguously
states different pay rates for 48-hour and 54-hour employees and that once the fire civil
service employees changed to 54-hour per week shifts on November 8, 2011, they should
have been paid at the 54-hour rate of $.2222 per hour for each year of service. The City of
Parkersburg further claims that its failure to make that change in the affected employees’
pay rates in 2011 was an error that resulted in an overpayment, and its effort to rectify that
error in 2017 was simply the correct and required application of the 2008 ordinance, not a
change in pay rates that would trigger the application of the WCPA’s notice requirements. 6

       6
         West Virginia Code § 21-5-9 (1975) requires an employer to notify an employee
of the rate of pay and any changes to that rate:

                                              6
The respondents argue, and the circuit court agreed, that this change in 2017 was in
violation of nine years of pay practices which created a vested interest in being paid the
higher amount of longevity pay. We disagree. First, we do not find that the application of
the 54-hour rate explicitly denoted in the 2008 longevity pay plan constitutes a change or
reduction in wages such as that contemplated by the WCPA. Because the 54-hour rate was
expressly provided for in the City of Parkersburg’s Compensation Plan, the City of
Parkersburg’s application of that pay rate is not an affirmative change to the longevity pay
plan.

        Moreover, we find that the fact that the City of Parkersburg paid the 48-hour rate in
error does not create a vested interest in such an overpayment to the respondents in
perpetuity. We find nothing in the briefs or record below to support such a contention, nor
do we find any such support in our jurisprudence. We note that our Supreme Court has
held that “in the absence of a contractual obligation providing otherwise, a public employer
is permitted to unilaterally modify a longstanding policy affecting the rights of employees
where notice is provided to such employees and where the modification of policy does not
retroactively impair previously earned and vested rights, such as pension benefits.”
Boggess v. City of Charleston,
234 W. Va. 366, 377
,
765 S.E.2d 255, 266
 (2014). Notably,
respondents do not point to anything in our statutory or common law that would tend to
define such vested rights as those fringe benefits erroneously paid in excess. 7 Moreover,
we acknowledge, as the Boggess court found, that public employers must be permitted to
exercise discretion in making changes in policies and procedures as mandated by the
electorate and in order “to control its annual budgetary and discretionary functions[,]”
which is contrasted by the “absence of an employee’s right to the continued existence of a
particular means or method of compensation.”
Id. at 375
,
765 S.E.2d. at 264
. Consequently,
we find that the circuit court erred in granting summary judgment to respondents on
liability on this issue and in denying petitioner’s motion for summary judgment on this
issue.


       Every person, firm and corporation shall: (1) Notify his employees in writing,
       at the time of hiring of the rate of pay, and of the day, hour, and place of
       payment. (2) Notify his employees in writing, or through a posted notice
       maintained in a place accessible to his employees of any changes in the
       arrangements specified above prior to the time of such changes.
       7
           In contrast, Boggess finds an important distinction between the retroactive
impairment of previously earned and vested rights, such as pension benefits, which are a
form of deferred compensation, and those actions that simply alter the terms of future
employment.
Id. at 376
,
765 S.E.2d at 265
. The former is generally disallowed, while the
latter is permitted.
Id.
                                             7
        With regard to the EMT pay, the City of Parkersburg argues that the ordinance did
not contain a specific pay rate for 54-hour employees because when it was enacted, no
eligible fire department employees worked more than a 48-hour work schedule.
Regardless, the City of Parkersburg argues that its City Council’s intent is clear that the
annual benefit for those who maintain a Firefighter/EMT certification should be
approximately $1,040.00, regardless of the hours worked per week, as evidenced by the
enumerated pay rates for 48-hour and day shift (40-hour) personnel of $.42 and $.50,
respectively. However, the pertinent language of the policy is devoid of any reference to
the total benefit of $1,040.00. Although all the eligible personnel were arguably working
more than 48 hours per week after November 1, 2011, without an enumerated 54-hour
weekly rate in the policy, we disagree that the City of Parkersburg was merely correcting
an error when it prorated the rate to $.37 rather than affirmatively changing the rate. While
we do not dispute that the City of Parkersburg had the authority to prospectively alter the
EMT rate of pay and arguably had a duty to correct an outdated pay rate, we are also
mindful of the need for compliance with the notice requirements of the WPCA.
Unfortunately, despite the parties’ competing motions for summary judgment and years of
protracted litigation, it is not clear from the appendix record whether the City of
Parkersburg provided any written notice to the respondents before prorating the rate to
$.37. Accordingly, we are unable to determine if the WPCA has been violated, and remand
this issue to the circuit court to consider whether the City of Parkersburg provided prior
notice to the respondents of the alteration in the rate in conformity with West Virginia Code
§ 21-5-9.

       Finally, the City of Parkersburg argues that the circuit court erred in ruling that IAFF
Local 91 has representative standing to bring respondents’ claims under the WCPA. The
City of Parkersburg alleges that the requirements of the WPCA render the IAFF Local 91
incapable of meeting the three-element test articulated in Affiliated Construction Trades
Foundation v. West Virginia Department of Transportation,
227 W. Va. 653
,
713 S.E.2d 809
 (2011).

       First, the City of Parkersburg suggests that the language of the WPCA itself limits
recovery under the act specifically to claims brought by an affected individual. The WPCA
defines “employee” as “any person suffered or permitted to work by a person, firm, or
corporation, except those classified as an independent contractor . . .”
W. Va. Code § 21
-
5-1(b) (2021). Remedies under the act are enumerated specifically for employees whose
wages were not paid in accord with the act.
W. Va. Code § 21-5-12
 (1975). 8 The WPCA



       8
           West Virginia Code § 21-5-12 provides, in pertinent part:

                                              8
itself is silent as to any causes of action brought by an organization with representative
standing on behalf of its members.

        The controlling test to determine “representational standing” is the three-element
test in Affiliated.
227 W. Va. at 659
,
713 S.E.2d at 815
. There, our Supreme Court held that
“an organization has representative standing to sue on behalf of its members when the
organization proves that: (1) at least one of its members would have standing to sue in their
own right; (2) the interests it seeks to protect are germane to the organization's purpose;
and (3) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.”
Id.

       The circuit court’s Amended Order contains no findings of fact on this issue or any
analysis or application of this three-element test. Instead, the order summarily concludes,
“That under the test set forth in Affiliated Construction Trades Foundation v. W. Va. DOT,
227 W. Va. 651
,
713 S.E.2d 809
 (2011), the Plaintiff International Association of Fire
Fighters Local 91 has standing to assert a claim in this matter.”

        Our analysis of this issue begins with an application of the Affiliated factors. The
first prong is easily satisfied — the Amended Complaint identifies the named Respondents
Wayne White, Michael Wood, and Joshua Gandee as Firefighter/EMTs and members of
the IAFF Local 91, so these members had standing to sue individually. The second prong
is not in dispute, as the IAFF Local 91 is a lobbying and advocacy group for firefighters
and its interests are clearly aligned with those of the respondents. However, the third prong
conflicts with the nature of the underlying claims. Although our inquiry is simplified by
the elimination of the longevity pay issue, we observe that the claim for EMT pay is
brought pursuant to the WPCA, which expressly limits its remedies to causes of action
brought either by the affected employee(s) or the Commissioner of Labor/the
commissioner’s designee. Nothing in the language of the WPCA contemplates a cause of
action brought by an organization with representative standing. Accordingly, it appears
that the nature of the claim and the relief sought tends to require the participation of the
individual members of the association.




       (a) Any person whose wages have not been paid in accord with this article,
       or the commissioner [Commissioner of Labor] or his designated
       representative, upon the request of such person, may bring any legal action
       necessary to collect a claim under this article. With the consent of the
       employee, the commissioner shall have the power to settle and adjust any
       claim to the same extent as might the employee.
                                             9
       [W]hether an association has standing to invoke the court’s remedial powers
       on behalf of its members depends in substantial measure on the nature of the
       relief sought. If in a proper case the association seeks a declaration,
       injunction, or some other form of prospective relief, it can reasonably be
       supposed that the remedy, if granted, will inure to the benefit of those
       members of the association actually injured. . . . The present case, however,
       differs significantly as here an association seeks relief in damages for alleged
       injuries to its members. [The association] alleges no monetary injury to itself,
       nor any assignment of the damages claims of its members. . . [t]he damages
       claims are not common to the entire membership, nor shared by all in equal
       degree. To the contrary, whatever injury may have been suffered is peculiar
       to the individual member concerned, and both the fact and extent of injury
       would require individualized proof. Thus, to obtain relief in damages, each
       member of [the association] who claims injury as a result of respondents’
       practices [must] be a party to the suit, and [the association] has no standing
       to claim damages on his behalf.

Warth v. Seldin,
422 U.S. 490, 515-16
 (1975). As in Warth, the association here has alleged
representative standing for an unknown number of affected firefighter/EMTs. IAFF Local
91’s claims are presumably not common to their entire membership, and the nature of any
individual member’s damages would require particularized proof. Thus, to obtain relief,
each member of IAFF Local 91 who claims damages from the EMT pay issue must be a
party to the suit and IAFF Local 91 has no standing to claim damages on their behalf.

        Accordingly, we reverse the circuit court’s October 22, 2021, Amended Order and
its grant of Respondents’ Motion for Summary Judgment As to Liability and denial of
Petitioner’s Motion for Summary Judgment, and we remand to the Circuit Court of Wood
County for the entry of an order granting Petitioner’s Motion for Summary Judgment, in
part, and dismissing Count I of Respondents’ First Amended Complaint and dismissing the
claims of International Association of Fire Fighters Local 91 in their entirety, and for
further proceedings consistent with this decision as to Count II of Respondents’ First
Amended Complaint.

                                                  Reversed and Remanded with Directions.

ISSUED: December 27, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr

                                             10
Judge Charles O. Lorensen




                            11