THOMAS LAMBERT,
Grievant,
v.
DOCKET NO. 99-HHR-326
WEST VIRGINIA DEPARTMENT OF
HEALTH AND HUMAN SERVICES and
DIVISION OF PERSONNEL,
Respondents.
DECISION
Grievant, Thomas Lambert, filed this grievance on June 1, 1999, against
Respondents West Virginia Department of Health and Human Services (DHHR) and
Division of Personnel (DOP), alleging he was misclassified. Subsequent to the filing of
the grievance, DOP agreed to reclassify Grievant to his current Social Service Worker III
position. The only issue remaining before this Grievance Board was whether Grievant was
limited to receiving back pay to 10 days prior to the filing of his grievance. Prior to the
level four hearing scheduled for January 10, 2000, the parties settled the back pay issue.
However, Grievant refused to dismiss the case from the Grievance Board docket, because
he wanted further relief in the form of a policy in which:
Secretary Joan Ohl [would] issue a directive to all Community Service
Managers advising them to notify all employees who are reclassified as to
the fact that [they] have been classified and the effective date of the
reclassification and the effective date of any back pay, if appropriate.
This relief was not requested in Grievant's original grievance. Prior to the level four
hearing on this matter, the parties agreed that the only remaining issue in this grievance
was Grievant's most recent request for relief. Based on that agreement and
understanding, no level four hearing was conducted, and the parties agreed the
undersigned would make a ruling on Grievant's requested relief.
DISCUSSION
It is undisputed Sharon Winkler-Serena notified Grievant of his reclassification and
showed him the Personnel Action Form (WV-11) completed by DOP which verified his new
classification. This method of notification is the current practice of the agency. Further,
policies and rules regarding classification are within the purview of DOP.
Grievant is not happy with the current form of notification, in which the agency
meets with the employee and shows him or her the WV-11 form instituting the
reclassification. Grievant believes a letter from the agency informing the employee of
reclassification, effective date, and the amount of any back pay, would be more
informative. During the course of this grievance, Grievant did ask the agency for such a
letter, and was provided with one from Thomas P. Gunnoe, Regional Director.
The relief Grievant now requests is not within the purview of this Grievance Board.
A grievant must show an injury-in-fact, economic or otherwise to have what constitutes a
matter cognizable under the grievance statute.
Dooley v. W. Va. Dept. of Transp., Docket
No. 94-DOH-255 (Nov. 30, 1994).
See also Pridemore v. W. Va. Dept. of Health and
Human Resources, Docket No. 95-HHR-561 (Sept. 30, 1996)(Moot questions or abstract
propositions, the decisions of which would avail nothing in the determination ofcontroverted rights of persons or property, are not properly cognizable by the court.);
Carney v. W. Va. Dept. of Rehabilitation Serv., Docket No. VR-88-055 (Mar. 28, 1989)(De
minimum relief has been held to be unavailable from the West Virginia Education and
State Employees Grievance Board).
See also Skaff v. Pridemore, 200 W. Va. 700, 490
S.E.2d 787 (1997)(The jurisdiction of the Education and State Employees Grievance
Board is limited to the resolution of grievances as defined by W. Va. Code § 29-6A-2(i)
(1988) and W. Va. Code § 18-29-2(a) (1992) so that its 'authority extends only to resolving
grievances made cognizable by its authorizing legislation.'
Vest v. Bd. of Educ., 193 W.
Va. 222, 225, 455 S.E.2d 781, 784 (1995). The grievance board simply does not have the
authority to second guess a state employer's employment policy.)
Accordingly, Grievant's requested relief is hereby
DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the
circuit court of the county in which the grievance occurred. Any such appeal must be filed
within thirty (30) days of receipt of this decision.
W. Va. Code § 29-6A-7 (1998). Neither
the West Virginia Education and State Employees Grievance Board nor any of its
Administrative Law Judges is a party to such appeal, and should not be so named.
However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of
the appeal petition upon the Grievance Board. The appealing party must also provide the
Board with the civil action number so that the record can be prepared and properly
transmitted to the appropriate circuit court.
_____________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: January 24, 2000