L. KAY LEE,       
      Grievant,

v.                                                       Docket No. 99-DOL-401

WEST VIRGINIA DIVISION OF LABOR/
DIVISION OF PERSONNEL,
            Respondents.

D E C I S I O N

      Grievant, L. Kay Lee, is employed of the West Virginia Division of Labor ("DOL") as an Office Assistant I. Her Statement of Grievance reads:

      This grievance was filed on May 19, 1999. At Levels I and II, Grievant's supervisors lacked the authority to grant the relief sought. At Level III the grievance was denied. The parties agreed to submit this case on the record, and this case became mature for decision on December 13, 1999, after receipt of Respondent DOL's proposed findings of fact and conclusions of law.   (See footnote 2) 
Issues and Arguments
      Grievant makes two arguments to support her reclassification to a Secretary I position. First, she states she performs the duties of a Secretary I, and second she notes her past experience qualifies her for a Secretary I position. Respondents maintain Grievant is properly classified.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact

      1.      Grievant has been employed, since June of 1997, as an Office Assistant I in the DOL Section which manages manufactured housing and amusement rides. Her duties have not changed during that time.
      2.      Grievant had prior clerical and secretarial experience before she began working for the State of West Virginia.
      3.      The position for which Grievant applied and was selected stated she would work under direct supervision and listed some of the duties as: sort and file documents and mail; answer the phone and route calls or take messages; type routine forms, permits,and correspondence; post information to logs or ledgers; and operate standard office equipment.
      4.      Grievant's Evaluation of March 26, 1999 lists her responsibilities as:














      
      5.      Grievant agrees that this list, contained on her 1999 evaluation, correctly identifies her duties. (Test. of Grievant at Level III Hearing at 7.)
      6.      During the time Grievant has been in this position, she has not completed a Position Description Form.
      7.       Grievant's work is repetitive, routine, and structured.
      8.      Grievant does not relieve her supervisor of any administrative tasks, nor does Grievant perform support-type activities for her supervisor.
DISCUSSION

The pertinent sections of the two classification specifications at issue are reprinted below:
OFFICE ASSISTANT I

Nature of Work
      Under close supervision, performs entry level work in a variety of routine clerical tasks within prescribed procedures and guidelines. Performs related work as required.

Distinguishing Characteristics
      Performs routine clerical tasks as a predominant portion of the job. Tasks may include sorting and filing documents, typing routine forms and labels, sorting and distributing mail. May enter data using a video display terminal and make inquiries into the system; data work is limited to a few simple applications.

      At this level, the predominant tasks are of a routine nature with well-structured directives for completing the work. Work is learned through repetition and requires ability to learn the steps in the series of related tasks, which are typically a part of a broader workfunction. Work is reviewed for completeness and accuracy or provides an inherent system of checks. Contacts are typically informational; position is limited in authority for independent action.

Examples of Work
      

                                                                            
. . .

Minimum Qualifications
      TRAINING: Education equivalent to graduation from a standard four-year high school.

SECRETARY I

Nature of Work
      Under general supervision, at the full-performance level, relieves supervisor of clerical and minor administrative duties, exercising discretion and independent judgment. Necessity for dictation, familiarity with word processors, and other special requirements vary depending upon supervisor's preference. Performs related work as required.

Distinguishing Characteristics
      This class is distinguished from the Office Assistant series by the assignment of support duties to a specific individual overseeing a section, or a division. The incumbent composes routine correspondence for the supervisor, screens calls and visitors and responds to inquiries requesting knowledge regarding office procedure, policy and guidelines, and program information. The position has limited authority to speak for the supervisor.

      At this level, the work requires the knowledge necessary to complete complex procedural assignments. Incumbent determines appropriate procedures from among avariety of resources, methods, and processes. Incumbent is responsible for his/her own work, and may assign and direct the work of others. Although some tasks are defined and self-explanatory, the objectives, priorities, and deadlines are made by the supervisor. Work is reviewed, usually upon completion, for conformance to guidelines. Contacts at this level are frequent and often non-routine and/or of a confidential or sensitive nature, requiring tact and the ability to judge which inquiries can be answered or must be referred.

Examples of Work
      

                                                                                   
. . .

Minimum Qualifications
                           In order for 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 another cited Personnel classification specification than the one 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). Personnel specifications are to be read in "pyramid fashion," i.e., 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). The "Nature of Work" section of a classification specification is its most critical section. Atchison v. W. Va. Div. of Health, Docket No. 90- H-444 (Apr. 22, 1991); 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 Grievant's current classification constitutes the "best fit" for her required duties. Propst v. W. Va. Dep't of Health and Human Resources/W. Va. Div. of Personnel, Docket No. 93-HHR-371 (Dec. 3, 1993); Simmons v. W. Va. Dep't of Health and Human Resources/W. Va. Div. of Personnel, 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); W. Va. Div. of Personnel Rules § 5.4. Additionally, class specifications are descriptive only and are not meant to be restrictive. Mention of one quality or requirement does not exclude others. W. Va. Div. of Personnel Rules § 4.4(a). Even though a job description does not include all the actual tasks performed by a grievant it does not make that job classification invalid. Id. at § 4.4(d). Finally, Personnel'sinterpretation and explanation of the classification specifications should be given great weight unless clearly erroneous. W. Va. Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681, 687 (1993). Under the foregoing legal analysis, the West Virginia Supreme Court holding in Blankenship presents employees contesting their classification with a substantial obstacle to overcome when they attempt to establish they are misclassified.
      Grievant's own testimony confirmed she performed the duties of an Office Assistant I. She agreed she performed the duties outlined in her evaluation, and those fall squarely within the duties expected to be performed by an Office Assistant I, such as sorting and filing documents; typing routine forms; answering the telephone and taking messages; and posting information for record-keeping purposes. (Office Assistant I Class Specifications). One duty is not listed, and that is typing minutes for editing by the director. As previously stated, even though a job description does not include all the actual tasks performed by a grievant, that fact does not make the employee's job classification invalid. W. Va. Div. of Personnel Rules § 4.4(d). Employees can perform duties outside their job description as the class specifications are to characterize the type of work to be performed, not to identify every task of the position. Class specifications are descriptive, not exhaustive, and are to give a "flavor" of the difficulties, complexities, and duties of the position. Adkins- Montie v. W. Va. Dep't of Health and Human Resources , Docket No. 97-HHR-017 (Mar. 19, 1998); Hager v. W. Va. Dep't of Health and Human Resources, Docket No. 95-HHR- 241 (Sept. 29, 1995). Such is the case here; the fact Grievant performs this one duty not specifically listed in her class specification does not mean she is not properly classifiedas an Office Assistant I. Collier v. W. Va. Dep't of Health and Human Resources/Div. of Personnel, Docket No. 94-HHR-039 (Sept. 19, 1994); Coates v. W. Va. Dep't of Health and Human Resources, Docket No. 94-HHR-041 (Aug. 28, 1994); Broaddus, supra.
      Further, the Secretary I class specification indicates the individuals in this classification "relieve [their] supervisor of clerical and minor administrative tasks, exercising discretion and independent judgement." (Secretary I Job Specifications, "Nature of Work"). A Secretary I is to perform support duties for an individual who is over a section or a division and "composes routine correspondence for the supervisor, screens calls and visitors and responds to inquiries requesting knowledge regarding office procedure, policy and guidelines, and program information." (Secretary I Job Specifications, "Distinguishing Characteristics"). Additionally, a Secretary I has limited authority to speak for her supervisor. Id. Further, a Secretary I must be able "to complete complex procedural assignments" and determine appropriate procedures by reviewing a variety of resources, methods, and processes." Id. A Secretary I is "responsible for [her] work, and may assign and direct the work of others" and contacts with others are "frequent and often non-routine and/or of a confidential or sensitive nature" and require tact and judgement. These phrases do not describe the duties involved in Grievant's work.
       Grievant has not met her burden of proof and demonstrated Personnel's determination that the predominant portion of her duties are within her Office Assistant I classification was "clearly wrong." See Francis/Sayre v. W. Va. Dep't of Health and Human Resources/Div. of Personnel, Docket No. 95-HHR-077 (July 28, 1995).      It also appears Grievant is confused between the layperson's typical definition of secretarial duties and the Division of Personnel's job descriptions for office assistants and secretaries. The American Heritage Dictionary defines secretarial work as handling correspondence, keeping files, and doing clerical work. The Division of Personnel has chosen to divide the wide variety of potential secretarial or clerical duties into two class series; office assistants and secretaries. Thus, the fact Grievant performs typical "secretarial" duties does not place her in the Secretary I classification. Coates, supra; Hart v. W. Va. Div. of Rehabilitation, Docket No. 94-RS-105 (Aug. 26, 1994).
      Grievant also argues she should be classified as Secretary I because she meets the listed minimum qualifications for that class specification. Division of Personnel's pay and classification plan is not seniority, tenure, or qualification based. The classification of each employee is based on the general nature of the duties expected of the incumbent. Hellems v. Dep't of Motor Vehicles, Docket Nos. 94-DMV-156/157/160/162/163/184 (June 26, 1995); Salmons v. W. Va. Dep't of Transp./Div. of Highways/ Div. of Personnel, Docket No. 95-DOH-004 (Apr. 20, 1995); Broaddus, supra. The fact Grievant meets the qualifications of a Secretary I does not matter, as she does not perform the duties of a Secretary I.
      The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law

      1.      Grievant has not demonstrated by a preponderance of the evidence that she is misclassified, or that the position of Secretary I is the "best fit" for her normal duties.      2.      The predominant duties of the position in question are class controlling. Collier v. W. Va. Dep't of Health and Human Resources/ Div. of Personnel, Docket No. 94-HHR- 039 (Sept. 19, 1994); Broaddus v. W. Va. Div. of Human Servs., Docket Nos. 89-DHS-606, 607, 609 (Aug. 31, 1990); W. Va. Div. of Personnel Rules § 5.4.
      3.      Additionally, since the predominant duties are class-controlling, the fact that Grievant occasionally performs tasks outside her written job description does not elevate her position to Secretary I. See Hunt v. W. Va. Dep't of Health and Human Resources, Docket No. 94-HHR-040 (Oct. 21, 1994); Broaddus, supra.
      4.       The Division of Personnel's pay and classification plan is not seniority, tenure, or qualification based. The classification of each employee is based on the general nature of the duties expected of the incumbent. Hellems v. Dep't of Motor Vehicles, Docket Nos. 94-DMV-156/157/160/162/163/184 (June 26, 1995); Salmons v. W. Va. Dep't of Transp./Div. of Highways/ Div. of Personnel, Docket No. 95-DOH-004 (Apr. 20, 1995); Broaddus, supra.
      5.      The fact an employee meets the qualifications of a class specification is not the determining factor in deciding classification; the issue is whether the employee is performing the duties of the class specification.
      6.      The Division of Personnel's interpretation of the correct class specifications, for the duties Grievant performs, are not clearly erroneous and, therefore, should be accorded great weight. W. Va. Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681, 687 (1993); Kyte v. W. Va. Dep't of Health and Human Resources/Div. of Personnel, Docket No. 94-HHR-030 (Sept. 21, 1994).
      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.
                                                                                                   JANIS I. REYNOLDS
                                                ADMINISTRATIVE LAW JUDGE

Dated: January 14, 2000


Footnote: 1
At Level III, Grievant stated back pay should start from the time she had been in the position for approximately one year.
Footnote: 2
Grievant was represented by Fred Tucker of the UMWA-WVSEU, Respondent Division of Labor was represented by Senior Assistant Attorney General David Cleek, and Division of Personnel was represented by Lowell D. Basford, Assistant Director of Classification and Compensation.