JOHN SAMMONS,
            Grievant,

v.                                                        Docket No. 00-DOH-150

WEST VIRGINIA DEPARTMENT OF
TRANSPORTATION/DIVISION OF HIGHWAYS,
            Respondent.

D E C I S I O N

      Grievant, John Sammons, filed this grievance against his employer, the Division of Highways ("DOH"), alleging:

The relief sought by Grievant was "to be installed as Highway Administrator III in Wayne County and to be made whole in salary difference since Wilmer Napier was made supervisor."   (See footnote 1)  This grievance was denied at all lower levels, and it was appealed to the Grievance Board on April 27, 2000. The parties agreed to submit the case on the record. This case became mature for decision on July 6, 2000, the date proposed findings of fact and conclusions of law were due. The parties did not submit these proposals.   (See footnote 2) 
Issues and Arguments

      Grievant argued three points. One, he was the most qualified candidate, two, the guidelines for submitting an application were not followed, and three, the successful applicant, Coy Robinson, was tacitly endorsed by the Commissioner of Highways, SamBeverage. Although the term was not used by Grievant, this third argument will be viewed as favoritism.
      Respondent argued there were many qualified applicants for the position, as all had been found minimally qualified for the position at issue. Respondent also stated the successful applicant was the most qualified applicant, and there was no pressure, implied or direct, to select the successful applicant. As for the failure to follow the required guidelines, Respondent asserted the minor breaks with procedure were not significant, and these flaws should not require a change in the selection decision.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact

      1.      Grievant has been employed by DOH for twenty-seven years and is currently working as a Permit Supervisor.       2.      On September 2, 1999, District II posted, in the Weekly Vacancy Report, a position for a Highway Administrator III in Wayne County.   (See footnote 3)  The posting identified the duties of the employee and stated the employee would "supervise county maintenance activities such as evaluating roads for repair and other activities having to do with the maintenance of roads throughout the county. Also will be responsible for budget administration and responding to citizens['] inquiries concerning roads." Grt. Ex. No. 2, at Level III.
      3.      The Highway Administrator III Job Description states:



Knowledge, Skills and Abilities

Minimum Qualifications
      
      4.      This Weekly Vacancy Report identified the Date Down as September 16, 1999. The Report also stated, "[t]o be eligible for consideration, a completed application must be received prior to the Date Down shown on this advertisement by J. Wilson Braley, District Administrator." Grt. Ex. No. 2, at Level III.
      5.      Grievant submitted his application to Mr. Braley in a timely manner.      6.      Coy Robinson did not submit his application to Mr. Braley. Mr. Robinson submitted his application to Commissioner Sam Beverage when he went to the Commissioner's home for another, unidentified reason. These two individuals are personal friends. There is no date on the application as to when this application was received by the Commissioner. There is a stamp on the application indicating it was received in the Commissioner's office, but the date space is blank.
      7.      When Commissioner Beverage met with Mr. Braley, for another reason after the Date Down, he hand-delivered Mr. Robinson's application to Mr. Braley. Commissioner Beverage did not instruct Mr. Braley to hire Mr. Robinson.
      8.      Approximately fifteen applicants applied for the position, including the successful applicant and Grievant.
      9.      Mr. Braley and Assistant District Administrator, Mr. Dave Blevins, interviewed all applicants who met the minimum qualifications. Grievant was one of the top three candidates.
      10.      Although Mr. Blevins did participate in the interviews, he did not participate in the actual selection process.
      11.      Mr. Robinson was selected for the position.
      12.      Grievant has worked for DOH since 1973 and has 27 years of seniority. He has an Associate Degree in Civil Engineering. He has worked as a Bridge Inspector, a Bridge Inspection Coordinator, and he has supervised bridge inspectors in the past. More recently he has worked as a Maintenance Assistant, which included responsibility for preparing paving projects, preparing weekly reports, and reviewing citizen's requests forassistance. He also aided the County Maintenance Supervisor in technical matters. Additionally, he has supervised the County Maintenance Supervisor, and has been placed in several counties as acting County Maintenance Supervisor for a total of three years. He now functions as the Permit Supervisor for District II.
      13.      The successful applicant has a GED and completed the eighth grade. He has been employed by DOH since 1976 and has approximately 24 years of seniority. His experience with DOH has been in the area of repair and maintenance of vehicles and equipment. He supervised numerous employees, and supervised the use of parts and inventory from vendors and the parts storeroom. He coordinated the transportation of equipment, signs payroll purchase orders and shop work orders. In his work experience prior to working for DOH, the successful applicant managed a service station and supervised and maintained a fleet of vehicles in private industry. He has no experience in the repair of roads and highways.
Discussion

      
As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Lilly v. W. Va. Dep't of Tax and Revenue, Docket No. 95-T&R-576 (Apr. 5, 1996); Howell v. W. Va. Dep't of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990). See W. Va. Code § 29-6A-6. See also Holly v. Logan County Bd. of Educ., Docket No. 96-23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988).      Grievant makes several arguments which will be addressed individually.
A.      Whether Grievant has demonstrated he was the most qualified for the position.

      The grievance procedure is not intended to be a “super interview,” but rather, allows a review of the legal sufficiency of the selection process. Thibault v. Div. of Rehabilitation Serv., Docket No. 93-RS-489 (July 29, 1994). This Grievance Board recognizes that promotion decisions are largely the prerogative of management. While individuals selected for promotion should be qualified and able to perform the duties of their new position, absent the presence of unlawful, unreasonable, or arbitrary and capricious behavior, such promotion decisions will not generally be overturned. Skeens-Mihaliak v. Div. of Rehabilitation Serv., Docket No. 98-RS-126 (Aug. 3, 1998); Ashley v. W. Va. Dep't of Health and Human Resources, Docket No. 94-HHR-070 (June 2, 1995); McClure v. W. Va. Workers' Compensation Fund, Docket Nos. 89-WCF-208/209 (Aug. 7, 1989). An agency's decision as to who is the most qualified applicant will be upheld unless shown by the grievant to be arbitrary and capricious or clearly wrong. Thibault, supra.
      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capriciousactions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Id. (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). "While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of [the agency]. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra; See Hattman v. Bd. of Directors, Docket No. 98-BOD-439 (Apr. 30, 1999).
      Generally, when applying an "arbitrary and capricious" standard of review, the inquiry is limited to determining whether relevant factors were considered in reaching the decision and whether there has been a clear error of judgment. Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison; supra; Hill v. Kanawha County Bd. of Educ., Docket No. 94-20-537 (Mar. 22, 1995). Further, a decision of less than ideal clarity may be upheld if the agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra, at 286. If a grievant can demonstrate that the selection process was so significantly flawed that he might reasonably have been the successful applicant if the process had been conducted in a proper fashion, the employer will be required to compare the qualifications of the grievant to the successful applicant. Thibault, supra.             Additionally, although not cited by the parties the undersigned Administrative Law Judge will take administrative notice of the guidelines which DOH is to apply when comparing candidates. See Ward v. Dep't of Transp./Div. of Highways, Docket No. 96- DOH-184 (July 24, 1997). W. Va. Code § 29-6-10(4) states:


(Emphasis added.)

      Both applicants were minimally qualified for the position, and it is undisputed Grievant had more experience and seniority with DOH. However, these facts alone do not necessarily make Grievant's qualifications greater than or substantially equal to the successful applicant's. When a grievant and a successful applicant meet the minimum qualifications for the job, but one applicant is more qualified than the grievant, the qualifications are not substantially equal, and seniority need not be considered. Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997). "The employer retains the discretion to discern whether one candidate has superiorqualifications than another, without regard to seniority as a factor." Lewis v. W. Va. Dep't of Admin., Docket No. 96-DOA-027 (June 7, 1996). See Board v. Dep't of Health and Human Resources, Docket No. 99-HHR-329 (Feb. 2,1999).
      Here, the qualifications of Grievant and the successful applicant were "not substantially equal" for the position at issue. Grievant had greater education and greater experience for the position. Grievant had experience with road repair, budget preparation, citizen complaints, and supervision. The successful applicant had a GED, no experience with road repair, limited experience with budget preparation, no experience with citizen complaints, no experience with snow and ice removal, and no experience with the inspection of roads and bridges. The successful applicant did have extensive experience in supervision.
      Mr. Braley indicated the Highway Administrator III position would be expected to deal with the administrative end of the work, and Mr. Robinson had extensive, positive supervisory experience. Mr. Braley related this was his reason for hiring the successful applicant. It must be noted Grievant also had extensive supervisory experience. Mr. Braley also testified the Transportation Crew Supervisor would be expected to deal with the technical end of the work. However, this is not what the synopsis of the duties was in the Vacancy Report, and this is not what is specified in the Job Description. The Highway Administrator III is expected to direct and maintain a scheduled highway maintenance program. It is clear Grievant was more qualified for the position as identified by these two documents.      Additionally, even if Grievant and the successful applicant were found to be equally qualified, in terms of examining the supervisory experience, then Grievant should have received additional consideration as he was the most senior. W. Va. Code § 29-6-10(4). See Ward, supra. DOH's decision with this specific set of facts is arbitrary and capricious. Respondent's decision does not reflect a consideration of the relevant factors. Bowen, supra.
B.      Procedural irregularities in the application process.
      Grievant is correct that the required procedures were not followed in the submission of Mr. Robinson's application. The Vacancy Report gives specific directions and clearly informs an applicant to: one, submit his application to Mr. Braley; and two, to submit it by the date down. Mr. Robinson did not follow these clear and easy procedures. He gave no reason for this failure to follow these directions.
      It is not appropriate or correct to deliver an application for a position to the Commissioner, and then have the Commissioner deliver the application to Mr. Braley, especially when the Commissioner is the supervisor of the person who will make the selection. Although it is clear the Commissioner did not tell Mr. Braley who to hire for the position at issue, there is an implication or appearance of impropriety here which cannot be avoided. This is especially true when Mr. Braley was aware the Commissioner and the successful applicant were long-term friends. This process or approach suggests favoritism, which is defined in W. Va. Code § 29-6A-2(h) "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees."      In order to establish a prima facie showing of favoritism a grievant must establish the following:





O'Dell v. W. Va. Dep't of Transp./Div. of Highways; Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998). See McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). If the grievant establishes a prima facie case of favoritism, the employer may rebut this showing by articulating a legitimate reason for its actions. However, the grievant can still prevail if it can demonstrate that the reason proffered by employer was mere pretext. See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
      Grievant has established a prima facie case of favoritism. He has demonstrated he submitted his application in the prescribed manner and in a timely fashion. He followed the required rules. Mr. Robinson did not follow the rules, and Mr. Robinson was selected for the position anyway. An indication of favoritism is further supported by the fact that Mr. Robinson's application was hand-delivered by his long-term friend and the ultimate supervisor of Mr. Braley. While there is no "hard" evidence of favoritism here, theappearance of favoritism is present. These types of actions should be avoided when filling classified positions. Additionally, it was inappropriate for Mr. Robinson to seek preferential treatment by having the Commissioner deliver his application.
      The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Howell v. W. Va. Dept. of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990). See W. Va. Code § 29-6A-6. See also Holly v. Logan County Bd. of Educ., Docket No. 96- 23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988).
      2.      W. Va. Code § 29-6-10(4) identifies the factors to consider when filling a state vacancy and states:

(Emphasis added.)
      3.      The grievance procedure is not intended to be a “super interview,” but rather, allows a review of the legal sufficiency of the selection process. Thibault v. Div. of Rehabilitation Serv., Docket No. 93-RS-489 (July 29, 1994).      
      4.      Promotion decisions are largely the prerogative of management. While individuals selected for promotion should be qualified and able to perform the duties of their new position, absent the presence of unlawful, unreasonable, or arbitrary and capricious behavior, such promotion decisions will not generally be overturned. Skeens- Mihaliak v. Div. of Rehabilitation Serv., Docket No. 98-RS-126 (Aug. 3, 1998); Ashley v. W. Va. Dep't of Health and Human Resources, Docket No. 94-HHR-070 (June 2, 1995); McClure v. W. Va. Workers' Compensation Fund, Docket Nos. 89-WCF-208/209 (Aug. 7, 1989).
      5.      An agency's decision as to who is the most qualified applicant will be upheld unless shown by the grievant to be arbitrary and capricious or clearly wrong. Thibault, supra.
      6.      "Generally, an action is considered arbitrary and capricious if the agency did not rely on criteria intended to be considered, explained or reached the decision in a manner contrary to the evidence before it, or reached a decision that was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). " While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of a board of education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra.
      7.      Respondent's decision to hire the successful applicant was arbitrary and capricious, as Grievant proved he was clearly more qualified than the successful applicant.       8.       W. Va. Code § 29-6A-2(h) defines favoritism as "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees."
      9.      A grievant seeking to establish a prima facie case of favoritism under W. Va. Code § 29-6A-2(h), must establish the following:



O'Dell v. W. Va. Dep't of Transp./Div. of Highways; Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998). See McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). If the grievant establishes a prima facie case of favoritism, the employer may rebut this showing by articulating a legitimate reason for its actions. However, the grievant can still prevail if it can demonstrate that the reason proffered by employer was mere pretext. See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
      10.      Grievant has established a prima facie case of favoritism and Respondent has not rebutted this showing with a legitimate reason for its actions.
      11.      Grievant established the required regulations for applying for the position were not followed in this case to his detriment.
      Accordingly, this grievance is GRANTED. Respondent is directed to instate Grievant into the position at issue with full back pay and seniority, with interest, from the date the position was originally filled with Mr. Robinson.

      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." Any 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 suchappeal and should not be so named. However, the appealing party is required by W. Va. Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.
                                                                                                  JANIS I. REYNOLDS
                                                ADMINISTRATIVE LAW JUDGE

Dated: August 17, 2000


Footnote: 1
      The date of this action was not stated in the record, nor was Mr. Napier identified.
Footnote: 2
      Grievant represented himself, and Respondent was represented by DOH Attorney Nedra Koval at Level III.
Footnote: 3
      This position used to be known as County Supervisor.
Footnote: 4
      The parties did not cite to a rule or regulation that had been developed pursuant to this statute. However, the purpose of this section clearly states the Legislature's intent.