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:

      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:

W. Va. Code § 29-6A-4(a) provides, in pertinent part:


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:

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
      Although notified, the Division of Personnel (“DOP”) did not appear or file a submission.
Footnote: 2
      It is unclear from the record what this form was, but all parties agree that it was not a position description form.
Footnote: 3
      Grievant made no allegation that she was discouraged by her employer from filing a grievance. See Lilly v. Raleigh County Bd. of Educ., Docket No. 94-41-195 (Nov. 28, 1994), aff'd No. 95-AA-7 (Kanawha County Cir. Ct. May 1, 1996); appeal refused (W. Va. April 1997).