ROBERT WOODRUFF,

      Grievant,

v.                                                      Docket No. 99-DOH-477

WEST VIRGINIA DIVISION
OF HIGHWAYS,

      Respondent,

and

JOHN CORIO,

      Intervenor.

DECISION

      Robert Woodruff (“Grievant”) initiated this grievance against Respondent West Virginia Division of Highways (“DOH”) on or about June 9, 1998, alleging he should have been selected for a Transportation Crew Chief, Maintenance (“TCCMAIN”), position. Grievant seeks placement in the position, with back pay to June 1, 1998. The record does not reflect what proceedings occurred at levels one and two of the grievance procedure. A level three hearing was held on October 27, 1998, January 21, 1999, and June 8, 1999. The grievance was denied in a written level three decision dated October 26, 1999. Grievant appealed to level four on November 15, 1999. After a review of the level three record, the parties agreed to submit this grievance for a decision based upon that record. This matter became mature for decision on May 2, 2000, upon receipt of the parties' final fact/law proposals.   (See footnote 1) 

Procedural Issue

      The parties to this grievance agreed to file fact/law proposals by April 1, 2000. Only Grievant's representative submitted proposals on that date. On April 6, 2000, Respondent's counsel notified the undersigned that “Grievant's proposals contain[ed] inaccuracies and . . . frames an issue and argument never before litigated in the lower level proceedings.” Accordingly, Respondent requested permission to file a rebuttal to Grievant's proposals. Because the undersigned had not yet completed review of the voluminous level three record, DOH was allowed to file the requested rebuttal, and Grievant was allowed until May 1, 2000, to file any response to the rebuttal brief, which Grievant's representative filed.
      Respondent's specific allegation is that Grievant, for the first time in his level four submission, argued that Intervenor Corio, the successful applicant for the position at issue, received favorable treatment in supervisory upgrades prior to the selection decision for the TCCMAIN position. DOH contends that this issue had not previously been litigated, and that Grievant had only argued that the selection process itself was flawed. Respondent argues that the supervisory upgrades were only discussed with regard to the respective qualifications of the applicants, not as to pre-selection favoritism toward Intervenor.
      Upon review of the entirety of the lower level record, the undersigned finds that Respondent's allegation is unfounded. During the level three hearing on January 21, 1999, Respondent's counsel raised an objection to Grievant's representative questioning a witness regarding Mr. Corio's receiving favored treatment prior to the job posting in the form of supervisory upgrades. After a discussion among the parties and the level three hearing examiner, this evidence was permitted. L III Tr., Jan. 21, 1999, at 127-128. Infact, the level three record contains numerous and extensive discussions of Mr. Corio's upgrades and whether or not they were justified, so DOH cannot have been taken by surprise by Grievant's current arguments. Accordingly, Grievant had previously raised this issue, which was proper for argument in his level four proposals.
      Nevertheless, the undersigned finds that Grievant has not been prejudiced by DOH's submission of a rebuttal argument. Grievant's representative was allowed the opportunity to respond to the rebuttal, which he did. Accordingly, all of the arguments submitted by all parties have been considered by the undersigned in rendering this Decision.
Findings of Fact

      1.      Grievant has been employed by DOH since 1987 as an equipment operator. His current classification is Equipment Operator III.
      2.      On January 13, 1998, a vacancy was posted for a TCCMAIN in Taylor County. The job duties described in the posting included supervision of work crews “performing maintenance and repair on highways.” The posting also stated an employee in this position “may be exposed to hazardous working conditions and inclement weather.”
      3.       During his employment with DOH, Grievant has been assigned to supervise highway work crews on numerous occasions.
      4.      Prior to 1987, Grievant was employed City of Grafton, West Virginia, for approximately two years, as street, water, and garbage supervisor. He supervised several employees, which included keeping time records, assigning work to each department, and ordering supplies. Grievant also operated equipment, such as dump trucks, backhoes, graders and rollers. He supervised mechanics, welders, and laborers in equipment repairand maintenance. Prior to his position with the City of Grafton, Grievant was a construction worker.
      5.      Intervenor has been employed by DOH since 1993, and was classified as an Equipment Operator II when he applied for the position at issue. He was initially employed by DOH as a Craftsworker.
      6.      Beginning in April of 1997, Intervenor was assigned to coordinate and oversee the construction of a portion of the new Taylor County DOH facility. Employees and inmates under his supervision constructed storage facilities, installed a septic system, installed sewage lines and drainage systems, and installed electrical and plumbing work. Intervenor was required to plan the work, see that the work was accomplished, and perform related timekeeping and other paper work.
      7.      Intervenor stated on his application for the TCCMAIN position that the construction of the Taylor County facility had entailed supervision of “8 to 12 employees daily.” Gr. Ex. 4. Although his time records for this project indicate that he normally supervised two or three employees, Intervenor also directed the work of an inmate crew of approximately 5 or 6 individuals. The inmates had a crew leader, but Intervenor decided what work they would do and how it would be accomplished. Additionally, when other equipment operators were needed, he supervised their work, adding more people under his direct and/or indirect supervision. Intervenor received temporary upgrades during much of the time he was supervising this construction project.
      8.      Intervenor has never supervised or worked on a highway construction crew since he has been employed by DOH.
      9.      Prior to being employed by DOH, Intervenor worked for B & O Railroad andwas a construction worker for intermittent periods, during layoffs from the railroad.
      10.      On April 21, 1998, applicants for the TCCMAIN position were interviewed by a committee consisting of Donna Gallaher, Taylor County Maintenance Superintendent; Garry Cathell, Assistant Superintendent; Anthony Paletta, Maintenance Management Analyst and EEO Director for Taylor County; and Melvin Mayes, Area Maintenance Assistant.
      11.      The applicants were each asked the same questions, which were supplemented by some additional questions for clarification and follow-up, based upon the applicant's response.
      12.      The interview committee unanimously selected Intervenor for the position, based upon his work ethic, ability to get along with others, overall attitude and work performance.
      13.      Although he had more supervisory experience and highway construction experience than Intervenor, Grievant was not considered as qualified, because he had a history of displaying a poor attitude toward his work and others; working as a dispatcher, he had been “harsh” to the public; and he had been involved in at least two accidents with DOH equipment and had not timely reported them. He also had responded to an interview question regarding reprimanding an employee by saying something to the effect of “being as nasty as they could” or “cussing them out.” Intervenor had responded to the same question by saying that he would take the employee and try to talk it out before taking any disciplinary action.
Discussion

      As this grievance does not involve a disciplinary matter, Grievant has the burden ofproving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
      The grievance procedure in W. Va. Code §§ 29-6A-1, et seq., is not intended to be a "super interview" for unsuccessful job applicants. Rather, it provides an opportunity to review the legal sufficiency of the selection process. Shull v. W. Va. Dep't of Health & Human Resources, Docket No. 97-HHR-417 (Jan. 26, 1998); Thibault v. Div. of Rehabilitation Serv., Docket No. 93-RS-489 (July 29, 1994). See Stover v. Kanawha County Bd. of Educ., Docket No. 89-20-75 (June 26, 1989). Moreover, an agency's decision as to who is the most qualified applicant will be upheld unless shown by the grievant to be arbitrary and capricious or clearly wrong. Sheppard v. W. Va. of Dep't Health & Human Resources, Docket Nos. 97-HHR-186/187 (Dec. 29, 1997). See Ashley v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-070 (June 2, 1995); Thibault, supra. W. Va. Code § 29-6-1 provides that "[a]ll appointments and promotions to positions in the classified service shall be made solely on the basis of merit and fitness . . . ."
      In the instant case, Grievant claims that he did not receive this position as the result of unfair favoritism. Favoritism is defined by W. Va. Code § 29-6A-2(h), as "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees." In order to establish a prima facie showing of favoritism, a grievant must establish the following:

      and,


Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999); Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998). See McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). If grievant establishes a prima facie case of favoritism, a respondent may rebut this showing by articulating a legitimate reason for its action. However, the grievant can still prevail if he can demonstrate that the reason proffered by respondent was mere pretext. Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
      As set forth above, Grievant contends that Intervenor was not entitled to be upgraded to supervisor for many of the periods between 1997 and 1998 when Intervenor was assigned to the Taylor County construction project. Several witnesses testified that an employee had to supervise at least four people in order to be entitled to an upgrade, and that Intervenor did not always supervise this many employees. Therefore, Grievant contends that Intervenor was not entitled to the upgrades, which must have been the result of favoritism. However, no evidence has been introduced regarding DOH policies or procedures on such upgrades.
      With regard to the upgrades, Grievant has failed to establish a prima facie case of favoritism. He has not demonstrated how he is similarly situated to Intervenor in this regard. Grievant seems to believe that, because Intervenor was upgraded during the construction project, this was the reason for his selection for the TCCMAIN position. Therefore, if Intervenor had not received these allegedly illegal upgrades, in Grievant's view, he would not have received the position at issue. However, the evidence in this case does not support this proposition. The members of the interview committee testified that Intervenor was selected, in large part, because of his demonstrated work ethic and ability to get along with others. Grievant, on the other hand, was not selected, due to his demonstrated difficulties in getting along, and conduct which placed his supervisory abilities and work ethic in question. When selecting a candidate for a supervisory position, an employer has a responsibility and duty to select an individual who possesses the managerial skills necessary to the position. Salmons v. W. Va. Dep't of Transp., Docket No. 99-DOH-385 (April 25, 2000).
      Whether or not Intervenor's upgrades were appropriate or not, the undisputed evidence establishes that he oversaw a large construction project and directed the work of other employees. Even if a temporary upgrade was not justified, Intervenor did engage in activities which provided the interview committee members with proof of his supervisory and leadership capabilities. Moreover, there is no evidence which indicates that, if Intervenor had not been upgraded, he would not have been selected for the position as TCCMAIN.
      Grievant also contends that the selection decision at issue was itself the result of favoritism. He believes that his greater experience and seniority easily make him more qualified than Intervenor. Indeed, W. Va. Code § 29-6-10(4) provides that, when two candidates have “similar qualifications,” seniority is to be considered when determining who will receive a promotion. However, in prior decisions interpreting Code § 29-6-10(4), this Grievance Board has determined that where the grievant and the successful applicantmeet the minimum qualifications for the position, but one applicant is more qualified than the grievant, their qualifications are not substantially equal or similar. Therefore, seniority need not be specifically considered in the selection process. Barth v. W. Va. Bureau of Employment Programs, Docket No. 97-BEP-552 (May 29, 1998); Sheppard, supra; Mowery v. W. Va. Dep't of Natural Resources, Docket No. 96-DNR-218 (May 30, 1997). See Lewis v. W. Va. Dep't of Admin., Docket No. 96-DOA-027 (June 7, 1996). The fact that a candidate has the most experience or the most seniority does not necessarily entitle that candidate to a position. Lunau v. Div. of Corr., Docket No. 95-CORR-002 (May 31, 1995).
       “That one employee was chosen while another was not, does not constitute detrimental treatment in a selection case, unless the choice is unrelated to job responsibilities, is otherwise arbitrary and capricious, or is otherwise contrary to law.” Shull, supra. Grievant has not shown that his qualifications were similar to Intervenor's, so DOH did not act improperly in failing to consider seniority. Moreover, favoritism has not been established, because DOH provided numerous legitimate reasons for their selection of Intervenor over Grievant, all of which were directly related to the performance of this supervisory position.
Conclusions of Law

      1.      In a grievance which does not involve a disciplinary matter, the grievant has the burden of proving his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.19 (1996); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
      2.      An agency's decision as to who is the most qualified applicant will be upheldunless shown by the grievant to be arbitrary and capricious or clearly wrong. Thibault v. Div. of Rehabilitation Serv., Docket No. 93-RS-489 (July 29, 1994).
      3.      The seniority preference set forth in W. Va. Code § 29-6-10(4) is applicable only when the applicants' qualifications are substantially equal or similar. Barth v. Bureau of Employment Programs, Docket No. 97-BEP-552 (May 29, 1998). In the circumstances presented by this grievance, Grievant failed to establish by a preponderance of the evidence that he was equally as qualified for the position at issue as the successful applicant, or that Respondent's selection was arbitrary and capricious.
      4.      Favoritism is defined by W. Va. Code § 29-6A-2(h), as "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees." In order to establish a prima facie showing of favoritism, a grievant must establish the following:


      and,


Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999); Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998). See McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996).
      5.      If grievant establishes a prima facie case of favoritism, a respondent may rebut this showing by articulating a legitimate reason for its action. However, the grievantcan still prevail if he can demonstrate that the reason proffered by respondent was mere pretext. Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).
      6.      DOH provided numerous reasons for the selection of Intervenor for the TCCMAIN position, so Grievant has failed to establish a prima facie case of favoritism.
      Accordingly, this grievance is DENIED.
      Any party or the West Virginia Division of Personnel may appeal this decision to the Circuit Court of Kanawha County or to the circuit court of the county in which the grievance occurred, and such appeal must be filed within thirty (30) days of receipt of this Decision. W. Va. Code § 29-6A-7 (1998). Neither the West Virginia Education and State Employees Grievance Board nor any of its administrative law judges is a party to such appeal and should not be so named. However, the appealing party is required by W. Va. Code § 29A- 5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

Date:      May 24, 2000                  ___________________________________
                                          DENISE M. SPATAFORE
                                          Administrative Law Judge


Footnote: 1
      Grievant was represented at all levels by Kevin Church, representative for the AFL- CIO; DOH was represented by counsel, Nedra Koval; and Intervenor represented himself.