PATRICK MESSENGER, et al.,

                                    Grievants,
                        

v.                                                Docket No. 00-HHR-261

WEST VIRGINIA DEPARTMENT OF HEALTH
AND HUMAN RESOURCES/BUREAU FOR
CHILDREN AND FAMILIES, and
WEST VIRGINIA DIVISION OF PERSONNEL,

                                    Respondents.

DECISION

      Patrick Messenger, Linda Lesher, Karen Gwinn, Jennifer Phillips, Clara Thomas, JoAnn Coakley, Diana Friend, and Linda Amick (Grievants) are employed by the West Virginia Department of Health and Human Resources/Bureau for Children and Families (BCF), as Economic Service Workers (ESW) in the Summersville DHHR office. They filed this action on or about June 1, 2000, seeking a temporary classification upgrade from the ESW classification to the Family Support Specialist classification for July, 2000.
      This grievance was denied at Level I, on June 7, 2000, by Economic Service Supervisor Patty J. Martin; and at Level II, on June 22, 2000, by Mary Ann Dean. A Level III hearing was held on July 24, 2000. Grievants represented themselves, BCF was represented by Mary Ann Dean, and the West Virginia Division of Personnel (DOP) was represented by Assistant Director for Compensation and Classification Lowell Basford. On July 27, 2000, this grievance was denied at Level III by BCF Commissioner Jack Frazier.
      The parties agreed that this grievance could be submitted at Level IV based uponthe record developed at the lower levels. The parties were given until September 26, 2000, to submit proposed findings of fact and conclusions of law, Grievant and BCF did so, and this grievance became mature for decision on that date.
      The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.

FINDINGS OF FACT

      1.      Grievants are Economic Service Workers in the Summersville DHHR office.
      2.      Grievants were assigned to process School Clothing Allowance (SCA) applications, using the West Virginia Works Program (WORKS) Policy Manual, during July, 2000.
      3.      The SCA program operates during August of each year, and provides payment for clothing for school-age children.
      4.      During July, 2000, Grievants Messenger, Friend, Gwinn, Coakley, and Thomas processed SCA applications for four days each, and Grievants Lesher, Phillipps, and Amick processed SCA applications for three days each.
      5.      Economic Service Workers take applications, determine eligibility, and manage a caseload for a variety of economic programs, and perform related work as required.
      6.      Family Support Specialists develop personal responsibility contracts and perform case management activities for WORKS clients.
DISCUSSION

      As this grievance does not involve a disciplinary matter, Grievants have the burdenof proving their 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); Steadman v. Securities and Exchange Comm'n, 450 U.S. 91 (1981); 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.
      Grievants allege that their use of the WORKS Policy Manual to process SCA applications takes them out of their classification of Economic Service Worker, and seek a temporary classification upgrade to Family Support Specialist and a nine percent salary adjustment for July, 2000. BCF and DOP respond that Grievants' processing of SCA applications consisted of performing “related work as required,” pursuant to the class specification of Economic Service Worker; and was not done on a full-time basis, so that these duties did not make up a predominant portion of the Grievants' work day, and are therefore not class controlling.
      In order for grievants to prevail upon a claim of misclassification, they must prove by a preponderance of the evidence that their duties for the relevant period more closely match those of another cited classification specification than the classification to which they are 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 grievants' current classification constitutes the "best fit" for their 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 state employees contesting their classification with a substantial obstacle to overcome in attempting to establish that they are misclassified.
      The relevant portions of the classification specifications for Economic Service Worker and Family Support Specialist are provided below.

ECONOMIC SERVICE WORKER



FAMILY SUPPORT SPECIALIST




      DOP's Temporary Classification Upgrades Policy provides a pay differential “for employees who, during a specified period of time, perform the nature of work envisionedin a Higher Division of Personnel classification specification on a full-time basis.” DOP's Administrative Rule § 4.4 (c) states that classification specifications shall not be construed to limit the power of the appointing authority to prescribe or alter the duties of any position. DOP's Administrative Rule § 4.4 (d) states that classification specifications do not necessarily have to include all of the tasks assigned to a position.
      Lowell Basford, DOP's Assistant Director for Compensation and Classification, credibly testified that DOP considers Grievants to have been correctly classified as Economic Service Workers during their processing of SCA applications in July, 2000, because Family Support Specialists primarily develop personal responsibility contracts and perform case management activities for WORKS clients, while Grievants processed SCA applications for non-WORKS clients. Basford also noted that the Nature of Work Section of the Economic Service worker specification states that employees in that classification take applications, determine eligibility for and manage a caseload for a “variety of economic assistance programs,” such as the SCA program; that the specification's inclusion of “related work as required” encompasses other duties that are reasonably related to the organization and work identified in the specification, such as the SCA program; and that the Temporary Upgrade Policy was never meant to apply when a single additional duty or activity was added to a position. The undersigned also notes that DOP's Temporary Classification Upgrades Policy provides a pay differential for employees who perform the work of a Higher DOP classification specification “on a full-time basis,” a requirement not met by Grievants' taking SCA applications for three or four days in July, 2000.      The preponderance of evidence in this grievance supports BCF's and DOP's position that Grievants' processing of SCA applications consisted of performing “related work as required,” pursuant to the class specification of Economic Service Worker; and was not done on a full-time basis, so that these duties did not make up a predominant portion of the Grievants' work day, and are therefore not class controlling. Broaddus, supra. Grievants have failed to establish that DOP's interpretation and explanation of the classification specifications at issue was clearly wrong. Blankenship, supra. The following Conclusions of Law support the Decision reached.
CONCLUSIONS OF LAW

      1.      As this grievance does not involve a disciplinary matter, Grievants have the burden of proving their 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 grievants to prevail upon a claim of misclassification, grievants must prove, by a preponderance of the evidence, that their duties for the relevant period more closely match those of another cited classification specification than the classification to which they are 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.      DOP's Temporary Classification Upgrades Policy provides a pay differential “for employees who, during a specified period of time, perform the nature of work envisioned in a Higher Division of Personnel classification specification on a full-time basis.”
      5.      Grievants did not demonstrate that they were eligible for temporary classification upgrades during July, 2000.
      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 October 4, 2000