v. Docket No. 00-DOH-150
Grievant, John Sammons, filed this grievance against his employer, the Division of
Highways ("DOH"), alleging:
I was not selected for the position of Highway Administrator III. I was the
most qualified applicant and should have been awarded the position. The
civil service guidelines were not followed and the selection was flawed by
outside interest.
The relief sought by Grievant was "to be installed as Highway Administrator III in Wayne
County and to be made whole in salary difference since Wilmer Napier was made
supervisor."
(See footnote 1)
This grievance was denied at all lower levels, and it was appealed to the
Grievance Board on April 27, 2000. The parties agreed to submit the case on the record.
This case became mature for decision on July 6, 2000, the date proposed findings of fact
and conclusions of law were due. The parties did not submit these proposals.
(See footnote 2)
Issues and Arguments
Grievant argued three points. One, he was the most qualified candidate, two, the
guidelines for submitting an application were not followed, and three, the successful
applicant, Coy Robinson, was tacitly endorsed by the Commissioner of Highways, SamBeverage. Although the term was not used by Grievant, this third argument will be viewed
as favoritism.
Respondent argued there were many qualified applicants for the position, as all had
been found minimally qualified for the position at issue. Respondent also stated the
successful applicant was the most qualified applicant, and there was no pressure, implied
or direct, to select the successful applicant. As for the failure to follow the required
guidelines, Respondent asserted the minor breaks with procedure were not significant, and
these flaws should not require a change in the selection decision.
After a detailed review of the record in its entirety, the undersigned Administrative
Law Judge makes the following Findings of Fact.
Findings of Fact
1. Grievant has been employed by DOH for twenty-seven years and is currently
working as a Permit Supervisor. 2. On September 2, 1999, District II posted, in the Weekly Vacancy Report, a
position for a Highway Administrator III in Wayne County.
(See footnote 3)
The posting identified the
duties of the employee and stated the employee would "supervise county maintenance
activities such as evaluating roads for repair and other activities having to do with the
maintenance of roads throughout the county. Also will be responsible for budget
administration and responding to citizens['] inquiries concerning roads." Grt. Ex. No. 2, at
Level III.
3. The Highway Administrator III Job Description states:
Nature of work: Under general direction performs full performance level
work administering highway maintenance operations in a county or area in
accordance with established procedures and policies of the Division of
Highways or may serve as a specialist, administering a specific district-wide
maintenance program throughout the district. Performs related work as
required.
Distinguishing Characteristics: The distinction between the levels of
incumbents in this class series is based on highway characteristics of the
county or area and level of responsibility, as indicated by the annual
budgetary allotment. In the specialist assignment, the incumbent administers
a highway maintenance program of advanced complexity requiring specific
expertise and in which the planning and implementation st[e]ps are [t]ypically
varied and require application of a wide range of knowledge, skills and
abilities.
Directs and implements a scheduled highway maintenance program within
operating annual budget, including the security of materials and
equipment.
Ensures maximum utilization of equipment, personnel and materials.
May estimate requirements of paving projects in assigned area.
Schedules or approves weekly maintenance activities, work crew
assignments, equipment and materials.
Ensures compliance with Division of Highways established schedules,
procedures, and policies as well as any Federal regulations applied.
Responds and resolves citizen or employee complaints.
May appear as witness for Division in legal actions.
May prepare projected budget, expenditure schedule.
Serves as member of District Equipment Review Board.
Attends safety meetings, management conferences.
Plans and implements SRIC (Snow Removal Ice Control) program for area.
Performs field inspections of bridges, roads and crews.
Knowledge, Skills and Abilities
Knowledge of the maintenance standards and procedures of the Division of
Highways.
Knowledge of highway equipment and its capabilities; the material and parts
used in roadway maintenance.
Knowledge of standard safety procedures and internal operating policies and
procedures of the Division of Highways.
Knowledge of OSHA and EEO regulations.
Ability to schedule and organize maintenance crews, supervise personnel.
Ability to estimate manpower, materials, and equipment to complete a
scheduled maintenance activity.
Ability to read blueprints.
Ability to maintain effective working relationships.
Minimum Qualifications
Training: Graduation from an accredited college or university with a degree
in engineering, business or public administration, or related field.
Substitution: Experience as described below may be substituted for the
required training on a year for year basis.
Experience: Five years of full-time or equivalent part-time paid professional
or managerial experience in business administration, public administration,
transportation, construction, manufacturing, mining or the armed services.
4. This Weekly Vacancy Report identified the Date Down as September 16,
1999. The Report also stated, "[t]o be eligible for consideration, a completed application
must be received prior to the Date Down shown on this advertisement by J. Wilson Braley,
District Administrator." Grt. Ex. No. 2, at Level III.
5. Grievant submitted his application to Mr. Braley in a timely manner. 6. Coy Robinson did not submit his application to Mr. Braley. Mr. Robinson
submitted his application to Commissioner Sam Beverage when he went to the
Commissioner's home for another, unidentified reason. These two individuals are personal
friends. There is no date on the application as to when this application was received by
the Commissioner. There is a stamp on the application indicating it was received in the
Commissioner's office, but the date space is blank.
7. When Commissioner Beverage met with Mr. Braley, for another reason after
the Date Down, he hand-delivered Mr. Robinson's application to Mr. Braley.
Commissioner Beverage did not instruct Mr. Braley to hire Mr. Robinson.
8. Approximately fifteen applicants applied for the position, including the
successful applicant and Grievant.
9. Mr. Braley and Assistant District Administrator, Mr. Dave Blevins, interviewed
all applicants who met the minimum qualifications. Grievant was one of the top three
candidates.
10. Although Mr. Blevins did participate in the interviews, he did not participate
in the actual selection process.
11. Mr. Robinson was selected for the position.
12. Grievant has worked for DOH since 1973 and has 27 years of seniority. He
has an Associate Degree in Civil Engineering. He has worked as a Bridge Inspector, a
Bridge Inspection Coordinator, and he has supervised bridge inspectors in the past. More
recently he has worked as a Maintenance Assistant, which included responsibility for
preparing paving projects, preparing weekly reports, and reviewing citizen's requests forassistance. He also aided the County Maintenance Supervisor in technical matters.
Additionally, he has supervised the County Maintenance Supervisor, and has been placed
in several counties as acting County Maintenance Supervisor for a total of three years.
He now functions as the Permit Supervisor for District II.
13. The successful applicant has a GED and completed the eighth grade. He
has been employed by DOH since 1976 and has approximately 24 years of seniority. His
experience with DOH has been in the area of repair and maintenance of vehicles and
equipment. He supervised numerous employees, and supervised the use of parts and
inventory from vendors and the parts storeroom. He coordinated the transportation of
equipment, signs payroll purchase orders and shop work orders. In his work experience
prior to working for DOH, the successful applicant managed a service station and
supervised and maintained a fleet of vehicles in private industry. He has no experience
in the repair of roads and highways.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving his grievance by a preponderance of the evidence. Procedural Rules of the
W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996);
Lilly v. W.
Va. Dep't of Tax and Revenue, Docket No. 95-T&R-576 (Apr. 5, 1996);
Howell v. W. Va.
Dep't of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990).
See W. Va.
Code § 29-6A-6.
See also Holly v. Logan County Bd. of Educ., Docket No. 96-23-174
(Apr. 30, 1997);
Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug.
19, 1988). Grievant makes several arguments which will be addressed individually.
A. Whether Grievant has demonstrated he was the most qualified for the
position.
The grievance procedure is not intended to be a super interview, but rather, allows
a review of the legal sufficiency of the selection process. Thibault v. Div. of Rehabilitation
Serv., Docket No. 93-RS-489 (July 29, 1994). This Grievance Board recognizes that
promotion decisions are largely the prerogative of management. While individuals
selected for promotion should be qualified and able to perform the duties of their new
position, absent the presence of unlawful, unreasonable, or arbitrary and capricious
behavior, such promotion decisions will not generally be overturned. Skeens-Mihaliak v.
Div. of Rehabilitation Serv., Docket No. 98-RS-126 (Aug. 3, 1998); Ashley v. W. Va. Dep't
of Health and Human Resources, Docket No. 94-HHR-070 (June 2, 1995); McClure v. W.
Va. Workers' Compensation Fund, Docket Nos. 89-WCF-208/209 (Aug. 7, 1989). An
agency's decision as to who is the most qualified applicant will be upheld unless shown
by the grievant to be arbitrary and capricious or clearly wrong. Thibault, supra.
"Generally, an action is considered arbitrary and capricious if the agency did not
rely on criteria intended to be considered, explained or reached the decision in a manner
contrary to the evidence before it, or reached a decision that was so implausible that it
cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v.
Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the
Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health
and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capriciousactions have been found to be closely related to ones that are unreasonable. State ex rel.
Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as
arbitrary and capricious when "it is unreasonable, without consideration, and in disregard
of facts and circumstances of the case." Id. (citing Arlington Hosp. v. Schweiker, 547 F.
Supp. 670 (E.D. Va. 1982)). "While a searching inquiry into the facts is required to
determine if an action was arbitrary and capricious, the scope of review is narrow, and an
administrative law judge may not simply substitute her judgment for that of [the agency].
See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va.
1982)." Trimboli, supra; See Hattman v. Bd. of Directors, Docket No. 98-BOD-439 (Apr.
30, 1999).
Generally, when applying an "arbitrary and capricious" standard of review, the
inquiry is limited to determining whether relevant factors were considered in reaching the
decision and whether there has been a clear error of judgment. Bowman Transp. v.
Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison; supra; Hill v.
Kanawha County Bd. of Educ., Docket No. 94-20-537 (Mar. 22, 1995). Further, a decision
of less than ideal clarity may be upheld if the agency's path in reaching that conclusion
may reasonably be discerned. Bowman, supra, at 286. If a grievant can demonstrate that
the selection process was so significantly flawed that he might reasonably have been the
successful applicant if the process had been conducted in a proper fashion, the employer
will be required to compare the qualifications of the grievant to the successful applicant.
Thibault, supra. Additionally, although not cited by the parties the undersigned Administrative Law
Judge will take administrative notice of the guidelines which DOH is to apply when
comparing candidates. See Ward v. Dep't of Transp./Div. of Highways, Docket No. 96-
DOH-184 (July 24, 1997). W. Va. Code § 29-6-10(4) states:
(4) For promotions within the classified service [rules shall be developed]
(See footnote 4)
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 increase in 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 superiorqualifications than another, without regard to seniority as a factor." Lewis v. W. Va. Dep't
of Admin., Docket No. 96-DOA-027 (June 7, 1996). See Board v. Dep't of Health and
Human Resources, Docket No. 99-HHR-329 (Feb. 2,1999).
Here, the qualifications of Grievant and the successful applicant were "not
substantially equal" for the position at issue. Grievant had greater education and greater
experience for the position. Grievant had experience with road repair, budget preparation,
citizen complaints, and supervision. The successful applicant had a GED, no experience
with road repair, limited experience with budget preparation, no experience with citizen
complaints, no experience with snow and ice removal, and no experience with the
inspection of roads and bridges. The successful applicant did have extensive experience
in supervision.
Mr. Braley indicated the Highway Administrator III position would be expected to
deal with the administrative end of the work, and Mr. Robinson had extensive, positive
supervisory experience. Mr. Braley related this was his reason for hiring the successful
applicant. It must be noted Grievant also had extensive supervisory experience. Mr.
Braley also testified the Transportation Crew Supervisor would be expected to deal with
the technical end of the work. However, this is not what the synopsis of the duties was in
the Vacancy Report, and this is not what is specified in the Job Description. The Highway
Administrator III is expected to direct and maintain a scheduled highway maintenance
program. It is clear Grievant was more qualified for the position as identified by these two
documents. Additionally, even if Grievant and the successful applicant were found to be equally
qualified, in terms of examining the supervisory experience, then Grievant should have
received additional consideration as he was the most senior. W. Va. Code § 29-6-10(4).
See Ward, supra. DOH's decision with this specific set of facts is arbitrary and capricious.
Respondent's decision does not reflect a consideration of the relevant factors. Bowen,
supra.
B. Procedural irregularities in the application process.
Grievant is correct that the required procedures were not followed in the submission
of Mr. Robinson's application. The Vacancy Report gives specific directions and clearly
informs an applicant to: one, submit his application to Mr. Braley; and two, to submit it by
the date down. Mr. Robinson did not follow these clear and easy procedures. He gave
no reason for this failure to follow these directions.
It is not appropriate or correct to deliver an application for a position to the
Commissioner, and then have the Commissioner deliver the application to Mr. Braley,
especially when the Commissioner is the supervisor of the person who will make the
selection. Although it is clear the Commissioner did not tell Mr. Braley who to hire for the
position at issue, there is an implication or appearance of impropriety here which cannot
be avoided. This is especially true when Mr. Braley was aware the Commissioner and the
successful applicant were long-term friends. This process or approach suggests
favoritism, which is defined in W. Va. Code § 29-6A-2(h) "unfair treatment of an employee
as demonstrated by preferential, exceptional or advantageous treatment of another or
other employees." In order to establish a prima facie showing of favoritism a grievant must establish
the following:
(a) 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) the difference in treatment has caused a substantial inequity to him or
her, and there is no known or apparent justification for this difference.
O'Dell v. W. Va. Dep't of Transp./Div. of Highways;
Blake v. W. Va. Dep't of Transp.,
Docket No. 97-DOH-416 (May 1, 1998).
See McFarland v. Randolph County Bd. of Educ.,
Docket No. 96-42-214 (Nov. 15, 1996). If the grievant establishes a
prima facie case of
favoritism, the employer may rebut this showing by articulating a legitimate reason for its
actions. However, the grievant can still prevail if it can demonstrate that the reason
proffered by employer was mere pretext.
See Tex. Dep't of Community Affairs v. Burdine,
450 U.S. 248 (1981);
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53,
365 S.E.2d 251 (1986);
Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan.
28, 1990).
Grievant has established a
prima facie case of favoritism. He has demonstrated he
submitted his application in the prescribed manner and in a timely fashion. He followed
the required rules. Mr. Robinson did not follow the rules, and Mr. Robinson was selected
for the position anyway. An indication of favoritism is further supported by the fact that Mr.
Robinson's application was hand-delivered by his long-term friend and the ultimate
supervisor of Mr. Braley. While there is no "hard" evidence of favoritism here, theappearance of favoritism is present. These types of actions should be avoided when filling
classified positions. Additionally, it was inappropriate for Mr. Robinson to seek preferential
treatment by having the Commissioner deliver his application.
The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law
1. As this grievance does not involve a disciplinary matter, Grievant has the
burden of proving his grievance by a preponderance of the evidence. Procedural Rules
of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996);
Howell
v. W. Va. Dept. of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990).
See W. Va. Code § 29-6A-6.
See also Holly v. Logan County Bd. of Educ., Docket No. 96-
23-174 (Apr. 30, 1997);
Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130
(Aug. 19, 1988).
2.
W. Va. Code § 29-6-10(4) identifies the factors to consider when filling a
state vacancy and states:
(4) For promotions within the classified service [rules shall be developed]
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 increase in 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.)
3. The grievance procedure is not intended to be a super interview, but rather,
allows a review of the legal sufficiency of the selection process.
Thibault v. Div. of
Rehabilitation Serv., Docket No. 93-RS-489 (July 29, 1994).
4. Promotion decisions are largely the prerogative of management. While
individuals selected for promotion should be qualified and able to perform the duties of
their new position, absent the presence of unlawful, unreasonable, or arbitrary and
capricious behavior, such promotion decisions will not generally be overturned.
Skeens-
Mihaliak v. Div. of Rehabilitation Serv., Docket No. 98-RS-126 (Aug. 3, 1998);
Ashley v.
W. Va. Dep't of Health and Human Resources, Docket No. 94-HHR-070 (June 2, 1995);
McClure v. W. Va. Workers' Compensation Fund, Docket Nos. 89-WCF-208/209 (Aug. 7,
1989).
5. An agency's decision as to who is the most qualified applicant will be upheld
unless shown by the grievant to be arbitrary and capricious or clearly wrong.
Thibault,
supra.
6. "Generally, an action is considered arbitrary and capricious if the agency did
not rely on criteria intended to be considered, explained or reached the decision in a
manner contrary to the evidence before it, or reached a decision that was so implausible
that it cannot be ascribed to a difference of opinion.
See Bedford County Memorial Hosp.
v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985);
Yokum v. W. Va. Schools for
the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)."
Trimboli v. Dep't of
Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and
capricious actions have been found to be closely related to ones that are unreasonable.
State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is
recognized as arbitrary and capricious when "it is unreasonable, without consideration,
and in disregard of facts and circumstances of the case."
Eads,
supra (citing
Arlington
Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). " While a searching inquiry into
the facts is required to determine if an action was arbitrary and capricious, the scope of
review is narrow, and an administrative law judge may not simply substitute her judgment
for that of a board of education.
See generally,
Harrison v. Ginsberg, [169 W. Va. 162],
286 S.E.2d 276, 283 (W. Va. 1982)."
Trimboli,
supra.
7. Respondent's decision to hire the successful applicant was arbitrary and
capricious, as Grievant proved he was clearly more qualified than the successful applicant.
8.
W. Va. Code § 29-6A-2(h) defines favoritism as "unfair treatment of an
employee as demonstrated by preferential, exceptional or advantageous treatment of
another or other employees."
9. A grievant seeking to establish a
prima facie case of favoritism under
W. Va.
Code § 29-6A-2(h), must establish the following:
(a) 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) the difference in treatment has caused a substantial inequity to him or
her, and there is no known or apparent justification for this difference.
O'Dell v. W. Va. Dep't of Transp./Div. of Highways;
Blake v. W. Va. Dep't of Transp.,
Docket No. 97-DOH-416 (May 1, 1998).
See McFarland v. Randolph County Bd. of Educ.,
Docket No. 96-42-214 (Nov. 15, 1996). If the grievant establishes a
prima facie case of
favoritism, the employer may rebut this showing by articulating a legitimate reason for its
actions. However, the grievant can still prevail if it can demonstrate that the reason
proffered by employer was mere pretext.
See Tex. Dep't of Community Affairs v. Burdine,
450 U.S. 248 (1981);
Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53,
365 S.E.2d 251 (1986);
Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan.
28, 1990).
10. Grievant has established a
prima facie case of favoritism and Respondent
has not rebutted this showing with a legitimate reason for its actions.
11. Grievant established the required regulations for applying for the position
were not followed in this case to his detriment.
Accordingly, this grievance is
GRANTED. Respondent is directed to instate
Grievant into the position at issue with full back pay and seniority, with interest, from the
date the position was originally filled with Mr. Robinson.
Any party, or the West Virginia Division of Personnel, may appeal this decision to
the Circuit Court of Kanawha County, or to the "circuit court of the county in which the
grievance occurred." Any such appeal must be filed within thirty (30) days of receipt of this
decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State
Employees Grievance Board nor any of its Administrative Law Judges is a party to suchappeal and should not be so named. However, the appealing party is required by W. Va.
Code § 29A-5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The
appealing party must also provide the Board with the civil action number so that the record
can be prepared and properly transmitted to the appropriate circuit court.
JANIS I. REYNOLDS
ADMINISTRATIVE LAW JUDGE
Dated: August 17, 2000
Footnote: 1