ANTHONY TURNER,

                  Grievant,

      v.

DOCKET NO. 00-HHR-193

WEST VIRGINIA DEPARTMENT OF HEALTH
AND HUMAN RESOURCES and THE WEST
VIRGINIA DIVISION OF PERSONNEL,

                  Respondents.

D E C I S I O N

      Grievant, Anthony Turner, filed this grievance against his employer, the West Virginia Department of Health and Human Resources (“HHR”) and the West Virginia Division of Personnel (“DOP”) on March 23, 2000, grieving the:


      This grievance was denied at levels one and two of the grievance process, and appeal was taken to level three. After a full evidentiary hearing at level three on May 16, 2000, Shelli S. Freeland, level three Grievance Evaluator, issued a written decision on May 30, 2000, denying the grievance. Grievant appealed that decision to level four on June 7, 2000. The parties agreed to submit the grievance on the record developed at the lowerlevels, and this matter became mature for decision on August 10, 2000, the deadline for the parties' proposed findings of fact and conclusions of law. Grievant represented himself at all levels, HHR was represented at level three by Barbara Taylor, Director of the Office of Environmental Health Services and at level four by B. Allen Campbell, Esq., and the Division of Personnel was represented at all levels by Lowell D. Basford, Assistant Director, Classification and Compensation.
SUMMARY OF EVIDENCE

Grievant's Exhibits

Ex. 1 -

            (A)             (B)             (C)             (D)             (E)             (F)             (G)             (H)             (I)             (J)             (K)             (L)             (M)             (N)             (O)             (P)             (Q)             (R)             (S)             (T)             (U)
Ex. 2 -             (A)             (B)             (C)             (D)             (E)             (F)             (G)             (H)             (I)             (J)             (K)             (L)
Ex. 3 -             (A)             (B)             (C)
Respondent's Exhibits

None.

Testimony

      Grievant testified in his own behalf, and presented the testimony of Lowell D. Basford, Ginny Fitzwater, Joe Smith, Carolyn Dietz, Barbara Taylor, and Randy Curtis. The Division of Personnel presented the testimony of Mike McCabe.

FINDINGS OF FACT
      The following facts are derived from the record developed at levels one, two and three of the grievance process.   (See footnote 1) 
      1.      Grievant is currently employed by HHR as a Sanitarian Chief in the Office of Environmental Health Services.
      2.      Grievant began employment with the Grant County Health Department as a Registered Sanitarian in January of 1979. In February of 1995, Grievant began working for Environmental Health Services as a Registered Sanitarian. In March 1996, DOP reallocated Grievant's classified position to Sanitarian Chief.
      3.      On January 5, 1999, Grievant submitted documentation to DOP requesting that his classified position of Sanitarian Chief, pay grade 15, be reallocated to Health and Human Resources Program Manager I, pay grade 18. G. Ex. 1, pp. 37-47. Grievant's justification for the reallocation was that the addition of the Lead Program increased his job duties, and that he was also acting as an Assistant Director in the absence of the Program Director. Moreover, as Sanitarian Chief, Grievant directly supervises one registered sanitarian.
      4.      On November 3, 1999, Grievant was notified that the WV-11 requesting the reallocation was denied. G. Ex. 1, p. 35.      5.      In response, Grievant completed a position description form on November 10, 1999, and submitted it to DOP for reconsideration of the request for reallocation. G. Ex. 1, p. 26.
      6.      Ginny Fitzwater, Senior Personnel Specialist, conducted an on-site audit of Grievant's classified position in response to the request for reallocation. Based on her review of the position description form, classification specifications, and the job audit, Ms. Fitzwater recommended that Grievant's request for reallocation be denied.
      7.      Lowell Basford, Assistant Director, Classification and Compensation, agreed with Ms. Fitzwater's recommendation, and denied Grievant's request for reallocation.
      8.      Grievant performs the following duties under administrative direction of the Director of Radiation, Toxics and Indoor Air Quality Division: 1) administers the statewide environmental health programs for the lead and indoor air quality division; 2) supervises clerical and technical staff; 3) prepares and administers Centers for Disease Control (“CDC”) and Environmental Protection Agency (“EPA”) lead grants; 4) assists in the development of laws and rules; 5) develops and conducts educational outreach programs for the general public and professional staff members in public and private health organizations; 6) provides general and technical information on the environmental lead and indoor air quality program; 7) plans and coordinates environmental lead assessments and/or indoor air evaluations; 8) serves as liaison to the EPA and CDC for grant and program issuance for the West Virginia Environmental State Lead Program; 9) administers CDC and EPA grants for the Environmental Lead Program as needed; 10) completes special assignments from the Director (e.g., research on chemical releases, reports,surveys, etc.); 11) completes and maintains records and submits required administrative programs and reports; 12) interprets laws, rules and policies that are related to the environmental programs under his control in response to requests from the general public, environmental contractors, etc.; and 13) represents the Bureau for Public Health at EPA Region III Grantee Meeting and EPA National Conference. G. Ex. 1.
DISCUSSION

      Grievant bears the burden of proof as this is a non-disciplinary grievance. W. Va. Code §29-6A-6. Unrue v. W. Va. Div. of Highways, Docket No. 95-DOH-287 (Jan. 22, 1996). Grievant asserts he has assumed additional duties and responsibilities which justify his reallocation from Sanitarian Chief to Health and Human Resources Program Manager I. Respondents HHR and DOP argue the job duties and responsibilities taken on by Grievant are similar in nature to his existing job duties, rather than a significant change, and that the addition of similar job duties to an employee is not justification for reallocation to a higher classification.
      The Division of Personnel is authorized by W. Va. Code § 29-6-10 to establish and maintain a position classification plan for all positions in the classified service. Therefore, DOP's interpretation and explanation of the classification specifications in the instant grievance should be given great weight unless clearly wrong. W. Va. Dept. of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993). 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 of duties and responsibilities assigned to the person.” West Virginia Division of Personnel AdministrativeRule 3.77 (July 1, 1998). The duties and responsibilities are the determining factors, not the quantity of work. See Brown v. Dept. of Health and Human Resources, Docket No. 97- HHR-260 (July 31, 1997). The predominant duties of the position in question are class- controlling. Broaddus v. W. Va. Div. of Human Services, Docket No. 89-DHR-606, 607, 609 (Aug. 31, 199). An increase in duties which are identified within the class specification does not require reallocation. See Kuntz and Wilford v. W. Va. Dept. of Health and Human Resources, Docket No. 96-HHR-301 (Mar. 26, 1997), aff'd Kan. Co. Cir. Ct. Civil Action No. 97-AA-51 (Apr. 23, 1999).
      The two classification specifications at issue are reproduced below.
SANITARIAN, CHIEF

       Nature of Work: Under administrative direction, performs complex administrative and supervisory work at the advanced level directing the environmental and public health sanitation programs in a large local health department, a multi-county regional health department or as a district sanitarian for the Division of Public Health Sanitation, or as an environmental health program specialist with the Office of Environmental Health Services. Plans, organizes and directs all general environmental and public health sanitation activities and is responsible for quality of such services in the assigned area. Work is governed by broad instructions, objective and policies. Responsible for effectiveness of sanitation services in the assigned district. Participates in environmental and public health sanitation education programs, and enforces applicable public health laws. Performs related work as required.

       Distinguishing Characteristics: This level in the series is located in a large local health department or a multi-county regional health department, has the responsibility for planning, assigning, reviewing and approving the work of a large staff of full-time employees which also includes initiating disciplinary actions, approving sick and annual leave requests, conducting performance evaluations, recommending salary increases and is a step in the grievance process. Those employees supervised may include Sanitarian Supervisors in charge of various programs. Administrative duties include responsibility for, or assisting in, setting goals and objectives of a large established organizational unit and the coordination of resources to meet those objectives; for developing plans and executing policies for directing the work of others in the performance of the prescribed mission; and for interpreting the policies of the unit to employees and others.
      If this level in the series is functioning as a district sanitarian or an environmental health program specialist in a state office, the administrative and supervisory component is not as direct. The district sanitarian and environmental health program specialist function in more of a consultative and/or technical assistance level, with a high level of authority.

Examples of Work
      

                                                                                                                      
Knowledge, Skills, and Abilities
                                                                     
HEALTH AND HUMAN RESOURCES PROGRAM MANAGER I

      Nature of Work: Under general direction, performs complex administrative and professional work at the advanced level in managing a major program component within an office or organizational unit in the Department of Health and Human Resources. Programs are managed over a specified geographic region of the state, or statewide, and are of equivalent size and complexity. Responsibilities include planning, policy development, direction, coordination and administration of the operation of a major program component in the area of health or human services. Complexity level is evidenced by the variety of problem-solving demands and decisions for the assigned area. Issues may be controversial in nature and work requires the ability to persuade or dissuade others on major policy and program matters. Performs related work as required.
      Distinguishing Characteristics: Positions representative of the kind and level of work intended for the class include program areas such as Health Statistics, Health Promotion, Mental Retardation/Developmental Disabilities, Alcohol and Drug Abuse, Government Donated Foods, and other organizational units with similar size, scope and complexity.

Examples of Work
      

                                                
Knowledge, Skills and Abilities
                                                       
      The key determination is whether Grievant has assumed significant and more complex duties and responsibilities, such that he should be reallocated from Sanitarian, Chief, to Health and Human Resources Program Manager I. Grievant was assigned responsibility for the Lead Program in 1998, in addition to the Indoor Air Quality Program he managesprior to that time. Grievant has the functional title of Assistant Director of the Radiation, Toxics and Indoor Air Division. As Assistant Director, Grievant receives special projects from the Director, and manages and supervises the Division when the Director is absent. Within his capacity of Sanitarian, Chief, Grievant supervises one employee who is classified as a Registered Sanitarian.
      Ms. Fitzwater, the Personnel Specialist who reviewed Grievant's application for reallocation, testified that Grievant's “additional duties in the lead area were more of the same or similar responsibilities” as those he performed in the indoor air quality area. She recommended “no change [in Grievant's classification] because the lead responsibility was more of the same.” Mr. Basford testified that “Grievant's duties were different, not more complex than his current classification. The duties must make the job more difficult and more complex.” Mr. Basford added that “the fact that Grievant is the Assistant Director for Radiation and Toxics division does not mean that he should be reclassified. It is an in- house functional title. This responsibility is only in the director's absence, and therefore is not class-controlling.”
      Randy Curtis, Director of the Radiation, Toxics and Indoor Air Quality Division, testified that Grievant's duties have increased significantly since 1996. In 1998, during an annual evaluation, Grievant's functional job title was changed to Assistant Director. Grievant is chief of the Indoor Air Program and Lead Program. According to Mr. Curtis, Grievant also acts as the Assistant Director in [Mr. Curtis'] absence. Based on the amount of work, the nature of the work, the fiscal responsibility in the management of two federal grants, andthe fact that Grievant's duties equaled or exceeded some of the other Program Manager Is, Mr. Curtis opined that Grievant's position should be reallocated.
      The “Nature of the Work” sections for the classification specifications for the Sanitarian Chief and the Health and Human Resources Program Manager I overlap, with managerial duties being the major exception. A Health and Human Resource Program Manger I works, “under general direction, performs complex administrative and professional work at the advanced level in managing a major program component within an office or organizational unit in the Department of Health and Human Resources.” A Sanitarian Chief works, “under administrative direction, performs complex administrative and supervisory work at the advanced level directing the environmental and public health or as a district sanitarian for the Division of Public Health Sanitarian, or as an environmental health program specialist with the Office of Environmental Health Services.”
      The duties for the two classifications are similar. Both involve considerable responsibility for public health matters encompassing a broad scope of authority. However, the key difference is the management of subordinates, rather than the supervision of programs. Grievant has the functional title of Assistant Director, but he only “manages” the division in the absence of the Director. As Grievant's supervision of the entire division is occasional, it is not a predominant duty, and therefore, not class-controlling. Although Grievant supervises one employee, in order to be class-controlling, it must take up a predominant percentage of his working hours. In Grievant's position description form, he indicated he spends “15-20 hours per week supervising clerical and technical programs staff.” The position description form and the job audit conducted by DOP confirm thatGrievant performs, rather than delegates, most of the duties which comprise the Sanitarian Chief class specification. Because Grievant himself performs many, if not most, of his job functions, his job duties mirror a working supervisor, rather than a manager.
      It is undisputed that Grievant has been assigned additional responsibilities associated with the Lead Program. However, Grievant has failed to demonstrate that these duties are more complex and more significant than his responsibility over the Indoor Air Quality Program. Although Grievant may perform, to some degree, each of the examples of work listed under the Program Manager I classification specification, except for supervising subordinates, the predominant duties he performs, when considered as a whole, are consistent with the class specification for Chief Sanitarian.
      Grievant also alleges that others within Environmental Health Services are classified as Program Managers I but do not perform the duties and responsibilities outlined in the classification specification, and he has been discriminated against because he has been denied reallocation to Program Manager I. Other than Grievant's testimony to this, no supporting evidence was introduced to prove this allegation.
      Classification determinations are not made based upon comparison to other employees, but upon which classification specification is the best fit for the employee's duties. Harmon v. W. Va. Dept. of Health and Human Resources, Docket No. 99-HHR-432 (May 15, 2000); Baldwin v. W. Va. Dept. of Health and Human Resources, Docket No. 99- HHR-142 (Oct. 28, 1999). If Grievant compares himself to others who are performing the same work but are misclassified in a higher classification, the remedy is not to similarlymisclassify the Grievant. Kunzler v. W. Va. Dept. of Health and Human Resources, Docket No. 97-HHR-287 (Jan. 8, 1998).

      1.      Grievant bears the burden of proof in a non-disciplinary grievance. W. Va. Code § 29-6A-6. Unrue v. W. Va. Div. of Highways, Docket No. 95-DOH-287 (Jan. 22, 1996).
      2.       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 of duties and responsibilities assigned to the person.” West Virginia Division of Personnel Administrative Rule 3.77 (July 1, 1998).
      Grievant has failed to prove by a preponderance of the evidence that there was a significant change in the kind or difficulty of duties and responsibilities assigned to him. The addition of the Lead Program added only more of the same kind of duties he previously performed. The duties and responsibilities are the determining factors, not the quantity of work. See Brown v. Dept. of Health and Human Resources, Docket No. 97- HHR-260 (July 31, 1997).
      3.      The predominant duties of the position in question are class-controlling. Broaddus v. W. Va. Div. of Human Services, Docket No. 89-DHR-606, 607, 609 (Aug. 31, 199). An increase in duties which are identified within the class specification does not require reallocation. See Kuntz and Wilford v. W. Va. Dept. of Health and Human Resources, Docket No. 96-HHR-301 (Mar. 26, 1997), aff'd Kan. Co. Cir. Ct. Civil Action No. 97-AA-51 (Apr. 23, 1999).       Grievant has failed to prove by a preponderance of the evidence that the predominant duties of the Chief Sanitarian position have changed. Grievant has accepted the in-house functional title of Assistant Director, but does not spend a predominant amount of his time functioning in this role.
      4.      Classification determinations are not made based upon comparison to other employees, but upon which classification specification is the best fit for the employee's duties. Harmon v. W. Va. Dept. of Health and Human Resources, Docket No. 99-HHR-432 (May 15, 2000); Baldwin v. W. Va. Dept. of Health and Human Resources, Docket No. 99- HHR-142 (Oct. 28, 1999). If Grievant compares himself to others who are performing the same work but are misclassified in a higher classification, the remedy is not to similarly misclassify the Grievant. Kunzler v. W. Va. Dept. of Health and Human Resources, Docket No. 97-HHR-287 (Jan. 8, 1998).
      5.      The Division of Personnel is authorized by W. Va. Code § 29-6-10 to establish and maintain a position classification plan for all positions in the classified service. Therefore, DOP's interpretation and explanation of the classification specifications in the instant grievance should be given great weight unless clearly wrong. W. Va. Dept. of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993).
      Grievant has failed to prove by a preponderance of the evidence that DOP's determination that his position is correctly classified as Chief Sanitarian is clearly wrong.
      Accordingly, this grievance is DENIED.
      Any party 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: September 21, 2000


Footnote: 1
      Grievant submitted six large packets of information labeled “Exhibits 1-6" along with his level four proposed findings. A majority of the documents included in these “exhibits” have already been entered at the lower levels, and are part of the record. Any other documents which were not entered at the lower levels will not be considered as evidence in this matter.