ROBERT WOODRUFF,
Grievant,
v. Docket No. 99-DOH-477
WEST VIRGINIA DIVISION
OF HIGHWAYS,
Respondent,
and
JOHN CORIO,
Intervenor.
DECISION
Robert Woodruff (Grievant) initiated this grievance against Respondent West
Virginia Division of Highways (DOH) on or about June 9, 1998, alleging he should have
been selected for a Transportation Crew Chief, Maintenance (TCCMAIN), position.
Grievant seeks placement in the position, with back pay to June 1, 1998. The record does
not reflect what proceedings occurred at levels one and two of the grievance procedure.
A level three hearing was held on October 27, 1998, January 21, 1999, and June 8, 1999.
The grievance was denied in a written level three decision dated October 26, 1999.
Grievant appealed to level four on November 15, 1999. After a review of the level three
record, the parties agreed to submit this grievance for a decision based upon that record.
This matter became mature for decision on May 2, 2000, upon receipt of the parties' final
fact/law proposals.
(See footnote 1)
Procedural Issue
The parties to this grievance agreed to file fact/law proposals by April 1, 2000. Only
Grievant's representative submitted proposals on that date. On April 6, 2000,
Respondent's counsel notified the undersigned that Grievant's proposals contain[ed]
inaccuracies and . . . frames an issue and argument never before litigated in the lower level
proceedings. Accordingly, Respondent requested permission to file a rebuttal to
Grievant's proposals. Because the undersigned had not yet completed review of the
voluminous level three record, DOH was allowed to file the requested rebuttal, and
Grievant was allowed until May 1, 2000, to file any response to the rebuttal brief, which
Grievant's representative filed.
Respondent's specific allegation is that Grievant, for the first time in his level four
submission, argued that Intervenor Corio, the successful applicant for the position at issue,
received favorable treatment in supervisory upgrades prior to the selection decision for the
TCCMAIN position. DOH contends that this issue had not previously been litigated, and
that Grievant had only argued that the selection process itself was flawed. Respondent
argues that the supervisory upgrades were only discussed with regard to the respective
qualifications of the applicants, not as to pre-selection favoritism toward Intervenor.
Upon review of the entirety of the lower level record, the undersigned finds that
Respondent's allegation is unfounded. During the level three hearing on January 21, 1999,
Respondent's counsel raised an objection to Grievant's representative questioning a
witness regarding Mr. Corio's receiving favored treatment prior to the job posting in the
form of supervisory upgrades. After a discussion among the parties and the level three
hearing examiner, this evidence was permitted. L III Tr., Jan. 21, 1999, at 127-128. Infact, the level three record contains numerous and extensive discussions of Mr. Corio's
upgrades and whether or not they were justified, so DOH cannot have been taken by
surprise by Grievant's current arguments. Accordingly, Grievant had previously raised this
issue, which was proper for argument in his level four proposals.
Nevertheless, the undersigned finds that Grievant has not been prejudiced by
DOH's submission of a rebuttal argument. Grievant's representative was allowed the
opportunity to respond to the rebuttal, which he did. Accordingly, all of the arguments
submitted by all parties have been considered by the undersigned in rendering this
Decision.
Findings of Fact
1. Grievant has been employed by DOH since 1987 as an equipment operator.
His current classification is Equipment Operator III.
2. On January 13, 1998, a vacancy was posted for a TCCMAIN in Taylor
County. The job duties described in the posting included supervision of work crews
performing maintenance and repair on highways. The posting also stated an employee
in this position may be exposed to hazardous working conditions and inclement weather.
3. During his employment with DOH, Grievant has been assigned to supervise
highway work crews on numerous occasions.
4. Prior to 1987, Grievant was employed City of Grafton, West Virginia, for
approximately two years, as street, water, and garbage supervisor. He supervised several
employees, which included keeping time records, assigning work to each department, and
ordering supplies. Grievant also operated equipment, such as dump trucks, backhoes,
graders and rollers. He supervised mechanics, welders, and laborers in equipment repairand maintenance. Prior to his position with the City of Grafton, Grievant was a construction
worker.
5. Intervenor has been employed by DOH since 1993, and was classified as an
Equipment Operator II when he applied for the position at issue. He was initially employed
by DOH as a Craftsworker.
6. Beginning in April of 1997, Intervenor was assigned to coordinate and
oversee the construction of a portion of the new Taylor County DOH facility. Employees
and inmates under his supervision constructed storage facilities, installed a septic system,
installed sewage lines and drainage systems, and installed electrical and plumbing work.
Intervenor was required to plan the work, see that the work was accomplished, and
perform related timekeeping and other paper work.
7. Intervenor stated on his application for the TCCMAIN position that the
construction of the Taylor County facility had entailed supervision of 8 to 12 employees
daily. Gr. Ex. 4. Although his time records for this project indicate that he normally
supervised two or three employees, Intervenor also directed the work of an inmate crew
of approximately 5 or 6 individuals. The inmates had a crew leader, but Intervenor decided
what work they would do and how it would be accomplished. Additionally, when other
equipment operators were needed, he supervised their work, adding more people under
his direct and/or indirect supervision. Intervenor received temporary upgrades during much
of the time he was supervising this construction project.
8. Intervenor has never supervised or worked on a highway construction crew
since he has been employed by DOH.
9. Prior to being employed by DOH, Intervenor worked for B & O Railroad andwas a construction worker for intermittent periods, during layoffs from the railroad.
10. On April 21, 1998, applicants for the TCCMAIN position were interviewed by
a committee consisting of Donna Gallaher, Taylor County Maintenance Superintendent;
Garry Cathell, Assistant Superintendent; Anthony Paletta, Maintenance Management
Analyst and EEO Director for Taylor County; and Melvin Mayes, Area Maintenance
Assistant.
11. The applicants were each asked the same questions, which were
supplemented by some additional questions for clarification and follow-up, based upon the
applicant's response.
12. The interview committee unanimously selected Intervenor for the position,
based upon his work ethic, ability to get along with others, overall attitude and work
performance.
13. Although he had more supervisory experience and highway construction
experience than Intervenor, Grievant was not considered as qualified, because he had a
history of displaying a poor attitude toward his work and others; working as a dispatcher,
he had been harsh to the public; and he had been involved in at least two accidents with
DOH equipment and had not timely reported them. He also had responded to an interview
question regarding reprimanding an employee by saying something to the effect of being
as nasty as they could or cussing them out. Intervenor had responded to the same
question by saying that he would take the employee and try to talk it out before taking any
disciplinary action.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden ofproving 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);
Payne v. W. Va.
Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code § 29-6A-6.
The grievance procedure in
W. Va. Code §§ 29-6A-1,
et seq., is not intended to be
a "super interview" for unsuccessful job applicants. Rather, it provides an opportunity to
review the legal sufficiency of the selection process.
Shull v. W. Va. Dep't of Health &
Human Resources, Docket No. 97-HHR-417 (Jan. 26, 1998);
Thibault v. Div. of
Rehabilitation Serv., Docket No. 93-RS-489 (July 29, 1994).
See Stover v. Kanawha
County Bd. of Educ., Docket No. 89-20-75 (June 26, 1989). Moreover, 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.
Sheppard v. W. Va. of Dep't
Health & Human Resources, Docket Nos. 97-HHR-186/187 (Dec. 29, 1997).
See Ashley
v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-070 (June 2, 1995);
Thibault,
supra.
W. Va. Code § 29-6-1 provides that "[a]ll appointments and promotions
to positions in the classified service shall be made solely on the basis of merit and fitness
. . . ."
In the instant case, Grievant claims that he did not receive this position as the result
of unfair favoritism. Favoritism is defined by
W. Va. Code § 29-6A-2(h), as "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;
and,
(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.
Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18,
1999);
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
grievant establishes a
prima facie case of favoritism, a respondent may rebut this showing
by articulating a legitimate reason for its action. However, the grievant can still prevail if
he can demonstrate that the reason proffered by respondent was mere pretext.
Prince v.
Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
As set forth above, Grievant contends that Intervenor was not entitled to be
upgraded to supervisor for many of the periods between 1997 and 1998 when Intervenor
was assigned to the Taylor County construction project. Several witnesses testified that
an employee had to supervise at least four people in order to be entitled to an upgrade,
and that Intervenor did not always supervise this many employees. Therefore, Grievant
contends that Intervenor was not entitled to the upgrades, which must have been the result
of favoritism. However, no evidence has been introduced regarding DOH policies or
procedures on such upgrades.
With regard to the upgrades, Grievant has failed to establish a
prima facie case of
favoritism. He has not demonstrated how he is similarly situated to Intervenor in this
regard. Grievant seems to believe that, because Intervenor was upgraded during the
construction project, this was the reason for his selection for the TCCMAIN position. Therefore, if Intervenor had not received these allegedly illegal upgrades, in Grievant's
view, he would not have received the position at issue. However, the evidence in this case
does not support this proposition. The members of the interview committee testified that
Intervenor was selected, in large part, because of his demonstrated work ethic and ability
to get along with others. Grievant, on the other hand, was not selected, due to his
demonstrated difficulties in getting along, and conduct which placed his supervisory
abilities and work ethic in question. When selecting a candidate for a supervisory position,
an employer has a responsibility and duty to select an individual who possesses the
managerial skills necessary to the position.
Salmons v. W. Va. Dep't of Transp., Docket
No. 99-DOH-385 (April 25, 2000).
Whether or not Intervenor's upgrades were appropriate or not, the undisputed
evidence establishes that he oversaw a large construction project and directed the work
of other employees. Even if a temporary upgrade was not justified, Intervenor did engage
in activities which provided the interview committee members with proof of his supervisory
and leadership capabilities. Moreover, there is no evidence which indicates that, if
Intervenor had not been upgraded, he would not have been selected for the position as
TCCMAIN.
Grievant also contends that the selection decision at issue was itself the result of
favoritism. He believes that his greater experience and seniority easily make him more
qualified than Intervenor. Indeed,
W. Va. Code § 29-6-10(4) provides that, when two
candidates have similar qualifications, seniority is to be considered when determining who
will receive a promotion. However, in prior decisions interpreting
Code § 29-6-10(4), this
Grievance Board has determined that where the grievant and the successful applicantmeet the minimum qualifications for the position, but one applicant is more qualified than
the grievant, their qualifications are not substantially equal or similar. Therefore, seniority
need not be specifically considered in the selection process.
Barth v. W. Va. Bureau of
Employment Programs, Docket No. 97-BEP-552 (May 29, 1998);
Sheppard,
supra;
Mowery
v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997).
See Lewis
v. W. Va. Dep't of Admin., Docket No. 96-DOA-027 (June 7, 1996).
The fact that a
candidate has the most experience or the most seniority does not necessarily entitle that
candidate to a position.
Lunau v. Div. of Corr., Docket No. 95-CORR-002 (May 31, 1995).
That one employee was chosen while another was not, does not constitute
detrimental treatment in a selection case, unless the choice is unrelated to job
responsibilities, is otherwise arbitrary and capricious, or is otherwise contrary to law.
Shull,
supra. Grievant has not shown that his qualifications were similar to Intervenor's, so DOH
did not act improperly in failing to consider seniority. Moreover, favoritism has not been
established, because DOH provided numerous legitimate reasons for their selection of
Intervenor over Grievant, all of which were directly related to the performance of this
supervisory position.
Conclusions of Law
1. In a grievance which does not involve a disciplinary matter, the 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);
Payne
v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988).
See W. Va. Code
§ 29-6A-6.
2. An agency's decision as to who is the most qualified applicant will be upheldunless 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. The seniority preference set forth in
W. Va. Code § 29-6-10(4) is applicable
only when the applicants' qualifications are substantially equal or similar.
Barth v. Bureau
of Employment Programs, Docket No. 97-BEP-552 (May 29, 1998). In the circumstances
presented by this grievance, Grievant failed to establish by a preponderance of the
evidence that he was equally as qualified for the position at issue as the successful
applicant, or that Respondent's selection was arbitrary and capricious.
4. Favoritism is defined by
W. Va. Code § 29-6A-2(h), as "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;
and,
(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.
Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18,
1999);
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. If grievant establishes a
prima facie case of favoritism, a respondent may
rebut this showing by articulating a legitimate reason for its action. However, the grievantcan still prevail if he can demonstrate that the reason proffered by respondent was mere
pretext.
Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
6. DOH provided numerous reasons for the selection of Intervenor for the
TCCMAIN position, so Grievant has failed to establish a
prima facie case of favoritism.
Accordingly, this grievance is
DENIED.
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, and 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 Board with the civil action number so that the record can be
prepared and properly transmitted to the appropriate circuit court.
Date: May 24, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1