DPA Case Number 05-G-0042 - Denial of Out-of-Class Claim

Final Non-Precedential Decision Adopted: July 15, 2005

By: Michael T. Navarro, Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on June 16, 2005, at Riverside, California.

Appellant, was present and was represented by Nellie D. Lynn, Labor Relations Representative, Association of California State Supervisors (ACSS).

John Ruocco, Staff Counsel, represented the Department of Veterans Affairs (DVA), respondent.

Phyllis Bonilla, Staff Personnel Program Analyst, Classification and Compensation Division, represented the DPA.

Evidence having been received and duly considered, the ALJ makes the following findings of fact and Proposed Decision.

The appellant filed a grievance on August 31, 2004 alleging she worked out-of-class as an Institutional Personnel Officer II (IPO II) since August 1, 2003. The DVA denied the grievance on October 7, 2004. Appellant appealed the DVA’s denial to the DPA. The DPA issued its decision preliminarily denying the grievance on December 24, 2004. On January 12, 2005, the ACSS filed an appeal of the DPA’s denial and requested a hearing on appellant’s behalf.

Government Code sections 19815.4 (e) and 19818.16 provide for the DPA to review and consider a denial of an out-of-class grievance from an excluded employee so long as the employee files a timely appeal. The time for filing an appeal is within 30 calendar days after service of the preliminary determination. Appellant’s appeal is considered timely and is therefore properly before the DPA for review.

Appellant claimed she performed the duties and responsibilities of an IPO II since the retirement of the incumbent on August 1, 2003. As relief from working out of class appellant requested permanent reclassification to an IPO II position and back pay.

Pursuant to Government Code section 19818.16, appellant is only entitled to reimbursement for out-of-class work for the 12-month period immediately preceding the filing of her grievance. Therefore, the period under consideration for potential back pay is August 31, 2003 through August 31, 2004.

In 1999 when the IPO II position was created at the VHC, Barstow, the home had over 256 employees. There were five staff in the Human Resources Office.

A layoff was announced at the VHC, Barstow in early 2003. The skilled nursing facility closed. Appellant’s AGPA position was eliminated as a result of the layoff. The number of employees at the VHC, Barstow decreased from over 250 employees in July 2003 to approximately 100 employees in November 2003. Three staff remained in the Human Resources Office.

The incumbent in the IPO II position retired effective July 31, 2003. The vacant IPO II position was reclassified to an APA. The DVA considered making the vacant IPO II position an IPO I position because of VHC, Barstow’s decreased number of employees. However, because the IPO I salary was approximately $600 less than the APA salary and less than the AGPA salary appellant received before her position was abolished, the DVA decided to allocate the vacant position to the level most beneficial to the appellant. Appellant was reclassified into the APA position in November 2003.

The APA acts as a leadperson for other staff personnel. Without detailed supervision or review, the APA makes decisions and provides advice and assistance on varied and difficult personnel management problems; analyzes and classifies positions; gathers and evaluates pay data; conducts classification or pay surveys; prepares class specifications and allocation standards; prepares formal memoranda or reports on personnel matters and participates in the presentation of such matters before the State Personnel Board (SPB) or other official bodies; and reviews proposed personnel actions for conformity with regulations; classification or pay standards or good personnel practice.

The APA prepares written examinations, writes test items, and does test research; develops techniques for the appraisal of education and experience; acts as chairperson of qualifications appraisal panels; administers or supervises the administration of tests; prepares examination publicity; and plans, organizes and coordinates recruitment programs.

The APA also assists in the development of policies and procedures relating to the personnel management program of a State agency; assists in the recruitment and selection of employees; develops and administers staff development and training programs; prepares disciplinary proceedings; represents the agency before employees and employee organizations; develops departmental personnel rules and regulations; and supervises personnel recordkeeping and the operation of personal operations.

The APA additionally interprets and explains civil service law, rules, and procedures; trains and supervises subordinate technical and clerical personnel; does research in specific areas of public personnel management; represents the agency at meetings and conferences; studies various personnel operating procedures; and prepares reports, manuals, articles, and correspondence.

As of August 2004, the salary range for an APA was $4,111 to $4,997 per pay period. Appellant’s salary was $4,997 during the period at issue.

The IPO series consists of two supervisory classes, IPO I and IPO II, which direct the personnel management programs. These classes are used for positions responsible for personally performing or administering and managing the personnel, safety, return-to-work, labor relations and data processing programs in the State’s individual institutions. Persons in these classes provide technical expertise and supervisory/management leadership in the area of personnel management; recommend and participate in the development of personnel management policy; perform work concerned with the technical aspects of classification and pay; and plan, organize and direct the personnel management program and its related responsibilities including job auditing, classification recommendations, transactions, delegated testing, labor relations, employee benefits and performance evaluation, safety, return-to-work, workers’ compensation and data processing.

The factors affecting position allocation to the IPO I or IPO II level are the scope and variety of responsibilities assigned; complexity of the institution; level of difficulty and complexity of work assignments; impact of decisions and consequence of error; independence of action; and the supervision exercised and received. In 1991 when the IPO series was established, the analysis upon which the SPB approved the classes indicated the IPO I was to be used at the smaller institutions and that this class would supervise Staff Services Analyst (SSA), technician level staff and Personnel Services Supervisors (PSS) I or II. The IPO II was to supervise four to nine staff with at least two staff at the SSA or PSS II level and would be used in larger institutions.

Under supervision, the IPO I serves as a working supervisor for the less complex personnel management program and personally performs the most difficult personnel tasks. Specific duties include supervision of classification and pay, delegated testing and transactions functions.

The IPO II is the first supervisory level with responsibility for the more complex personnel management program in the larger institutions. Under general direction, the IPO II supervises the personnel/payroll function, classification and pay, delegated testing, workers’ compensation and safety/return to work programs, and personally performs the most complex and sensitive personnel management work.

The salary ranges for the IPO I and IPO II were not presented. However, it was noted that the APA salary range is approximately $600 higher than that of the IPO I classification.

The DVA found that appellant was not working out of class at the IPO II level. It determined she was performing some supervisory duties but that these duties would fall under the IPO I classification. It made this determination because the “smaller number of employees at the facility and in the Human Resources Office” did not meet the IPO II specification requiring supervisory level responsibility for the more complex personnel management program in the larger institution.

The DVA refuted appellant’s contention that the VHC, Barstow was of a similar size to the VHC, Chula Vista. It reported the VHC, Chula Vista had approximately 258 employees while the VHC, Barstow had approximately 93 employees in July 2004.

The DPA also preliminarily denied appellant’s out-of-class claim. It determined appellant was not performing the full range of IPO II duties because appellant was not performing delegated testing, conducting formal recruitment, performing or administering and managing labor relations, and the institution’s health and safety program. The DPA also held that appellant was not performing the full realm of supervisory duties including hiring, assigning promoting, transferring, disciplining, and terminating employees.

Appellant challenged respondents’ decision that she did not work out of class. She argued this was a classic out-of-class situation in which an incumbent retires, the position is downgraded, but the same work remains to be done by the person appointed to the newly created, lower-level position. Appellant also pointed out her situation represents a continuing problem with the IPO classifications. She opined that the IPO specification requirements set up an inherent inequity because the incumbents in both classifications in practice actually perform the same duties and responsibilities.

Appellant further argued DPA’s analysis was in error. She testified she performed supervisory duties in regard to two Personnel Specialists and an Office Technician in the Human Resources Office by approving 634’s, time off requests, training requests, authoring one Performance Report for a Probationary Employee, and by discussing a work problem with one of the employees. She testified she performed the labor relations work required of an IPO II by assisting supervisors and managers with grievance responses and drafting of adverse actions. She also testified she did delegated testing and formal recruitment by acting as a chairperson of qualifications appraisal panels and scoring the interviewees by applying predetermined criteria. She testified she met the requirement of the IPO II in the health and safety area because she was notified when an employee had a work related injury; she acted as a liaison with the State Compensation Insurance Fund; and, she negotiated and signed settlement agreements involving workers compensation injuries.

In determining whether or not appellant’s assigned work was performed at the higher classification of an IPO II, one must evaluate the kind and variety of duties performed and the relative amount of time spent performing the duties. An employee will be considered as working in a higher classification when she is performing the full range of duties of the higher class on a regular and consistent basis, which is measured as at least 50% of the time.

A review of the DPA and DVA analyses and consideration of the appellant’s testimony and other rebuttal evidence indicates appellant did not perform the full range of IPO II duties. There was no evidence appellant recommended and participated in the development of personnel management policy or that she planned, organized and directed the personnel management program for delegated testing, labor relations, or health and safety. Her participation in the delegated testing program overlaps with her APA duties and duties of an IPO I. Her work with supervisors and managers on grievance responses and the drafting of adverse actions also overlaps with her APA duties and the duties of an IPO I. Appellant did not participate in any health and safety program planning or administration. She testified that the work she did in the workers’ compensation area was exactly what she had done prior to the IPO II’s retirement with the exception that after the IPO II’s retirement, she signed the document authorizing settlements.

According to the evidence presented by appellant, she did perform some supervisory responsibilities. Appellant signed Absence and Additional Time Worked Reports (634’s), provided the Supervisory recommendation for Merit Salary Adjustments (MSA), drafted a Report of Performance for a Probationary Employee, approved vacation and other time off, and she informally discussed the need for work improvement with one employee. Although appellant testified she performed the duties of an IPO II beginning August 1, 2003, it was interesting to note, there was no evidence that she participated in the planning or recommendations for the November 2003 layoff. There was no evidence that she participated in hiring, reclassification, reassignment, termination, or promotion decisions and/or recommendation activities that often accompany a layoff or that may routinely occur in a facility. There was no evidence she met with, appeared before, or represented the facility or DVA at any meetings, presentations, or hearings. There was no evidence appellant prepared recommendations related to plans, budget requests, procedures and policies within the Human Resources Office or anywhere else in the facility. There was also no evidence she conducted regular staff meetings with the Human Resources staff or that she provided training to VHC, Barstow supervisors, managers, and employees on various personnel management topics.

Appellant estimated she spent 80% of her time performing the duties of the IPO II classification. She testified she continued performing the same duties she performed as an APA/AGPA, just absorbing those performed by the retired IPO II. The non-overlapping duties she performed as a supervisor over a one-year period including the signing of the workers’ compensation settlements, approval of the various attendance documents, the preparation of two performance evaluation documents and two MSA forms, and one discussion with one employee regarding a work performance issue, does not reasonably support appellant’s out-of-class claim requiring she spend over 50% of her time performing duties not otherwise within her job specification.

Furthermore, as of at least November 2003, appellant‘s supervision activities involved three employees in the Human Resources Office and a facility with approximately 100 employees. The supervision of the three employees in a facility the size of VHC, Barstow does not support the SPB’s concept requiring the IPO II classification to be used in a larger facility where he/she has direct supervisory responsibility for at least four Human Resources employees.

 

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Government Code section 19818.16 provides an employee who works out-of-class with the right to request reimbursement by filing an appeal with DPA. Reimbursement may be granted only if the employee proves that she has performed duties outside the scope of her present classification. If the employee can establish satisfactorily that she performed such duties, DPA has the responsibility for determining whether he is entitled to be reimbursed, for duties performed pursuant to Government Code section 19818.16. In accordance with the provisions of Section 19818.16(a) retroactive payment of an out-of-class claim shall be awarded for a period no greater than one year preceding the filing of the claim.

In seeking reimbursement, an appellant has the burden of proof and the burden of going forward in the appeal hearing. In determining whether or not the assigned work is in a higher classification, the kind and variety of duties performed and the relative amount of time, which the employee spent in performing the duties, must be evaluated.

In this case the appellant failed to prove she performed the full range of duties and responsibilities required by an IPO II for the period August 31, 2003 through August 31, 2004. She also failed to prove that VHC, Barstow was a “large” facility that would support the IPO II classification as envisioned by the SPB. The supervisory duties that appellant did perform are within the duties that are appropriate to the IPO I classification. However, the IPO I classification is below the salary range that appellant now collects as an APA.

 

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that the appeal of Denial of Out-of-Class Claim from the position of Associate Personnel Analyst effective December 24, 2004, is denied.