DIANE J. KOPCIAL,
Grievant,
v.
DOCKET NO. 00-HHR-148
WEST VIRGINIA DEPARTMENT OF HEALTH
AND HUMAN RESOURCES and WEST VIRGINIA
DIVISION OF PERSONNEL,
Respondents.
D E C I S I O N
Grievant, Diane J. Kopcial, filed this grievance on February 10, 2000, against her
employer, the West Virginia Department of Health and Human Resources (DHHR) and
the West Virginia Division of Personnel (DOP), alleging:
I was instructed by my supervisor in February, 1992, that after I was in my
position for one year I would be eligible to apply for reclassification from a
Nurse IV to a Nurse V. In February of 1993, Sterling Smith contacted the
Division of Personnel regarding the reclassification. He was told that the
Nurse V classification had been eliminated and that I would not be eligible
for Nurse Director since I was not hospital based. At a Division of Personnel
inservice for OMCH on Tuesday, October 12, 1999, I was informed by Tim
Basford that I would be eligible for reclassification. My request was
submitted on November 5, 1999 and approved on January 29, 2000 for
reclassification to a Nurse Director I.
RELIEF SOUGHT: I believe that I should have been reclassified as a Nurse
Director I on February 20, 1993 and am entitled to back pay at the Nurse
Director I pay level from February 10, 1993 to the date this reclassification
pay increase becomes effective (on or before February 15, 2000).
The grievance was denied at level one by Pat Moss, Director, Office of Maternal and
Child Health, on February 15, 2000. It was denied at level two by Henry G. Taylor,
Commissioner, on February 29, 2000. A level three hearing was held on April 7, 2000, and
a decision granting the grievance, in part, was issued on April 14, 2000. The level three
grievance evaluator granted Grievant back pay to the period ten days prior to the filing of
the grievance. Grievant appealed to level four on April 25, 2000. The parties agreed to
submit the case based upon the record developed at the lower levels, and this case
became mature for decision on August 8, 2000, the deadline for the parties' proposed
findings of fact and conclusions of law.
FINDINGS OF FACT
I find, by a preponderance of the evidence, the following facts.
1. Grievant was employed as Division Director of Women's Services in DHHR's
Bureau for Public Health, Office of Maternal and Child Health from February 10, 1992, until
her resignation on March 6, 2000.
2. Grievant was originally employed as a Nurse IV. Prior to her resignation, she
was classified as a Nurse Director I.
3. In February 1993, Grievant asked her supervisor, Sterling Smith, about
reclassification to a Nurse V. Mr. Smith made inquiries on her behalf, and told her the
Nurse V classification had been eliminated, and that she was not eligible for reclassification
to a Nurse Director, because that classification required hands-on clinical or hospital based
nursing. 4. In October 1999, Grievant attended an inservice with the Division of
Personnel. She asked Tim Basford, Director of Classification and Compensation, whether
the Nurse Director classification was limited to hands-on clinical or hospital based nursing,
and he replied, No.
5. On November 5, 1999, Grievant submitted a Position Description Form and
requested reclassification to a Nurse Director II.
6. On January 18, 2000, Mr. Basford approved Grievant's reclassification to
Nurse Director I.
(See footnote 1)
7. Grievant filed this grievance requesting back pay in the Nurse Director I pay
grade from February 1993 to the effective date of her reclassification, approximately
February 15, 2000.
DISCUSSION
Grievant has the burden of proving her grievance by a preponderance of the
evidence.
Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code § 29-6A-6. A preponderance of the evidence is defined as evidence
which is of greater weight or more convincing than the evidence which is offered in
opposition to it; that is, evidence which as a whole shows that the fact sought to be proved
is more probable than not.
Black's Law Dictionary (6th ed. 1991);
Leichliter v. W. Va.Dep't of Heath & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the
evidence equally supports both sides, a party has not met its burden of proof.
Id.
Grievant argues she is entitled to back pay in the amount of the difference between
the pay she received as a Nurse IV, and the pay she received as a Nurse Director I, from
February 10, 1993 through February 15, 2000, the effective date of her reclassification.
At each of the lower levels, DHHR maintained this grievance was not timely filed.
A timeliness defense is an affirmative defense which the employer must establish by a
preponderance of the evidence.
Garrison v. W. Va. Dep't of Health and Human
Resources, Docket No. 99-HHR-521 (Feb. 29, 2000).
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 in 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.
Generally, this statutory provision establishes that grievances must be filed within
ten (10) days of the occurrence of the event giving rise to the substantive claim of the
grievance. The time period for filing a grievance ordinarily begins to run when the
employee is unequivocally notified of the decision being challenged.
Harvey v. W. Va.
Bureau of Employment Programs, Docket No. 96-BEP-484 (Mar. 6, 1998);
Whalen v.
Mason County Bd. of Educ., Docket No. 97-26-234 (Feb. 27, 1998). Misclassification is
a continuing practice, however, it is well-settled that, where the employer raises the
defense of timeliness, the right to back pay is limited to ten days preceding the filing of thegrievance.
Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 465 S.E.2d 399
(1995);
Craig v. W. Va. Dep't of Health and Human Resources, Docket No. 98-HHR-344
(June 24, 1999). An employee harboring 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. W. Va. Dep't of Health and Human Resources,
Docket No. 99-HHR-302 (Dec. 30, 1999).
In the instant case, DHHR and DOP maintain Grievant could, at the earliest, have
filed a grievance over this matter in 1993, when her supervisor, Mr. Smith, informed her
she was not eligible to be reclassified to Nurse Director. DHHR and DOP allege she could
again have filed her grievance in October 1999, when she asked Mr. Basford at the
inservice seminar, whether the information she had received from Mr. Sterling was correct,
and he replied, No. Finally, DHHR and DOP maintain that, at the very latest, Grievant
should have filed her grievance on November 5, 1999, the day she submitted her Position
Description Form, along with her request for reclassification.
Grievant contends she relied on the information she received from Mr. Sterling in
1993, and felt it would be futile to contest her classification at that time. Grievant maintains
that after she asked Mr. Basford to confirm that information, and he indicated it was
erroneous, she immediately began to take steps to process her request for reclassification.
Based on the evidence of record, I find that Grievant did not initiate her grievance
within the statutory time limits. It is undisputed Grievant at least began performing duties
consistent with the Nurse Director I classification as early as February, 1993. AlthoughGrievant may been misinformed by Mr. Smith about her eligibility for reallocation in
February, 1993, she was not prevented from challenging this issue through the grievance
process. Further, at least as early as October, 1999, after the inservice, Grievant was
clearly suspicious she was not being compensated for the higher level duties. Finally, even
though she completed her Position Description Form on November 5, 1999, Grievant still
did not file a grievance until February 10, 2000. Accordingly, Grievant is not entitled to
back pay for the entire period of her misclassification, however, the relief granted at level
three relief is affirmed.
CONCLUSIONS OF LAW
1. A timeliness defense is an affirmative defense which the employer must
establish by a preponderance of the evidence.
Garrison v. W. Va. Dep't of Health and
Human Resources, Docket No. 99-HHR-521 (Feb. 29, 2000).
2.
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 in 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.
3. The time period for filing a grievance ordinarily begins to run when the
employee is unequivocally notified of the decision being challenged.
Harvey v. W. Va.
Bureau of Employment Programs, Docket No. 96-BEP-484 (Mar. 6, 1998);
Whalen v.
Mason County Bd. of Educ., Docket No. 97-26-234 (Feb. 27, 1998). 4. Misclassification is a continuing practice, however, it is well-settled that,
where the employer raises the defense of timeliness, the right to back pay is limited to ten
days preceding the filing of the grievance.
Martin v. Randolph County Bd. of Educ., 195
W. Va. 297, 465 S.E.2d 399 (1995);
Craig v. W. Va. Dep't of Health and Human
Resources, Docket No. 98-HHR-344 (June 24, 1999).
5. An employee harboring 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. W. Va. Dep't of Health and Human Resources,
Docket No. 99-HHR-302 (Dec. 30, 1999).
6. Grievant was unequivocally aware that she was eligible for reclassification
to Nurse Director I in October, 1999, but did not file her grievance until February, 2000.
The grievance was not filed within the statutory time frames, and Grievant presented no
valid excuse for the delay in filing.
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 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: August 29, 2000
Footnote: 1