BETTY STRAWSER,      

      Grievant,

v.                                                      Docket No. 99-HHR-414

DEPARTMENT OF HEALTH AND HUMAN
RESOURCES/HOPEMONT HOSPITAL,
and DIVISION OF PERSONNEL,

      Respondents.

DECISION

      Betty Strawser (“Grievant”) filed this grievance on September 8, 1999, alleging she is misclassified. She requests to be reclassified as a Procurement Officer, with back pay to October 1, 1996. After denials at levels one and two, a level three grievance hearing was held on September 21, 1999. The grievance was denied at that level on September 26, 1999. Grievant appealed to level four on October 4, 1999. A level four hearing was held in the Grievance Board's office in Morgantown, West Virginia, on February 9, 2000. Grievant represented herself; the Department of Health and Human Resources (“DHHR”) appeared by counsel, B. Allen Campbell; and the Division of Personnel (“DOP”) appeared by counsel, Stephanie C. Schulz. The parties did not wish to file written fact/law proposals, so this matter became mature for consideration at the conclusion of the level four hearing.
      The following findings of fact are made based upon the evidence of record.

Findings of Fact

      1.      Grievant is employed by DHHR at Hopemont Hospital, and was classified as an Office Assistant II beginning in October of 1994.
      2.      On May 19, 1999, Grievant filed a grievance, alleging “Job Description #9130Purchasing Assistant established 10-16-90 clearly describes the duties and responsibilities I have been performing for Hopemont since October 1994.” As relief, she sought “all back wages plus interest beginning October 1994 at which time I assumed the position.”
      3.      On August 5, 1999, Grievant entered into a Settlement Agreement with Respondents. Pursuant to the agreement, Grievant was reallocated from Office Assistant II to Purchasing Assistant, effective June 18, 1999. Grievant was also granted back wages from May 5, 1999, to June 17, 1999, plus interest.
      4.       Grievant agreed in the Settlement Agreement to dismiss with prejudice her prior grievance and any and all other claims arising from the facts and circumstances of that claim.
      5.      The job description for Procurement Officer was not contained in the DOP manual at Hopemont Hospital until September of 1999.
      6.      Because the job description for Procurement Officer was not in the hospital's manual prior to September, Grievant assumed it was not a position available at the facility.
      7.      The instant grievance was filed on September 8, 1999, and stated “I perform a higher class of duties than described in my current classification. My duties and responsibilities are best suited as procurement officer classification.” The stated relief was “classification that reflects my duties and responsibilities and all back wages due.”

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.
      Respondents contend that this grievance should be dismissed, based upon Grievant's settlement of the prior grievance regarding her classification. Grievant admits that her job duties have remained the same since at least 1996,   (See footnote 1)  and there is no question that they have been the same since she filed her first grievance in May of 1999. Rather, she contends that she did not know the Procurement Officer position was an option available to her in May of 1999, and she filed the instant grievance upon discovering that it was. Grievant believes that Procurement Officer is the appropriate classification for the job duties she has been performing for at least the past three years. Respondents argue that the current grievance alleging misclassification arises from the same “facts and circumstances” as the prior grievance, in contravention of the Settlement Agreement.
      The law favors and encourages resolution of controversies by contracts of compromise and settlement rather than by litigation, and the law will uphold and enforce such contracts if they are fairly made and not in contravention of some law or public policy. McDowell County Bd. of Educ. v. Stephens, 191 W. Va. 711, 447 S.E.2d 912 (1994). This Grievance Board has recognized the principle that grievance settlements should be upheld unless it is proven by a preponderance of the evidence that the settlement was not fairly made or was in contravention of some law or public policy. Adkins v. Logan County Bd. of Educ., Docket No. 97-23-216 (Sept. 29, 1997); Vance v. Logan County Bd. of Educ., Docket No. 95-23-190 (Mar. 15, 1996). Grievant has not alleged that the prior agreement was invalid in any way; she merely alleges that she did not know another classification titlewas available to her at that time, and she should be allowed to be reclassified to the appropriate title and pay grade now.
      The discovery of alternative relief does not change the fact that Grievant is once again alleging that she has been misclassified for the past few years. She executed a settlement agreement regarding her misclassification, and the mere filing of the instant grievance breaches the terms of that agreement. Kyle v. W. Va. Div. of Corrections, Docket No. 99-CORR-077D (Aug. 3, 1999). The language of the agreement encompasses Grievant's current claim, so she is not entitled to any relief in this grievance. See Lowe v. W. Va. Div. of Corrections, Docket No. 99-CORR-095 (June 10, 1999).
      Moreover, Lowell Basford, Assistant Director of DOP's Classification and Compensation Unit, explained that Grievant's job duties are appropriate for her current classification of Purchasing Assistant. He testified that Grievant should not be classified as a Procurement Officer, which is described as an individual who oversees the purchasing unit for an entire state agency. Although Grievant does perform purchasing functions for Hopemont Hospital, she does not do purchasing for the entire DHHR agency, and she does not oversee subordinate employees who also perform purchasing functions. Accordingly, Grievant is not currently misclassified.
      The following Conclusions of Law support the Decision reached.

Conclusions of Law

      1.      In a non-disciplinary grievance, 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 ofEnergy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
      2.      The law favors and encourages resolution of controversies by contracts of compromise and settlement rather than by litigation, and the law will uphold and enforce such contracts if they are fairly made and not in contravention of some law or public policy. McDowell County Bd. of Educ. v. Stephens, 191 W. Va. 711, 447 S.E.2d 912 (1994).
      3.      Because Grievant entered into a settlement agreement encompassing the claims asserted in this grievance, she is entitled to no relief.

      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, and 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 andshould 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.

Date:      March 6, 2000                  ___________________________________
                                          DENISE M. SPATAFORE
                                          Administrative Law Judge


Footnote: 1
      It is not apparent from the record why Grievant sought back pay to 1994 in the prior grievance, but only from 1996 for the instant grievance.