GARLAND "TOM" SALMONS,
Grievant,
v. Docket No. 99-DOH-385
WEST VIRGINIA DEPARTMENT OF
TRANSPORTATION/DIVISION OF HIGHWAYS,
Respondent.
D E C I S I O N
Grievant, Garland "Tom" Salmons, filed this grievance against his employer, the
Division of Highways ("DOH"), alleging:
the position of the district two Reconstruction/Resurfacing Supervisor as it
was posted . . . was filled illegally, without comparison made to longevity,
work record and work skills, and contrary to why the position was posted.
The Relief Sought by Grievant was for Human Resources Division to investigate this
grievance; the successful applicant, Phil Manley, be removed from the position, his salary
reduced, and his NICET Level returned to his prior one; and Grievant be placed in the
position with a twenty percent increase in salary and back pay to August 1, 1998, when the
position should have been filled.
(See footnote 1)
This grievance was denied at all lower levels, and it was
appealed to the Grievance Board on September 9, 1999. After a continuance for good
cause shown, a Level IV hearing was held on February 3, 2000. This case became mature
for decision at that time, as the parties did not wish to submit proposed findings of fact and
conclusions of law.
(See footnote 2)
Issues and Arguments
Grievant maintained the position was illegally posted for either a NICET III or IV,
because the class specifications from the Division of Personnel ("DOP") require the
position to be filled by a Senior Engineering Technician - Construction ("SETCONS") or
NICET IV.
(See footnote 3)
Grievant noted he had greater work experience and seniority than the
successful applicant, and he believed the successful applicant was offered the position
before it was posted.
(See footnote 4)
Additionally, Grievant asserted the failure to select him was
continuing harassment stemming from the previous grievances he has filed.
(See footnote 5)
Respondent argued all of the five applicants were minimally qualified for the
position at issue, and the successful applicant was the most qualified and had experience
in the area of reconstruction and resurfacing, as well as experience in supervision.
Further, Respondent noted Grievant was argumentative and confrontational during the
interview, demonstrating a continuing pattern of inability to relate well to his supervisors.
As this position required the employee to be a "team player", Respondent did not believe
Grievant would be well suited to the position.
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-eight years and is classified
as a SETCONS.
2. On June 12, 1998, District II in DOH posted a position for a
Reconstruction/Resurfacing Supervisor. The applicant was required to be certified as a
NICET III or NICET IV. The duties would encompass paraprofessional, engineering work,
and would include initial review and final inspection of resurfacing projects.
3. Five applicants applied for the position, including the successful applicant
and Grievant.
4. The District Administrator, Mr. Wilson Braley, and District Engineer, Mr.
Charles Shafer, interviewed all five applicants. Mr. Shafer would be the direct supervisor
for the position.
5. During the interview, Grievant was informed that as this would be a lateral
move for him there would be no salary increase. Grievant then told Mr. Braley and Mr.
Shafer he had called DOP and was told that DOH could give him a salary increase in the
form of a merit increase. He was argumentative on this point and basically explained to
Mr. Braley and Mr. Shafer that since he believed others had received increases in similar
situations, he would be entitled to an increase as well.
6. Also during the interview Grievant was informed where he would be required
to "pool" his car. Grievant disagreed with this placement and informed Mr. Braley and Mr.Shafer that it would not be necessary for him to park the car at this location. Again, he was
argumentative and confrontational on this point.
(See footnote 6)
7. Also during this interview, Grievant began discussing Mr. Shafer's
supervisory style with Mr. Braley, and then told Mr. Braley he would discuss this more with
him later.
8. There are no complaints about the quality of Grievant's work, and his past
evaluations have been at the "Meets Expectations" or Exceeds Expectations" level.
(See footnote 7)
9. Grievant has a history of inability to work cooperatively with his supervisors.
Grievant has had difficulty working with Mr. Shafer in the past.
10. Over the last three years while Mr. Braley has been the District Administrator,
he and Grievant had numerous discussions about Grievant's inability to get along with Mr.
Shafer. Grievant also has had difficulty getting along with his current supervisor, Jim
Spence. Mr. Braley believed Grievant created a hostile work environment with his
supervisor and demonstrated an "inability to work together to accomplish the task", and
difficulty in "accept[ing] legitimate managerial decisions[/]requests, legitimate supervisory
requests." Level III Trans. at 46.
11. Both Mr. Braley and Mr. Shafer believed Grievant would be unable to work
cooperatively with Mr. Shafer, who would be his direct supervisor in this new position, and
with other supervisors. This was the reason Grievant was not selected for the position. 12. District II frequently posts positions so a broad number of applicants may
apply and to establish a career ladder for advancement. Other districts have posted the
position of Reconstruction/Resurfacing Supervisor as a SETCONS or NICET IV position.
The districts are not required to post the positions in the same way as long as a successful
applicant can perform the duties of the position.
13. The successful applicant had six years of experience with DOH, worked "in
a county operation for many years prior to being transferred to the Construction Division",
had an "ability to work with supervision", "a great deal of experience with blacktop",
experience in the military with construction and supervision, and "extensive knowledge of
asphalt." Level III Trans. at 42.
14. The successful applicant was classified as a NICET II at the time he applied
for the position. He had passed the NICET III and NICET IV tests, and had completed the
required number of years in the NICET II position to be certified as a NICET III. He could
not be certified as a NICET III until he had been promoted into a position that would have
him performing NICET III duties. Since the Reconstruction/Resurfacing Supervisor is seen
as a NICET III or NICET IV position, the successful applicant received a promotion to
NICET III when he assumed his new duties.
15. DOP found the successful applicant met the requirements for the position
and could be promoted to a NICET III. 16. Contrary to Grievant's argument, DOP does not require the
Reconstruction/Resurfacing Supervisor to be classified as a Senior Engineering
Technician.
(See footnote 8)
17. Grievant has filed several grievances in the past. Some of the grievances
dealt with Grievant's requests to take leave time, and his supervisor, Mr. Spence, did not
think the requests were appropriate. Some grievances were resolved at the lower levels
by Mr. Braley.
(See footnote 9)
Discussion
In a non-disciplinary matter, Grievant must prove the allegations of his complaint
by a preponderance of the evidence. Lilly v. W. Va. Dep't of Tax and Revenue, Docket
No. 95-T&R-576 (Apr. 5, 1996). 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 ofmanagement. 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 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, andan 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; 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 v. Ginsberg, 169
W. Va. 162, 286 S.E.2d 276 (1982); 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.
The first question to address is whether the position was illegally posted. Although
Grievant believed the position could not be posted for either a NICET III or a NICET IV,
there was no evidence presented to support this contention. While it is clear that other
districts have chosen to post the position as a SETCONS or NICET IV position, Grievant
presented no evidence that broadening the pool of applicants for the position violated anyrule, regulation, or policy.
(See footnote 10)
Further, Grievant offered no evidence that this manner of
broadening the pool of applicants was not the typical past practice of District II as testified
to by Mr. Braley. Given the evidence before the undersigned Administrative Law Judge,
the position must be found to have been properly posted.
Grievant also argued the successful applicant was not minimally qualified for the
position, as the successful applicant was a NICET II at the time of his application, and
Grievant maintained the position required a NICET IV or a Senior Engineering Technician.
See Finding of Fact No. 14.
It is clear the successful applicant was qualified to be certified as a NICET III, as
he had passed the test and met the experience qualification. When he was hired into a
NICET III position, he was then appropriately certified as a NICET III. Clearly, Mr. Manley
met the qualifications to be a NICET III, and this fact was substantiated when DOP
approved Mr. Manley for the position. Obliviously, the position could be filled by a NICET
IV, but this was not required. Again, Grievant failed to offer evidence to support his
assertion.
The next issue to address is whether Grievant was "substantially equal" or more
qualified for the position. 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:
(4) For promotions within the classified service which shall give appropriate
consideration to the applicant's qualifications, record of performance,
seniority and his or her score on a written examination, when such
examination is practicable. An advancement in rank or grade or an increasein salary beyond the maximum fixed for the class shall constitute a
promotion. When any benefit such as a promotion, wage increase or transfer
is to be awarded, . . . and a choice is required between two or more
employees in the classified service as to who will receive the benefit or have
the benefit withdrawn, and if some or all of the eligible employees have
substantially equal or similar qualifications, consideration shall be given to
the level of seniority of each of the respective employees as a factor in
determining which of the employees will receive the benefit or have the
benefit withdrawn, as the case may be.
(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 superior
qualifications 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, Grievant and the successful applicant were "not substantially equal" for the
position at issue. Technical qualifications were not all that was required for the position.
The successful applicant would need to work closely and well with Mr. Shafer and other
supervisors. Grievant had previously demonstrated his inability to do this and to accept
legitimate management decisions. This behavior was also clearly demonstrated during theinterview. Grievant argued about the lateral move, believed he was entitled to a raise, and
contradicted Mr. Shafer on where he would park his car. These are not the actions of a
"team player", and these are not the actions of an employee that would be qualified for a
supervisory position requiring ability to work well with others and follow the management
decisions of Mr. Shafer. Grievant certainly has a right to express his opinion. Mr. Braley
and Mr. Shafer also have a right, and indeed a duty, to express an opinion and select an
employee with the management skills necessary to the position. See Sheppard and
Gregory v. Dep't of Health and Human Resources, Docket Nos. 97- HHR-186/187 (Dec.
29, 1997).
The issues of harassment and retaliation will be discussed next. W. Va. Code § 29-
6A-2(l) defines harassment as "repeated or continual disturbance, irritation or annoyance
of an employee which would be contrary to the demeanor expected by law, policy and
profession." "Harassment has been found in cases in which a supervisor has constantly
criticized an employee's work and created unreasonable performance expectations, to a
degree where the employee cannot perform her duties without considerable difficulty. See
Moreland v. Bd. of Trustees, Docket No. 96-BOT-462 (Aug. 29, 1997)." Pauley v. Lincoln
County Bd. of Educ., Docket No. 98-22-495 (Jan. 29, 1999). A single incident does not
constitute harassment. Id; Metz v. Wood County Bd. of Educ., Docket No. 97-54-463 (July
6, 1998). In order to establish harassment in violation of W. Va. Code § 29-6A-2(l), the
Grievant must show a pattern of conduct, rather than a single improper act. See Hall v.
W. Va. Dep't of Transp., Docket No. 96-DOH-433 (Sept. 12, 1997); Phares v. W. Va. Dep'tof Public Safety, Docket No. 91-CORR-275 (Dec. 31, 1991). See also Thompson v. Bd.
of Trustees, Docket No. 96-BOT-097 (Dec. 31, 1996).
Although Grievant alluded to other positions he applied for and did not receive, he
did not present any evidence on this issue. It is noted that the evaluations Grievant
received from Mr. Spence, a supervisor with whom he had difficulty, rated Grievant as
satisfactory or above for the last six years. Mr. Braley indicated that although Grievant
was difficult to work with and frustrated his supervisors, he had not done anything they
would term unacceptable, and Grievant had not received any type of discipline for his
failure to follow his supervisor's directions or arguing/debating over various issues.
Grievant has not met his burden of proof and demonstrated he has been harassed.
W. Va. Code § 29-6A-2(p) defines "reprisal" as "the retaliation of an employer or
agent toward a grievant, witness, representative or any other participant in the grievance
procedure either for an alleged injury itself or any lawful attempt to redress it." To
demonstrate a prima facie case of reprisal a grievant must establish by a preponderance
of the evidence the following elements:
1) that he/she engaged in protected activity, e.g. filing or participating in a
grievance;
2) that he/she was subsequently treated in an adverse manner by the
employer or an agent;
3) that the employer's official or agent had actual or constructive knowledge
that the employee engaged in the protected activity;
4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment;
and/or
5) the adverse action followed the employee's protected activity within such
a period of time that retaliatory motivation can be inferred.
Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989);
See Conner
v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
See also
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251
(1986);
Gruen,
supra. If a grievant establishes a
prima facie case of reprisal, the
employer may rebut the presumption of retaliation by offering legitimate, non-retaliatory
reasons for the adverse action. If the respondent rebuts the claim of reprisal, the
employee may then establish by a preponderance of the evidence that the offered reasons
are merely pretextual.
Webb,
supra.
Grievant has established a
prima facie case of reprisal. Grievant's non-selection,
"the adverse action" followed "within such a period of time that retaliatory motivation can
be inferred." Within the past several years Grievant has filed several grievances. Thus,
the undersigned Administrative Law Judge finds Grievant has established a
prima facie
case of reprisal, and the burden shifts to Respondent to rebut the presumption of
retaliation.
Respondent has demonstrated legitimate, non-retaliatory reasons for its decision
not to hire Grievant in the Reconstruction/Resurfacing Supervisor position. The position
requires an individual who will follow management decisions and has the proven ability to
work well with others. Grievant has not shown an ability to do this. Although it is clear
Grievant has multiple technical skills, it is also clear Grievant has difficulty accepting
directions and orders from others, and especially from Mr. Shafer. Since the positionwould be under Mr. Shafer's direct supervision, and there was no evidence that Mr.
Shafer's previous demands and directions were unreasonable, but indeed were
"legitimate", Respondent's decision not to hire Grievant in the position cannot be found to
be arbitrary and capricious or clearly wrong.
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. 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).
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 Mr. Manley, or that
DOH's decision was otherwise arbitrary and capricious or clearly wrong.
4. 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. Grievant failedto prove by a preponderance of the evidence that his qualifications were substantially
equal to those of the successful applicant.
See Sheppard and Gregory v. Dep't of Health
and Human Resources, Docket Nos. 97- HHR-186/187 (Dec. 29, 1997).
5. Grievant failed to prove DOH violated, misinterpreted or misapplied
W. Va.
Code § 29-6-10(4).
6. Grievant has failed to prove by a preponderance of the evidence that the
selection of Phil Manley for the position in question was unlawful, unreasonable, or
arbitrary and capricious in any respect.
7. Harassment is defined as "repeated or continual disturbance, irritation, or
annoyance of an employee which would be contrary to the demeanor expected by law,
policy and profession."
W. Va. Code § 29-6A-2(l).
8. In order to establish harassment in violation of
W. Va. Code § 29-6A-2(l), the
grievants must show a pattern of conduct, rather than a single, isolated improper act.
See
Black v. Dep't of Transp., Docket No. 99-DOH 362 (Jan. 21, 2000);
Hall v. W. Va. Dep't
of Transp., Docket No. 96-DOH-433 (Sept. 12, 1997);
Phares v. W. Va. Dep't of Public
Safety, Docket No. 91-CORR-275 (Dec. 31, 1991).
9. Grievant did not meet his burden of proof and demonstrate he has been
subjected to harassment by DOH.
10. Reprisal is defined as "retaliation of an employer or agent toward a grievant
or any other participant in the grievance procedure either for an alleged injury itself or any
lawful attempt to address it."
W. Va. Code § 29-6A-2(p). A grievant claiming retaliation
may establish a
prima facie case of reprisal by proving the following elements:
1) that he/she engaged in protected activity, e.g. filing or participating in a
grievance;
2) that he/she was subsequently treated in an adverse manner by the
employer or an agent;
3) that the employer's official or agent had actual or constructive knowledge
that the employee engaged in the protected activity;
4) that there was a causal connection (consisting of an inference of a
retaliatory motive) between the protected activity and the adverse treatment;
and/or
5) the adverse action followed the employee's protected activity within such
a period of time that retaliatory motivation can be inferred.
Conner v. Barbour County Bd. of Educ., Docket Nos. 93-01-543/544 (Jan. 31, 1995).
See
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W. Va. 53, 365 S.E.2d 251
(1986) ;
Fareydoon-Nezhad v. W. Va. Bd. of Trustees at Marshall Univ., Docket No. 94-
BOT-088 (Sept. 19, 1994);
Webb v. Mason County Bd. of Educ., Docket No. 89-26-56
(Sept. 29, 1989).
11. If a grievant establishes a
prima facie case of reprisal, the employer may
rebut the presumption of retaliation by offering legitimate, non-retaliatory reasons for the
adverse action. If the respondent rebuts the claim of reprisal, the employee may then
establish by a preponderance of the evidence that the offered reasons are merely
pretextual.
Webb,
supra.
12. Although Grievant established a
prima facie case of retaliation, Respondent
demonstrated a legitimate nondiscriminatory reason for not selecting Grievant for the
position at issue.
See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). 13. Grievant failed to demonstrate DOH engaged in conduct which constituted
retaliation.
14. Grievant failed to establish that DOH violated any law, rule, policy,
regulation, or written agreement in regard to his non-selection.
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." 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 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: April 25, 2000
Footnote: 1