Grievant,
v. DOCKET NO. 98-HHR-338
DEPARTMENT OF HEALTH &
HUMAN RESOURCES/WILLIAM
R. SHARPE HOSPITAL
Grievant, Celeste Frazier
(See footnote 1)
, seeks back pay for a period of time during which she
performed duties out of her job classification. This grievance was filed on October 9, 1997.
Grievant's immediate supervisor was without authority to grant relief, denying the grievance
on October 10, 1997. Grievant appealed to level two, and the grievance was granted by
Terry Small, Chief Information Officer at William R. Sharpe Hospital, on November 14,
1997. However, because the back pay award had not been approved by officials of the
Department of Health & Human Resources (“DHHR”), most of that award was later
rescinded on June 2, 1998, when it was determined that, although Grievant had worked
out of classification for the period in question, she was only entitled to back pay for a period
of ten days prior to the initiation of her grievance. Grievant appealed to level three, where
a hearing was conducted on August 18, 1998. In a decision dated August 25, 1998,
Jonathan Boggs, Commissioner for the Bureau for Behavioral Health, again found that,
although Grievant had worked out of classification, her back pay award was limited. Grievant appealed to level four on September 1, 1998. Grievant was represented by Ron
Grogg, and DHHR was represented by counsel, Sarah Brack. The parties subsequently
agreed to submit this grievance for consideration based upon the record developed below.
This matter became mature for decision on December 18, 1998, upon receipt of DHHR's
written brief. Grievant did not submit any written proposals.
The following findings of fact are made from a preponderance of the evidence of
record.
1. Grievant has been employed as a nurse at William Sharpe Hospital since
June of 1994.
2. From the beginning of her employment until November 1, 1997, Grievant was
classified as a Nurse I. Effective November 1, 1997, Grievant was reclassified to Nurse
II.
3. The parties have stipulated that from June 6, 1995, until November 1, 1997,
Grievant was performing the duties of a Nurse II.
(See footnote 2)
4. Grievant knew in 1995 that she was performing duties outside her
classification of Nurse I.
The only issue in dispute is how much back pay Grievant should receive for workingout of classification. Because this does not involve a disciplinary matter, Grievant must
prove the allegations of her complaint by a preponderance of the evidence. Lilly v. W. Va.
Dept. of Tax and Revenue, Docket No. 95-T&R-576 (Apr. 5, 1996). Respondent contends
that it has relied upon well-established legal precedent in limiting Grievant's back award
to ten days prior to the filing of her grievance. It alleges that Grievant knew of her
misclassification, but delayed filing her claim without sufficient justification.
Grievant testified at level three that she and other nurses called “someone” in 1995
to inquire about being reclassified. This unidentified person allegedly told Grievant that
funds were not available for their reclassification and that they should not file a grievance.
Not only could Grievant not identify this person, she did not even state whether this person
was employed by Sharpe Hospital or by some other office of DHHR. Moreover, she did
not know this person's position or even what department she called.
It is well-settled that misclassification is an ongoing practice, and as such may be
alleged by an employee at any time. Haley v. Dept. of Transp., Docket No. 93-DOH-148
(Apr. 29, 1994). Nevertheless,
where a state employee is aware of the facts constituting a grievable matter
and delays filing[,] relief is limited to the ten-day period preceding the filing
of the grievance. Relief is not available for the earlier time period, if the
employer asserts a timeliness defense, because the claim for the earlier
period is time-barred by W. Va. Code, (sic) 29-6A-4.
Hatfield v. W. Va. Alcohol Beverage Control Comm'n, Docket No. 91-ABCC-052/169 (Sept.
27, 1991); See Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 465 S.E.2d 399
(1995).
Grievant's defense to her extensive delay in filing is her reliance upon the alleged
statements of an unknown person. The West Virginia Supreme Court has recognized that,in cases where an employer has discouraged an employee from filing a grievance, the
employer may be estopped from limiting the back pay award. “Equitable estoppel is
available only if the employee's otherwise untimely filing was the result 'either of a
deliberate design by the employer or of actions that the employer should unmistakably
have understood would cause the employee to delay filing his charge.'” Indep. Fire Co. v.
Human Rights Comm'n, 180 W. Va. 406, 376 S.E.2d 612, 615 (1988) (citations omitted);
See Naylor v. W. Va. Human Rights Comm'n, 180 W. Va. 634, 378 S.E.2d 843 (1989).
The Grievance Board has dealt with numerous cases involving claims by grievants
that they relied upon statements by the employer which caused them to delay in filing a
grievance. However, in all of these cases, the grievant identified a specific person, usually
a supervisor, who made the alleged statements which were relied upon. See Collins v.
Bureau of Employment Programs, Docket No. 94-BEP-1080 (Apr. 28, 1995); Lilly v.
Raleigh County Bd. of Educ., Docket No. 94-41-195 (Nov. 28, 1994); Powell-Watkins v.
Logan County Bd. of Educ., Docket No. 93-23-052 (Sept. 20, 1993). Grievant has not
done so in this case. In fact, the identity of the person who allegedly told her not to file a
grievance is completely unknown, along with his or her department and position. For all
we know, Grievant could have spoken with a custodian! The undersigned does not doubt
that the conversation Grievant alleges did take place. However, she cannot meet her
burden of proof with the scant information presented here.
Grievant also raised objections at level three to DHHR's rescission and amendment
of the initial level two decision, which granted her full back pay. However, the exact same
factual situation has already been addressed by this Grievance Board and resolved in favor
of the employer. In Franz v. Dept. of Health & Human Resources, Docket No. 98-HHR-228(Nov. 30, 1998), the administrative law judge found that DHHR has a long-established
policy of requiring approval of lower level decisions involving monetary awards. Until it has
been approved by various DHHR officials, such a decision is only a recommended
decision, and it can be altered at any time prior to final approval. Accordingly, DHHR's
amendment of the level two decision prior to final approval in this case was appropriate.
In accordance with the foregoing findings and discussion, the following conclusions
of law are appropriate.
1. In non-disciplinary matters, the grievant must prove the allegations of her
complaint by a preponderance of the evidence. Lilly v. W. Va. Dept. of Tax and Revenue,
Docket No. 95-T&R-576 (Apr. 5, 1996).
2. “Where a state employee is aware of the facts constituting a grievable matter
and delays filing[,] relief is limited to the ten-day period preceding the filing of the
grievance.” Hatfield v. W. Va. Alcohol Beverage Control Comm'n, Docket No. 91-ABCC-
052/169 (Sept. 27, 1991); See Martin v. Randolph County Bd. of Educ.,195 W. Va. 297,
465 S.E.2d 399 (1995).
3. “Equitable estoppel is available only if the employee's otherwise untimely
filing was the result 'either of a deliberate design by the employer or of actions that the
employer should unmistakably have understood would cause the employee to delay filing
his charge.'” Indep. Fire Co. v. Human Rights Comm'n, 180 W. Va. 406, 376 S.E.2d 612,
615 (1988) (citations omitted); See Naylor v. W. Va. Human Rights Comm'n,180 W. Va.
634, 378 S.E.2d 843 (1989).
4. Grievant failed to prove by a preponderance of the evidence that actions ofher employer caused her to delay in filing this grievance.
5. Grievant is entitled to back pay for the ten-day period prior to filing her
grievance through November 1, 1997, when she was reclassified.
Accordingly, this grievance is DENIED, and Grievant is entitled to back pay as set
forth in this Decision.
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 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.
Date: January 22, 1999 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge