MICHAEL O'DELL,
Grievant,
v. Docket No. 00-DOH-054
WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,
DIVISION OF HIGHWAYS,
Respondent.
D E C I S I O N
This grievance was filed by Grievant Michael O'Dell against Respondent, West
Virginia Department of Transportation, Division of Highways ("DOH"), on or about
August 24, 1999. Grievant alleges he should have been selected for a Storekeeper
III position. At Level III the grievance was amended to include claims of favoritism,
in that he alleged the successful applicant had been preselected, and discrimination
by failing to comply with Respondent's Equal Employment Opportunity Policies. As
relief he sought to be placed in the Storekeeper III position.
(See footnote 1)
The following Findings of Fact are made based upon the record developed at
Level III.
Findings of Fact
1. Grievant has been employed by DOH for 10 years, and is currently a
Mechanic III, pay grade 12, at the Nicholas County garage.
2. On July 13, 1999, DOH posted a Storekeeper III vacancy. The position
is in a pay grade 7.
(See footnote 2)
The posting stated the job duties as, "[u]nder general
supervision, employee leads the purchasing, receiving, storing, and dispersing of
supplies, materials, parts, and equipment. Reconciles physical and documented
inventories. Monitors volume of equipment and supplies to ensure adequate stock
is on hand. Ability to perform moderately heavy manual labor. Performs related work
as required." This position was at the Nicholas County garage.
3. Grievant, Jim Nichols, and two other people applied for the posted
position. Mr. Nichols was chosen to fill the position.
4. John Jarrell, Sr., Nicholas County Highway Administrator, stationed at
the Nicholas County garage, and Thomas Ball, Administrative Assistant to the District
Administrator and EEO Officer, interviewed the applicants. Mr. Jarrell made the hiring
recommendation. While Mr. Ball took notes during the interviews, he had no input
into the hiring decision, and was present only as an observer and to answer any
personnel questions.
5. Of the four applicants, only Grievant and Mr. Nichols met the minimum
qualifications for the position.
6. When Grievant first began working in the Nicholas County garage he
worked night shift and had to get the parts he needed from the storeroom, just as anyother Mechanic on night shift does. When the Storekeeper died in April 1994,
Grievant assumed Storekeeper duties, such as ordering parts, contacting vendors to
compare prices, preparing certain DOH forms, stocking and checking inventory, and
entering data on the computer. He also continued to perform his duties as a
Mechanic, until the Storekeeper position was filled in July of 1994, by John Jarrell,
Jr.
(See footnote 3)
Grievant voluntarily assisted with these same Storekeeper duties again when Mr.
Jarrell, Jr., left the position in November 1998, until the position was filled by Mr.
Nichols, while continuing to perform his duties as a Mechanic. Wanda Belcher, the
office assistant, and Roger Brown, Mr. Jarrell, Sr.'s assistant, also performed some
of the Storekeeper duties. Grievant's supervisor did not ask him to take on these
duties. He also assisted in taking inventory in 1994 and 1999. All of Grievant's
work experience prior to his employment with DOH was as a mechanic.
7. Mr. Nichols was classified as a Mechanic II, pay grade 11, prior to his
selection for the position at issue, and was stationed at Muddlety. He has been
employed by DOH since 1978, and has been at Muddlety since about 1982. Mr.
Jarrell, Sr., supervised Mr. Nichols from 1981 or '82, until 1998.
8. DOH has a small storeroom at Muddlety for parts, but has not employed
someone classified as a Storekeeper at that location. Mr. Nichols has spent at least
one fourth of his time ordering, stocking, and dispensing parts, and maintaining the
parts inventory, since he began his employment at that location. The rest of his time
he has performed repairs and maintenance on vehicles.
9. Grievant received a higher rating on his most recent performance
evaluation in the area of Technical Competence than Mr. Nichols did. Grievantreceived a rating of excellent, while Mr. Nichols received a rating of success, which
is the next best rating. Grievant and Mr. Nichols both received a rating of success
in the other three categories. Grievant and Mr. Nichols were not rated by the same
person.
10. When Mr. Jarrell, Jr., vacated the Storekeeper position in November
1998, Grievant wrote to Mr. Jarrell, Sr., asking that an audit of the storeroom be
conducted, because he believed there were numerous inconsistencies and items not
accounted for, and he did not want to be held accountable for the discrepancies. Mr.
Jarrell, Sr., did not respond to this letter, and an audit was not conducted, although
he did meet with Grievant. Grievant did not perceive any change in Mr. Jarrell, Sr.'s,
attitude toward him after he sent him this letter.
11. Grievant's physician wrote a letter which Grievant attached to his
application for the posted position, which stated:
Mr. O'Dell is a 37 year old caucasian male with cerebral palsy and a
resulting disability to his leg that causes a continued limp. Mr. O'Dell
has chronic pain as a result of having to walk with this limp. I
understand he is seeking a job in the parts department as apposed [sic]
to being a mechanic. I think this would very much help Mr. O'Dell in
coping with his disability if he could have this less stressful job. I am
hearby [sic] recommending if at all possible that you consider him for
that and that he is qualified to do it. It would certainly help with his
disability. If there is more information I can provide you on his behalf,
please let me know.
12. Grievant has never asked DOH for an accommodation for his disability,
and is still able to perform the duties of a Mechanic III.
13. While Mr. Nichols is legally blind in his left eye, is missing part of two
fingers on his left hand, has a broken left elbow, and has some problems with his
back, he has not been declared disabled, and has not asked DOH for an
accommodation. He did not include any of this information on his application for the
position at issue.
Discussion
Grievant bears the burden of proving his allegations by a preponderance of the
evidence.
W. Va. Code § 29-6A-6.
Mowery v. W. Va. Dep't of Natural Resources,
Docket No. 96-DNR-218 (May 30, 1997). In a state selection case, 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 v. Div. of
Rehabilitation Serv., Docket No. 93-RS-489 (July 29, 1994). The arbitrary and
capricious standard of review of personnel decisions requires a searching and careful
inquiry into the facts; however, the scope of review is narrow, and the undersigned
may not substitute her judgment for that of the agency.
See generally,
Harrison v.
Ginsberg, 169 W. Va. 162, 286 S.E.2d 276 (1982). The undersigned cannot perform
the role of a "super-interviewer" in matters relating to the selection of candidates for
vacant positions.
Thibault,
supra.
Generally, an agency's action is arbitrary and capricious if it did not rely on
factors that were intended to be considered, entirely ignored important aspects of the
problem, explained its decision in a manner contrary to the evidence before it, or
reached a decision that is so implausible that it cannot be ascribed to a difference of
view.
Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017
(4th Cir. 1985). Further, 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.
Grievant argued he was the victim of a system that rewards friends, and that
Mr. Nichols was selected by Mr. Jarrell to fill the position because of their friendship
before the position was ever posted. He further argued that DOH discriminatedagainst him in failing to implement its equal employment opportunity policies.
(See footnote 4)
He
argued Mr. Ball should have been involved in making the selection as the EEO Officer.
He argued the issue in this case is not which applicant was better qualified, but
rather, because he was qualified, DOH's Equal Employment Opportunity Policy for
Disabled Employees provides that he should have been selected as he has a
documented handicap. In support of this argument he quoted the provision of that
Policy which states, [t]he Department of Transportation will ensure that all personnel
actions relating to hiring, compensation, transfers, promotions, training, educational
opportunities and terminations will be made in a nondiscriminatory manner.
Respondent argued Mr. Nichols was not preselected for the position, and the
most qualified applicant was selected. It further argued there was no discrimination
against the handicapped in this case, as demonstrated by the fact that Mr. Nichols
also is handicapped.
Grievant's belief that Mr. Nichols was preselected for the position by Mr. Jarrell
was based upon rumors and gossip from the Muddlety employees that Mr. Nichols
would get the job, and a conversation Alvie Deal, a Mechanic III in Nicholas County,
had with Mr. Nichols. Mr. Deal testified that Mr. Nichols told him in earlyJuly of1999, that Mr. Jarrell was sending him to the county garage to work in the
storeroom, and asked him if he was going to bid on his job. Mr. Deal found this odd
as he was not aware that the position had been posted, and he took it from the way
Mr. Nichols said it that he was being transferred and had no choice in the matter. Of
course, the position was, in fact, posted on July 13, 1999. In addition, Joseph
Shaffer, an Equipment Operator II at the Nicholas County garage, testified he had
witnessed John Jarrell, Jr., training Mr. Nichols on entering information from gas
cards into the computer. He stated he was one of the applicants for the Storekeeper
III position and had been asked in the interview if he knew how to run the computer.
He had heard the rumor that Mr. Nichols would get the job; however, he
acknowledged it was common for the employees to get together and talk about who
would get a particular job.
Darrin Paxton, a Mechanic II under Grievant's supervision, testified about a
conversation he heard between Grievant and Mr. Jarrell in August 1999. He stated
Grievant asked Mr. Jarrell if he had filled the Storekeeper position, and Mr. Jarrell
responded that he thought he was going to give it to Mr. Nichols. He testified
Grievant then asked Mr. Jarrell if he thought Mr. Nichols would do a better job than
him, to which Mr. Jarrell responded, '[n]o, not necessarily, but you're too valuable
where you're at.' Mr. Jarrell acknowledged he could have made such a comment to
Grievant, but stated if he did so, they were just sitting around talking, and he would
have said this jokingly. He did recall telling Grievant he had selected Mr. Nichols, and
that Grievant was a good mechanic and a valuable man.
Mr. Nichols denied having any conversations with Mr. Jarrell about the position
at issue. He denied that Mr. Jarrell had said anything that led him to believe he
would get the job if he applied. He also testified he had asked Grievant if he was
going to apply for the position, and had told Grievant he would not apply if Grievantdid, as he did not want to cause any hard feelings. He testified Grievant had left him
with the impression that he was not going to apply for the position.
Mr. Jarrell acknowledged he had known Mr. Nichols for a long time, and they
could be considered work friends, although they did not socialize with each other
outside of work. Mr. Jarrell testified, however, that he did not decide who to
recommend for the position until he went through the applications and conducted the
interviews, although his belief before that was that only Mr. Nichols and Grievant
would be qualified to step into the position without any training. He stated he
considered that Mr. Nichols had 21 years of seniority compared to Grievant's 10
years. In addition, Mr. Nichols had performed storekeeper duties for DOH for 18
years, and he had been a storekeeper in the private sector. He decided Mr. Nichols'
greater experience made him more qualified for the job.
W. Va. Code § 29-6A-2(h) defines "favoritism" to mean "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:
(a) that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that the other employee(s) have been given advantage or treated
with preference in a significant manner not similarly afforded him;
(c) that the difference in treatment has caused a substantial inequity to
him and that there is no known or apparent justification for this
difference.
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 grievantcan 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).
As Mr. Jarrell had supervised Mr. Nichols for a long time, and Mr. Nichols had
been in charge of the storeroom at Muddlety during that time, it is easy to see why
the employees at Muddlety would speculate that Mr. Jarrell would take Mr. Nichols
with him. However, it makes no difference whether Mr. Jarrell and Mr. Nichols were
friends, if Mr. Nichols was the most qualified applicant, he should have been selected.
Grievant has not demonstrated he was the better qualified applicant. While Mr.
Jarrell agreed that Grievant was capable of performing the duties of the position, the
evidence supports his conclusion that Mr. Nichols was better qualified. The fact that
Grievant had a slightly better performance evaluation does not make him better
qualified for this job, although it may indicate that his technical expertise as a
Mechanic is slightly better than Mr. Nichols' expertise in that area. Thus, Grievant
has not demonstrated he was the victim of favoritism, nor has he demonstrated DOH
acted in an arbitrary and capricious manner in selecting Mr. Nichols.
Respondent's Equal Employment Opportunity Policy Statement, dated July
1999, signed by Samuel G. Bonasso, PE, Secretary of the Department of
Transportation, states as follows:
The West Virginia Department of Transportation is fully committed
to the policy of the United States and West Virginia State Governments,
which is to provide equal employment opportunity for all qualified
persons in accordance with Executive Order 11246, as amended, Title
VI of the Civil Rights Act of 1964, Title VII of the Civil Rights Act of
1964, the Equal Employment Opportunity Act of 1972, the West Virginia
Human Rights Act and State of West Virginia Executive Order No. 6-90.
These acts and orders collectively prohibit discrimination in employment
on the basis of race, color, religion, sex, national origin, age, disability
and political affiliation. The Department of Transportation will notdiscriminate against any employee or prospective employee because of
any of the foregoing factors.
The Department of Transportation will ensure that all personnel
actions relating to hiring, compensation, transfers, promotions, training,
educational opportunities and terminations will be made in a
nondiscriminatory manner. Discrimination or harassment of any type to
include sexual harassment will not be tolerated in the Department.
Suggestions or concerns regarding the Department[']s Equal
Employment Opportunity Policies should be directed to your local EEO
Counselor or the Human Resources Division.
Through result-oriented goals, all levels of management are
charged with the responsibility to achieve compliance. Appropriate
corrective action will be taken for noncompliance.
Employees with discrimination complaints will obtain a prompt and
equitable answer to his/her problem, without fear of reprisal.
I am personally committed to the achievement of the objectives
described above and I expect all employees in the Department to support
this commitment.
Respondent's Equal Employment Opportunity Policy Statement, Disabled
Employees, dated July 1, 1999, states as follows:
The West Virginia Department of Transportation will not
discriminate against any applicant for employment because he or she is
disabled.
It is the policy of the West Virginia Department of Transportation
to take affirmative action to employ and advance in employment,
qualified disabled persons at all levels of employment. This policy
applies to all employment practices including recruitment, selection,
compensation and benefits, promotion, demotion, transfer, layoff,
termination, training and other terms, conditions and privileges of
employment.
Physical job qualifications are applied in the selection of
employees for hire, promotion and transfer only if they are directly
related and consistent with business necessity and the safe performance
of the job. Reasonable accommodations, such as special equipment, job
restructure or other accommodations will be made for employees and
applicants provided the accommodation does not impose an undue
hardship on the Department.
Mr. Jarrell acknowledged that he was familiar with DOH's Equal Employment
Opportunity Policy for Disabled Employees, but stated he did not consider this Policywhen making his recommendation because Grievant had never asked him to be
relieved of his mechanic duties, had never told him he was having a problem
performing his duties due to his medical condition, and he had not observed Grievant
having any problems performing his duties. He stated he did not think Grievant's
medical condition was a problem.
DOH's Equal Employment Opportunity Policy Statement for Disabled Employees
was not violated. It does not require that an employee with a disability be awarded
a position over a more qualified, more senior employee. Further, while it appears that
the duties of a Storekeeper III position would be easier on Grievant physically than his
Mechanic duties, Grievant is able to perform all the duties of a Mechanic III.
(See footnote 5)
Neither of the above-quoted policies indicates that Mr. Ball was required to
participate in selecting the successful applicant as Grievant argued, nor did Grievant
present any other statute, regulation, or policy which requires the EEO Officer to so
participate.
Finally, Grievant alleges he was unlawfully discriminated against because of his
disability.
W. Va. Code § 29-6A-2(d) defines discrimination, for purposes of the
grievance procedure, as:
any differences in the treatment of employees unless such differences
are related to the actual job responsibilities of the employees or agreed
to in writing by the employees.
This definition encompasses all types of discrimination. Thus, assuming Grievant has
asserted discrimination under the federal Civil Rights Act as identified in the above-
quoted policy, and under the West Virginia Human Rights Act, such claims aresubsumed by § 29-6A-2(d).
See Vest v. Bd. of Educ., 193 W. Va. 222, 455 S.E.2d
781 (1995);
Hendricks v. W. Va. Dep't of Tax and Revenue, Docket No. 96-T&R-215
(Sept. 24, 1996).
A grievant alleging discrimination must establish a
prima facie case by
demonstrating:
(a) that he is similarly situated in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his employer in a
manner that the other employee(s) has/have not, in a significant
particular;
and,
(c) that such differences were unrelated to actual job responsibilities of
the grievant and/or the other employee(s), and were not agreed to by
the grievant in writing.
Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
Once a
prima facie case has been established, a presumption exists, which the
employer may rebut by demonstrating a "legitimate, nondiscriminatory reason" for its
action. Grievant may still prevail by establishing that the rationale given by the
employer is "mere pretext".
Id.
Grievant has not made a
prima facie case of discrimination. He did not
demonstrate that the reason he was not selected was unrelated to actual job
responsibilities. While he certainly had some experience as a Storekeeper, Mr.
Nichols had more experience in this area, having performed the dual role of
Storekeeper and Mechanic for 17 years. This experience in the area qualifies as a
reason for Mr. Nichols' selection over Grievant which is related to actual job
responsibilities.
The following Conclusions of Law support the Decision reached.
Conclusions of Law
1. Grievant bears the burden of proving his allegations by a preponderance
of the evidence.
W. Va. Code § 29-6A-6.
Mowery v. W. Va. Dep't of Natural
Resources, Docket No. 96-DNR-218 (May 30, 1997).
2. 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 v. Div. of Rehabilitation Serv., Docket No. 93-RS-489 (July 29, 1994).
3. Grievant failed to prove he was more qualified than the successful
applicant, that the successful applicant was not minimally qualified, or that DOH's
decision was otherwise arbitrary and capricious or clearly wrong.
4.
W. Va. Code § 29-6A-2(h) defines "favoritism" to mean "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:
(a) that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that the other employee(s) have been given advantage or treated
with preference in a significant manner not similarly afforded him;
(c) that the difference in treatment has caused a substantial inequity to
him and that there is no known or apparent justification for this
difference.
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).
5.
W. Va. Code § 29-6A-2(d) defines discrimination, for purposes of the
grievance procedure, as:
any differences in the treatment of employees unless such differences
are related to the actual job responsibilities of the employees or agreed
to in writing by the employees.This definition encompasses all types of discrimination. See Vest v. Bd. of Educ.,
193 W. Va. 222, 455 S.E.2d 781 (1995); Hendricks v. W. Va. Dep't of Tax and
Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996).
6. A grievant alleging discrimination must establish a
prima facie case by
demonstrating:
(a) that he is similarly situated in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his employer in a
manner that the other employee(s) has/have not, in a significant
particular;
and,
(c) that such differences were unrelated to actual job responsibilities of
the grievant and/or the other employee(s), and were not agreed to by
the grievant in writing.
Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
7. Grievant was not the victim of favoritism or discrimination.
8. DOH's Equal Employment Opportunity Policy for Disabled Employees
does not require DOH to hire a disabled employee over a better qualified, more senior
employee. Grievant did not demonstrate an entitlement to the position under the
facts of this case, pursuant to this Policy.
Accordingly, this grievance is DENIED.
Any party or the Division of Personnel may appeal this Decision to the circuit
court of the county in which the grievance arose, or the Circuit Court of Kanawha
County. 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 such appeal, 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 Grievance Board with
the civil action number so that the record can be prepared and transmitted to the
circuit court.
_____________________________
BRENDA L. GOULD
Administrative Law Judge
Date: March 31, 2000
Footnote: 1