BETTY J. WORKMAN,

                        Grievant,

v.                                                       Docket No. 98-T&R-519

WEST VIRGINIA DEPARTMENT OF
TAX & REVENUE,

and

WEST VIRGINIA DEPARTMENT OF ADMINISTRATION,
DIVISION OF PERSONNEL,

                        Respondents.

D E C I S I O N

      On April 13, 1994, Betty J. Workman (Grievant) initiated this grievance pursuant to W. Va. Code §§ 29-6A-1, et seq., alleging that Respondent West Virginia Department of Tax and Revenue (Tax) improperly reclassified her position as a Tax Audit Clerk. Grievant contends she should have been reclassified as a Tax Audit Clerk, Senior, and seeks to recover back pay with interest from April 1, 1994. The grievance was denied at Level I on April 14, 1994. A Level II decision denying the grievance was issued on May 3, 1994. Grievant appealed to Level III on May 11, 1994, and a Level III evidentiary hearing was conducted on June 23, 1994, before Dale W. Steager, Grievance Evaluator. A Level III decision denying the grievance was issued by Grievance Evaluator Robert A. Hoffman onDecember 17, 1998.   (See footnote 1)  Grievant appealed to Level IV on December 23, 1998. On January 14, 1999, Respondent West Virginia Department of Administration, Division of Personnel (DOP), was joined as an essential party in accordance with Section 4.13 of the Procedural Rules of this Grievance Board, 156 C.S.R. 1 § 4.13 (1996). Following a series of continuances, each of which was granted for good cause shown, a Level IV hearing was conducted in this Grievance Board's office in Charleston, West Virginia, on December 3, 1999.   (See footnote 2)  At the conclusion of that hearing, the parties agreed on a briefing schedule, and this matter became mature for decision on January 26, 2000, following receipt of the parties' written post-hearing arguments.
       Based upon a preponderance of the credible evidence contained in the record established at Levels III and IV, the following Findings of Fact pertinent to resolution of this grievance have been determined.
FINDINGS OF FACT
      1.      Grievant was employed by Respondent West Virginia Department of Tax and Revenue (Tax) in the Business Registration Unit of its Internal Auditing Division.
      2.      Grievant was hired by Tax as an Audit Clerk Trainee in November 1986. Prior to her employment by Tax, Grievant was employed as an accountant with a bakerycompany, and had her own tax service business, doing individual income and various business tax returns for 21 years.
       3.      Grievant's initial duties at Tax involved dissolutions and withdrawals. In that regard, Grievant was responsible for verifying that domestic businesses which notified the West Virginia Secretary of State that they were dissolving their West Virginia business had met their tax obligations according to existing tax records, and that foreign corporations which similarly indicated to the Secretary of State that they were withdrawing from doing business in West Virginia had met their tax obligations to the state. One of the taxes Grievant verified was the corporate license or “charter” tax. These duties involving dissolutions and withdrawals were transferred to another unit in September 1993.
      4.      By August1994, Grievant's primary duties in the Business Registration Unit involved processing and auditing the corporate license tax. Harold Powell was then the Supervisor of the Business Registration Unit, and served as Grievant's immediate supervisor.
      5.      Dana Miller is employed by Tax as the Supervisor of the Corporate and Franchise Tax Unit in the Internal Auditing Division. He has 20 years' experience with Tax. He previously supervised the Business Registration Unit from 1984 to 1990.
      6.      The employees in the Corporate and Franchise Tax and Business Registration Units work closely togther regarding corporate tax matters. Thus, Mr. Miller is generally familiar with the duties performed by Grievant during the time frames pertinent to this grievance.      7.      In order to calculate the penalties and interest due for prior years of unpaid corporate license tax, in those cases where a corporate entity was delinquent, Grievant was required to perform mathematical calculations for each applicable year. Although this activity often involved a series of mathematical calculations that varied according to the year or years involved, the same formula was applied to each calculation, all necessary data was provided, and only simple math skills were required to make the necessary calculations.
      8.      When calculating the tax due, Grievant relied upon the data provided by the corporation. Although she was required to check that the information provided by the taxpayer was complete, she was not required to verify the information provided through any additional sources, either in or out of Tax.
      9.      Employees in other divisions classified as Tax Audit Clerk, Senior, were able to calculate tax liability using computer programs, as the calculations involved were generally constant, facilitating programming of the mathematical portion of the process.
      10.      All Tax Audit Clerks in the Business Registration Unit are cross-trained to understand the basic duties each employee performs in the unit. For example, on a daily basis, each employee would be given a share of business license renewals to process, to assist June Hyre, who was primarily responsible for those duties, but who usually had more renewals to process than she could handle. In addition, each employee was expected to field telephone calls or walk-in inquiries from taxpayers regarding taxes administered by the Business Registration Unit.      11.      The non-supervisory employees in the Business Registration Unit were classified as Tax Audit Clerks. No employee in the Business Registration Unit has ever been classified as a Tax Audit Clerk, Senior.
      12.      Grievant retired on June 30, 1997. During her tenure in the Business Registration Unit, Grievant trained several employees who were subsequently promoted to Tax Audit Clerk, Senior, positions in other units. There was no evidence that Grievant ever applied for any of these positions.   (See footnote 3) 
      13.      William K. Totten worked for Tax in the Business Registration Unit from December 1, 1992, to August 30, 1994. Mr. Totten began as a Tax Audit Clerk Trainee and was promoted to Tax Audit Clerk after obtaining the required one year of training and experience.
      14.      While working in the Business Registration Unit, Mr. Totten's duties primarily involved bingo and raffle activities, including applications by qualified non-profit organizations for a license to conduct such activities, and auditing of the returns submitted by these same organizations. Mr. Totten was initially trained by Linda Jarvis during his first four months of employment. After Ms. Jarvis left due to a medical problem, Mr. Totten relied on his supervisor, Mr. Powell, and Grievant, for guidance and training.
      15.      In September 1994, Mr. Totten was selected for a position in the Criminal Investigation Unit where he was classified as a Tax Audit Clerk, Senior. During the first five to six months of that assignment, Mr. Totten's duties involved “trouble shootingaccounts,” work which was not as complex as he had been performing as a Tax Audit Clerk in the Business Registration Unit.
      16.      After approximately six months, all bingo and raffle matters were transferred to the Criminal Investigations Unit where Mr. Totten performed essentially the same functions as he had performed while employed in the Business Registration Unit. Mr. Totten left the Criminal Investigations Division in June 1996 to pursue other career opportunities in the computer field.
      17.      The Tax Audit Clerk, Senior, position held by Mr. Totten in the Criminal Investigations Unit is not in the classified service.
      18.      Although employees in the Business Registration Unit were cross-trained to perform each other's duties, Mr. Totten's duties involving bingo and raffles never became a significant portion of Grievant's daily duties.
      19.      Lowell D. Basford is an Assistant Director of the West Virginia Division of Personnel (DOP), and directly supervises DOP's Classification and Compensation Division.
      20.      Mr. Basford supervised the statewide classification project that resulted in Grievant's reclassification as a Tax Audit Clerk in February 1994.
      21.      Under the process employed by DOP in reclassifying Tax personnel, DOP provided proposed classifications for all Tax employees to management, and obtained concurrence with each classification determination, including Grievant's reclassification as a Tax Audit Clerk.      22.      Mr. Powell was afforded an opportunity to make recommendations regarding reclassification of employees in the Business Registration Unit. He did not then recommend that Grievant's position be reclassified as a Tax Audit Clerk, Senior.
      23.      Linda Bennett is employed by Tax as Assistant Director of the Internal Auditing Division. The Business Registration Unit where Grievant worked falls under Ms. Bennett's supervision. R Ex 4. During the statewide reclassification project in 1994, Ms. Bennett was the primary liaison between Tax and DOP.       
      24.      Ms. Bennett drafted the classification specifications for Tax Audit Clerk and Tax Audit Clerk, Senior. Ms. Bennett employed the term “complexity” in the Tax Audit Clerk, Senior classification specification with the intent of assigning that classification to employees who were required to exercise more judgment and discretion in “gray areas” based upon the complexity of the tax laws, whether state, federal, or a combination of state and federal statutes and regulations are involved. For example, consumer sales taxes involve a simple and straightforward mathematical calculation, but are considered more complex because there are 56 separate exemptions which have to be applied to determine if the tax is applicable. The legislative regulations covering consumer sales taxes issued by Tax contain over 240 pages. R Ex 8.
      25.      Many employees who are classified as Tax Audit Clerks, Senior, are expected to compare data provided by taxpayers with data from other sources or related data provided by the same taxpayer on other occasions or in other situations, in order to make a determination if the taxpayer is reporting consistently and accurately. Ms. Bennettconcluded that this process involves more discretion and exercise of judgment, making these positions more complex than the work performed by Grievant.
      26.      Ms. Bennett met with Grievant to review the duties of her position in the Business Registration Unit prior to recommending Grievant's reclassification to Tax Audit Clerk. Ms. Bennett similarly discussed Grievant's duties, as well as the duties of other employees in the Business Registration Unit, with Grievant's immediate supervisor, Mr. Powell.
      27.      Prior to reclassification, there were three classifications, Tax Audit Clerk I, Tax Audit Clerk II, and Tax Audit Clerk III, in the Tax Audit Clerk series. Grievant was previously classified as a Tax Audit Clerk II. After the classifications were compressed to two primary classifications, Tax Audit Clerk, and Tax Audit Clerk, Senior, as well as a trainee position, Tax Audit Clerk Trainee, Grievant was reclassified by DOP as a Tax Audit Clerk.
                              
Classification Specifications at Issue

      The relevant portions of the classification specifications for the Tax Audit Clerk and Tax Audit Clerk, Senior, positions at issue in this case are reproduced herein as follows:
TAX AUDIT CLERK


      Examples of Work
      Reviews records/computer systems to determine if taxpayer is current in filing and             payment of taxes.       Verifies that applicants qualify for special licenses and permits by reviewing             applications for accuracy, completeness, and compliance to the requirements             as set forth in the statutes.
      Drafts correspondence on a variety of tax issues to obtain additional information             from or relay information to the taxpayer.

R Ex 2.
      
TAX AUDIT CLERK, SENIOR



      Examples of Work
            information from or to relay information to taxpayers.

G Ex A (emphasis in original).
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. More particularly, 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 matched another cited Personnel classification specification than that under 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., 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 generally 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. Simmons v. W. Va. Dep't of Health & 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). Finally, DOP's interpretation and explanation of the classification specifications at issue should be given great weight unless clearlyerroneous. W. Va. Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993).
      Grievant argues that the fact that Kevin Totten and Phyllis Vickers   (See footnote 4)  obtained positions as Tax Audit Clerk, Senior, which they perceived as no more “complex” than the duties they had been performing as Tax Audit Clerks in the Business Registration Unit, demonstrates that Grievant should also be classified as a Tax Audit Clerk, Senior. With regard to both of these employees, neither of them ever performed the same duties as Grievant. Therefore, their testimony does not provide a relevant basis for comparison with Grievant's position. Moreover, no position description was introduced listing the duties these employees were assigned by Tax at the time they were reclassified to Tax Audit Clerk, Senior. Such a document would provide a more accurate comparison with the duties Grievant performed as a Tax Audit Clerk. In addition, Mr. Totten's Tax Audit Clerk, Senior position was not in the classified service, and Grievant failed to establish that classified exempt positions are treated in the same manner as positions in the classified civil service. See W. Va. Div. of Personnel Administrative Rule, 143 C.S.R. 1 § 14.01 (1993).      Grievant further alleged that she should be classified as a Tax Audit Clerk, Senior, because her immediate supervisor, Harold Powell, only provided “limited” supervision over her daily performance. DOP's Assistant Director for Classification and Compensation, Lowell Basford, explained that Grievant's lack of direct supervision by Mr. Powell did not equate to working under “limited supervision” within the meaning of the classification specification for Tax Audit Clerk, Senior. According to Mr. Basford, Grievant's duties were sufficiently structured and routine, and the information needed to perform her assigned tasks was readily available, placing her in a situation where she performed her work under the “general supervision” of the established process for determining corporate license tax liability, rather than requiring frequent oversight by an individual supervisor. Grievant did not establish that this explanation was inherently flawed, or contrary to the normal meaning of the terms “limited” and “general” supervision in an employment context. See Watts v. W. Va. Dep't of Health & Human Resources, 195 W. Va. 430, 465 S.E.2d 887 (1995).
      Linda Bennett, Assistant Director of Tax's Internal Auditing Division, was generally familiar with the duties performed by Grievant, as well as the duties performed by other Tax employees assigned the Tax Audit Clerk, Senior classification. She credibly testified that personnel employed in the higher classification were required to exercise more discretion and judgment in determining tax liability.   (See footnote 5)  From her perspective as a senior manager in Tax, “complexity” is not determined solely by the number of steps involved indetermining tax liability, or whether calculations required to determine the amount of such liability could be made using a computer program rather than a calculator. Likewise, the fact that Grievant was required to be knowledgeable regarding the various taxes administered in the Business Registration Unit did not make her duties inherently more complex, given that each tax administered in that unit involves straightforward application of rules, with few “gray” areas to be interpreted.
      Dana Miller, a supervisor with over 20 years' experience in Tax, currently supervises the Corporate and Franchise Tax Unit. He previously supervised the Business Registration Unit for approximately six years. He also testified that employees presently or previously under his supervision holding the classification of Tax Audit Clerk, Senior, generally processed more complex tax returns, and were required to make more comparisons to verify the credibility of the taxpayer's return. From Mr. Miller's perspective, Grievant's duties relating to auditing corporate license tax returns were more clerical in nature than the duties performed by other Tax employees holding the Tax Audit Clerk, Senior classification.
      Ms. Bennett and Mr. Miller have significant expertise in matters involving tax administration. Mr. Basford has similar proficiency in classification matters, due to his considerable experience in supervising the classification process for state employees for a number of years. The determinations of Ms. Bennett, Mr. Miller, and Mr. Basford in regard to those matters within their respective areas of responsibility and expertise are entitled to substantial weight. See Blankenship, supra; Princeton Community Hosp. v. State Health Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985); SecurityNat'l Bank & Trust Co. v. First W. Va. Bancorp, Inc., 166 W. Va. 775, 277 S.E.2d 613 (1981), appeal dismissed, 454 U.S. 1131 (1982); Sword v. Bureau of Employment Programs, Docket No. 97-BEP-434 (Mar. 19, 1998); Travis v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-518 (Jan. 12, 1998).
      The West Virginia Supreme Court of Appeals' holding in Blankenship, supra, presents employees challenging their classification with a substantial obstacle to overcome in attempting to establish that they have been misclassified. Although reasonable people could differ over the degree of complexity involved in the various positions discussed in this grievance, Grievant's evidence falls well short of establishing that DOP's interpretation of the classification specifications for Tax Audit Clerk, and Tax Audit Clerk, Senior, as applied to Grievant, was “clearly wrong.” Although Grievant performed some duties included in the Tax Audit Clerk, Senior classification specification, those duties did not predominate Grievant's normal working day. Performance of duties in a higher classification, where such work is not predominant, does not render an employee misclassified. See Ashley v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-070 (June 2, 1995); Dooley v. W. Va. Dep't of Health and Human Resources, Docket No. 90-H-498 (Mar. 19, 1991).
      Notwithstanding Grievant's performance of her assigned duties in a highly competent and proficient manner, and her superior knowledge, second only to her supervisor, regarding the policies and procedures to be followed in regard to the various taxes administered by the Business Registration Unit, such factors are not controlling in determining her proper classification, because positions, not persons, are classified byDOP. See Dala v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-059 (Mar. 29, 1995); W. Va. Div. of Personnel Administrative Rule, 143 C.S.R. 1 §§ 4.01, et seq. (1993).             
      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
      
CONCLUSIONS OF LAW

      1.      In a grievance which does not involve a disciplinary matter, the 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.      Although Grievant performed some duties that were outside her assigned classification as a Tax Audit Clerk, that did not render her misclassified. See Ashley v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-070 (June 2, 1995); Dooley v. W. Va. Dep't of Health and Human Resources, Docket No. 90-H-498 (Mar. 19, 1991).
      3.      DOP's interpretations of the classification specifications for the positions of Tax Audit Clerk and Tax Audit Clerk, Senior, as they apply to the duties performed by Grievant, 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 (1993).      4.      Grievant failed to establish by a preponderance of the evidence that her predominant job duties best fit within the classification specification for Tax Audit Clerk, Senior.

      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.

                                                                                                  LEWIS G. BREWER
                                                ADMINISTRATIVE LAW JUDGE

Dated: February 25, 2000


Footnote: 1
      Neither party offered an explanation for the inordinate delay between the Level III hearing and decision.
Footnote: 2
      Grievant was represented by counsel, John G. Hackney, Jr., Respondent Tax and Revenue was represented by Assistant Attorney General Jeffrey G. Blades, and Respondent Division of Personnel was represented by counsel, Stephanie Schulz.
Footnote: 3
      In any event, Grievant's failure to obtain a promotion to Tax Audit Clerk, Senior, through competition for a posted vacancy is beyond the scope of this grievance.
Footnote: 4
      Ms. Vickers did not testify at either Level III or Level IV. Her testimony at Level IV was presented via affidavit where her claims that the duties of the Tax Audit Clerk position she held in the Business Registration Unit were just as “complex” as the duties she currently performs as a Tax Audit Clerk, Senior, in the Sales Tax Unit, were not subject to cross examination. Ms. Vickers' affidavit indicates that she was classified as a Tax Audit Clerk II after transferring to the Sales Tax Unit, but does not indicate her classification while in the Business Registration Unit. Moreover, her most recent experience in the Business Registration Unit was in 1988, providing a tenuous basis for comparison with the duties Grievant performed in 1994 through 1997. See G Ex I.
Footnote: 5
      This testimony was corroborated by Lisa Kedward, Supervisor of the Sales Tax Unit, who testified that the sales and use tax involved a number of exemptions which required interpretation and discretion. See R Ex 8. Ms. Kedward credibly explained how Ms. Vickers' duties as a Tax Audit Clerk, Senior, in the Sales Tax Unit were more complex than Grievant's duties.