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:
denial by the Division of Personnel to reallocate my current position from
Sanitarian Chief to Health & Human Resources Program Manager I. My
duties and responsibilities meet and exceed those specified by DOP for the
position of HHR Program Manager I (9428).
Requested relief: To have my position reallocated to the position of Health
and Human Resources Program Manager I.
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 -
Packet 2: Level Three Grievance Hearing Anthony Turner
(A)
Level Three Hearing Notice - April 19, 2000
(B)
April 14, 2000 memorandum from Grievant to Barbara Wheeler, Esq.
(C)
March 23, 2000 Grievance Form.
(D)
April 14, 2000 memorandum from Grievant to Joe Smith.
(E)
April 10, 2000 level two grievance decision by Barbara Taylor.
(F)
March 30, 2000 level one grievance decision by Randy Curtis.
(G)
March 23, 2000 letter from Grievant to Randy Curtis.
(H)
Classification Specification for Health and Human Resources Program
Manager I (9428).
(I)
Classification Specification for Chief Sanitarian (9934).
(J)
March 13, 2000 letter from Joe Smith to Barbara Taylor.
(K)
January 19, 2000 memorandum from Lowell Basford to Chris Gordon.
(L)
January 13, 2000 memorandum from Chris Gordon to Lowell Basford.
(M)
November 10, 1999 Position Description Form.
(N)
November 3, 1999 note from Mike McCabe to Chris Gordon.
(O)
October 5, 1999 memorandum from Randy Curtis to Chris Gordon.
(P)
January 5, 1999 memorandum from Randy Curtis to Carolyn Zirkle.
(Q)
January 11, 1999 WV-11 Form.
(R)
January 5, 1999 application for Program Manager I.
(S)
Attachment A to Grievant's Position Description Form and
Application for Examination for Program Manager I.
(T)
July 1,1979 State of West Virginia Board of Registration for Sanitarian
Certificate Registered Sanitarian.
(U)
West Virginia Department of Health and Human Resources
Management Institute '96' Certificate of Completion - D. (V)
Office of Environmental Health Services Radiation, Toxics and Indoor
Air Division Functional Job Description, Indoor Air Program Chief.
Ex. 2 -
Packet I: Level III Grievance Hearing Anthony Turner - Material Received
Under the Freedom of Information Act.
(A)
April 5, 2000 letter from Grievant to Barbara Taylor.
(B)
April 10, 2000 letter from Barbara Taylor to Grievant.
(C)
February 1, 1996 Position Description Form for reallocation from
Registered Sanitarian to Sanitarian Chief.
(D)
Justification (attachment) for Grievant's reallocation from Registered
Sanitarian to Sanitarian Chief.
(E)
Office of Environmental Health Services Radiation, Toxics and Indoor
Air Division Functional Job Description, Indoor Air Program Chief.
(F)
Office of Environmental Health Services Radiation, Toxics and Indoor
Air Division Functional Job Description, Environmental Lead and
Indoor Air Sanitation.
(G)
December 9, 1999 Position Description Form for reallocation to Chief
Sanitarian.
(H)
October 5, 1999 memorandum from Randy Curtis to Chris Gordon.
(I)
April 24, 2000 letter from Barbara Taylor to Grievant.
(J)
October 6, 1997 memorandum from Virginia Tucker to DHHR
Administrative Staff.
(K)
October 3, 1997 memorandum from Edison Casto to Virginia Tucker.
(L)
Office of Environmental Health Services Radiation, Toxics and Indoor
Air Division Functional Job Description, Assistant Director.
Ex. 3 -
Packet 3: Level Three Grievance Hearing Anthony Turner - Organizational
Charts for the Office of Environmental Health Services.
(A)
Public Sanitation Division
(B)
Radiation, Toxics and Indoor Air Division
(C)
Environmental Engineering Division
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
Plans, develops, and implements a complex general environmental and public health
sanitation program.
Plans and directs the work of environmental health staff; recruits and interviews
support staff; conducts annual reviews of employee performance; plans and
conducts conferences with staff.
Supervises gathering of data and prepares annual environmental health report and
formulates annual program plan.
Develops policies, sets standards and objectives for complex general environmental
and public health sanitation programs in accordance with established public health
laws, rules, regulations and department policies.
Makes long range plans and regularly reviews activities, problems and functions of
complex general environmental and public health sanitation programs; provides
or arranges for in-service training for sanitarians on a continuing basis; directs
complex general environmental and public health sanitation educational programs.
Determines the needs of a complex general environmental and public health sanitation
unit for personnel, supplies and equipment; assists budget officer in developing
annual budget and expenditure of allocated funds.
Makes decisions and judgements in complicated general environmental and public
health sanitation situations or concerning potential legal problems; conducts
hearings in absence of health officer; prepares legal cases for prosecuting
attorney; attends court hearings on behalf of local health department.
Advises other governmental bodies and attends intergovernmental meetings.
Review plans and specifications and issues permits as warranted.
Collects and evaluates health statistics and data to support complex general
environmental and public health sanitation programs; determines priorities and
types of services required to protect the public health.
Supervises review of plans of new and remodeled facilities to determine compliance
with public health laws, rules, regulations and departmental policies.
Provides consultative services and technical assistance to local sanitarians and health
officers on highly technical or difficult general environmental and public health
sanitation matters.
Develops programs and procedures adaptive to the general environmental and public
health sanitation needs of assigned district.
Provides consultative services and technical assistance to local sanitarians in the
event of man-made or natural disasters or emergencies.
Maintains liaison between the Office of Environmental Health Services and the local
health departments, local Boards of Health, county Commissioners and other
community groups.
Provides emergency general environmental and public health sanitation services to
counties temporarily without the services of a sanitarian.
Conducts or assists local sanitarians in epidemiological investigations.
Conducts evaluations of local health departments general environmental and public
health sanitation programs.
Reviews program plans of local health departments within assigned district.
Knowledge, Skills, and Abilities
Knowledge of the principles and practices of chemistry and biology in relation to
general environmental and public health sanitation.
Knowledge of theory and principles of environmental health and public health
sanitation technology and issues, including various federal and state regulations,
rules and policies.
Knowledge of physical and engineering principles relating to water supplies and waste
water disposal systems.
Ability to plan, organize and direct complex general environmental and public health
sanitation programs, and manage professional and support staff.
Ability to speak effectively before groups concerning complex general environmental
and public health sanitation problems.
Ability to communicate effectively in writing.
Ability to establish effective working relationships with state and local governmental
officials and the general public.
Ability to make judgments and decisions dealing with issues which directly impact
public health and state and local population growth and economic development.
Ability to direct and evaluate complex general environmental and public health
sanitation staff activities and make recommendations to improve programs and
service delivery.
Ability to conduct advanced specialized training programs for experienced sanitarians.
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
Supervises professional, technical and clerical staff; make assignments and reviews
and approves plans of operation.
Provides administrative and program direction; enforces agency objectives, policies
and procedures.
Responsible for management of recruitment/selection process, staff development,
disciplinary matters, and other related actions in assigned area.
Responsible for developing collaborative efforts among health or human services
agencies.
Performs research and analysis of legislation, work activities or other issues to develop
policies, standards and procedures.
Monitors and evaluates program administration, and the delivery to services to clients.
Provides technical consultation and policy interpretation to staff, supervisor, public
officials, and advocacy groups.
Plans and implements programs for the training of professional, technical and clerical
staff.
Knowledge, Skills and Abilities
Knowledge of the theories, principles and techniques of the area of assignment.
Knowledge of federal and state statutes, regulations and program standards in the
area of assignment.
Knowledge of the objectives of the program area, its procedures, policies and
guidelines and their relationship to the rest of the department and other entities.
Ability to plan and coordinate work, plan and project budgetary needs, and organize
work and projects.
Ability to direct and supervise the work of others.
Ability to present ideas effectively, both orally and in writing.
Ability to analyze facts and apply them to the management of the area of assignment.
Ability to work effectively with co-workers, the public, advocacy groups, and federal
and state agencies in the area of assignment.
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