GARY LOUDERMILK, et al.,

                        Grievants,

v.            


DEPARTMENT OF HEALTH AND HUMAN RESOURCE/
BUREAU FOR CHILD SUPPORT ENFORCEMENT
and DIVISION OF PERSONNEL,

                   Respondents.

D E C I S I O N

      This grievance was initiated by Grievants, Gary Loudermilk, Steve McClung, Patricia Fitzgerald, Tom Youell, Robin Woodson, Annie Barton, and Elisha Pratt, against the Respondents Department of Health and Human Resources ("HHR") and Division of Personnel ("Personnel"). This grievance initially sought to have position description forms which had been completed by Grievants in August of 1999, and submitted by their supervisor on September 26, 1999, to the next step in the process, forwarded to Personnel, as months had passed and the documents had not been forwarded. At some point in the process the parties agreed to convert the grievance to a challenge to Grievants' classification as Health and Human Resources Specialists (HHR Specialists”). As relief Grievants sought classification as Health and Human Resources Specialist Seniors (“HHR Specialist Seniors”), and back pay from September 26, 1999.   (See footnote 1) 
      The following Findings of Fact are made based upon the evidence presented at Levels III and IV.
FINDINGS OF FACT

      1. Grievants are employed by HHR as HHR Specialists. Except for Grievant Fitzgerald, Grievants work in the HELP Desk Unit of the Bureau of Child Support Enforcement (“BCSE”). Grievant Fitzgerald transferred from the HELP Desk Unit to the Training Unit on June 19, 2000. Grievant McClung transferred into the HELP Desk Unit from the Training Unit on that same date.   (See footnote 2) 
      2.      Grievants' supervisor, Frank Lewis, is classified as an HHR Specialist Senior.
      3.      Grievants receive telephone calls from users of HHR's On-line Support Collection and Recording computer system ( “OSCAR”), requesting assistance in using the system, and Grievants provide that technical assistance. OSCAR supports all the major functions in the process of obtaining and enforcing child support obligations. Grievants must be thoroughly aware of the way OSCAR works, what OSCAR can do, and how the BCSE uses OSCAR. When one of the over 2000 users reports a problem with OSCAR to Grievants, Grievants are responsible for documenting the problem and submitting it to programmers to be corrected. Grievants design new screens in OSCAR, determining what data should be shown on the screen, and how the screen and data will interact with other screens in OSCAR. Grievants take problems with the system and determine what has to be happen to make the system function the way it is supposed to, so field workers can use the system, and then translate this to programmers so the programmers can write the code to effect the change in the system. Grievants test changes made by programmers to assure the programming meets specifications. Grievants meet with programmers, acting as liaisons with the programmers, interpreting the needs of HHR's employees. Grievants decide how much time the programmer should spend on a change.
      4.      OSCAR has approximately 800 screens available for use, having increased, as a result of Grievants' work, by approximately 300 screens over the last few years. The law in this area is constantly changing, resulting in continual changes to OSCAR.
      5.      When a change in the law or guidelines occurs, attorneys, Mr. Lewis, the Chief Compliance Officer, and the Chief Technical Officer review the change and decide what should be done to comply.
      6.      Grievants are then assigned by Mr. Lewis to be the chair persons of committees, whose members are from different disciplines in HHR. These committees are tasked with determining how the OSCAR system will need to be changed to meet new guidelines or laws. When Grievants are serving as the chair of a committee, they may work on the project for extended periods of time, ranging from a month to a year. They call committee meetings, conduct the committee meetings and direct the work of the committee members. Grievants are responsible for the work of the committee, and after the committee is disbanded, Grievants remain primarily responsible for the area which had been assigned to the committee, when problems arise.
      7.      Grievants do not supervise any other employee. They do not sign time sheets or hear grievances, and no one reports to them.
DISCUSSION

      W. Va. Code §29-6-10 authorizes Personnel to establish and maintain a position classification plan for all positions in the classified service. State agencies, such as BEP, which utilize such positions must adhere to that plan in making assignments to their employees. Toney v. W. Va. Dep't of Health & Human Resources, Docket No. 93-HHR- 460 (June 17, 1994).
      In order for a grievant to prevail upon a claim of misclassification, he must prove by a preponderance of the evidence that his duties for the relevant period more closely match those of another cited classification specification than the classification to which he is currently assigned. See generally, Hayes v. W. Va. Dep't of Natural Resources, Docket No. NR-88-038 (Mar. 28, 1989). Personnel job specifications generally contain five sections as follows: 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). For these purposes, the "Nature of the Work" section of a classification specification is its most critical section. 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 the grievant's current classification constitutes the "best fit" for his 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, Personnel's interpretation and explanation of the classification specifications at issue should be given great weight unlessclearly 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 his classification with a substantial obstacle to overcome in attempting to establish that he is misclassified.
      The classification specifications for the two classifications at issue are reproduced below.

HEALTH AND HUMAN RESOURCES SPECIALIST

Nature of Work

Under general supervision, performs work at the full-performance level by providing development of program, as well as associated policy and procedures based on standards and regulation, administrative oversight of and complex technical assistance with a program or a particular major component of a statewide program, or major technical area specific to or characteristic of the Department of Health and Human Resources. Assures compliance with federal, state, and local regulations governing the program or technical area. Uses independent judgement to determine appropriate action taken to achieve desired results. Has responsibility for providing consultation on highly complex individual problem situations. Develops and delivers training programs related to assigned program or component. Monitors and evaluates the operation of the assigned program or program component. Exercises considerable latitude in determining approaches to problem solving. Work may be performed independently and/or in conjunction with other program or technical area staff. Performs related work as required.

Distinguishing Characteristics

The Health and Human Resources Specialist is distinguished from the Health and Human Resources Associate by the responsibility for development and management of a statewide program or operational area or a significant segment of a major statewide program or operational area. This class is distinguished from the Health and Human Resources Specialist, Senior, by the fact that although the Specialist may oversee clerical or support staff in relation to the completion of his/her own work, this class does not function in a regularly assigned lead or supervisory capacity over professional classes as a significant segment of their total assignment nor does he/she have responsibility related to entire programmatic or operational systems.

Examples of Work

Analyzes laws and regulations governing program or technical area and applies them appropriately to resolve problems and assure compliance.
Interprets laws and regulations governing program or technical area for participants and staff.
Monitors changes in laws and regulations and advises participants and other staff.Confers with inter- and intra-agency personnel to transact business or discuss information.
Collaborates on determining need for changes in procedures, guidelines, and formats; devises resolutions and changes, and monitors success.
Drafts program manuals, clarifying the wording and describing new procedures, etc., accurately.
Represents the program in the area of assignment with the agency and outside entities.
Has contact with federal, state, local program representatives and participants, or technical area personnel.
Completes related reports; may compile special and/or statistical reports, analyzing data and interpreting results.
May oversee the work of support staff or other specialists in relation to the completion of specific assignments.

Knowledge, Skills and Abilities

Knowledge of the rules, regulations, policies, and procedures of the Department of Health and Human Resources.
Knowledge of the federal and state regulations, laws and statutes governing program or technical area.
Knowledge of the objective of the program or technical area, its procedures, policies, and guidelines, and its relationship to the rest of the Department and other user entities.
Ability to analyze situations, problems and information and develop appropriate responses and resolutions.
Ability to communicate well, both orally and in writing.
Ability to represent area of assignment and to provide consultation on program or Department concerns.
Ability to synthesize information and provide interpretation.

Minimum Qualifications

Training:

Graduation from an accredited four-year college or university.
Substitution:
Additional experience as described below may be substituted for the required training on a year-for-year basis.
Experience:
Two years full-time, equivalent part-time paid or volunteer experience in a technical or program area that is related to the area of employment.
Substitution:
Post-graduate education in a field related to the technical or program area may be substituted for the required experience on the basis of fifteen semester hours for one year of experience.
OR
Master's Degree in social work from an accredited social work program in a four-year college or university.
Note: Appointment above the entry rate may be made at 5% for each 6 months of successfully completed work as an intern in a practicum placement with Department of Health and Human Resources for the Master of Social Work degree.

HEALTH AND HUMAN RESOURCES SPECIALIST, SENIOR

Nature of Work

Under general supervision, performs work at the advanced level by providing administrative coordination of and complex technical assistance in a component of a major statewide program, a statewide program in its entirety, or a major technical area specific to or characteristic of the Department of Health and Human Resources. Acts as liaison to facilitate problem resolution and assure compliance with federal, state, and local regulations, laws, policies, and procedures governing the program or technical area. Has primary responsibility for developing standards for major systems and for monitoring and/or evaluation of major complex systems or multi program operations. May consult on highly complex individual situations that potentially have significant impact on systems or involve sensitive legal issues. Has responsibility for development and issuance of comprehensive training programs to insure basic competency and continued development of skills, knowledge and abilities relevant to the systems for which she/he are assigned responsibility. Uses independent judgement in determining action taken in both the administrative and operational aspects of the area of assignment. Exercises considerable latitude in varying methods and procedures to achieve desired results. May supervise or act as lead worker for other professional staff. Performs related work as required.

Distinguishing Characteristics

The Health and Human Resources Specialist, Senior, is distinguished from the Health and Human Resources Specialist by the broader scope of administrative oversight and responsibility for planning and operational aspects of a system of program or technical areas. This level may function in a regularly assigned lead or supervisory capacity over professional, paraprofessional and clerical classes and, if not, must have responsibility for the conceptualization and development of major complex program and/or operational systems.

Examples of Work

Interprets federal and state laws, regulations, and guidelines for staff which provides services; guides others in developing and utilizing plans and recommends methods of improvement.
Effects or recommends operational changes to facilitate efficient and effective accomplishment of goals or delivery of service.
Informs director of technical area, program, or service deficiencies and recommends improvements.
Consults with other program or technical area staff, supervisors, or managers concerning projects and priorities.
Develops rules, policies, and legislation regarding specific work projects.
Reads, reviews, and responds to correspondence or distributes to appropriate staff.
Develops research, information, or training programs.
Evaluates program or technical area effectiveness.
Writes, edits, or contributes to policy and procedure manuals.
Has contact with federal, state, local program representatives and officials, Department of Health and Human Resources management and staff, and legislature.
Plans and develops budget requests and short-and-long-range work plans.
May lead or supervise professional and support staff.
Knowledge, Skills and Abilities

Knowledge of the rules, regulations, policies, and procedures of the Department of Health and Human Resources.
Knowledge of the federal and state regulations, laws and statutes governing program or technical area.
Knowledge of the objective of the program or technical area its procedures, policies, and guidelines, and its relation ship to the rest of the Department and other user entities.
Ability to plan and coordinate work, plan and project budgeting needs, and organize work and projects.
Ability to analyze situations, problems and information and develop appropriate responses and resolutions.
Ability to communicate well, both orally and in writing.
Ability to assign, direct, and review the work of others.

Minimum Qualifications
Training:
Graduation from an accredited four-year college or university.
Substitution:
Additional experience as described below may be substituted for the required training on a year-for-year basis.
Experience:
Four years full-time, equivalent part-time paid or volunteer experience in a technical or program area that is related to the area of employment.
Substitution:
Post-graduate education in a field related to the technical or program area may be substituted for the required experience on the basis of fifteen semester hours for one year of experience.

      Lowell D. Basford, Personnel's Assistant Director of the Classification and Compensation Section, testified that in order to be classified as an HHR Specialist Senior, an employee must either function as a lead worker, or “have responsibility for conceptualization and development of major complex program and/or operational systems.” Grievants argued they function as lead workers when they chair committees, and they are responsible for the conceptualization and development of OSCAR, because they design OSCAR's screens, and as Mr. Lewis aptly stated, “come up with the ideas to make the system work.”
      Mr. Basford testified that Grievants do not meet Personnel's written definition of lead worker. He explained that a lead worker is a position which has regular and recurring responsibility for the assignment and review of the work of co-workers, while also performing identical kinds of work. He testified it was intended to be a quasi-supervisorytype position within a work unit. He stated a lead worker trains co-workers, and approves leave; but would not discipline, recommend hiring or firing, or hear grievances. He stated that when Grievants are in charge of committees, the members of the committee are generally persons who are outside their work unit, not their co-workers, and they are operating in a committee environment. He concluded that this did not fit the definition of lead worker.
      While Grievants are certainly in charge of the committees to which they are assigned, they are not lead workers, as defined by Personnel. Grievants may disagree with Personnel's definition, but that does not mean the definition is wrong. Personnel is responsible for defining the terms used in its classification system.
      Mr. Basford explained that a host of people are involved in the conceptualization and development of OSCAR, including Grievants. He noted that programmers have a significant role in the process, and the committees over which Grievants are in charge have a significant role. Grievants do not have responsibility for the conceptualization and development of a major complex program and/or operational system; rather, they are one part of a group which works together on assigned tasks to make OSCAR work. He concluded that Grievants' role in the process does not meet Personnel's definition of responsibility for conceptualization and development. He noted Grievants themselves do not each have responsibility for OSCAR; that role lies with their supervisor, who is responsible for the unit, and ultimately further up the chain of command. He further noted that positions are not classified by classifying the unit, but even the unit does not have total responsibility.
      Grievants' duties in determining what screens will be affected by a change to OSCAR are complex. They must be very familiar with how the system works and how screens interact. They design the look of the screens. In this respect, as they have stated, Grievants “conceptualize.” While they each have responsibility to perform thecomplex tasks assigned to them, and to make sure their projects are carried to fruition, and there is no doubt that they take this responsibility very seriously, and make these projects their own, Grievants do not individually have responsibility for conceptualizing and developing an entire program or operational system. They each represent one person, albeit a key person, in a large group responsible for making OSCAR work. See Yevuta v. Dep't of Health and Human Resources, Docket No. 99-HHR-474 (May 17, 2000).
      Mr. Basford agreed that the HHR Specialist was not a perfect fit for Grievants' duties. He explained that Personnel's philosophy, as mandated by the State Personnel Board, was to have as few classification specifications as possible. He stated Personnel consults with the agency in classifying positions. Personnel considers whether it is necessary to create a new classification specification, or whether an existing classification specification can be used. He stated that one of the considerations is whether the agency can recruit and retain personnel effectively using the existing classification specifications, and in this case HHR determined it could recruit and retain employees in the HELP Desk Unit utilizing the HHR Specialist classification specification. Mr. Basford stated there were a pool of employees in lower pay grade, high stress positions willing to accept an HHR Specialist position working at the HELP Desk; and indeed, he stated, HHR has not had a problem recruiting for the positions.
      Although Darlene Thomas, an Information Systems Manager III for BCSE, testified that it was difficult to recruit the best people into these positions, she provided no data to support this assertion, and stated that this was simply her own opinion. Likewise, James Richards, who at one time supervised the HELP Desk Unit, testified that recruiting people for these positions was a “significant problem,” because he had no way to lure HHR employees from their hometowns throughout the state to Charleston, where these positions are based. He also testified, however, that people doing this type of work are not “money driven,” indicating that the problem was more that HHR employees living inother parts of the state did not want to live in Charleston, rather than that the salary was too low. He provided no data to support his conclusive testimony. It is difficult to discern from this testimony the extent of the recruiting problem for these positions, or its cause. Obviously, no one at HHR had passed this perception on to Personnel. If there is indeed a recruiting problem for these positions, HHR should take steps to evaluate the extent of this problem, and provide data to Personnel so that this issue can be addressed.
      Comparing the HHR Specialist and the HHR Specialist Senior classification specifications, the undersigned concludes that Grievants' duties and level of responsibility are encompassed within the HHR Specialist classification. The Nature of Work Section of the HHR Specialist classification specification refers to exercising independent judgement, monitoring and evaluating the operation of an assigned program or program component, and exercising considerable latitude in problem solving, and clearly contemplates that the employee will have a significant level of responsibility and be required to evaluate a situation and use his mental abilities to come up with solutions to problems. This is a good characterization of what Grievants do. The HHR Specialist and HHR Specialist Senior are part of a class series. As such, there is not much to distinguish the two classifications, and Personnel did not intend for there to be much distinction. Grievants' duties are not supervisory in nature, nor do they have responsibility for a major complex program or system. They cannot be classified as HHR Specialist Seniors.
      The following Conclusions of Law support the decision reached.

CONCLUSIONS OF LAW

      1.      In order to prevail in a misclassification claim, a grievant must prove by a preponderance of the evidence that his duties for the relevant period more closely match those of another cited classification specification than the classification to which he is currently assigned. See generally, Hayes v. W. Va. Dep't of Natural Resources, Docket No. NR-88-038 (Mar. 28, 1989).      2.      The key to the analysis is to ascertain whether the grievant's current classification constitutes the "best fit" for his 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, Personnel'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).
      3.      In order to be classified as an HHR Specialist Senior, an employee must either have supervisory or lead worker responsibilities, or have responsibility for a major complex program and/or operational system.
      4.      Grievants are not supervisors, they do not lead other workers in their unit on a regular, recurring basis, as is required to be a lead worker, and they do not each have responsibility for making sure OSCAR is operational.
      5.      Personnel's determination that Grievants are HHR Specialists is not clearly wrong.
      6.      The HHR Specialist Senior classification specification is not a better fit for Grievants' duties than the HHR Specialist.

      Accordingly, this grievance is DENIED.

      Any party may appeal this Decision to the circuit court of the county in which the grievance arose, or the Circuit Court of Kanawha County. 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. Any appealing party must advise this office of the intent to appeal and provide the civil action number so that the record can be prepared and transmitted to the appropriate court.

                                                                                                       BRENDA L. GOULD
                                                 Administrative Law Judge

Dated:      December 29, 2000


Footnote: 1
The record does not reflect the date this grievance was filed, or what occurred at Levels I or II of the grievance procedure. The initial statement of grievance asked that this grievance be consolidated with another grievance which was filed in February 2000, meaning this grievance was filed sometime after that. A Level III hearing was held on May 19 and July 7, 2000. The grievance was denied at Level III on September 11, 2000, and Grievants appealed to Level IV on September 20, 2000. Two days of hearing were held at Level IV on December 1 and 5, 2000. Grievants were represented by Grievants Loudermilk and McClung; Respondent HHR was represented by B. Allen Campbell, Esquire; and Respondent Division of Personnel was represented by Donald L. Darling, Esquire. This matter became mature for decision at the conclusion of the Level IV hearing on December 5, 2000.
Footnote: 2
Grievants Fitzgerald and McClung are also Grievants in Bender, et al., v. Department of Health and Human Resources/Bureau for Child Support Enforcement, and Division of Personnel, Docket No. 00-HHR-305, which is also a misclassification grievance, but the remaining Grievants in that grievance are in the Training Unit.