SHERRY L HEDGES,

                  Grievant,

      v.

DOCKET NO. 00-HHR-203

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

                  Respondents.

      Grievant, Sherry L. Hedges, filed this grievance against her employer, the West Virginia Department of Health and Human Resources/Mildred Mitchell-Bateman Hospital (“HHR”) and the West Virginia Division of Personnel (“DOP”) on May 4, 2000:

I have been inaccurately compensated for the duties I perform. On January 3, 2000, I was given additional duties & responsibilities. The reallocation of the position was [not] approved until 4/16/00.

Relief sought: Backpay from 1/3/00 to 4/16/00 with interest.

The grievance was denied at level one by Grievant's immediate supervisor, Todd Deal, on May 11, 2000. The grievance was granted in part at level two on May 18, 2000, by memorandum from Kieth Anne Worden, Human Resources Director, who awarded Grievant back pay from ten days prior to the filing of the grievance. A level three hearing was conducted on May 25, 2000, by Grievance Evaluator Barbara Wheeler, and a level three decision denying the grievance was issued by Jonathan Boggs, Commissioner,Bureau for Behavioral Health and Health Facilities, on June 1, 2000. Grievant appealed to level four on June 12, 2000, and a hearing was held in this Grievance Board's Charleston, West Virginia office, on September 6, 2000, at which time this case became mature for decision. Grievant appeared pro se, and HHR was represented by B. Allen Campbell, Esq., Assistant Attorney General. DOP made no appearance.

Exhibits
No exhibits were entered.
Testimony
      Grievant testified in her own behalf, and presented the testimony of Kieth Anne Worden. HHR presented no additional witnesses.

      The material facts of this grievance are not in dispute, and are set forth in the following findings.
      1.      In December, 1999, Grievant was employed by HHR at the Mildred Mitchell- Bateman Hospital as an Accountant Auditor II.
      2.      On December 23, 1999, Grievant was informed by her immediate supervisor, Todd Deal, that she would be assuming additional duties and responsibilities.
      3.      Grievant assumed those additional duties and responsibilities on January 3, 2000.
      4.      On January 13, 2000, Grievant submitted a Position Description Form and request for reallocation to DOP.
      5.      On April 25, 2000, DOP notified Grievant it had reallocated her position to Accountant Auditor III, effective April 16, 2000.
      6.      Grievant filed this grievance on May 4, 2000, requesting back pay from January 3, 2000, the date she assumed her additional duties and responsibilities, to April 16, 2000, the effective date of her reallocation.
      7.      HHR did not raise a timeliness defense to this grievance at any level. In fact, at level two, Kieth Anne Worden, Human Resources Director, found the grievance was timely filed, but limited Grievant's back pay award to ten (10) days prior to the filing of the grievance.
      8.      At the level three hearing, Ms. Worden explained that HHR wished to compensate Grievant back to January 3, 2000, but believed it was limited to awarding her back pay to ten days prior to the filing of her grievance.
      9.      The level three decision, at Finding of Fact No. 5, erroneously found that, “[c]iting prior case precedent, Respondent argues that based on Grievant's untimely filing, back pay compensation, if granted, should be limited to ten (10) working days prior to the date Grievant filed her grievance,” and denied the grievance on that basis.

      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); W. Va. Code § 29-6A-6. Grievant argues she is entitled to full back from January 3, 2000, the date she assumed the additional duties and responsibilities of an Accountant Auditor III, and April 16, 2000, the effective date of her reallocation. HHRcontends it is limited, by law, to only compensating Grievant from ten days prior to the filing of her grievance, although it would like to see Grievant fully compensated. HHR is mistaken in its interpretation of the law, and the level three grievance evaluator is mistaken in the facts.
      It is the general rule in misclassification cases that, where a grievant prevails in a misclassification grievance, but has delayed filing, and where the employer has raised a timeliness defense, the grievant is entitled to back pay to ten days prior to the filing of the grievance. Martin v. Randolph County Bd. of Educ., 195 W. Va. 257, 465 S.E.2d 399 (1995). The Court, in Martin, supra, recognized that misclassification is a continuing violation, but wanted to discourage grievants from sitting on their rights to back pay for lengthy periods of time in an attempt to recoup a sizable back pay award, thus it limited their ability to recoup back pay to ten days prior to the filing of the grievance. However, Martin dealt with a case where the employer had raised a timeliness defense. It does not speak to a situation where the employer has not raised the defense, or, as in the instant case, where the employer actually wants to compensate Grievant for back pay.
            W. Va. Code 29-6A-3(a)(2) of the grievance procedure for state employees, provides:

Any assertion by the employer that the filing of the grievance at level one was untimely shall be asserted by the employer on behalf of the employer at or before the level two hearing.   (See footnote 1) 

      The statutory provision limiting an employer's opportunity to assert the affirmative defense of timeliness, or waiving it, would be rendered meaningless if grievance evaluators were allowed to simply raise the defense on behalf of the employer at level three or four hearings. Additionally, the grievance process is not meant to be a procedural quagmire, and is designed to encourage employees and employers to attempt to resolve their differences at the lowest levels possible in order to avoid protracted and difficult litigation over matters arising from their relationship. See Duruttya v. Bd. of Educ. of Mingo Cty., 181 W. Va. 203, 382 S.E.2d 40 (1989).
      As an example, one state agency, the Bureau of Employment Programs, makes it a practice to compensate reallocated employees back to the date their position description forms are completed. See Deel v. W. Va. Bureau of Employment Programs, Docket No. 96-BEP-361 (Mar. 11, 1997). The Grievance Board upheld the employer's practice in that case, and found no limitation on its ability to compensate its employees.
      In the instant case, despite the finding in the level three decision set forth above in Finding of Fact No. 9, HHR did not raise a timeliness defense in this matter at any level. HHR assigned Grievant additional duties and responsibilities, and encouraged her to request reallocation. It is undisputed from Grievant's and Ms. Worden's testimony that HHR fully expected Grievant would be able to receive back pay to the date she assumed those additional duties, once she was informed by DOP that she was reallocated. Later,Ms. Worden expressly stated in her level two decision to Grievant that the grievance “was timely filed,” and wished she could compensate her fully from January 3, 2000 through April 16, 2000. Clearly, but for her misinterpretation of the law, she would have done so.
      If the Grievance Board upheld the employer's practice in Deel to compensate employees back to the date of the completion of their position description forms, in reallocation cases, there is nothing which would prevent it from upholding HHR's desire, in this case, to compensate Grievant back to the date she entered into her duties and responsibilities, January 3, 2000.

      1.      Grievant has the burden of proving each element of 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); W. Va. Code § 29-6A-6.
      2.      Where a grievant prevails in a misclassification grievance, but has delayed filing, and where the employer has raised a timeliness defense, the grievant is only entitled to back pay to ten days prior to the filing of the grievance. Martin v. Randolph County Bd. of Educ., 195 W. Va. 257, 465 S.E.2d 399 (1995).
      3.      The limitation to back pay set forth in Martin, supra, does not apply in cases where the employer has not raised a timeliness defense, or, as in this case, wants to fully compensate its employee in the form of back pay from the date he or she assumed new duties and responsibilities resulting in reallocation.
      Accordingly, this grievance is GRANTED, and HHR is hereby ORDERED to compensate Grievant in the form of all back pay, benefits, and interest, from January 3, 2000, until April 16, 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. 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 25, 2000

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Footnote: 1

      It was found in Greathouse v. W. Va. Dept. of Transportation, Docket No. 99-DOH- 413 (Aug. 21, 2000), that the language of W. Va. Code § 29-6A-3(a)(2) was inconsistent with the grievance procedure for state employees, W. Va. Code §§ 29-6A-1, et seq., in that the state grievance procedure did not provide for a level two hearing, but rather, providedfor level three hearings. As a result, it was held in Greathouse that state employers must raise the timeliness defense at or before the level three hearing in order to conform to the statute.