SUSAN KINCAID,

                                    Grievant,

v.                                                Docket No. 99-CORR-510

WEST VIRGINIA DIVISION OF CORRECTIONS/
ANTHONY CORRECTIONAL CENTER, and
WEST VIRGINIA DIVISION OF PERSONNEL,

                                    Respondents.

DECISION

      Susan Kincaid (Grievant) is employed by the West Virginia Division of Corrections (CORR), as a Business Manager at the Anthony Correctional Center (ACC). She filed this action on October 8, 1999, alleging she should be classified as an Administrative Services Manager I. This grievance was denied at Levels I and II, by Deputy Warden Adrian F. Hoke, on November 8, 1999. A Level III hearing was held on November 29, 1999. On December 2, 1999, this grievance was denied at Level III by Commissioner Paul Kirby.
      A Level IV hearing was held on March 1, 2000, before the undersigned Administrative Law Judge, at the Grievance Board's Beckley office. Grievant represented herself, CORR was represented by its Director of Human Resources Hilda Williams, and the West Virginia Division of Personnel (DOP) was represented by Assistant Director for Compensation and Classification Lowell Basford. The parties were given until May 10, 2000, to submit proposed findings of fact and conclusions of law, Grievant did so, and this grievance became mature for decision on that date.
      The following Findings of Fact pertinent to resolution of this matter have beendetermined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT

      1.      Grievant is employed as Business Manager of ACC, and has worked at ACC for 29 years.
      2.      In November, 1998, ACC Warden Scott Paterson appointed Grievant to his administrative staff, which consists of the Warden, Deputy Warden, Associate Warden of Programs, Associate Warden of Operations, and the Chief of Security/Major.
      3.      Grievant sometimes acts as the Warden's designee in his absence, occasionally orders offenders transferred from ACC to prison, and acts in rotation as ACC's Administrative Duty Officer. She is sometimes on call when off-duty, has exposure to pepper spray and firearms, and has increased accountability as an official of a correctional facility.
      4.      Grievant's counterpart at the Mount Olive Correctional Complex (Mount Olive) is classified as an Administrative Services Manager.
DISCUSSION

      As this grievance does not involve a disciplinary matter, 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); 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 Health & 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 alleges that she should be classified as an Administrative Services Manager I, arguing that she has greater responsibilities at ACC than are described in the classification specification for Business Manager, and that her counterpart at Mount Olive is classified as an Administrative Services Manager I. CORR and DOP respond that she is correctly classified as a Business Manager.
      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 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: 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). Therefore, the "Nature of the Work" section of a classification specification is its most critical section. See 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 classificationconstitutes 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 of West Virginia in Blankenship presents a state employee contesting her classification with a substantial obstacle to overcome in attempting to establish that she is misclassified.
      The relevant portions of the classification specifications for Business Manager and Administrative Services Manager I are provided below.
BUSINESS MANAGER



      Examples of Work


ADMINISTRATIVE SERVICES MANAGER I

      Nature of Work


      Distinguishing Characteristics


      Lowell Basford, DOP's Assistant Director for Compensation and Classification,credibly testified that DOP considers Grievant to be correctly classified as a Business Manager, because she directs the operation of a business office in a large state facility; that her work is distinguished from that of an Administrative Services Manager I, and from her counterpart's at Mount Olive, by the fact that she does not supervise a professional level staff; that Mount Olive is a much larger institution than ACC; and that Grievant's duties as Administrative Duty Officer at ACC are occasional and intermittent, and so are not class controlling under Broaddus.
      Grievant plainly performs some duties outside of her job description; however, employees can perform duties outside their job description and still be properly classified. Dooley v. W. Va. Dep't of Health and Human Resources, Docket No. 90-H-498 (Mar. 19, 1991). Class specifications characterize the type of work to be performed, but do not 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. Hager v. Health and Human Resources, Docket No. 95-HHR-241 (Sept. 29, 1995). Grievant has not demonstrated that DOP's determination that she is a Business Manager is clearly wrong, and that the Administrative Services Manager I classification specification is the best fit for her duties.
      However, the undersigned can understand why Grievant feels that she is something more than a Business Manager. Although the classification specification for Administrative Services Manager I does not best describe her work, the Business Manager classification specification does little better, failing to address those parts of her job that spring from her employment at a correctional facility, such as the responsibility of standing in for theWarden of ACC, her designation as part of ACC's administrative team, her being on call when off-duty, her exposure to pepper spray and firearms, her increased accountability as an official of a correctional facility, and her occasionally having to decide whether an offender should be transferred from ACC to prison. These are weighty responsibilities. It is unclear to the undersigned why no classification specification in DOP's classification system better describes Grievant's job. However, given the substantial obstacle she must overcome in attempting to establish that she is misclassified, Blankenship, supra, the undersigned cannot conclude that she has satisfied her burden of proof.
      The following Conclusions of Law support the Decision reached.
CONCLUSIONS OF LAW

      1.      As this grievance does not involve a disciplinary matter, 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); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
      2.      In order for a grievant to prevail upon a claim of misclassification, Grievant 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 Hayes v. W. Va. Dep't of Natural Resources, Docket No. NR-88-038 (Mar. 28, 1989).
      3.      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).
      4.      Grievant did not demonstrate that the Administrative Services Manager classification specification was a better fit for her duties than Business Manager.
      Accordingly, the 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.

                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated May 26, 2000