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:

      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:

      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:

      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
       Two memos from Grievant, dated November 5, 1999, and February 20, 2000, indicate she originally sought to be upgraded to Nurse Director II. However, there is no indication she is grieving her reclassification to Nurse Director I.