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Abraham v. State

Superior Court of Rhode Island

January 24, 2018

ARTHUR ABRAHAM Petitioner/Appellant

         Providence County Superior Court

          For Plaintiff: Richard A. Pacia, Esq. Mark P. Gagliardi, Esq.

          For Defendant: George H. Rinaldi, Esq.


          GALLO, J.

         Petitioner Arthur Abraham (Abraham or Petitioner) appeals the March 27, 2014 decision of the Personnel Appeals Board (PAB) denying the application of Petitioner for a re-classification of his position in the Department of Human Services (DHS). Petitioner contends that he satisfied the requirements for reclassification from a Chief Human Services Business Officer (Pay Grade 33) to a Chief Long-Term Care Reimbursement (Pay Grade 39) and that the PAB erred in finding that he failed to do so. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.


         Facts and Travel

         Petitioner was first hired by the DHS in 2002 and, by 2009, had risen to the position of Chief Human Services Business Officer (CHSBO) (Pay Grade 33). After retirements caused the DHS to be understaffed, Petitioner took on additional responsibilities and believed he was performing the duties of a Chief Long-Term Care Reimbursement (CLTCR) (Pay Grade 39). In July 2009, Petitioner filed a classification questionnaire (questionnaire) (desk audit) with the Office of Personnel Administration (OPA), by which he sought a reclassification to the CLTCR position. The OPA denied Petitioner's claim that he was performing the duties of the CLTCR position, but it found he was performing the duties of a Chief Rate Setting Analyst (CRSA) (Pay Grade 35). Pet'r's Compl. ¶ 7; see also Def.'s Br. at 1.

         Abraham filed an appeal with the Administrator of Adjudication (AA) pursuant to G.L. 1956 § 36-4-40, which conducted a hearing and subsequently upheld the finding of the OPA. Def.'s Br. at 1; see also Pet'r's Mem. at 5. Petitioner appealed this decision to the PAB pursuant to § 36-4-40.2. Hearing on his appeal was held on April 10, 24, May 15, June 5 and 12, 2012. A summary of the testimony follows.

         Petitioner was hired by DHS in 2002 in the Rate Setting Unit (Unit) and, beginning in early 2008, when he was working in the Hospital Settlement Unit, he was trained by Greg Gongoleski, the CLTCR, "to absorb the responsibilities and duties of chief long-term care reimbursement." Hr'g Tr. 15, Apr. 10, 2012. Gongoleski trained him from approximately January through May of 2008, during which time Petitioner also performed "various other tasks." Id. at 18. According to Abraham, he was, during this time, "doing everything that was performed by Mr. Gongoleski at Grade 39, " in addition to other tasks he performed. Id. at 19. When Gongoleski retired in June 2008, Petitioner believed he was "performing all [his] duties." Id. at 20. On his reclassification questionnaire, Petitioner listed the functions he was performing that he believed to be above his Pay Grade and stated that Gongoleski trained him in some (not all) of these tasks. Id. at 27-39. Petitioner explained how he was performing the job functions of the CLTCR and submitted the classification for that position as Exhibit 4C. Id. at 41-42. [1]

         Petitioner testified he is in charge of Long-Term Care Reimbursement, a portion of the State's Medicaid program, and other administrators direct other aspects of Medicaid separate from Long-Term Care Reimbursement. Hr'g Tr. 5-8, Apr. 24, 2012. At the time of the desk audit, he was supervising seven employees for whom he signed time records and approved requests for time off, and was performing duties outside the Long-Term Care Reimbursement section. Id. at 12-15. Petitioner assisted Administrator Ralph Racca (Racca) in developing rules and regulations for the Unit and worked with Racca on updates regarding "principles of reimbursement for nursing facilities." Id. at 26-28. Additionally, he was involved in planning the budget of the Unit and met with administrators regarding the entirety of the long-term care program. Id. at 62-66.

         Abraham maintains that he has the skills and knowledge specified in the CLTCR classification. Id. at 71. He acknowledged "everything that I've done encompasses the functions of [a] chief rate setting analyst"; however, he asserted he has been performing duties and tasks "well beyond those of the chief rate setting analyst [and] doing everything on a statewide base." Id. at 77. Petitioner confirmed Gongoleski trained him from January to May 2008, during which time he was performing the CHSBO's duties in addition to training. Id. at 79-90. However, Racca was the administrator supervising Gongoleski, and Petitioner acknowledged he did not meet with Racca regarding Gongoleski's specific duties, and Gongoleski did not have authority to appoint him to the CLTCR position. Id. at 95-96. The record also reflects Petitioner was not granted a Three Day Rule (TDR) appointment to the CLTCR position or the CRSA position upon Gongoleski's retirement. [2] Id. at 98.

         In paperwork completed in connection with the desk audit, Racca asserted he (not Petitioner) had taken over the CLTCR's supervisory duties. Id. at 117-18. However, Petitioner believed Racca could not take over any CLTCR duties because it is a union position and Racca is not a member. Id. at 118. Abraham further testified Racca "was fully aware, to my understanding, that I was performing" the tasks of the CLTCR position, and Racca agreed Petitioner was performing duties beyond his CHSBO classification. Id. at 120-22. After the reclassification, it was recommended Petitioner receive an upgrade from a CHSBO to a CRSA, an upgrade he deemed unsatisfactory, believing he was performing all of the duties of the CLTCR. Id. at 129-30. After Gongoleski retired, Petitioner assumed his role on a temporary basis and began signing time records, but Racca told him to cease that practice. Id. at 140-44. Petitioner testified signing such time records was the only responsibility of Gongoleski that Racca told Petitioner not to fulfill. Id. at 149.

         Vincent Berretto (Berretto) testified for Petitioner. He is employed as a CHSBO with the Unit. (Pay Grade 33). He explained Petitioner "assumed control" of the rate-setting Unit following Gongoleski's retirement. Hr'g Tr. 5-7, May 15, 2012. Maintaining and developing policies for the setting of reimbursement rates are among the duties of the CLTCR. Id. at 10. Berretto explained that the Petitioner signed his time records following Gongoleski's retirement until shortly following Petitioner's reclassification request when Racca "took exception" and "told him to stop." Going forward, Racca would sign the time records of Berretto and Petitioner, though at the time of the reclassification, Petitioner was supervising the Unit and performed disciplinary functions when necessary. Id. at 17-20. Upon his retirement and that of Anthony Rego, the Unit's Chief Rate Analyst, Gongoleski told Berretto he would recommend that Petitioner take over his position and Berretto take Rego's position. Id. at 25-26. Berretto believed Gongoleski was training Petitioner so that following his retirement he could take over the Unit. Since Gongoleski's retirement, Petitioner has done Gongoleski's job, and thus, Berretto supports Petitioner's reclassification effort. Id. at 34.

         Marie Joseph[3] (Joseph) testified that she works with the Office of Health and Human Services (OHHS) agencies and is very familiar with DHS. Hr'g Tr. 71, May 15, 2012. When Petitioner submitted more documentation than is the norm for a desk audit, she contacted her supervisor, Dr. Thomas Mannock (Mannock), for assistance. Id. at 87-88. She was concerned Petitioner was overly focused on the similarity of his job duties to those of Gongoleski. Id. at 89. Her determination, along with Mannock, was Petitioner should be reclassified to a CRSA. Id. at 101. She concluded Petitioner did not perform a significant role in the departmental budget process-a function of a CLTCR. Id. at 104.

         Racca testified that he was Petitioner's supervisor and an Administrator of Medical Services, which directed the Unit. Hr'g Tr. 92, June 05, 2012. Racca proposed that Berretto would learn about hospital settlements, while Abraham learned about rate setting. Following the announcement of changes to the state retirement system, effective July 1, 2008, Gongoleski and Rego decided to retire, and "the senior staff in the rate setting unit evaporated essentially." Id. at 102-03. As Administrator, Racca "had the responsibility to keep the unit running . . . everyone was asked to step up and take on additional responsibilities." Id. at 103-05. Though Gongoleski had been a CLTCR, there was no plan to fill the position. Id. at 107. Significantly, Racca told them he would assume responsibility for "certain administrative responsibilities that [he] would have expected the [CLTCR] to handle, including personnel matters, [and] dealing with HR[.]" Id. at 107-08. Racca testified he allowed Petitioner and Berretto to sign each other's timesheets while he was on vacation, but, upon returning, he told them to cease signing each other's time sheets, and he signed them thereafter. Id. at 110-11.

         Petitioner submitted a desk audit, believing himself to be "deserving of the . . . chief long term care, grade 39, position." Id. at 112-13. Racca-Petitioner's immediate supervisor-who acted as department head when the Medicare Director position was vacant, did not believe Petitioner should be reclassified as a CLTCR (Pay Grade 39) but rather as a CRSA (Pay Grade 35). Id. at 116-19. Racca testified that Gongoleski, prior to retirement, wrote requests for personnel when a vacancy occurred and, following his retirement, Racca (not Petitioner) would handle such requests. Id. at 121. Racca testified he sought data and input from Petitioner, and "that's what the chiefs are for, to provide that kind of support[, ]" and that Petitioner did not plan and administer a highly specialized program area of a statewide medical care program, a requirement of the CLTCR position. Id. at 123-24. Petitioner was not involved in either planning or administration at the time of his desk audit, and his role was to "provide data to support the decisions that were being made at the administrative level and above." Id. at 124-25. Racca testified that determination of nursing home rates could not be changed without his approval, and, if they were to be changed, Petitioner's role would be to meet with Racca "and discuss what we would have to do to change the State plan." Id. at 127.

         As to the Unit budget, Racca explained that Petitioner's role was to "supply the data that would be necessary to prepare that budget. How that budget was finalized would not be within his purview." Id. at 130. Racca testified Petitioner was not "assisting in the preparation of the budget for the long term care area[, ]" did not participate in departmental budget hearings, and did not testify before legislative committees. Id. at 135-36. Racca believed both Petitioner and Berretto should be reclassified to the CRSA position (Pay Grade 35). Id. at 138.

         Furthermore, Racca confirmed that following Gongoleski's retirement, no one took over his role as CLTCR, and the position was not filled. Id. at 147. Racca testified to his plan to have the two chief "human service business officers running the unit." Id. According to Racca, following the retirement of Gongoleski, "[t]he operational day-to-day was being done by the chief human service business officers, some of it. One aspect that really didn't get done and still isn't done is the appeals made by the nursing homes." Id.

         Racca decided that following the retirements, Petitioner and Berretto would perform additional duties to ensure the Unit would continue running effectively, and he viewed this as "a temporary arrangement." Hr'g Tr. 12, June 12, 2012. Racca took over Gongoleski's administrative and supervisory responsibilities, including those regarding human resources and budget initiatives. Id. at 19. Racca submitted rate setting changes to those higher up in the department. Id. at 34-37. Racca concluded that though the organizational chart for the Unit showed the CLTCR position was vacant, he did not plan to fill that position. Id. at 57.

         Mannock, an OPA Human Resource Supervisor with over twenty years of experience, most of which was in the OPA, supervises the Human Resources Analysts who perform desk audits. Id. at 61-63. In June 2009, Petitioner expressed concern to Mannock that Racca "would not be supportive of his bid for re-classification [to the CLTCR position . . . [and] would be biased." Id. at 66-68. Thus, Mannock took a more active role than usual in the desk audit. Id. at 68-69. While Mannock and Joseph recommended Petitioner be reclassified to a CRSA position, Mannock explained the CLTCR classification was not appropriate because "there were illustrative examples of duties that the employee was not performing, that we couldn't overlook"-the duties of planning and administration. Id. at 77-82. Regarding the Unit's budget, Mannock expressed that "assisting in [the] budget can only be viewed within the context or through the lens of a pay grade 39, chief long term care reimbursement." Id. at 86-87.

         Mannock testified the OPA, in performing the desk audit, sought "to find the best fit . . . in terms of duties and responsibilities." Id. at 93, 97. Mannock explained the CRSA position was most appropriate because the information Petitioner provided and that obtained from the field study "matched up extremely well in terms of the components of the rate setting analyst [position]. The supervision was on target." Id. at 98. Mannock approved of Joseph's conclusion that Petitioner should be reclassified as a CRSA and acknowledged Petitioner performed "technical operational supervision of the rate setting unit, " and such duties "fall within the umbrella of the planning function." Id. at 111, 114-15. Petitioner sought both reclassification to Pay Grade 39 and payment retroactive to when he initially filed for reclassification. Id. at 119.

         Karen Bachus, Vice President of SEIU Local 580 (Local 580 or Union), testified that persons who are not Union members may not, pursuant to contract, perform Union jobs. She stated that if she had known Gongoleski's supervisory duties were taken over by ...

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