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
Under general supervision, performs at the full-performance
level in taking applications, determining eligibility for and
managing a caseload for a variety of economic assistance
programs. Responsible for conducting personal interviews with
clients, evaluating and verifying personal, financial and social
information, determining eligibility for services, maintaining a
client caseload, and referring clients to other social service and
community service agencies when appropriate. May obtain
repayment from clients who have been issued economic
assistance erroneously. Transportation must be available as
travel is required. Must possess a valid driver's license.
Performs related work as required.
FAMILY SUPPORT SPECIALIST
Under general supervision, performs work at full-performance
level by providing case management services requiring
development of a time limited personal responsibility contract
for applicants and recipients of public assistance and
employment programs provided by the Office of Family
Support. Conducts personal interviews with applicants and/or
recipients, recording, evaluating and verifying social and
financial information, determining services needed to enable
fulfillment of personal responsibility contract goals, analyzing
and interpreting aptitude and interest test results to direct the
development of employment goals for applicants/recipients,
coordinates with other social service and community
organizations when appropriate to ensure completion of
personal responsibility contract and conducting case
management activities related to continuing eligibility for
services.
Employee must possess a valid driver's license and must have
access to transportation for required travel. Performs related
work as required.
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