HUNTINGTON – The City of Huntington has requested a motion to stay a case filed by current and former firefighters regarding holiday pay issues until the state Supreme Court rules on a similar case out of Morgantown.
But in response, the plaintiff firefighters say the cases aren't similar enough to warrant the stay and ask the court to deny the request.
The city filed its Motion To Stay on April 26 in Cabell Circuit Court, just days after the firefighters had filed a Motion for Sanctions against the city alleging it failed to properly negotiate after Circuit Judge Chris Chiles ordered the sides to do so.
Toriseva
Huntington’s April 26 motion says the legal issues at question in the lawsuit recently were addressed by Monongalia Circuit Judge Phillip Gaujot in the case now before the Supreme Court.
“Although circuit courts in West Virginia have reached different conclusions as to the above legal questions, the (Morgantown) appeal will likely finally resolve these legal issues,” the city states in its Motion to Stay. “The Supreme Court of Appeals’ decision could have a significant effect on the city’s budget as it will determine whether the firefighters are owed any additional time off or any additional compensation.
“Moreover, the decision could have a significant effect on how the city treats holidays moving forward …
“Staying the case would promote the interests of justice because it would conserve the resources of all of the parties and of the court.”
Morgantown and the firefighters of International Association of Fire Fighters Local 313 conducted four mediations, the last one resulting on a $1.7 million back pay award that was rejected by the firefighters. In addition, a “forward fix” in the Morgantown situation has been in place since shortly after that lawsuit was filed.
Unlike Huntington and the firefighters of IAFF Local 289, Morgantown and Local 313 do not operate under a collective bargaining agreement.
“During time running up to the pre-trial hearing, counsel for the City of Huntington indicated this litigation regarding Holiday Pay is delaying the negotiations of the new CBA,” the firefighters’ April 27 response to the Motion to Stay states. “The Mayor of the City of Huntington (Steve Williams) told IAFF Local 289 Union President (Steve McCormick) directly that the CBA negotiations were on hold pending the resolution of this lawsuit.”
State code says, a stay of proceedings in a suit “rests in the sound discretion of the court,” according to the firefighters’ response.
“To warrant the stay, it must be essential to justice, and it must be that the judgment of decree by the other court will have legal operation and effect in the suit in which the stay is asked, and settle the matter of controversy in it,” the answer states, sometimes quoting state code. “The stay must be on the ground that the action in the other case is material in the decision of the case stayed. …
“In order to authorize any court to stay proceedings on account of a suit pending in another court, the two proceedings must be practically identical.”
The firefighters say the city’s motion is “a disguised Motion to Continue that should have been brought sooner.”
“If Huntington truthfully believed the result in the (Morgantown) appeal would resolve the issues in this case, why did it wait until two weeks before trial to file this stay?” the firefighters say. “It could have filed the stay any time after March 9, 2022, when the Notice of Appeal in (the Morgantown case) was filed.
“The reason is because Huntington does not believe the cases are so similar that a stay is warranted. It does not believe the result of the (Morgantown) appeal will resolve this case.”
The firefighters say the city is not ready to go to trial and needs a continuance.
“It especially needs one because it fears the possibility of the court holding a hearing on the plaintiffs’ Motion for Sanctions and does not want its conduct at the mediation evaluated by this court,” the firefighters’ response states. “No matter how (Morgantown) is decided by the Supreme Court, there will still be issues to be addressed in this case.”
The firefighters say a stay serves no purpose to them because it simply further delays them getting their earned wages. And, they say there still will be questions in this case after the Morgantown case is resolved.
“For example, there is no CBA in (Morgantown),” the response states. “In the case before this court, there is a CBA that directly affects the manner and method in which Huntington firefighters are paid. Further, a West Virginia trial court has already addressed holiday pay as it applies to firefighters subject to a CBA.
“Judge (David) Sims in Brooke County established the manner and method of payment of holiday pay when a CBA is in place. There were no CBA issues brought before Judge Gaujot in (Morgantown) and, therefore, cannot be raised or answered by the West Virginia Supreme Court.”
Also, the Huntington firefighters say there are claims in their lawsuit that do not exist in the Morgantown case.
“The City of Morgantown … put a ‘forward fix’ in place approximately four months after the firefighters filed their holiday pay lawsuit,” the response states. “Since then, the City of Morgantown has paid and continues to pay 24 hours of paid time off to each firefighter for each holiday whether that firefighter works or not. This continues to be done even now, after the final order by Judge Gaujot was entered denying the plaintiffs’ claims.
“In this case, the City of Huntington has made no corrective change to the way it pays holiday pay. That means the since the filing of the lawsuit, there are new claims for holiday from today back to the complaint filing (August 5, 2020). … Further, had Huntington meaningfully participated in the mandatory mediation, as required by the rules, those claims could have also been resolved.
“These cases remain vastly different, and because they are vastly different, the stay must be denied.”
Last week, the Huntington firefighters filed the motion for sanctions against the city for failing to properly negotiate after claiming the city hasn't paid firefighters properly for holiday pay in more than five years.
The motion was filed April 22 in the case originally filed in 2020. That filing says the city has continued to pay holiday pay in the “same manner that gave rise to the filing of the lawsuit.”
It says the case now has two components to resolve. The first is the payment to each firefighter for past lost wages, and the second is the “forward fix” that complies with statute ensuring the firefighters are accurately paid holiday pay.
According to the motion, the city and the firefighters of IAFF Local 289 have a collective bargaining agreement in place that is set to expire June 30. Negotiations were directed to begin 90 days prior, but none have happened so far, according to the motion, which also says counsel for the city has said negotiations are stalled because of this lawsuit.
During an April 14 pre-trial hearing in this case, Chiles ordered the parties to try to resolve the issues. But, the motion says the city would not mediate without the plaintiffs’ expert report being provided.
“The defendant certainly must have known the plaintiffs’ expert report is and was always going to be a money computation not a time computation,” the motion states.
The week before, the expert report was finalized and mediations took place in Huntington. On April 21, mediator James Lamp met with plaintiff attorneys Teresa Toriseva and Michael Kuhn of Toriseva Law as well as the president and five other members of IAFF Local 289. Then, Lamp went to discuss the matter with the city.
When Lamp returned to the plaintiffs, he said the city was not prepared to discuss the “forward fix” aspect of the case.
“This was the first time since the lawsuit was filed on August 5, 2020, that there was any indication the city would not discuss the ‘forward fix,’” the motion states. “The mediator indicated the city’s position now was that it is a CBA issue and nobody at the mediation on behalf of the city had authority to negotiate that issue. This is contrary to the previous assertions that the lawsuit was delaying the CBA.
“The mediator then indicated the city was not willing to pay cash for the past missed holiday pay and would discuss paying it only in the form of additional time off.”
Attorneys for the firefighters told Lamp these positions seemed to not be in the spirit of mediation and said they’d remain at the mediation until it was clear there was no hope of resolution. Lamp returned 30 minutes later repeating the same position of the city, according to the motion.
The motion says the city isn’t required to settle the case at mediation, but it required to participate meaningfully. The plaintiffs say the city did not hold up their end of the bargain.
It also says when one party failed to participate meaningfully, trial court rules provide the court with authority to act. The firefighters call the city’s conduct “egregious,” and list examples of how other cities took part in similar negotiations.
The firefighters say simply showing up for a mandatory mediation with no authority or intention to resolve the issues is a violation of state code.
They say Charleston Mayor Amy Goodwin personally participated in settlement negotiations. In Martinsburg, they say the mayor, assistant mayor, city manager and city finance director all took part in the talks. In Weirton, they say the city manager, city council members and others were present for talks. In Morgantown, they say the mayor, assistant mayor and city manager all took part even after four failed mediations.
The firefighters seek sanctions against the city as well as attorney fees for time spent preparing for, traveling to and participating in the mediation. They also want the city to reimburse the six firefighters for time lost from work to attend the talks. They also want the city to pay the full cost of the mediation.
They also want the date and location of the next mediation to be chosen before the scheduled May 11 trial date. And, they want Huntington’s mayor, city manager or other city representative to have full decision-making authority to examine and resolve issues, attend and fully participate in the mediation.
The original complaint, listed 83 members of Local 289 as plaintiffs. The City of Huntington is listed as the defendant.
“The West Virginia Legislature has set a holiday pay enhancement for firefighters statewide. Police, too,” Toriseva, previously told The West Virginia Record when she filed similar lawsuits in other cities. “But there is a big problem in the way the holiday pay is being calculated for firefighters in numerous cities across West Virginia.
“The miscalculation of pay by municipalities ... is causing firefighters to be paid less than what is actually owed, year after year, for each firefighter. This lawsuit seeks lost wages and asks the court to stop the ongoing problem.”
Toriseva declined to comment on the motion for sanctions, but Huntington City Attorney Scott Damron did.
"The City of Huntington is negotiating in good faith, and the motion has no merit," Damron told The Record. "We are certain that the mediator will confirm the city's good faith. It's disappointing that a party would use such inflammatory tactics."
Toriseva previously said she sent correspondence to Huntington City Manager Hank Dial in March 2020 indicating the city was wrongfully withholding holiday pay from the firefighters. Although discussion took place about resolving the matter, no movement toward resolution has occurred before the original complaint was filed.
"Firefighters are part of the core response to human tragedy in our community," Toriseva previously told The Record. "They help us all, without exception, in our times of greatest need.
“We must at least pay them properly and according to what the law requires."
According to the complaint, state code says every West Virginia firefighter, whether on duty or off duty, should get either time and a half pay or 24 hours paid time off equal to the shift for every legal holiday.
"The right cannot be waived," Toriseva previously told The Record. "The cities that have collective bargaining agreements must still comply with the pay enhancement set out in statute and the CBA is the basis for the 'regular rate of pay' which is paid at time and a half."
The complaint says that even though the firefighters may have been paid additional pay for each holiday whether they worked or not, such pay was “in addition to their regular pay.”
The plaintiffs allege they are owed wages for numerous holidays over a period of many years.
The plaintiffs accuse the city of negligent failure to properly pay statutory holiday premium and of failing to follow the West Virginia Wage Payment and Collection Act. They ask for the appointment of a special commissioner to calculate individual damages for each of the plaintiffs.
The firefighters seek compensatory damages as well as interest, attorney fees and court costs. They are being represented by Toriseva, Kuhn and Joshua Miller of Toriseva Law in Wheeling. The city is being represented by Joseph Leonoro of Steptoe & Johnson’s Charleston office.
Cabell Circuit Court case number 20-C-245