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:

      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 “early”July 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:




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:






      Respondent's Equal Employment Opportunity Policy Statement, Disabled Employees, dated July 1, 1999, states as follows:


      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:
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:

and,

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:




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:
      6.      A grievant alleging discrimination must establish a prima facie case by demonstrating:

and,

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
The grievance was denied at Level I on August 30, 1999, and Grievant appealed to Level II on September 2, 1999. The grievance was denied at Level II on September 14, 1999, and Grievant appealed to Level III. A Level III hearing was held on December 9, 1999. Grievant was represented by Steve Rutledge, and Respondent was represented by Nedra Koval, Esquire. The grievance was denied at Level III on January 31, 2000, and Grievant appealed to Level IV on February 7, 2000. The parties agreed to submit this matter for decision on the record developed at the lower levels of the grievance procedure, and this matter was subsequently reassigned to the undersigned. This grievance became mature for decision on March 10, 2000, upon receipt of the Grievant's written argument. Respondent declined to submit written argument.
Footnote: 2
Although the posting lists the pay grade as 6, testimony was offered that this position is in a pay grade 7.
Footnote: 3
Mr. Jarrell, Jr., is Mr. Jarrell, Sr.'s son. At the time Mr. Jarrell, Jr., was in this position, Mr. Jarrell, Sr., was the Expressway Supervisor at the Corridor L Section Two Headquarters, and supervised Mr. Nichols at Muddlety. Mr. Jarrell, Jr., transferred to another position in November 1998, and Mr. Jarrell, Sr., moved to his current position on November 1, 1998.
Footnote: 4
Grievant made a reference to a violation of the laws of the United States of America in his Level IV written argument. This is the first time Grievant specifically raised any such claim, although Respondent's Equal Employment Opportunity Policy Statement references certain federal laws. As Respondent was not put on notice that Grievant was arguing a violation of any federal law, and Grievant did not identify a particular federal law he was referring to, it would not be fair to allow Grievant to raise such claims at such a late date. It is the practice of the Grievance Board to not allow any party to raise an argument for the first time in his written argument at Level IV for this reason, and this argument will not be addressed. Beckley v. Lincoln County Bd. of Educ., Docket No. 95-22-107 (1996). Further, although the undersigned could speculate that Grievant is attempting to raise a claim under the federal Americans with Disabilities Act, such a broad statement could include any number of federal laws. It is noted that Respondent's Equal Employment Opportunity Policy Statement does not reference the Americans with Disabilities Act. It is further noted that Grievant is not claiming he cannot perform the duties of a mechanic, and he has not requested an accommodation.
Footnote: 5
The undersigned would note that the Supreme Court of Appeals of West Virginia has concluded that, in applying the Human Rights Act, “reasonable accommodation can include reassignment to a vacant position.” Skaggs v. Elk Run Coal Co., 198 W. Va. 51, 479 S.E.2d 561 (1996). However, in this case, Grievant did not demonstrate that an accommodation was needed “in order to perform the essential functions of a job.” Haynes v. Rhone-Poulenc, Inc., Appeal No. 25366 (July 14, 1999).