JILL KRIDLE,
Grievant,
v. Docket No. 00-HHR-198
DEPARTMENT OF HEALTH & HUMAN
RESOURCES/WILLIAM R. SHARPE, JR.,
HOSPITAL, and DIVISION OF PERSONNEL,
Respondents.
DECISION
Jill Kridle (Grievant) initiated this proceeding on April 10, 2000, alleging she has
been misclassified since December 15, 1999. She seeks back pay to December 15, 1999.
The grievance was denied at levels one and two, and a level three hearing was held on
May 30, 2000. The grievance was denied in a written level three decision dated June 6,
2000. Grievant appealed to level four on June 12, 2000. The parties agreed to submit this
matter for a decision based upon the record developed below, supplemented by proposed
findings of fact and conclusions of law. Grievant was represented by Dan Singleton, and
the Department of Health and Human Resources (DHHR) was represented by counsel,
Anthony D. Eates, II.
(See footnote 1)
This grievance became mature for consideration upon receipt of the
parties' fact/law proposals on October 2, 2000.
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Prior to December 15, 1999, Grievant was employed by DHHR at William R.
Sharpe, Jr., Hospital, as a Psychologist Assistant. She was assigned to assist Neil L.
Mogge, Director of Psychology.
2. Effective December 15, 1999, Grievant obtained a Master's degree in
Psychology.
3. Prior to December 15, 1999, Grievant's duties focused primarily upon
psychological testing.
4. After Grievant obtained her Master's degree, Mr. Mogge began assigning her
more duties, consisting of full-scale psychological assessments, including interviews,
reports, and recommendations for treatment.
5. On December 22, 1999, Grievant completed a form, at her supervisor's
direction, in order to be reclassified.
(See footnote 2)
6. Upon discovering that the form she had completed was not the proper form
for obtaining reclassification, Grievant completed a position description form on February
1, 2000.
7. Effective April 1, 2000, Grievant was reallocated from Psychologist Assistant
to Psychologist I.
8. Grievant initiated this grievance on April 10, 2000, seeking back pay to
December 15, 1999.
9. Both Grievant and her supervisor knew that the new duties she was assigned
as of December 15, 1999, were outside her then-classification of Psychologist Assistant.
Discussion
In order for a grievant to prevail upon a claim of misclassification, she must prove
by a preponderance of the evidence that her duties for the relevant period more closely
match those of another cited classification specification than the classification to which she
is currently assigned.
See generally
,
Hayes v. W. Va. Dep't of Natural Resources
, Docket
No. NR-88-038 (Mar. 28, 1989). DOP's classification specifications generally contain five
sections as follows: first is the "Nature of Work" section; second, "Distinguishing
Characteristics"; third, the "Examples of Work" section; fourth, the "Knowledge, Skills and
Abilities" section; and finally, the "Minimum Qualifications" section. These specifications
are to be read in "pyramid fashion," i.e., from top to bottom, with the different sections to
be considered as going from the more general/more critical to the more specific/less
critical.
Captain v. W. Va. Div. of Health
, Docket No. 90-H-471 (Apr. 4, 1991). For these
purposes, the "Nature of Work" section of a classification specification is its most critical
section.
See generally
,
Dollison v. W. Va. Dep't of Employment Security
, Docket No.
89-ES-101 (Nov. 3, 1989).
The key to the analysis is to ascertain whether the grievant's current classification
constitutes the "best fit" for her required duties.
Simmons v. W. Va. Dep't of Health and
Human Resources
, Docket No. 90-H-433 (Mar. 28, 1991). The predominant duties of the
position in question are class-controlling.
Broaddus v. W. Va. Div. of Human Serv.
, Docket
Nos. 89-DHS-606, 607, 609 (Aug. 31, 1990). Importantly, DOP's interpretation and
explanation of the classification specifications at issue should be given great weight unless
clearly wrong.
See
W. Va. Dep't of Health v. Blankenship
, 189 W. Va. 342, 431 S.E.2d
681, 687 (1993).
The holding of the Supreme Court of Appeals in
Blankenship
presentsa state employee contesting her classification with a substantial obstacle to overcome in
attempting to establish that she is misclassified.
The Nature of Work section for the Psychologist Assistant classification specification
states that such individuals perform . . . paraprofessional work at the full-performance level
as an assistant to a supervising psychologist under general supervision. Such persons
[a]ssist . . . by performing routine duties such as conducting and scoring tests and
conducting intake interviews. Performs related work as required. In turn, the same
section in the Psychologist I specification states as follows:
Under general supervision, performs full-performance level professional work
evaluating client status, devising treatment, and assessing the progress of
treatment in a state facility. Receives a caseload based on admissions to a
program at a facility. Conducts an assessment interview, orders tests,
reviews results, and develops treatment plans. Work is evaluated by the
improvement of client status during treatment. Exercises considerable
latitude to choose methods and approaches. Initially, assignments are
reviewed while in progress and are evaluated by adherence to methods and
procedures until the incumbent has effectively established the ability to
perform independently. May oversee a small program or an aspect of a
large program at a state facility. Performs related work as required.
It is clear from the evidence of record that the majority of Grievant's duties since at
least January of 2000 have been those associated with the Psychologist I classification.
However, at levels two, three, and four of this grievance, Respondent DHHR has
contended that it was not filed in accordance with the statutory timelines for initiating
grievances. The burden of proof is on the respondent asserting that a grievance was not
timely filed to prove this affirmative defense by a preponderance of the evidence.
Hale and
Brown v. Mingo County Bd. of Educ.
, Docket No. 95-29-315 (Jan. 25, 1996). If the
respondent meets this burden, the grievant may then attempt to demonstrate that she
should be excused from filing within the statutory timelines.
Kessler v. W. Va. Dep't ofTransp.
, Docket No. 96-DOH-445 (July 29, 1997).
As to when a grievance must be filed,
W. Va. Code
§ 29-6A-3(a) provides, in
pertinent part:
A grievance must be filed within the times specified in section four of this
article . . . Provided, That the specified time limits shall be extended
whenever a grievant is not working because of accident, sickness, death in
the immediate family or other cause necessitating the grievant to take
personal leave from his or her employment.
W. Va. Code
§ 29-6A-4(a) provides, in pertinent part:
Within ten days following the occurrence of the event upon which the
grievance is based, or within ten days of the date on which the event became
known to the grievant, or within ten days of the most recent occurrence of a
continuing practice giving rise to a grievance, the grievant or the designated
representative, or both, may file a written grievance with the immediate
supervisor of the grievant. . . .
Only working days are counted in determining when the ten-day time period runs for filing
a grievance. Holidays are not counted.
W. Va. Code
§ 29-6A-2(c).
Grievant does not dispute that she did not file her grievance within ten days of
knowing that her newly assigned duties were outside the Psychologist Assistant
classification. However, she contends that, because she and her supervisor were
completing the necessary forms and actively seeking to have her reclassified, she should
be excused from filing a grievance until she was notified of her actual reclassification--
without back pay_on April 1, 2000. Grievant testified that she assumed she was going to
be reclassified, but didn't figure it would take three months. She also presumed that she
would receive back pay to December 15, when she began her new duties.
A virtually identical situation was recently addressed by this Grievance Board in
Delbart v. Dep't of Health and Human Resources, Docket No. 99-HHR-458 (April 21,2000). As in the instant case, the grievant in
Delbart delayed filing her grievance while her
position was being reviewed for possible reclassification until after the process was
completed. The administrative law judge held that, even if an employee is actively
pursuing reclassification with her employer, she is not excused from filing a timely
grievance for working out of her assigned classification:
Although Grievant's reasoning for not filing a grievance at the time she
submitted her position description form in August 1998 cannot be faulted,
such a submission does not by statute toll the time period for filing a
grievance. '[A] state employee who suspects she is misclassified has two
choices: she may apply to Personnel for reclassification, and thereby waive
any back pay claim; or she may grieve and possibly recover back pay limited
to the ten day period preceding the filing of the grievance, should her
employer raise a timeliness defense.
See
Mullens v. W. Va. Dep't of Health
and Human Resources/W. Va. Div. of Personnel
, Docket No. 96-HHR-226
(July 31, 1997). In other words, an employee harboring any doubts
regarding her classification should file a grievance at once, and certainly no
later than her request for reclassification, or risk waiving any claim for back
pay.'
Akers v. Dep't of Health and Human Resources
, Docket No.
99-HHR-092 (Dec. 30, 1999).
Delbart,
supra.
Misclassification is a continuing practice, and as such, a grievance may be initiated
at any time during the time the misclassification continues. However,
[a]s with a salary
dispute, any relief is limited to prospective relief and to back relief from and after [ten] days
preceding the filing of the grievance.
Syl. Pt. 5,
Martin v. Randolph County Bd. of Educ.
,
195 W. Va. 297, 465 S.E.2d 399 (1995);
W. Va. Code
§ 29-6A-2.
Stollings v. Div. of Envtl.
Protection
, Docket No. 97-DEP-411 (June 8, 1998). Grievant knew she was working
outside her assigned classification as of December 15, 1999, and did not file this grievance
until April 1, 2000. She has provided no justification for her delay in filing. Accordingly, this
grievance was timely as to the claim of working out of classification, as it was a continuingviolation; however, back pay is limited to ten days preceding the filing of the grievance.
(See footnote 3)
Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law
1. In order for a grievant to prevail upon a claim of misclassification, she must
prove by a preponderance of the evidence that her duties for the relevant period more
closely match those of another cited classification specification than the classification to
which she is currently assigned.
See generally
,
Hayes v. W. Va. Dep't of Natural
Resources
, Docket No. NR-88-038 (Mar. 28, 1989).
2. Grievant established by a preponderance of the evidence that she was
performing the duties of a Psychologist I from December 15, 1999, until she was
reclassified on April 1, 2000.
3. The burden of proof is on the respondent asserting that a grievance was
not timely filed to prove this affirmative defense by a preponderance of the evidence.
Hale
and Brown v. Mingo County Bd. of Educ.
, Docket No. 95-29-315 (Jan. 25, 1996). If the
respondent meets this burden, the grievant may then attempt to demonstrate that she
should be excused from filing within the statutory timelines.
Kessler v. W. Va. Dep't of
Transp.
, Docket No. 96-DOH-445 (July 29, 1997).
4. Grievant did not file this grievance within ten days of knowing that she was
misclassified, so it is untimely.
5. Misclassification is a continuing practice, and as such, a grievance may beinitiated at any time during the time the misclassification continues. However,
[a]s with a
salary dispute, any relief is limited to prospective relief and to back relief from and after
[ten] days preceding the filing of the grievance.
Syl. Pt. 5,
Martin v. Randolph County Bd.
of Educ.
, 195 W. Va. 297, 465 S.E.2d 399 (1995);
W. Va. Code
§ 29-6A-2.
See
Stollings
v. Div. of Envtl. Protection
, Docket No. 97-DEP-411 (June 8, 1998).
Accordingly, this grievance is GRANTED, IN PART, and Grievant is entitled to back
pay for the ten-day period prior to the filing of this grievance on April 10, 2000.
Any party or the West Virginia Division of Personnel may appeal this decision to the
Circuit Court of Kanawha County or to the circuit court of the county in which the grievance
occurred, and 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 EmployeesGrievance 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.
Date: October 16, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1