Final Non-Precedential Decision Adopted: December 3, 2003

By: Gloria Moore Andrews, Chief Deputy Director

This matter was heard before Linda A. Mayhew, Administrative Law Judge (ALJ), Department of Personnel Administration (DPA) at 9:00 a.m. on October 1, 2003, at Sacramento, California.

Appellant was present and was represented by Chris Codiroli, Labor Relations Representative, Professional Engineers in California Government (PECG).

Cristiana I. Rojas, Attorney, represented the Department of Transportation (CALTRANS), respondent. DPA was not present at hearing.

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

Appellant filed an out-of-class grievance with CALTRANS on January 11, 2002. It was denied by CALTRANS on May 10, 2002. On May 30, 2002, appellant appealed the denial to DPA. DPA issued a preliminary determination denying the claim on April 16, 2003. The PECG filed an appeal of DPA’s preliminary denial of the out-of-class claim on April 29, 2003. The appeal complies with the procedural requirements of Government Code section 19818.16.

Appellant claimed he worked out-of-class as a Supervising Transportation Engineer (Sup TE) from May 1996 through December 2002.

As relief from working out-of-class, appellant requested the pay differential he would have received if he had been promoted to the class of Sup TE for the entire period for which he claimed he worked out of class.

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 his filing of the grievance on January 11, 2002.

Under general direction, the Sr TE acts as a first-line supervisor, having charge of varied and difficult transportation engineering work in the field or office involving the supervision of engineers and others engaged in transportation development activities. The Sr TE may also act in a specialist capacity performing difficult and complex engineering work relating to specialized transportation projects, research studies, and planning and operations of transportation systems. An incumbent may also provide technical oversight of consultants or local agency staff performing engineering work related to the development of State transportation projects and other related work. In CALTRANS’ headquarters office, the Sr TE assigns work, gives instructions, and handles difficult problems in connection with the direction of the work of engineers and others. As a Headquarters’ representative, the Sr TE confers with engineers in the districts and others relative to the details of work planned or performed in the district. The Sr TE makes special reports and investigations; develops and recommends change in policies, programs, standards and concepts. As a specialist, the Headquarters’ Sr TE performs difficult and complex work on specialized engineering projects or research studies.

Under general direction, a Sup TE assists in directing the work of a Headquarters office or branch or has charge of a major phase of the activities of a Headquarters office or branch. The Sup TE may also act as a departmental representative, specialist or consultant in a specific engineering field or on a complex project, or research study or do other related work. In Headquarters, the Sup TE typically reviews or directs the review of plans, specifications, estimates, reports, and agreements submitted by the district offices; directs the preparation of specifications and special provisions, proposals and contracts. The incumbent monitors and evaluates process compliance, program accomplishment, and production quality. The Sup TE also reviews or inspects projects and makes recommendations on difficult technical problems; makes or directs special studies and investigations or is responsible for a special function. He/She also directs the development of changes in policies, programs, standards, and concepts. In a specialist assignment, the Sup TE acts as a departmental representative, specialist or consultant, and furnishes technical advice to departmental personnel on matters pertaining to a specific field of engineering or on a complex project or research study and writes technical articles.

In determining whether or not appellant’s assigned work was performed at the higher classification of Sup TE, 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 he is performing the full range of duties of the higher class on a regular and consistent basis (at least 50% of the time).

From January 11, 2001 through July 1, 2001 appellant held the position of Chief, Office of Highway Systems Engineering in CALTRAN’s TSIP. The primarily function of the TSIP was to collect and maintain data about the public road system and translate the data into information that could be used for transportation planning. The Office of Highway System Engineering was one of three offices that reported directly to the TSIP Manager. As Chief of the Office of Highway System Engineering, appellant directly supervised three engineers and four delineators.

Appellant reported he spent approximately 8% of his time supervising the collection and distribution of statewide data regarding named places in the California Road System (CRS); memorial names for State highways and other State Highway System information.

Appellant also reported he spent 20% of his time managing and maintaining CALTRANS data systems including those pertaining to the National Highway System, the Strategic Highway Network, U.S. Highway Routes, the Interstate System, and the California Road System.

He related he spent 20% of his time supplying data to various sources by directing and coordinating the preparation and publishing of reports, publications, maps, and electronic data; ensuring approvals of functional classifications of public roads and route adoptions of local roads in the State Highway System; and, ensuring the integrity of this data on the CRS maps and the State Highway Map in accordance with CALTRANS policy.

Appellant reported he also spent 5% of his time analyzing federal and state legislation describing the State Highway System, National Highway System, and Strategic Highway Network, Interstate System.

An additional 14% of appellant’s time was spent developing guidelines and procedures for the districts and other CALTRANS sections that used the TSIP services. Appellant specifically testified he made policy for CALTRANS by updating and/or developing guidelines for relinquishment of state facilities and guidelines for public hearings involving relinquishment of state roads and highways to local control. He also contended he revised guidelines for approvals of the functional classifications of all public roads in California and he revised guidelines for approvals of urban/rural boundaries. Appellant also estimated he spent an additional 1% of his time acting as the Division Manager on October 5, 2001.

Appellant reported he spent the majority of his time, 32%, acting as a department representative, specialist or consultant furnishing technical advice to CALTRANS and various State, Local, and Federal agencies regarding the California State Highway System, Federal Highway Agency approvals of route numbering, the California Road System, functional classification of public roads, and relinquishment of deleted State highways.

From July 1, 2001 through January 1, 2002, appellant was reassigned to the Office of Travel Forecasting and Analysis. His classification was changed to Sr TE (Specialist) pursuant to an October 29, 2001 settlement agreement. He reported to a Supervising Transportation Planner rather than the TSIP Manager. He did not supervise. He continued to be responsible for the functional integrity of California’s Highway System. He continued to give advice to the districts and he continued to ensure that the highways were accurately classified on the appropriate maps in accordance with CALTRANS policy and State And Federal laws. He remained CALTRANS’ specialist on the functional classification of public roads.

Appellant argued he was working out of class because the duties he performed fit that portion of the specification for the Sup TE which states: “Under general direction, (1) assist in directing the work of a Headquarters office...or to have charge of a major phase of the activities of a Headquarters office...; (3) act as a departmental representative, or specialist or consultant in a specific engineering field, or on a complex project or research study;....” Appellant also contended that other TSIP Office Chiefs made more money than he did and he deserved to be compensated as a Sup TE to make a commensurate salary. Finally, appellant argued he worked out of class because he performed the same duties as his predecessor. DPA had approved out-of-class pay for the previous Sr. TE for work he had performed for a one-year period in approximately 1995.

Both DPA and CALTRANS contended appellant was not working out of class for the period January 11, 2001 through July 1, 2002, because appellant’s duties fell within those outlined in the Sr TE specification which provide that, “Under general direction this level is the first line supervisor in charge of varied and difficult transportation engineering work in the field or office involving the supervision of engineers and others engaged in transportation development activities.” Both DPA and CALTRANS also contended appellant was properly classified from July 2, 2002 through the time of his retirement because the Sr TE class specification allows the incumbent “in a specialist capacity, to perform other difficult and complex engineering work relating to specialized transportation projects, research studies, planning and operations of transportation systems.”

CALTRANS also argued that appellant was not performing the same functions as the previous Sr. TE at the time he was awarded out-of-class pay. CALTRANS contended that the previous Sr. TE had a larger span of control and responsibility and was involved in more complex projects involving the development of a two-tier highway classification system, economic funding models, and transition of functions out of the Office of Highway Engineering and TSIP to other offices and divisions.

Government Code section 19818.18 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 he has performed duties outside the scope of his present classification. If the employee can establish satisfactorily that he performed such duties, DPA has the responsibility for determining whether he is entitled to be reimbursed, for duties performed pursuant to Government Code section 19818.18. 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.

Appellant failed to prove he worked out of class as a Sup TE during the period of January 11, 2001 through January 11, 2002. Appellant was a first line supervisor in charge of varied and difficult transportation engineering work involving the supervision of engineers and others engaged in transportation development activities. He spent the majority of his time coordinating the gathering of data, providing technical advice to headquarters and district staff regarding the correct functional designations of California’s public roads and ensuring the integrity of the functional designations and highways in various maps and other publications. Although he developed and updated guidelines which he contends represented policy-making activity, he contended he spent only 14% of his time in this endeavor. This is not a sufficient amount of time to justify an award of out-of-class compensation. Appellant’s duties generally fall within those outlined in the specification for Sr TE.

Appellant’s duties were not the same as those performed by the previous Sr. TE when he was awarded out-of-class pay. During the relevant time, the previous Sr. TE supervised personnel both directly and indirectly, his span of control was greater than appellant’s span of control during the relevant period. The previous Sr. TE played a major role in the establishment of the two-tier highway classification system and economic funding model. In contrast, appellant was a first-line supervisor and his duties involved primarily working within pre-established guidelines and programs.

In addition, appellant entered into an agreement with CALTRANS that required CALTRANS to classify and, therefore, pay him as a Sr TE (Specialist) effective July 2, 2001. Appellant testified that at the time of that agreement be believed he was working out of class as a Sup TE. There was no evidence that appellant at any time objected to performing work he believed was out of class prior to his filing of the grievance on January 11, 2002, approximately nine days after he began using his leave time and after which he agreed he would never return to work for CALTRANS. Appellant knowingly and voluntarily entered into the settlement agreement. Appellant cannot simultaneously bind CALTRANS to classify and, therefore, pay him as a Sr. TE (Specialist) and then lay in wait and attempt to force it to pay him at a higher level because it acted in accordance with the agreed upon settlement conditions.

 

* * * * *

that the appeal from Denial of Out-of-Class Claim effective April 16, 2003, is denied.