Grievant,
Docket No. 00-DJS-050
DIVISION OF JUVENILE SERVICES/NORTH
CENTRAL REGIONAL JUVENILE DETENTION
CENTER and DIVISION OF PERSONNEL,
Respondents.
This grievance was filed on December 22, 1999, by Grievant, Roger LeMasters
against his employer, Respondent, Division of Juvenile Services/North Central Regional
Juvenile Detention Center ("DJS"). The statement of grievance reads:
Due to Staff shortages and being appointed as Lead Staff, I feel that I am
being taken advantage of. I feel that doing a JDO II's job and not receiving
any of the benefits to that position is unfair. When there are JDO I's who
enjoy the benefit of a JDO II's salary and not appointed to be Lead Staff
position puts more stress on myself to cover all aspects of the position. I
would like justification on benefits of the position of JDO II (as Lead Staff).
As relief Grievant sought compensation for past service as Lead Staff and relieved of the
responsibility of Lead Staff. Although Grievant testified at Level III that he had been
performing the duties of a Juvenile Detention Officer II for three years, his representative
stated that he was only seeking back pay for two years.
(See footnote 1)
The following Findings of Fact are made based upon the record developed at Levels
III and IV.
1. Grievant has been employed by DJS as a Juvenile Detention Officer (JDO)
I, pay grade 7, for over two years, and is stationed at the North Central Regional Juvenile
Detention Center (JDC) in Parkersburg, West Virginia. Prior to that, he was employed
by the West Virginia Department of Health and Human Resources as a Youth Service
Worker I at the same facility for approximately three years, until DJS took over operation
of the JDC in November 1997.
2. Grievant has been performing Lead Officer duties for three years on those
occasions when there is no supervisor assigned to his shift. Sometimes he performs these
duties when there is a supervisor on his shift. Grievant did not know how often he had
performed Lead Officer duties, except for December 1999, when he had acted as Lead
Officer on 11 shifts.
3. As a Lead Officer, Grievant steps in for the supervisor, a JDO II, pay grade
9, and is in charge of the shift. He shows new employees around and explains the rules
to them. If someone calls off work unexpectedly, he must find a replacement for that shift.
He assigns duties to other JDO I's on his shift, such as laundry, security, answering the
telephone, and food services, and he assigns these duties to himself also. He takestelephone calls from lawyers and probation officers, and makes decisions on rules for other
staff.
4. Grievant does not complete performance evaluations, although he has given
his supervisor his opinion on the performance of other employees. He does not respond
at Level I to grievances, and he does not participate in hiring or disciplining employees.
5. Grievant's salary is below the minimum starting salary for a JDO II.
Although DJS raised a timeliness defense at Levels II and III, it did not pursue this
argument at Level IV, and it is deemed abandoned. Nonetheless, it argued in its post-
hearing written argument that relief is limited to prospective relief from and after ten days
preceding the filing of the grievance, and cited Martin v. Randolph County Board of
Education, 195 W. Va. 297, 465 S.E.2d 399 (1995), W. Va. Code § 29-6A-2, and Vaught
v. Division of Corrections, Docket No. 99-CORR-070 (Sept. 7, 1999). In Vaught, however,
the respondent had raised a timeliness defense. Vaught follows the precedent of this
Grievance Board, that in a misclassification grievance filed by a state employee, if a
timeliness defense is raised by the respondent, the relief is limited to10 days preceding the
filing of the grievance. Delbart v. Dep't of Health and Human Resources, Docket No. 99-
HHR-458 (April 21, 2000); Barnett v. W. Va. Dep't of Health and Human Resources,
Docket No. 99-HHR-144 (July 20, 1999); Craig v. Dep't of Health and Human Resources,
Docket No. 98-HHR-334 (June 24, 1999). If no timeliness defense is raised, however, the
relief is not so limited. Kimble v. Dep't of Health and Human Resources, Docket No. 99-
HHR-153 (Sept. 16, 1999); Coutz v. Bureau of Employment Programs, Docket No. 98-BEP-260 (Dec. 16, 1998). See Schrader v. W. Va. State Auditor, Docket No. 99-AUD-078
(Aug. 31, 1999).
Grievant bears the burden of proving his allegations by a preponderance of the
evidence. W. Va. Code § 29-6A-6. Mowery v. W. Va. Dep't of Natural Resources, Docket
No. 96-DNR-218 (May 30, 1997). The first issue is whether the duties Grievant performs
as a Lead Officer are included in the duties of a JDO I. This requires a review of the
classification specifications for the JDO I and JDO II.
The Division of Personnel's classification 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). Importantly, the Division of 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).
An employer may certainly assign an employee some duties which are not within
the classification specification. Class specifications are descriptive, not exhaustive, andare to give a flavor of the difficulties, complexities, and duties of the position. Hager v.
Health and Human Resources, Docket No. 95-HHR-241 (Sept. 29, 1995). However,
[i]f an employer assigns out of class duties to an employee on a frequent
or long-term basis, the employee may be entitled to deletion of the responsibilities and compensation for the period in which they performed out of their
classification, if those duties were assigned to a higher paying classification.
Beer v. Div. of Highways, Docket No. 95-DOH-161 (Feb. 27, 1996);
Shremshock v. W. Va. Dept. of Trans., Docket No. 94-DOH-095 (Aug. 31,
1994).
Reed v. W. Va. Div. of Corrections, Docket No. 97-CORR-127 (May 22, 1998). The
Supreme Court of Appeals of West Virginia held in American Federation of State, County
& Municipal Employees v. Civil Service Commission, 174 W. Va. 221, 324 S.E.2d 363
(1984) (AFSCME I), that "the doctrine of equal pay for equal work, as embraced by W. Va.
Code §29-6-10(2) (1992), requires that state employees employed in a particular
employment classification, but performing work in another classification that is compensated at a higher pay grade, be paid consistent with the higher classification." Shremshock
v. W. Va. Dep't of Transp., Docket No. 94-DOH-095 (Aug. 31, 1994).
The classification specifications for the JDO I and JDO II follow.
Nature of Work
Under general supervision, at an entry level position encompasses the redirection of
juvenile resident behaviors through the use of behavioral services plans and supervision
and monitoring of juvenile resident activities. Instructs juvenile residents on basic living
skills and social skills. Performs daily tasks involving completion of daily documentation on
juvenile activities, filing necessary documentation and laundry chores. Requires 24-hour
shift rotation, and an element of personal risk and physical danger is involved. Performs
related work as required.
Distinguishing CharacteristicsAn entry level position requiring the ability to learn and follow through on daily responsibilities. Requires closer supervision until the supervisor determines that the Juvenile Detention
Officer I can function in an independent role.
Examples of Work
Observes and monitors residents to detect prohibitive behaviors while implementing
behavioral health plan basics.
Interacts with residents to facilitate development of living and social skills; reinforces
positive behavior; offers alternatives to inappropriate behavior; listens and responds
appropriately to residents requests and problems; gives feedback.
Encourages resident participation, while coordinating and participating in recreational and
other activities.
Supervises residents during hygiene activities.
Under the guidance of educational personnel provides tutoring to residents.
Reviews case records, staff notes, administrative regulations and memorandums.
Completes all paperwork including but not limited to: daily sign-in sheet; daily staff log;
individual case records sheets; telephone call sheet; visitation log; incident reports;
medications sheets; personnel forms; time sheets; meal count log.
Files required resident documentation in case records.
Assists in the planning of recreation and other activities.
Participates in staff meetings, training sessions, case staffing and other related meetings.
Meets with supervisor and other management staff as required.
Provides physical intervention techniques when required and directed by the supervisor.
Performs laundry tasks.
Recognizes and responds to emergencies (or potential emergencies) such as fire,
escapes, or power outages.
Must wear the uniform of a Juvenile Detention Officer I while on duty.
May dispense and document the use of prescribed medications.
May administer intake procedures by recording biographical and family information; reads
legal rights to each youth; documents and retains personal valuables of each youth.
May maintain security of facility and detainment of youths; may conduct periodic search
of facility; may search for contraband.
Lowell D. Basford, Assistant Director in charge of the Division of Personnel's
Classification and Compensation Section, explained that the JDO series has to be appliedin the context of the size of the facility. He stated in this instance the JDC is small (one
witness explained that the facility is only 100 feet wide, and the employees can shout from
one end to the other), and the JDC has only two employee classifications, JDO I and JDO
II, in addition to the facility Director, with 13 employees classified as JDO I's and 3
classified as JDO II's. He stated when the Director is on site, he is in charge. He testified
that the JDO I and JDO II classifications are similar due to the role of the positions, which
requires each employee to have a significant amount of responsibility, with the primary
responsibility being the security and care of the residents. He stated the JDO II has a
formally assigned supervisory responsibility, which is ongoing and a permanent part of their
job. The JDO II is responsible for answering grievances and participating in evaluating
subordinates. He further explained that a JDO I may be assigned the duties of a Lead
Officer occasionally. Nonetheless, he admitted in the Division of Personnel's written
argument that Grievant is performing some duties which are outside his classification.
Comparing the JDO I and JDO II classification specifications, and considering the
Division of Personnel's admission, it is clear that Grievant's duties as a shift supervisor, or
Lead Officer, are the duties of a JDO II, not a JDO I. The next question is whether
Grievant has been assigned Lead Officer duties so frequently that he is entitled to the relief
he seeks.
None of the parties addressed the Division of Personnel's policy allowing temporary
classification upgrades, which provides for approval of a pay differential to employees
temporarily performing the duties of a position in a higher pay grade in certain situations.
Whether that policy is applicable in Grievant's situation is irrelevant, however. Shremshock
, supra, involved a situation where the temporary upgrade policy did not apply. Nevertheless, the administrative law judge concluded that, under the facts of that case, the
grievant, who had been required to perform work in another classification in a higher pay
grade, had to be compensated for the difference between his assigned salary and that of
the higher classification. If current policy does not permit short-term, ad hoc assignments
. . . to higher-graded classifications, then the employer must simply refrain from making
assignments to such duties[.] Id. The question in these cases is whether the out of class
duties have been assigned to the employee so frequently that he is entitled to compensation in the higher pay grade.
Accordingly, this grievance is GRANTED. Respondent Division of Juvenile Services
is ORDERED to pay Grievant back pay for the 11 days in December 1999 when it worked
him out of classification, in the amount of the difference between the minimum pay for a
Juvenile Detention Officer II and his salary, and to CEASE assigning him shift supervisor
duties.
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.
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
Grievance Board with the civil action number so that the record can be prepared and
transmitted to the circuit court.
_____________________________
BRENDA L. GOULD
Administrative Law Judge
Date: June 30, 2000