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 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:

(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:



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:




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
      The position was actually filled on February 16, 1999, according to Grievant's Statement of Grievance.
Footnote: 2
      Grievant represented himself, and Respondent was represented by DOH Attorney Timbera Wilcox.
Footnote: 3
      SETCONS was explained as requiring the same certification as NICET IV.
Footnote: 4
      As Grievant did not offer any evidence on this issue other than his belief, this issue will not be addressed further. "[M]ere allegations alone without substantiating facts are insufficient to prove a grievance." Baker v. Bd. of Trustees, Docket No. 97 BOT-359 (Apr. 30, 1998).
Footnote: 5
      Although unclearly pled, this issue will also be viewed as retaliation and/or reprisal.
Footnote: 6
      Grievant described his behavior as debating and explained it was his right to express his opinion.
Footnote: 7
      The most recent years have been at the "Meets Expectations" level. The prior years were at the "Exceeds Expectations" level.
Footnote: 8
      Grievant repeatedly noted the following statement from the "Nature of Work" Section of the Senior Engineer Technician class specification which stated: "[p]ositions in this class typically include the following functional roles: . . . Reconstruction/Resurfacing Supervisor . . . ." He believed this statement denoted the required minimum qualifications for the Reconstruction/Resurfacing Supervisor position, and since the successful applicant was not SETCONS, he was not minimally qualified for the position. It was pointed out to Grievant that the minimum qualifications for a class specification are listed in a separate section.
Footnote: 9
      At Level III, Grievant argued with both Mr. Shafer and Mr. Braley stating that they had repeatedly asked him if he was going to file a grievance if he did not get the position. Both Mr. Shafer and Mr. Braley denied making the statement. Additionally, Mr. Braley stated Grievant had informed Mr. Shafer and himself several times during the course of the interview that if he did not receive the position he would file a grievance.
Footnote: 10
      It is noted that as the employee attains experience and passes the exam, it is possible to advance to a NICET IV.