JAMES RICHARDS,
            Grievant,

v.                                                 Docket No. 99-HHR-456

WEST VIRGINIA DEPARTMENT OF HEALTH
AND HUMAN RESOURCES/OFFICE OF
MANAGEMENT INFORMATION SERVICES and
WEST VIRGINIA DIVISION OF PERSONNEL,
            Respondents.

D E C I S I O N


      Grievant, James Richards, filed this grievance against the Department of Health and Human Resources ("HHR"), on September 3, 1999, alleging his request for reallocation from an Information Systems Manager II to an Information Systems Manager III was "wrongfully denied" by the Division of Personnel ("DOP"). He requested as relief to be reallocated to an Information Systems Manager III and back pay from May 27, 1999, the date two other employees were reallocated to Information Systems Managers III.
      This grievance was denied at all lower levels, and Grievant appealed to Level IV on October 27, 1999. The Level IV hearing was held on September 11, 2000. This grievance became mature for decision on October 25, 2000, after receipt of the parties' proposed findings of fact and conclusions of law.   (See footnote 1) 
Issues and Arguments

      Grievant argues he performs the duties of an Information Systems Manager III, and DOP's action in denying his request for reallocation was incorrect. Grievant also arguesthat reallocation is the correct action even though all parties agree no substantial change has taken place in Grievant's duties since he was hired.
      Respondent DOP argues Grievant cannot be reallocated as there has been no substantial change in his duties since the date he assumed them. Respondent DOP also argues that even if the grievance is seen as a request for reclassification, Grievant has not proven the class specification he seeks is the "best fit" for his duties. Respondent HHR asserts Grievant's managerial duties are significantly less than the two employees who were reallocated. Respondent HHR asserts Grievant performs more technical duties, while the two employees who were reallocated function more in the managerial area. Both Respondents note DOP's interpretation and explanation of class specifications should be given great weight unless clearly wrong. Respondents also argue that if this grievance is granted, the relief should be limited to ten days prior to filing the grievance.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact

      1.      By letter dated April 30, 1999, Grievant's supervisor, Phil Weikle, requested that four of his staff members be reallocated from Information Systems Managers II to Information Systems Managers III.
      2.      At the time Grievant's supervisor asked for Grievant to be reallocated, Grievant had been employed in the position for four months. During this time there had been no substantial change in his duties.      3.      By letter dated May 13, 1999, Lowell Basford, Assistant Director of Classification and Compensation at DOP, reported to Virginia Tucker, Assistant Secretary for Department of the Health and Human Resources, that he had reviewed the Position Description Forms of the employees, and he recommended that two of the four Information Systems Managers II, Darlene Thomas and Kathy Kress, be reallocated to Information Systems Managers III.
      4.      This recommendation was based on the "relative duties and responsibilities and supervisory level" of the four employees. Mr. Basford noted Ms. Kress and Ms. Thomas supervised more employees and supervised employees who supervised others. He stated the sections these employees managed were the "'backbone of the information systems work of the agency", and stated his recommendation was "based solely upon the relative differences in the positions." (Emphasis in the original.) Grt. Ex. No. 4, at Level IV.
      5.      Ms. Kress and Ms. Thomas were reallocated on May 23, 1999. Ms. Kress is Manager of Network and Technical Support, Ms. Thomas is Manager of Application Development and Support, and Grievant is the Manager of Security, Operations, and Network.
      6.      Ms. Thomas directly supervises six employees and is responsible for the work of approximately 30 workers. Ms. Kress directly supervises at least six employees and is responsible for the work of approximately 28 workers.   (See footnote 2)        7.      Both Ms. Kress and Ms. Thomas described their work in their Position Description Forms as managing the work of others. The main focus of their positions was directing, organizing, monitoring, and prioritizing the work of their teams of supervisees. Ms. Kress has five teams to manage, and Ms. Thomas has four.
      8.      Pursuant to Grievant's Position Description Form, his major duties are: 1) consult with end-users to identify needs and specifications for software and hardware needs; 2) develop procurement strategies, as well as develop strategies for resolving problems related to the procurement of computing software and hardware; 3) work with his immediate supervisees to support, assist, and intervene where necessary; 4) maintain relationships with vendors to enhance the flow of technology information; and 5) participate in the Office of Management Information Systems management team. Other important duties include working with vendors and agency staff to develop a Disaster Recovery Plan in the event of unforseen circumstances and research and assist in the development of a Comprehensive Security Plan.   (See footnote 3)  Grievant also participates in other projects and tasks as assigned by his supervisors, which utilize his expertise.
      9.      At the time Grievant was recommended for reallocation, he had three supervisees. He now directly supervises four employees. None of his supervisees supervises anyone else.
      10.      The majority of Grievant's work is devoted to technical responsibilities rather than managerial duties.       11.      Grievant's duties consist of performing work himself, rather than directing and supervising others to perform tasks and assignments.
      12.      Per the Position Description Forms, Grievant spends approximately 12% of his time in supervisory duties, while Ms. Kress and Ms. Thomas spend 90% and 62%, respectively.
      13.      Grievant filed this grievance on September 3, 1999.
      The pertinent sections of the two job classifications at issue are reprinted below:
      
INFORMATION SYSTEMS MANAGER II

Nature of Work
      Under administrative direction, performs advanced level administrative and supervisory duties directing the data processing operations of a medium sized or larger agency with a comprehensive, full-range data processing function. May also include specialty administrators in the State's central facility departments with multi-faceted and well-developed data processing functions. Activities supervised include: application programming, computer operations, support services, personal computer support or system development. Directly, or through lower level supervisors, schedules work and sets unit priorities for the most efficient utilization of equipment and personnel. Resolves equipment problems and coordinates system usage by agency personnel. Provides advice and assistance to higher level management. Performs related work as required.

Distinguishing Characteristics
      Information Systems Manager II is distinguished by the broad base of unit activities supervised. In the state central data facility, work is in an area of computer service with a large scope of duties which impact on the planning, purchasing, and implementation of user agency systems. In a state agency, Information Systems Manager II is responsible for overseeing a staff involved in programming, or system development in addition to distribution, coordination, and/or support services including LAN management, network support, personal computer support (both hardware and software); the staff encompasses several units involved in separate agency program function.

Examples of Work

      Organizes, assigns, directs and reviews the work of a group of professional or technical personnel in the operation of an agency data processing function.
      Supervises programming or computer operations.      Plans work schedules and set priorities to make the most efficient use of available personnel and equipment.
      Analyzes agency operations and determines feasibility and/or cost of conversion from manual to electronic records management or conversion from one automation platform to another.
      Analyze and establishes data processing unit procedures and work standards; sets standards for equipment maintenance and troubleshooting.
      Advises staff and coordinates the resolution of hardware and software problems.

INFORMATION SYSTEMS MANAGER III

Nature of Work
      Under administrative direction, performs advanced level administrative and supervisory duties in directing the data processing operations within State agencies with comprehensive, full-range data processing functions or in the state central data facility oversees a specialized unit or several units providing statewide services. Activities supervised include: application programming, program design, computer operations, network support or system development. Directly, or through lower level supervisors, schedules work and sets agency-wide data priorities and provides for the most efficient utilization of equipment and personnel. Fully responsible for hardware and software problem resolution and the coordination of system usage by agency personnel. Provides advice and assistance to top management. Performs related work as required.

Distinguishing Characteristics
      Information Systems Manager III is distinguished from the other levels by the oversight of several units of professional, paraprofessional, technical and supervisory staff such as programming, support service including LAN management, network support (both hardware and software) or data center management. In the larger state agencies, Information Systems Manager III is responsible for overseeing the work of a broad scope of an agency's information systems staff and reports directly to the agency's Management Information System Director. The incumbent has wide latitude in the planning and implementation of agency-wide automation needs. In the state central data facility, Information Systems Manager III is responsible for consulting services, development center, automation resource center, network services, operations center as examples.

Examples of Work
      Organizes, assigns, directs and reviews the work of a group of professional or technical personnel in the operation of a large and comprehensive agency data processing function.
      Supervises programming, computer operations, or computer support activities.
      Plans work schedules and set priorities to make the most efficient use of available personnel and equipment.      Analyzes agency operations and determines feasibility and/or cost of conversion from manual to electronic records management or conversion from one automation platform to another.
      Analyze and establishes data processing unit procedures and work standards; sets standards for equipment maintenance and troubleshooting.
      Advises staff and coordinates the resolution of hardware and software problems.
      May assist management in special studies requiring computer data collation and analysis.

Discussion

      This grievance raises two issues. One, should Grievant's position be reallocated, and two, is Grievant currently misclassified. Reallocation is defined as "[r]eassignment by the Director of Personnel of a position from one classification to a different classification on the basis of a significant change in the kind or difficulty of duties and responsibilities assigned to the position or to correct a position misclassification." Id. at (78). Personnel's rules define reclassification as "revision by the State Personnel Board of a class or class series which results in redefinition of the nature of the work performed and a reassignment of positions based on the new definition and may include a change in the title, pay grade, or minimum qualifications for the classes involved." W. Va. Admin. Rule 3.00(77).
      In order for Grievant to prevail upon a claim dealing with reallocation he must demonstrate "a significant change in the kind or difficulty of duties and responsibilities assigned to the position" or establish a need "to correct a position misclassification." Since all the parties agree there has been no change in Grievant's duties prior to his request for reallocation, the first portion of this definition need not be examined.
      To meet his burden of proof on misclassification, Grievant must prove by a preponderance of the evidence that his duties for the relevant period more closely match another cited Personnel classification specification than the one to which he is currentlyassigned. See generally, Hayes v. W. Va. Dep't of Natural Resources, Docket No. DNR- 88-038 (Mar. 28, 1989). Personnel specifications are to be read in "pyramid fashion," i.e., 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). The "Nature of Work" section of a classification specification is its most critical section. Atchison v. W. Va. Div. of Health, Docket No. 90- H-444 (Apr. 22, 1991); See generally, Dollison v. W. Va. Dep't of Employment Security, Docket No. 89-ES-101 (Nov. 3, 1989). The "Distinguishing Characteristics" Section is used to differentiate between or among class specifications within a series.
      The key to the analysis is to ascertain whether Grievant's current classification constitutes the "best fit" for his required duties. Propst v. W. Va. Dep't of Health and Human Resources/W. Va. Div. of Personnel, Docket No. 93-HHR-371 (Dec. 3, 1993); Simmons v. W. Va. Dep't of Health and Human Resources/W. Va. Div. of Personnel, 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 No. 89-DHS-606, 607, 609 (Aug. 31, 1990). Additionally, class specifications are descriptive only and are not meant to be restrictive. Mention of one quality or requirement does not exclude others. W. Va. Div. of Personnel Rules § 4.04(a). Even though a job description does not include all the actual tasks performed by a grievant it does not make that job classification invalid. Id. at § 4.04(d). Finally, Personnel's interpretation and explanation of the classification specifications should be given great weight unless clearly erroneous. W. Va. Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681, 687 (1993). The West VirginiaSupreme Court of Appeals' holding in Blankenship, supra, presents employees contesting their classification, and the process by which it occurred, with a substantial obstacle to overcome.
      Although the positions are similar, the Distinguishing Characteristics Sections of the Information Systems Manager II and III class specifications differentiate these positions. The Information Systems Manager II states the position is "distinguished by the broad base of unit activities supervised", and the duties' "impact on the planning, purchasing, and implementation of user agency systems." The Information Systems Manager II is responsible for "overseeing a staff involved in programming, or system development in addition to distribution, coordination, and/or support services . . . the staff encompasses several units involved in separate agency function[s]." (Emphasis Added.)       The Information Systems Manager III position is "distinguished from the other levels [of Information Systems Manager] by the oversight of several units of professional, paraprofessional, technical and supervisory staff . . . ." Additionally, this Section states that in large state agencies, the "Information Systems Manager III is responsible for overseeing the work of a broad scope of an agency's information systems staff and reports directly to the agency's management Information System Director." (Emphasis Added.)       Grievant's Position Description Form indicates he does the majority of the duties assigned to him himself, as opposed to directing others to perform this work. The organizational chart indicates Grievant is in charge of Security, Operations and Network. At the time of the review, Grievant's duties were divided into two areas, and now they are divided into three. However, he still has only four supervisees (three at the time of thereview); obviously Grievant, as stated on his Position Description Form, performs much of the work. Conversely, Ms. Thomas's and Ms. Kress's Position Description Forms indicate they spend the majority of their time directing, organizing, and evaluating the work of their personnel.       Mr. Basford, who is regarded as an expert in the area of classification, interprets the language in the class specifications to mean that an Information Systems Manager III directs several units of staff or people, as opposed to being personally responsible for various areas. A review of the class specifications demonstrate that Mr. Basford's interpretation is not arbitrary and capricious or clearly wrong. Thus, according to Blankenship, supra, this decision cannot be reversed. Grievant has failed to demonstrate DOP was “clearly wrong” in its interpretation of the duties and differences between the two class specifications at issue.
      Additionally, Grievant noted there were Information Systems Manager III's within the State's Information Systems and Communications ("IS&C") Division that supervised small number of employees, and this fact mandated Grievant be reclassified. The class specification of the Information Systems Manager III notes that within the state central data facility, IS&C, Information Systems Manager III are "responsible for consulting services, development center, automation resource center, network services, and operations center as examples", as well as noting other differences. Thus, it would appear that Information Systems Manager III classifications within IS&C are handled somewhat differently than for other agencies. No other information was presented on this issue, no Position Description Forms for these individuals were discussed or admitted into evidence, and Grievant didnot ask Mr. Basford to clarify. Thus, this issue need not be addressed further, and Grievant has not met his burden of proof in this area.
      The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law

      1.      In a classification grievance, a grievant is required to prove his allegations by a preponderance of the evidence. Crow v. W. Va. Dep't of Corrections, Docket No. 89- DOC-043 (Mar. 29, 1989).
       2.      Reclassification is defined as "revision by the State Personnel Board of a class or class series which results in redefinition of the nature of the work performed and a reassignment of positions based on the new definition and may include a change in the title, pay grade, or minimum qualifications for the classes involved." W. Va. Admin. Rule 3.00(77).
       3.      Reallocation is defined as "[r]eassignment by the Director of Personnel of a position from one classification to a different classification on the basis of a significant change in the kind or difficulty of duties and responsibilities assigned to the position or to correct a position misclassification." Id. at (78).
       4.      The predominant duties of the position in question are class controlling. Collier v. W. Va. Dep't of Health and Human Resources/Off. of Maternal and Child Health and Div. of Personnel, Docket No. 94-HHR-039 (Sept. 19, 1994); Broaddus v. W. Va. Div. of Human Servs., Docket Nos. 89-DHS-606, 607, 609 (Aug. 31, 1990).      5.      DOP's interpretation and explanation of classification specifications and DOP's rules governing reclassification 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).
       6.      Personnel's interpretation of the class specifications for the position in question, as they apply to the duties Grievant performs, are not clearly erroneous and, therefore, should be accorded great weight. Blankenship, supra; Kyte v. Dep't of Health and Human Resources and Dep't of Admin./Div. of Personnel, Docket No. 94-HHR-030 (Sept. 21, 1994).
       7.      Although Grievant does perform some duties outside his current classification as an Information Systems Manager II, this does not render him misclassified. Kyte, supra; Dooley v. W. Va. Dep't of Health and Human Resources, Docket No. 90-H-498 (Mar. 19, 1991).
      8.      A review of the evidence demonstrates Grievant has not met his burden of proving the Information Systems Manager III position constitutes the "best fit" for his required duties.
       9.      HHR and DOP did not violate any rules or regulations, and in not recommending the reclassification of Grievant to a Information Systems Manager III.
      Accordingly, this grievance is DENIED.
      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." 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 StateEmployees 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.

                                                                                                  JANIS I. REYNOLDS
                                           ADMINISTRATIVE LAW JUDGE


Dated: November 9, 2000


Footnote: 1
      Grievant was represented by attorney Kathryn Bayless, Respondent DOP was represented by Senior Deputy Attorney General Don Darling, and Respondent HHR was represented by Assistant Attorney General B. Allen Campbell.
Footnote: 2
      On her Position Description Form Ms. Kress identified 18 employees she directly supervised. This information could not be confirmed by the Organization Chart, and this discrepancy was not explained by the parties.
Footnote: 3
      The difference between major and other duties was determined by the amount of time Grievant stated he spent in each area. Clearly, the majority of his time is spent dealing with a variety of procurement issues.