v. Docket No. 93-HHR-394
Respondents.
Elsie McCray (hereinafter Grievant) filed this appeal with the
Grievance Board on September 23, 1993, after receiving an adverse
decision at Level Three. Grievant filed a grievance alleging that
she was improperly classified by the Division of Personnel
(hereinafter Personnel) as a Nursing Director I, and that her
proper classification should be that of a Nursing Director II. A
Level IV hearing was held in the Board's offices in Beckley, West
Virginia, on May 23, 1994.
(See footnote 1)
Background
The facts in this case are not in dispute. Grievant has beenemployed for many years at Pinecrest Hospital and was promoted to
Nursing Director I (ND I) in March 1990. Her immediate predecessor
had been classified as a Nursing Director II (ND II) for about two
years, but when Grievant assumed the position it was downgraded to
a ND I.
(See footnote 2) She requested Personnel to reclassify her position as a
ND II in 1992, and when this request was denied she filed this
grievance on November 16, 1992, contending she was misclassified.
A month after she filed the grievance Personnel completed a
reclassification project for the Department of Health and Human
Resources (HHR) on December 16, 1992, but Grievant's classification
was left unchanged.
(See footnote 3)
Grievant testified that the "Nature of Work" section of the ND
II classification specification more accurately described her
duties and responsibilities than the ND I class specification. She
directly supervises twelve employees, eight of whom are registerednurses (RNs)
(See footnote 4) , in a nursing department containing 138 employees.
She also stated that as of October 1993 she indirectly supervised
22 licensed practical nurses (LPNs) through the assistant director.
Gr. Exhs. 18, 21. At the time of the Level Four hearing, Pinecrest
had 155 patients, about two thirds of whom have psychiatric
problems, with a bed capacity of 200 patients. Pinecrest has a
larger bed capacity than at least two of the state hospitals
staffed with a ND II position, and the number of employees in the
nursing department is as large or larger than at least two of those
hospitals. Grievant testified that, based upon discussions with
persons holding ND II positions at other state hospitals, her
duties and responsibilities were neither different nor less
complex.
The administrator of Pinecrest Hospital, Mr. Earnest R. Eades,
also expressed the opinion that the ND II class specification more
accurately described Grievant's position, pointing out that
Grievant performed all the examples of work contained in that class
specification and that Pinecrest is the largest long-term care
facility in the State. He also testified that over the past four
years Grievant's duties had become more complex because the variety
of patients served at Pinecrest had increased and the treatment and
services provided these patients had become increasingly
specialized.
Mr. Lowell Basford, Personnel's Assistant Director ofClassification and Compensation, testified at Level Four that
Grievant could not properly be classified as a ND II because she
does not supervise a "large" professional staff. For these class
specifications, he defined "professional staff" as including only
RNs
(See footnote 5) , not LPNs
(See footnote 6) or health service workers (HSWs), although he
acknowledged that Personnel has not adopted any written definitions
for these terms. He stated that the limited size of professional
staff supervised was the principal factor determining the
classification of Grievant's position and that Personnel assumes
the complexity of administrative and supervisory positions
increases with the size of the professional staff managed.
He noted that Grievant supervises only eight RNs, far fewer
than the number of RNs supervised by the ND IIs at the state's four
"large" hospitals, as defined by the size of the professional
nursing staff: (1) Colin-Anderson Center - more than 30; (2)
Huntington State Hospital - 32; (3) Welch Emergency Hospital - more
than 30; and (4) Weston State Hospital - 36.
(See footnote 7) Mr. Basford further
stated that Grievant is classified the same as the ND Is at the
other three hospitals with a "small" RN staff,
i.e., Hopemont
Hospital 7, Lakin Hospital 7, and Marion Health Care Hospital 7. Mr. Basford acknowledged that Pinecrest Hospital did have a ND II
as recently as 1990, but explained that the position had then been
misclassified.
(See footnote 8)
Classification Specifications at Issue
Two sets of class specifications are involved in this case:
the Nursing Director class series before and after implementation
of the reclassification project. The class specifications
(See footnote 9) in
effect prior to December 16, 1992, were as follows:
NURSING DIRECTOR I
Nature of Work
An employee in this class performs administrative work
directing nursing services in a hospital department of nursing
or in a public health nursing program in a county health
department which offers a variety of services.
NURSING DIRECTOR II
Nature of Work
An employee in this class performs complex administrative
work directing nursing services in a large hospital department
of nursing or in a public health nursing program carried out
in one of the large county health departments which offers a
wide variety of complex health services. [Underlining not in
original]
The current class specifications for ND I and II are as
follow:
NURSING DIRECTOR I
Nature of Work
Under administrative direction, performs
administrative work at the full-performance level,
directing nursing services in a hospital nursing
department or in a public health nursing program in a
mid-sized county health department which offers a variety
of services. Plans, organizes and directs all nursing
activities and is responsible for the quality of nursing
care delivered in the hospital or county health
department. Work is reviewed by a hospital administrator
or county health director for compliance with policies,
standards, procedures, and for results obtained in
meeting program objectives and nursing service goals.
Performs related work as required.
Distinguishing Characteristics
A position at this level is distinguished by the
management of professional staff through subordinate
supervisors. The incumbent may be the "nurse
administrator" of a local health department or a
moderately populous area or may oversee the staff of a
public health program for a large county health
organization. At a small to mid-sized hospital which is
typically a long-term care facility, the nursing director
is classified at this level. A nursing director does not
provide direct patient care as a general rule.
Examples of Work:
Plans and directs the work of nursing staff; assures
an adequate level of nursing care; develops
staffing patterns.
Develops policies, sets standards and plans
objectives for the nursing department or public
health nursing program in accordance with
established policies.
Makes long-range plans and regularly reviews
activities, problems and functions of nursing
services being delivered.
Provides staff development including orientation, in-service training, workshops, formal and informal
on-the-job training, and continuing education for
all levels of nursing staff.
Conducts conferences with nursing supervisors to
interpret hospital or public health policies and to
communicate changes in regulations and procedures;
formulates, reviews and revises nursing policies
and procedures, discusses problems and develops
solutions.
Reviews records and performance of staff for
evaluation of compliance with standards, policies,
procedures, and objectives.
Represents the department of nursing at meetings ofhospital administrative staff or public health
administrative staff in the planning of overall
program goals and policies.
Recruits and interviews nursing applicants;
authorizes personnel actions for the nursing staff.
Determines needs of nursing department or public
health program for personnel, supplies and
equipment; works with the budget officer in
developing annual budget requests; administers
expenditure of allocated funds.
Oversees the collection of data for statistical
records.
Knowledge, Skills and Abilities
Knowledge of the administration and organization of
nursing services.
Knowledge of professional nursing theory, procedures,
and techniques.
Knowledge of state and federal laws and regulations
governing the practice of nursing and the provision
of health care to clients.
Skill to plan, organize, manage and evaluate the
delivery of a variety of nursing services.
Ability to interpret policy to nursing personnel.
Ability to handle sensitive situations and
emergencies, and to develop guidelines for code
situations.
Ability to work effectively with a wide range of
health professionals and ancillary personnel.
Ability to present ideas effectively, orally,
graphically, and in writing.
Ability to perform routine mathematical calculations
for budget and payroll purposes.
Minimum Qualifications
TRAINING Successful completion of an associate
degree in nursing from an accredited college or
university or a diploma nursing program and seven
years of full-time or equivalent part-time paid
experience as a registered professional nurse,
including three years in an administrative capacity
or in supervising other registered professional
nurses.
OR
Baccalaureate degree in nursing from an accredited
four-year college or university and four years of
full-time or equivalent part-time paid experience
as a registered professional nurse, including two
years in an administrative capacity or in
supervising other registered professional nurses.
OR
Master's degree in nursing or nursingadministration or in public health or public health
administration from an accredited four-year college
or university and three years of full-time or
equivalent part-time paid experience as a
registered professional nurse, including one year
in an administrative capacity or in supervising
other registered professional nurses.
OR
Baccalaureate degree in the health sciences or
behavioral sciences from an accredited four-year
college or university and five years of full-time
or equivalent part-time paid experience as a
registered professional nurse, including one year
in an administrative capacity or in supervising
other registered professional nurses.
SPECIAL REQUIREMENT Current West Virginia license
or temporary permit to practice as a registered
professional nurse.
NURSING DIRECTOR II
Nature of Work
Under administrative direction, performs
administrative work at the full-performance level,
directing nursing services in central office local health
section, a large hospital, or in public health nursing in
a large county health department which offers a variety
of complex health services. Plans, organizes and directs
all nursing activities and is responsible for the quality
of nursing care delivered in the hospital or county
health department. Work is reviewed by a hospital
administrator or county health director for compliance
with policies, standards, procedures, and for results
obtained in meeting program objectives and nursing
service goals. Performs related work as required.
Distinguishing Characteristics
A position at this level is distinguished by the
management of a large professional staff through
subordinate supervisors. The incumbent oversees large
clinical and home health care staffs at local health
organizations. At a large hospital or an acute care
facility, the nursing director is classified at this
level due to the consequence of error being greater;
acute care and psychiatric hospitals have a more volatile
and potentially a medically unpredictable population. In
the central office position, the Nursing Director II
oversees operation of local health care and its
components. A nursing director does not provide direct
patient care as a general rule.
Examples of Work
Plans and directs the work of nursing or other
professional staff; assures an adequate level of
nursing care; develops staffing patterns.
Develops policies, sets standards and plans
objectives for the section, nursing department or
public health
Makes long-range plans and regularly reviews
activities, problems and functions of services
being delivered.
Provides staff development including orientation, in-service training, workshops, formal and informal
on-the-job training, and continuing education for
all levels of nursing staff.
Conducts conferences with nursing supervisors to
interpret hospital or public health policies and to
communicate changes in regulations and procedures;
formulates, reviews and revises nursing policies
and procedures, discusses problems and develops
solutions.
Reviews records and performance of staff for
evaluation of compliance with standards, policies,
procedures, and objectives.
Represents the appropriate department at meetings in
the planning of overall program goals and policies.
Recruits and interviews nursing applicants;
authorizes personnel actions for nursing and other
staff.
Determines needs of section, nursing department,
public health program for personnel, supplies and
equipment; works with the budget officer in
developing annual budget requests; administers
expenditure of allocated funds.
Oversees the collection of data for statistical
records.
Knowledge, Skills and Abilities
Knowledge of the administration and organization of
nursing services;
Knowledgeable of local health department
administrations.
Knowledge of professional nursing theory, procedures
and techniques.
Knowledge of state and federal laws and regulations
governing the practice of nursing and the provision
of health care to clients; for central office:
Knowledgeable of laws governing local health.
Skill to plan, organize, manage and evaluate the
delivery of a variety of nursing and other
services.
Ability to interpret policy to personnel.
Ability to handle sensitive situations and
emergencies, and to develop guidelines for codesituations.
Ability to work effectively with a wide range of
health professionals and ancillary personnel.
Ability to present ideas effectively, orally,
graphically, and in writing.
Ability to perform routine mathematical calculations
for budget and payroll purposes.
Minimum Qualifications
TRAINING Successful completion of an associate
degree in nursing from an accredited college or
university or a diploma nursing program and nine
years of full-time or equivalent part-time paid
experience as a registered professional nurse,
including three years in an administrative capacity
or in supervising other registered professional
nurses.
OR
In order for Grievant to prevail upon her claims of
misclassification, she must prove by a preponderance of the
evidence that her duties for the relevant time periods more closelymatched the ND II class specification.
See generally,
Hayes v. W.
Va. Dept. of Natural Resources, Docket No. NR-88-038 (Mar. 28,
1989). Class 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 class specification is the most critical
section.
Atchison v. W. Va. Div. of Health, Docket No. 90-H-444
(Apr. 22, 1991).
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 which class specification
constitutes the "best fit" for her 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 in question 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 class
specifications should be given great weight unless clearly
erroneous.
W. Va. Dept. of Health v. Blankenship, 189 W. Va. 342,
348, 431 S.E.2d 681, 687 (1993).
As to the first period of alleged misclassification, Personnel
has not been shown to be clearly wrong in determining that Grievant
was not employed in a "large" hospital department of nursing,
measured by the number of RNs directly supervised. Grievant
supervises only eight RNs. Neither will the record support afinding that Personnel was clearly wrong in determining that the
"best fit" for Grievant's position was that of a ND I.
(See footnote 10) Grievant
does not directly supervise nearly as many RNs as employees who are
classified as ND II at other hospitals. Furthermore, it appears
she indirectly supervised fewer LPNs than employees holding
positions classified as ND II. Pinecrest Hospital (Pinecrest),
prior to December 16, 1992, was primarily a long-term care facility
with patients who did not require the variety and complexity of
services provided at other hospitals with primarily psychiatric
and/or mentally ill patients. Hence, Grievant has not shown that
Pinecrest then offered a "wide variety of complex health services."
Grievant therefore cannot prevail on her first claim of
misclassification.
Whether Grievant has proven her second claim under the current
class specifications is a closer question; however, given that
Personnel's interpretation and explanation of its class
specifications must be "given great weight unless clearly
erroneous,"
Blankenship,
supra, it is concluded that this claim
must be rejected too. As is true with the former set of class
specifications for the nursing director positions, Personnel's
explanation that Grievant does not manage a "large professional
staff,"
i.e., eight RNs, is not clearly wrong. Grievant supervises
far fewer RNs than persons holding positions classified as ND IIs,
and it appears that fewer LPNs work in the nursing department atPinecrest than at hospitals having the ND II classification.
Although this is a close case and it is uncontradicted that
Grievant's duties and responsibilities have become increasingly
complex as the number and percentage of patients needing different
and specialized services has increased, the undersigned
administrative law judge finds that the evidence is not sufficient
to establish that Personnel's interpretation and explanation of the
class specifications is clearly wrong
. Classification
determinations under Personnel's current "best fit" approach is
obviously far from an exact science, and the class specifications
at issue here are certainly not a model of descriptive accuracy.
Personnel's assumption that the more professional employees a
nursing director supervises the more complex the work becomes is
not so devoid of rationality to warrant a conclusion or finding
that its theory is
arbitrary and capricious, either in general or
as applied to the facts of this case.
The foregoing discussion of the facts and the applicable law
is hereby supplemented by the following appropriate conclusions of
law.
Conclusions of Law
1. Grievant failed to prove by a preponderance of the
evidence that the "best fit" for her position is a Nursing Director
II.
2. The Division of Personnel's interpretation of the class
specifications for the positions of Nursing Director I and II in
this case is not clearly wrong.
W.Va. Dept. of Health v.Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (W. Va. 1993).
Personnel's assumption of complexity based upon the number of RNs
supervised has not been shown to be arbitrary and capricious in
this case.
Therefore, this grievance is DENIED.
Any party 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.
________________________________
Ronald Wright
Administrative Law Judge
January 25, 1995
Footnote: 1 This case was reassigned for administrative reasons to the
undersigned administrative law judge on May 11. The case became
mature for decision on July 11, 1994, with the receipt of
Respondents' Reply to Grievant's Proposed Findings of Fact and
Conclusions of Law.
Footnote: 2 The downgrading of this position appears to have been
effected largely, if not entirely, as a cost saving measure rather
than to correct for a position misclassification. WV-11 of Mar.
1990, Gr. Exh. 1; Level Three Tr. at 41.
Footnote: 3 Grievant seeks back pay and prejudgment interest from
November 17, 1992, essentially the date Personnel denied her
administrative request for reclassification. The classification
specifications for ND I and ND II, in effect at the time of this
request, are Grievant's exhibits 6 and 7, respectively. The
grievance was amended at Level Three, with the consent of all
parties, to include the claim that Grievant is also misclassified
as a ND I under the class specifications adopted as a part of the
reclassification project. That issue can therefore properly be
decided in this case. W. Va. Dept. of Health and Human Resources
v. Hess, 432 S.E.2d 27 (W. Va. 1993). Grievant's exhibits 8 and 9
are the class specifications utilized in the reclassification
project.
Footnote: 4 These RNs appear to be variously classified as Nurse IVs,
Nurse IIIs and Nurse IIs. Position Description Form, Gr. Exh. 5.
Footnote: 5 Mr. Basford testified that he considers LPN positions to be
technical positions, even though LPNs must be licensed by the State
of West Virginia, and that to the extent Senior Personnel
Specialist Ginny Fitzwater testified differently at Level Three,
her testimony was in error.
Footnote: 6 Mr. Basford also testified that LPN's are not defined as
professional employees by either the United states Department of
Labor or the Equal Employment Opportunity Commission.
Footnote: 7 The number of RNs supervised is not in dispute.
Footnote: 8 Personnel does not dispute that Grievant is qualified to be
reclassified as a ND II.
Footnote: 9 These class specifications do not contain a distinguishing
characteristics section setting forth Personnel's basis for
differentiating or separating one classification in a series from
another class.
Footnote: 10 Grievant's argument that it is unnecessary or improper to
look at whether she is also misclassified under the later set of
classification specifications is manifestly without merit.