Grievants,
v. DOCKET NO. 01-HHR-152
DEPARTMENT OF HEALTH AND HUMAN
RESOURCES/ BUREAU FOR CHILD SUPPORT
ENFORCEMENT and DIVISION OF PERSONNEL,
Respondents.
D E C I S I O N
Grievants
(See footnote 1)
are employed throughout the State of West Virginia by the Department
of Health and Human Resources/Bureau for Child Support Enforcement (“DHHR”), and
contest their classifications as Child Advocate Legal Assistants, pay grade 10, and Child
Advocate Team Leaders, pay grade 13. Numerous grievances were consolidated for
hearing at level four. At the level four hearing, the undersigned denied Respondents'
motion to sever the grievances of the Child Advocate Team Leaders from those filed by
the Child Advocate Legal Assistants. The grievances were denied at the lower levels of
the grievance process, and proceeded to level four, where a hearing was conducted on
September 23, October 27, and October 30, 2003. This matter became mature for
decision on January 9, 2004, the deadline for the last of the parties' post-hearing written
submissions. A substantial number of Grievants were represented by William D. Turner,Crandall, Pyles, Haviland & Turner, Esq.; the Raleigh County Grievants were represented
by Sherry Tyree and Carol Bradley; the Region 9 Grievants were represented by Sonja
Davis; DHHR was represented by Robert Miller, Esq., Assistant Attorney General; and the
Division of Personnel (“DOP”) was represented by Karen O'Sullivan Thornton, Esq.,
Assistant Attorney General.
SUMMARY OF EVIDENCE
Level Three Grievants' Exhibits
Ex. A - Outline of Field Legal Assistant Duties and Job Responsibilities.
Ex. B - Organization Flow Chart.
Ex. C - Legal Forms Most Frequently Used by the Child Advocate Legal Assistant
(CALA).
Ex. D - Health and Human Resources Specialist classification specifications and
responses from Grievants.
Level Four Represented Grievants' Exhibits
Ex. 1 -
Level Four Grievant Davis Exhibits
Ex. 1 -
Level Four DOP Exhibits
Ex. 1 -
Testimony (LIII and LIV)
Grievants presented the testimony of Stacy Floyd, Lori Jones, Beverly Kitchen,
Frances Shaffer-Hughes, Sandra Tierney, Jeannie Lee, Timothy Salmons, Susan
McComas, Darlene Cremeans, Brenda DeLauder, Charlene Litteral, Sonja Davis, Aline
Workman, Charlotte Stalnaker, Larry Lefevre, John Longfellow, and Shirley Kitchen.
DHHR presented the testimony of Susan Shelton Perry, Michelle Malatt, and Charles
Burgoyne. DOP presented the testimony of Lowell D. Basford.
Based upon a review of the testimony and evidence in its entirety, I find the following
material facts have been proven by a preponderance of the evidence.
FINDINGS OF FACT
1. Grievants are, or at the time this grievance was filed were, employed by HHR
as Child Advocate Legal Assistants, pay grade 10 (“CALA”), and Child Advocate Team
Leaders, pay grade 13 (“CATL”), in the Bureau for Child Support Enforcement (“BCSE”).
2. Since as far back as 1996, Lowell D. Basford, DOP's Assistant Director of
Classification and Compensation, has advocated that the CALA's work is at least as (if not
more) complex and difficult as other, higher-paid classifications in BCSE (such as the
OSCAR unit), and that the CALA classification should be amended to Child Support
Specialist (which ultimately was done in 2003).
3. BCSE maintains a Customer Service Unit in its central office location in
Charleston, West Virginia (“CSU”). The idea behind the CSU is to have a first and last stop
for customer inquiries, as well as a central “voice” of the Governor when Congressionalmembers make inquiries on behalf of their constituents. The goal was to enhance the role
of CSU employees so they would be able to field inquiries themselves, rather than have
to refer inquiries to the field offices.
4. Employees in CSU were originally classified as CALA's and CATL's.
5. In early 2000, employees in the CSU who had been classified as CALA's
were reclassified to Health & Human Resources Specialists (“HHRS”). Mid-level
supervisors in the CSU were reclassified as Health & Human Resources Specialist Seniors
(HHRSS”) at the same time. OSCAR unit employees had previously been reclassified as
HHRS's. This grievance was filed in the wake of the reclassifications in the CSU in 2000.
6. On April 17, 2000, Lena Hill, Commissioner of BCSE, sent a memorandum
to Virginia Tucker, HHR's Assistant Secretary of Operations, stating she would like to
request a desk audit and/or review by DOP of the Child Advocate Legal Assistant
classification. This request was forwarded to DOP.
7. DOP suggested to DHHR that all classifications in BCSE be reviewed, and
this suggestion was accepted.
8. DOP conducted a classification study of the Child Advocate Administrative
Assistant, Child Advocate Regional Manager, Child Advocate Legal Assistant, and Child
Advocate Team Leader classifications in BCSE, as well as other positions in the HHR
Specialist class series, the Supervisor class series, and the Accounting Technician class
series.
9. On January 24, 2001, DOP recommended that new classifications be
approved for the positions of Child Advocate Legal Assistant, pay grade 10, and ChildAdvocate Team Leader, pay grade 13. Specifically, DOP recommended that the CALA's
be reclassified and paid as follows:
Child Support Specialist I Pay Grade 11
Child Support Specialist II Pay Grade 12
Child Support Specialist III
Child Support Supervisor I Pay Grade 13
Child Support Supervisor II Pay Grade 15.
The pay grade recommendations were based on market pricing. DOP conducted a salary
survey to try to determine the market for these jobs.
10. DOP also recommended that other new classifications be created in BCSE.
DOP recommended that HHR consider proposing a special implementation plan which
would provide a salary increase to all employees in BCSE who were affected by the
classification changes, rather than just increasing salaries for those who were below the
minimum salary for the new pay grade.
11. Mr. Basford stated in the memorandum presenting the recommendation that
“[w]e believe the recommendations reflect the relative value of the jobs within the
Department of Health and Human Resources and provide a better career track to more
effectively recruit, reward and retain quality employees for the Bureau.” G. Ex. 14.
12. The study phase of the BCSE reclassification was completed by May, 2001.
Consultations between DOP and HHR/BCSE relating to the study likewise were completed
by that point.
13. Susan Shelton Perry became Commissioner of BCSE in March, 2001. In or
about May of 2001, she received DOP's recommendation that new classifications becreated for BCSE employees, including the CALA's and CALT's. In a memorandum to
Commissioner Perry, Mr. Basford noted the classification specifications were in draft form,
and that Commissioner Perry and her staff should review them carefully and offer
suggestions. Commissioner Perry put together a Task Team comprised of employees of
BCSE to look at the recommendation and all the classifications in BCSE. The Task Team
made additional recommendations which she and other BCSE managers reviewed.
14. BCSE submitted a budget for the 2002-2003 fiscal year that included money
to implement all the classification changes recommended by DOP. This request for
funding was denied by HHR Secretary Paul L. Nusbaum.
15. During the 2003-2004 fiscal year, BCSE implemented a “partial
reclassification plan” affecting the classifications of a majority of BCSE employees.
Effective September 1, 2003, Grievants' classifications were revised in conformity with
DOP's recommendations outlined in the foregoing Findings of Fact.
16. The CALA Grievants were reclassified to Child Support Specialist II or IIIs,
and the CATL Grievants were reclassified to Child Support Supervisor I or IIs.
17. From 2001 to September of 2003, DOP had not moved forward with its
recommendation to create new classification specifications for the CALA's and CATL's,
because HHR Secretary Nusbaum had not signed off on the recommendations, nor had
a certificate been prepared for the State Personnel Board that HHR had the necessary
funds available to implement the classification changes.
18. Had it opted to do so, DOP could have moved forward with its
recommendation to create and implement new classification specifications for BCSE
before September, 2003. 19. Grievants are employed in BCSE Field Offices throughout the State. They
are responsible for assisting customers in all aspects of child support collection and
enforcement activities. They interview customers, handle complaints, prepare all legal
documentation necessary for the collection of child support, appear in court, prepare and
execute liens, prepare and execute garnishments, do legal research, prepare their
attorneys for court hearings, and any and all other duties associated with efforts to collect
child support payments. Grievants' jobs are complex, involve large case loads, and require
a broad knowledge of legal and administrative rules and regulations, as well as financial
skills.
20. When CSU was set up, it was originally intended to be the front-line
communication center for customers calling about child support and other related matters.
Part of the goal of CSU was to have employees with sufficient skills and knowledge to be
able to field those calls, thereby freeing up the Field Offices from having to answer
telephone inquiries. In addition, CSU was intended to handle all correspondence from the
Governor's office, in response to inquiries made by congressional members on behalf of
their constituents.
21. CSU employees were originally CALA's and CALT's. CSU has experienced
recruitment and retention problems, and as the focus became greater on expanding the
role of CSU, it was decided it was necessary to change those classifications. Therefore,
the classifications were changed to HHRS's and HHRSS's, with higher pay grades.
22. Despite the intended goals of CSU, it has not realized its full potential, and
employees of the unit are not doing anything more or different than they were when
classified as CALA's and CATL's. DISCUSSION
As this grievance does not involve a disciplinary matter, Grievants have the burden
of proving their grievance by a preponderance of the evidence. Procedural Rules of the
W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2000); Howell v.
W. Va. Dept. of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990). See
W. Va. Code § 29-6A-6. Grievants rely on three bases of liability in this matter. First,
Grievants contend they were misclassified as CALA's and CATL's, and should have been
classified (prior to implementation of the reclassification plan), as HHRS's and HHRSS's,
respectively. Alternatively, Grievants contend that, if they were not misclassified, per se,
DOP's refusal, for some 2-1/2 years, to move forward with new classifications and pay
grades, was arbitrary and capricious. Third, Grievants allege that HHR's treatment of
them, in terms of the CALA and CATL classifications and pay grades, resulted from
favoritism and/or discrimination.
DOP and DHHR deny that Grievants were ever misclassified as CALA's and
CATL's. Further, they deny that DOP could have unilaterally moved forward on the
reclassification plan for BCSE employees without Secretary Nusbaum's approval, and
without the certification of funding. Finally, Respondents' deny Grievants' were the victims
of favoritism and/or discrimination with respect to their classifications and pay grades.
Grievants allege they were misclassified as CALA's and CATL's, even before the
September 1, 2003, “partial reclassification” took place, and are entitled to back pay for the
period they worked out of classification. Grievants contend they should have been
classified as HHRS's and HHRSS's, respectively, and compare the work they perform withthat performed by the CSU employees who were at one time CALA's and CATL's, but later
reclassified to HHRS's and HHRSS's.
in order for Grievants to prevail upon a claim of misclassification, they must prove
by a preponderance of the evidence that their duties for the relevant period more closely
match another cited Personnel classification specification than the one under which they
are 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. 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 whether the Grievants' current classification constitutes the "best
fit" for their required duties. Simmons v. W. Va. Dept. of Health and Human
Resources/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
Serv., Docket Nos. 89-DHS-606, 607, 609 (Aug. 31, 1990). Finally, Personnel's
interpretation and explanation of the classification specifications at issue should be given
great weight unless clearly erroneous. W. Va. Dept. of Health v. Blankenship, 431 S.E.2d
681, 687 (W. Va. 1993).
Under the forgoing legal analysis, the West Virginia Supreme Court of Appeals'
holding in Blankenship presents employees contesting their current classification with asubstantial obstacle to overcome in attempting to establish that they are currently
misclassified. Further DOP Rule 4.4 states:
The Director shall consider the class specification in allocating positions and shall
interpret it as follows:
Knowledge, Skills and Abilities
Knowledge of Child Support Enforcement Program guidelines and procedures
and state and federal laws governing the program. Knowledge of the broad principles and application of law, evidence, pleadings,
and judicial procedures in West Virginia.
Skill in the preparation of legal documents.
Ability to complete required forms and documents needed to establish and
enforce child support.
Ability to maintain financial records and other necessary documentation for
resolution of nonsupport cases.
Ability to investigate social and financial background of clients and to locate
absent parents.
Ability to perform fundamental mathematical calculations.
Ability to gather and interpret pertinent statutory and regulatory provisions and
case law, and present findings in a logical and persuasive written form.
Ability to communicate well with others and to compile and assess information
from many sources.
Ability to analyze and organize facts and present such materials in a clear and
logical form.
Ability to supervise personnel engaged in clerical duties.
Ability to understand and follow government organizational and operational
policies.
Knowledge, Skills and Abilities
Knowledge of federal and state law relating to the establishing paternity and
enforcement child support.
Knowledge of the Department's rules, regulations and policies relating to the
provision of child support services.
Ability to supervise, manage and evaluate performance of subordinates.
Ability to exercise tact in dealing with people and rendering assistance to others.
Ability to conduct interviews, communicate clearly both orally and in writing.
Ability to plan and organize work independently and efficiently.
Nature of Work
Under general supervision, performs work at the full-performance level by providing
development of program, as well as associated policy and procedures based on standards
and regulation, administrative oversight of and complex technical assistance with a
program or a particular major component of a statewide program, or major technical areaspecific to or characteristic of the Department of Health and Human Resources. Assures
compliance with federal, state, and local regulations governing the program or technical
area. Uses independent judgement to determine appropriate action taken to achieve
desired results. Has responsibility for providing consultation on highly complex individual
problem situations. Develops and delivers training programs related to assigned program
or component. Monitors and evaluates the operation of the assigned program or program
component. Exercises considerable latitude in determining approaches to problem solving.
Work may be performed independently and/or in conjunction with other program or
technical area staff. Performs related work as required.
Distinguishing Characteristics
The Health and Human Resources Specialist is distinguished from the Health and
Human Resources Associate by the responsibility for development and management of
a statewide program or operational area or a significant segment of a major statewide
program or operational area. This class is distinguished from the Health and Human
Resources Specialist, Senior, by the fact that although the Specialist may oversee clerical
or support staff in relation to the completion of his/her own work, this class does not
function in a regularly assigned lead or supervisory capacity over professional classes as
a significant segment of their total assignment nor does he/she have responsibility related
to entire programmatic or operational systems.
Knowledge, Skills and Abilities
Knowledge of the rules, regulations, policies, and procedures of the Department
of Health and Human Resources.
Knowledge of the federal and state regulations, laws and statutes governing
program or technical area.
Knowledge of the objective of the program or technical area, its procedures,
policies, and guidelines, and its relationship to the rest of the Department and other
user entities.
Ability to analyze situations, problems and information and develop appropriate
responses and resolutions.
Ability to communicate well, both orally and in writing.
Ability to represent area of assignment and to provide consultation on program or
Department concerns.
Ability to synthesize information and provide interpretation.
Knowledge, Skills and Abilities
Knowledge of the rules, regulations, policies, and procedures of the Department
of Health and Human Resources.
Knowledge of the federal and state regulations, laws and statutes governing
program or technical area.
Knowledge of the objective of the program or technical area its procedures,
policies, and guidelines, and its relation ship to the rest of the Department and other
user entities.
Ability to plan and coordinate work, plan and project budgeting needs, and
organize work and projects.
Ability to analyze situations, problems and information and develop appropriate
responses and resolutions.
Ability to communicate well, both orally and in writing.
Ability to assign, direct, and review the work of others.
__________________________________
MARY JO SWARTZ
Administrative Law Judge
Dated: January 27, 2004
Mary Adkins, Jose Almonte, Thomas Arnett, Carolyn Avers, Sherry Ball, Anita
Barnhart, Jewell Blackburn, Deborah Bland, Marsha Boggs, Larry Dean Brannon, Belinda
Burks, Nancy Burnett, Bobbie Calvert, Juanita Calvert, David Cantrell, Linda Carr, Terry
Carpenter, Judith Clark, Carolyn Clifton, Kimberly Cline, Sharon Corathers, Bethann
Cornett, Douglas Craig, Karen Craw, Tawana Creed, Elizabeth Criddle, Darleen
Cremeans, Judy Davis, Ramona Davis, Brenda DeLauder, Michael DeMark, Holly
Dennison, Rose Ann Determan, Cecilia Dolin, Marian Donham, Joyce Donofrio, Nora
Dunn, Linda Edwards, Stacy Floyd, LaCora Ford, Carol Gibbs, Pamela Griffith, Carol Hale,
Sandra Hamon, Gary Harki, Lori Jones Hatfield, Patricia Hauldren, Nancy Helmick, Betty
Hissam, Patricia Hopkins, Cynthia Howerton, Jeannette Huffman, Frances Shaffer Hughes,
Earlene Johnson, Angie Jones
Winifred Kallmyer, Beverly Koerber, Sherry Koerber, Dana Kulp, Carolyn Lafferty,
Ryan Lantz, Virginia (Jeannie) Lee, Charlene Litteral, John Longfellow, Arden Loomas,
Vicky Lough, Sharon Malcom, Ginger Marshall, Marva Martin, Gladys Mayo, Susan
McComas, Angela McCue, John Merritt, Becky Moore, Deborah Moore, Donna Moore,
Linda Mullins, Emma Muncy, Nancy Najmulski, Carol Nunley, Sandra Odom, Elizabeth
Parks, Belva Parsons, Betty Porter, Sarah Price, Curtis Reed
Timothy Salmons, Melissa Sexton, (Eloise) Fanny Shannon, Brenda Sheppard,
Linda S. Smith, Luwanna Smith, Thomas B. Smith, (Christine) Virginia Starcher, Forest
Stone, Mary Stover, April Styga, Billie Summers, Kathi Summers, Donna Suppa, Billie
Sutherland, Dottie Trimboli, Rochelle Whitt, Michael Woodward, Aline Workman, Henrietta
Webb, Mary Helen Whipkey, Christopher Wolford, Patricia Woods, Cynthia Young.
Sue Arnold, Thomas Bailey, Carole Bradley, Cindy Brooks, Erin Cain, Barbara Coe,
Keith Coffman, Jerry Cox, Sonja Davis, Larry Dillon, Julia Donahew, Joseph Earnest, Sallie
Elmer, Gary Farnsworth, Sgt. Jerrold Friend, Tony George, Mark Graeber, Barbara
Gunnoe, Timothy Gunter, Roger Harris, Adeline Hathaway, Roger Dale Hayes, Gaynelle
Heslep (Jarvis), Georgia Hess, Sheila Hutton, Karen Kerns
Elizabeth Linkenhoker, Deborah Mathis, James Muncey, Mary Randolph, Fred
Ranson, Angela Shaffer, Linda Stackpole, Angela Sutherland-Shorter, Jason Thames,
Diana Townsend, Sheri Tyree, Sharon Warick, Kristen Watson, Gladys White, Elaine
Whitten, Donna L. Williams.