v. Docket No. 93-BEP-030
BUREAU OF EMPLOYMENT PROGRAMS/
DIVISION OF PERSONNEL
The grievant, Alpha Whitt, is employed by the Bureau of
Employment Programs (BEP) as an Employment Program Interviewer
(EPI) in the agency's Williamson Job Service Office. She initiated
a grievance at Level I July 23, 1992 alleging that her position was
misclassified and should be classified as Employment Program
Worker, Senior (EPISR). Her immediate supervisor was without
authority to grant relief as was an intermediate supervisor at
Level II. The grievance was denied at Level III following a
hearing held December 7, 1992 and an appeal to Level IV was made
January 13, 1993. By order dated February 26, 1993, the West
Virginia Department of Personnel (Personnel) was joined as an
(See footnote 1) The parties subsequently agreed to submitthe case for decision on the record developed at the lower
(See footnote 2) The grievant's and BOP's proposed findings of fact and
conclusions of law were submitted by September 21, 1993. Personnel
declined to do so.
The classification specifications at issue are reproduced herein as follows:
Examples of Work
Knowledge, Skills and Abilities
In order for 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 matched
another cited Personnel classification specification than that
under which he is currently assigned. See generally, Hayes v.
W.Va. Dept. of Natural Resources, Docket No. NR-88-038 (Mar. 28,
1989). Personnel 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 Work" section of a classification specification is its most
critical section. See generally, Dollison v. W.Va. Dept. of
Employment Security, Docket No. 89-ES-101 (Nov. 3, 1989). The key
to the analysis is to ascertain whether Grievant's current
classification constitutes the "best fit" for his required duties.
Simmons v. W.Va. Dept. of HHR/Div. of Personnel, Docket No. 90-H-433 (Mar. 28, 1991). The predominant duties of the position inquestion are class-controlling. Broaddus v. W.Va. Div. of Human
Services, Docket Nos. 89-DHS-606, 607, 609 (Aug. 31, 1990).
finally, Personnel's interpretation and explanation of the
classification specifications at issue, if the language of such is
determined to be ambiguous, should be given great weight unless
clearly erroneous. See, W. Va. Dept. of Health v. Blankenship,.
431 S.E.2d 681, 687 (1993).
It is apparent from a review of the pertinent specifications for the Interviewer positions that the distinguishing characteristic between the two is that the EPISR functions as a lead worker or works in a specialized program. Although a percentage of the grievant's time is spent performing duties associated with the Job Training Partnership Act (JTPA) program in the Office's Job Service section, (See footnote 3) she does not assert and the record does not support that those duties entitle her to the higher classification. Her claim is grounded on duties she characterizes as those of a lead worker. (See footnote 4) BOP and Personnel (See footnote 5) maintain thoseduties are encompassed by the EPI specifications and the grievant has otherwise failed to establish by the applicable standard that her position is misclassified. For reasons hereinafter discussed, the undersigned agrees with the respondents' position.
The testimony of Albert Totten, the grievant's supervisor, established that EPISR Gladys Burchett is the office's only designated lead worker who assumes his duties in his absence. Mr. Totten conceded that other workers frequently approach the grievant with work-related questions in his absence but asserted that such exchanges were just part of the operation of a small office. He would not concede that the grievant was responsible for training new workers and stated that she and other experienced workers shared that duty. Mr. Totten otherwise provided little testimony relevant to the grievant's claim.
Employment Security Counselor Jean Fodor confirmed that she and other employees in the Williamson office frequently approached the grievant with work-related problems because they received "better answers" from her than Ms. Burchett. Ms. Fodor opined that the grievant did serve as a lead worker and explained that this conclusion was based on the grievant's responsibilities for training new workers and her willingness to assist others.
The grievant, in her testimony, provided few details on her day-to-day duties. She simply asserted that she was a lead worker and trained new workers. On cross-examination, she reviewed a job analysis questionnaire (See footnote 6) completed by her on September 9, 1990 and "updated" the percentages of time allocated to specific tasks listed thereon. According to the grievant, she spends twenty-five percent of her time interviewing job applicants and referring them to potential employment sites; five percent contacting employers to see if a referral was successful; twenty percent receiving calls from potential employers; twenty percent completing JTPA applications; five percent auditing other workers' daily time sheets; five percent typing and updating lists of potential jobs; and twenty percent receiving "job orders" from employers. She made no mention of training other workers during her review of the questionnaire.
Despite the grievant's failure to include her training duties during her examination of the questionnaire, it is accepted thatshe has assisted in the orientation of new workers. Her testimony and that of Ms. Fodor is sufficient to overcome the apparent omission. Further, it is recognized that an employee may meet the definition of lead worker if a sufficient amount of his or her time is spent on such duties. See Wolfe v. W.Va. Tax Dept., Docket No. T-88-011 (July 29, 1989). Here, however, the grievant did not present evidence to establish what percentage of her time is spent on such duties. Thus, it cannot be concluded that she has established entitlement to the EPISR classification on that basis.
Likewise, the grievant did not quantify the time she spends assisting other employees. As noted by the Level III evaluator, the record suggests that the assistance is only occasional and that it is more of an "interaction" between her and fellow employees than a function of her job.
It is concluded, therefore, that the grievant has failed to establish by a preponderance of the evidence, that she consistently acts as a lead worker in BOP's Williamson Job Service Office, or that her duties otherwise more closely match Personnel's classification specification for EPISR than that for EPI, under which she is officially categorized.
Accordingly, the grievance is DENIED.
Any party or the West Virginia Division of Personnel may appeal this decision 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. 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.
JERRY A. WRIGHT
CHIEF ADMINISTRATIVE LAW JUDGE
Dated: February 25, 1994