EVELYN JORDAN,

                                    Grievant,

v.                                                Docket No. 00-HHR-077

WEST VIRGINIA DEPARTMENT OF HEALTH
AND HUMAN RESOURCES/BUREAU FOR
CHILDREN AND FAMILIES, and
WEST VIRGINIA DIVISION OF PERSONNEL,

                                    Respondents.

DECISION

      Evelyn Jordan (Grievant) is employed by the West Virginia Department of Health and Human Resources/Bureau for Children and Families (BCF), as a Secretary I in BCF's Webster Springs office. She filed this action on December 6, 1999, alleging she should be classified as an Administrative Services Assistant I. This grievance was denied at Level I, on December 10, 1999; and at Level II, on December 17, 1999. A Level III hearing was held on February 10, 2000. Grievant was represented be Steve Rutledge, BCF was represented by Margaret Waybright, and the West Virginia Division of Personnel (DOP) was represented by Assistant Director for Compensation and Classification Lowell Basford. On February 18, 2000, this grievance was denied at Level III by BCF Commissioner Jack Frazier.
      The parties agreed that this grievance could be submitted at Level IV based upon the record developed at the lower levels. The parties were given until July 7, 2000, to submit proposed findings of fact and conclusions of law, B. Allen Campbell, Esq. did so onbehalf of BCF, and this grievance became mature for decision on that date.
      The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT

      1.      Grievant is employed by BCF, at its Webster Springs office, as a Secretary I.
      2.      Grievant spends 20 % of her normal work day performing secretarial duties; 25% of her normal work day supervising two full-time employees; 35% of her normal work day coordinating equipment; and the remaining 20% of her normal work day performing office manager duties.
      3.      The Secretary I classification is a combination of secretarial, clerical, and administrative support duties.
DISCUSSION

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd., 156 C.S.R. 1 § 4.19 (1996); Steadman v. Securities and Exchange Comm'n, 450 U.S. 91 (1981); 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 Health & 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 alleges that she should be classified as an Administrative Services Assistant I, arguing that this classification best describes her duties. BCF and DOP respond that she is correctly classified as a Secretary I because, while she performs a combination of secretarial, clerical, and administrative support duties, her administrative duties do not make up a predominant portion of her work day, and are therefore not class controlling.
      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 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: 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). Therefore, the "Nature of the Work" section of a classification specification is its most critical section. See 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 andHuman 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 of West Virginia in Blankenship presents a state employee contesting her classification with a substantial obstacle to overcome in attempting to establish that she is misclassified.
      The relevant portions of the classification specifications for Secretary I and Administrative Services Assistant I are provided below.
SECRETARY I

Nature of Work

Distinguishing Characteristics


Examples of Work

      Answers telephone, screens calls, and places outgoing calls.
      Screens mail and responds to routine correspondence.
      Signs, as directed, supervisor's name to routine correspondence, requisitions, and       other documents.
      Schedules appointments and makes travel arrangements and reservations for       supervisor.
      Takes and transcribes dictation, or transcribes from dictation equipment.
      Composes form letters, routine correspondence, and factual reports.
      Types reports, manuscripts, and correspondence using standard typewriter or word       processing equipment; proofreads and corrects to finished form.
      Gathers, requests, and/or provides factual information, requiring reference to variety       of sources.
      May delegate routine typing, filing, and posting duties to subordinate clerical       personnel.
      May maintain basic bookkeeping records for grants, contract or state appropriated       funds.
      May prepare payrolls, keep sick and annual leave records, act as receptionist and       perform other clerical duties as needed.
      May attend meetings take notes and relay information; typically would not interpret       information or speak on behalf of supervisor.

             ADMINISTRATIVE SERVICES ASSISTANT I

Nature of Work

Distinguishing Characteristics


Examples of Work

      Confers with inter- and intra-agency personnel to transact business, gather       information, or discuss information; may be in a position with public or federal       government contact.
      Gathers and compiles information for state records; writes reports, balances tally       sheets, and monitors inventories, purchases, and sales.
      Updates records and contacts employees to gather information; represents the       supervisor or unit in the area of assignment at in-house meetings.
      Maintains files of information in hard copy files or electronic format; runs reports for       regular or intermittent review.
      Assists in determining the need for changes in procedures, guidelines and formats;       devises a solution;      monitors the success of solutions by devising                    quantitative/qualitative measures to document the improvement of services.
      Assists in the writing of manuals in the area of assignment; clarifies the wording and       describes new procedures accurately.

      Lowell Basford, DOP's Assistant Director for Compensation and Classification, credibly testified that DOP considers Grievant to be correctly classified as a Secretary I; that Grievant's position is a mixed one consisting of tasks that also fall under various other classifications; that the Secretary I classification is a combination of secretarial, clerical, and administrative support duties; and that, while she performs a combination of secretarial, clerical, and administrative support duties, her administrative duties do not make up a predominant portion of her work day, and are therefore not class controlling.
      The preponderance of evidence in this grievance establishes that Grievant spends 20% of her normal work day performing secretarial duties; 25% of her normal work day supervising two full-time employees; 35% of her normal work day coordinating equipment;and the remaining 20% of her normal work day performing office manager duties. The undersigned is persuaded by Mr. Basford's analysis that none of these duties make up a predominant portion of her work day, and are therefore not class controlling under Broaddus, supra.
      Finally, Grievant also sought to compare her duties to those of Alice Goff (Goff), the Administrative Services Assistant I who is the Regional Comptroller of BCF's Region IV. However, the evidence clearly showed that there is no Regional Comptroller in BCF's Webster Springs office; that Goff reports to Grievant's supervisor's supervisor; and that Goff's Position Description form reflects duties very different than Grievant's.
      Accordingly, Grievant has not demonstrated that DOP's determination that she is a Secretary I is clearly wrong, and that the Administrative Services Assistant I classification specification is the best fit for her duties.
      The following Conclusions of Law support the Decision reached.

CONCLUSIONS OF LAW

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd., 156 C.S.R. 1 § 4.19 (1996); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
      2.      In order for a grievant to prevail upon a claim of misclassification, Grievant 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 classificationto which she is currently assigned. See Hayes v. W. Va. Dep't of Natural Resources, Docket No. NR-88-038 (Mar. 28, 1989).
      3.      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).
      4.      Grievant did not demonstrate that the Administrative Services Assistant I classification specification was a better fit for her duties than Secretary I.
      Accordingly, the 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.

                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated July 10, 2000