SHERRY L HEDGES,
Grievant,
v.
DOCKET NO. 00-HHR-203
WEST VIRGINIA DEPARTMENT OF HEALTH
AND HUMAN RESOURCES and WEST VIRGINIA
DIVISION OF PERSONNEL,
Respondents.
D E C I S I O N
Grievant, Sherry L. Hedges, filed this grievance against her employer, the West
Virginia Department of Health and Human Resources/Mildred Mitchell-Bateman Hospital
(HHR) and the West Virginia Division of Personnel (DOP) on May 4, 2000:
I have been inaccurately compensated for the duties I perform. On January
3, 2000, I was given additional duties & responsibilities. The reallocation of
the position was [not] approved until 4/16/00.
Relief sought: Backpay from 1/3/00 to 4/16/00 with interest.
The grievance was denied at level one by Grievant's immediate supervisor, Todd Deal, on
May 11, 2000. The grievance was granted in part at level two on May 18, 2000, by
memorandum from Kieth Anne Worden, Human Resources Director, who awarded
Grievant back pay from ten days prior to the filing of the grievance. A level three hearing
was conducted on May 25, 2000, by Grievance Evaluator Barbara Wheeler, and a level
three decision denying the grievance was issued by Jonathan Boggs, Commissioner,Bureau for Behavioral Health and Health Facilities, on June 1, 2000. Grievant appealed
to level four on June 12, 2000, and a hearing was held in this Grievance Board's
Charleston, West Virginia office, on September 6, 2000, at which time this case became
mature for decision. Grievant appeared
pro se, and HHR was represented by B. Allen
Campbell, Esq., Assistant Attorney General. DOP made no appearance.
SUMMARY OF EVIDENCE
Exhibits
No exhibits were entered.
Testimony
Grievant testified in her own behalf, and presented the testimony of Kieth Anne
Worden. HHR presented no additional witnesses.
FINDINGS OF FACT
The material facts of this grievance are not in dispute, and are set forth in the
following findings.
1. In December, 1999, Grievant was employed by HHR at the Mildred Mitchell-
Bateman Hospital as an Accountant Auditor II.
2. On December 23, 1999, Grievant was informed by her immediate supervisor,
Todd Deal, that she would be assuming additional duties and responsibilities.
3. Grievant assumed those additional duties and responsibilities on January 3,
2000.
4. On January 13, 2000, Grievant submitted a Position Description Form and
request for reallocation to DOP.
5. On April 25, 2000, DOP notified Grievant it had reallocated her position to
Accountant Auditor III, effective April 16, 2000.
6. Grievant filed this grievance on May 4, 2000, requesting back pay from
January 3, 2000, the date she assumed her additional duties and responsibilities, to April
16, 2000, the effective date of her reallocation.
7. HHR did not raise a timeliness defense to this grievance at any level. In fact,
at level two, Kieth Anne Worden, Human Resources Director, found the grievance was
timely filed, but limited Grievant's back pay award to ten (10) days prior to the filing of the
grievance.
8. At the level three hearing, Ms. Worden explained that HHR wished to
compensate Grievant back to January 3, 2000, but believed it was limited to awarding her
back pay to ten days prior to the filing of her grievance.
9. The level three decision, at Finding of Fact No. 5, erroneously found that,
[c]iting prior case precedent, Respondent argues that based on Grievant's untimely filing,
back pay compensation, if granted, should be limited to ten (10) working days prior to the
date Grievant filed her grievance, and denied the grievance on that basis.
DISCUSSION
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);
W. Va. Code § 29-6A-6. Grievant argues she is entitled to full back
from January 3, 2000, the date she assumed the additional duties and responsibilities of
an Accountant Auditor III, and April 16, 2000, the effective date of her reallocation. HHRcontends it is limited, by law, to only compensating Grievant from ten days prior to the filing
of her grievance, although it would like to see Grievant fully compensated. HHR is
mistaken in its interpretation of the law, and the level three grievance evaluator is mistaken
in the facts.
It is the general rule in misclassification cases that, where a grievant prevails in a
misclassification grievance, but has delayed filing, and where the employer has raised a
timeliness defense, the grievant is entitled to back pay to ten days prior to the filing of the
grievance.
Martin v. Randolph County Bd. of Educ., 195 W. Va. 257, 465 S.E.2d 399
(1995). The Court, in
Martin,
supra, recognized that misclassification is a continuing
violation, but wanted to discourage grievants from sitting on their rights to back pay for
lengthy periods of time in an attempt to recoup a sizable back pay award, thus it limited
their ability to recoup back pay to ten days prior to the filing of the grievance. However,
Martin dealt with a case where the employer had raised a timeliness defense. It does not
speak to a situation where the employer has not raised the defense, or, as in the instant
case, where the employer actually wants to compensate Grievant for back pay.
W. Va. Code 29-6A-3(a)(2) of the grievance procedure for state employees,
provides:
Any assertion by the employer that the filing of the grievance at level one
was untimely shall be asserted by the employer on behalf of the employer at
or before the level two hearing.
(See footnote 1)
The statutory provision limiting an employer's opportunity to assert the affirmative
defense of timeliness, or waiving it, would be rendered meaningless if grievance evaluators
were allowed to simply raise the defense on behalf of the employer at level three or four
hearings. Additionally, the grievance process is not meant to be a procedural quagmire,
and is designed to encourage employees and employers to attempt to resolve their
differences at the lowest levels possible in order to avoid protracted and difficult litigation
over matters arising from their relationship.
See Duruttya v. Bd. of Educ. of Mingo Cty.,
181 W. Va. 203, 382 S.E.2d 40 (1989).
As an example, one state agency, the Bureau of Employment Programs, makes it
a practice to compensate reallocated employees back to the date their position description
forms are completed.
See Deel v. W. Va. Bureau of Employment Programs, Docket No.
96-BEP-361 (Mar. 11, 1997).
The Grievance Board upheld the employer's practice in that
case, and found no limitation on its ability to compensate its employees.
In the instant case, despite the finding in the level three decision set forth above in
Finding of Fact No. 9, HHR did
not raise a timeliness defense in this matter at any level.
HHR assigned Grievant additional duties and responsibilities, and encouraged her to
request reallocation. It is undisputed from Grievant's and Ms. Worden's testimony that
HHR fully expected Grievant would be able to receive back pay to the date she assumed
those additional duties, once she was informed by DOP that she was reallocated. Later,Ms. Worden expressly stated in her level two decision to Grievant that the grievance was
timely filed, and wished she could compensate her fully from January 3, 2000 through
April 16, 2000. Clearly, but for her misinterpretation of the law, she would have done so.
If the Grievance Board upheld the employer's practice in
Deel to compensate
employees back to the date of the completion of their position description forms, in
reallocation cases, there is nothing which would prevent it from upholding HHR's desire,
in this case, to compensate Grievant back to the date she entered into her duties and
responsibilities, January 3, 2000.
CONCLUSIONS OF LAW
1. Grievant has the burden of proving each element of 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);
W. Va. Code § 29-6A-6.
2. Where a grievant prevails in a misclassification grievance, but has delayed
filing, and where the employer has raised a timeliness defense, the grievant is only entitled
to back pay to ten days prior to the filing of the grievance.
Martin v. Randolph County Bd.
of Educ., 195 W. Va. 257, 465 S.E.2d 399 (1995).
3. The limitation to back pay set forth in
Martin,
supra, does not apply in cases
where the employer has not raised a timeliness defense, or, as in this case, wants to fully
compensate its employee in the form of back pay from the date he or she assumed new
duties and responsibilities resulting in reallocation.
Accordingly, this grievance is
GRANTED, and HHR is hereby
ORDERED to
compensate Grievant in the form of all back pay, benefits, and interest, from January 3,
2000, until April 16, 2000.
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.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: September 25, 2000
Footnote: 1