KARLEANA MEEKS,

                                    Grievant,

v.                                                      Docket No. 00-HHR-182

DEPARTMENT OF HEALTH AND HUMAN RESOURCES/
BUREAU FOR CHILD SUPPORT ENFORCEMENT,

                                    Respondent.

                              

DECISION

      Karleana Meeks (Grievant) is employed by the Department of Health and Human Resources (DHHR) Bureau for Child Support Enforcement (BCSE) as a Legal Assistant. She filed this grievance on January 31, 2000, alleging that she was more qualified than the successful applicant for a Child Advocate Team Leader position, and that she was denied the position in retaliation for past grievances. This grievance was denied at Level I, on January 31, 2000, and at Level II, on February 2, 2000. A Level III hearing was held on May 12, 2000, before Shelli S. Freeland, Esq. Grievant was represented at this hearing by Steve Rutledge, and BCSE was represented by David Alter, Esq. This grievance was denied at Level III, on May 19, 2000, by BCSE Commissioner Lena S. Hill.
      At Level IV, Grievant was again represented by Steve Rutledge, and BCSE was represented by Assistant Attorney General Anthony Eates, II. The parties agreed that this grievance could be decided upon the record developed at the lower levels, and were given until August 15, 2000, to submit proposed findings of fact and conclusions of law. BCSE did so, and this grievance became mature for decision on that date.      The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT

      1.      Grievant is employed at BCSE as a Legal Assistant.
      2.      On October 14, 1999, BCSE posted a Child Advocate Team Leader position.
      3.      Grievant and three others applied for the position. One applicant did not meet the minimum qualifications for the position.
      4.      The selection process was carried out pursuant to DHHR Policy Memorandum 2106, which provides that applicants be interviewed and selected based upon similar standards; that interviews follow a structured approach, with similar questions; and that use of multiple interviewers is preferred.
      5.      The selection process consisted of two interviewers using a prepared list of twenty questions and assigning scores of one to five to each applicant for each of seven factors on a standard rating form, OPS-13, promulgated by the West Virginia Department of Health and Human Resources and recommended by DHHR Policy Memorandum 2106(V)(B)(5). Accordingly, a perfect score would have been 35 for each interviewer.       
      6.      The seven factors were oral expression, intelligence and reasoning process, judgment and objectivity, tact and sensitivity, appearance, poise and confidence, and leadership potential.
      7.      The two interviewers independently ranked the candidates.
      8.      One interviewer scored the successful applicant 23 points and Grievant 23.The second interviewer scored the successful applicant 24 points and Grievant 22. The third candidate's score was lower than Grievant's.
DISCUSSION

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her 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); Steadman v. Securities and Exchange Comm'n, 450 U.S. 91 (1981); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6. A preponderance of the evidence is defined as "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR- 486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      Grievant contends that she was the most qualified applicant for the position of Child Advocate Team Leader, and that the outcome of the selection process was the product of retaliation for her previous grievances. Grievant seeks instatement into the position and back pay. BCSE responds that the successful applicant was ranked as the best candidate after a fair interview process, and that there is no evidence of retaliation in the grievance.
      Unless proven arbitrary or capricious, or clearly wrong, an agency decision made by appropriate personnel as to which candidate is most qualified for selection or promotion will be upheld. Shull v. Dep't of Health & Human Resources, Docket No. 97-HHR-417(Jan. 26, 1998); Ashley v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-070 (June 2, 1995).
      In applying the “arbitrary and capricious” standard, a reviewing body applies a narrow scope of review, limited to determining whether relevant factors were considered in reaching that 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). Moreover, 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, Hill and Cyrus v. Kanawha County Bd. of Educ., Docket No. 96- 20-362 (Jan. 30, 1997). Furthermore, in matters of non-selection, the grievance process is not that of a “super-interview,” but rather serves as a review of the legal sufficiency of the selection process. Thibault v. Div. of Rehabilitation Serv., Docket No. 93-RS-489 (July 29, 1994).
      Generally, an 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).
      A preponderance of the credible evidence of record supports BCSE's position. As recommended by DHHR Policy Memorandum 2106, BCSE used a standard form, OPS-13, promulgated by the West Virginia Department of Health and Human Resources, to rate the applicants' responses to twenty relevant questions, and two interviewers independentlyrated the applicants before combining their scores. Grievant does not fault any particular aspect of the selection process, stating only that she did not agree with the factors used in the process.   (See footnote 1)        
      A preponderance of the evidence in this grievance shows that the successful applicant was properly ranked as the best candidate after a fair selection process. Grievant came in a close second. It cannot be said that relevant factors were not considered by BCSE in reaching its decision, or that there was a clear error of judgment. Bowman, supra.
      Grievant also asserts that she was the victim of retaliation or reprisal for her previous grievances. A citizen has the right to be free from retaliation by a public official for exercising his First Amendment right to speak, “because retaliatory actions may tend to chill individuals' exercise of constitutional rights.” A.C.L.U. v. Wicomico County, Md., 999 F.2d 780 (4th Cir. 1993). Retaliatory acts are “a potent means of inhibiting speech.” Pickering v. Bd. Of Educ., 391 U.S. 563 (1968). By engaging in retaliation, public officials restrain speech, impermissibly interfering with constitutional rights. Perry v. Sinderman, 408 U.S. 593 (1972). The purpose of statutes prohibiting retaliation is to make it unlawful for an employer to punish an employee for his protected activity, such as filing a grievance and pursuing it vigorously. See Harvey v. Merit Systems Protection Bd., 802 F.2d 537 (D.C. Cir. 1986).       Under West Virginia's statutory scheme, “[r]eprisal” means 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 address it. W. Va. Code § 29-6A-2(p). “No reprisals of any kind shall be taken by any employer or agent of the employer against any interested party, or any other participant in the grievance procedure by reason of such participation. A reprisal constitutes a grievance, and any person held to be responsible for reprisal action shall be subject to disciplinary action for insubordination.” W. Va. Code § 29-6A-3(h).
      To establish a prima facie case of retaliation, the burden is upon a grievant to prove by a preponderance of the evidence 1) that grievant engaged in protected activity, 2) that grievant's employer was aware of the protected activity, 3) that grievant was subsequently treated in an adverse manner by the employer and (absent other evidence tending to establish a retaliatory motivation), 4) that complainant's adverse treatment followed his or her protected activities within such period of time that the court can infer retaliatory motivation. Frank's Shoe Store v. Human Rights Comm'n., 179 W. Va. 52, 365 S.E.2d 251 (1986), Ruby v. Insurance Comm'n. of W. Va., Docket No. 90-INS-399 (July 28, 1992).
      If a grievant establishes a prima facie case of reprisal, the employer may rebut the presumption of retaliation by offering legitimate, nonretaliatory reasons for its action. See Mace v. Pizza Hut, Inc., 180 W. Va. 469, 377 S.E.2d 461 (1988); Shepherdstown Vol. Fire Dep't v. W. Va. Human Rights Comm'n, 172 W. Va. 627, 309 S.E.2d 342 (1983); Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989). If the Respondent rebuts the claim of reprisal, the grievant may then establish by a preponderance of theevidence that the offered reason(s) are merely pretextual. Burchell v. Bd. of Trustees/Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).
      Although the record contains no specific information about Grievant's previous grievances, the witnesses at Level III appeared to agree that she had previously filed some grievances, a protected activity, and that one of the two interviewers, Sue Staples (Staples), knew of them. Grievant was subsequently treated in an adverse manner by BCSE, by not being selected for the Child Advocate Team Leader position. The record is silent regarding the amount of time that passed between Grievant's grievances and the selection process. It appears that Grievant has established a prima facie case of reprisal.       However, BCSE has rebutted Grievant's prima facie case by offering a legitimate, nonretaliatory reason for its selection decision: the scores earned by the candidates during the selection process. Staples credibly testified that it was hard to eliminate all knowledge of Grievant from her mind, so that it was important that an objective interview process was used, with questions and answers from a standard form; that her interview scoring of Grievant had nothing to do with her grievances; and that she was not influenced by past occurrences with Grievant. Grievant did not adduce any evidence to show how her past grievances might have skewed the selection process, or that Staples bore her any animosity over her use of the grievance process. The successful applicant was selected by BCSE after a fair selection process in which she simply outperformed Grievant, and Grievant did not show that her non-selection was motivated by retaliation for her previous grievance activity. See Conner v. Barbour County Bd. of Educ., 200 W. Va. 405, 489 S.E.2d 787 (1997).       Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
CONCLUSIONS OF LAW

      1.      Grievant has the burden of proving her 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); Steadman v. Securities and Exchange Comm'n, 450 U.S. 91 (1981); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6.
      2.      A preponderance of the evidence is defined as "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      3.       Unless proven arbitrary or capricious, or clearly wrong, an agency decision made by appropriate personnel as to which candidate is most qualified for selection or promotion will be upheld. Shull v. Dep't of Health & Human Resources, Docket No. 97-HHR-417 (Jan. 26, 1998); Ashley v. W. Va. Dep't of Health & Human Resources, Docket No. 94-HHR-070 (June 2, 1995).
      4.      In applying the “arbitrary and capricious” standard, a reviewing body applies a narrow scope of review, limited to determining whether relevant factors were considered in reaching that decision, and whether there has been a clear error of judgment. BowmanTransp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276 (1982). Moreover, 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, Hill and Cyrus v. Kanawha County Bd. of Educ., Docket No. 96- 20-362 (Jan. 30, 1997).
      5.      Grievant failed to establish, by a preponderance of the evidence, that she was the most qualified candidate for the position of Child Advocate Team Leader, or that BCSE's selection of the successful candidate was arbitrary and capricious or clearly wrong.
      6.      To establish a prima facie case of retaliation, the burden is upon a grievant to prove by a preponderance of the evidence 1) that grievant engaged in protected activity, 2) that grievant's employer was aware of the protected activity, 3) that grievant was subsequently treated in an adverse manner by the employer and (absent other evidence tending to establish a retaliatory motivation), 4) that complainant's adverse treatment followed his or her protected activities within such period of time that the court can infer retaliatory motivation. Frank's Shoe Store v. Human Rights Comm'n., 179 W. Va. 52, 365 S.E.2d 251 (1986), Ruby v. Insurance Comm'n. of W. Va., Docket No. 90-INS-399 (July 28, 1992).
      7.      If a grievant establishes a prima facie case of reprisal, the employer may rebut the presumption of retaliation by offering legitimate, nonretaliatory reasons for its action. See Mace v. Pizza Hut, Inc., 180 W. Va. 469, 377 S.E.2d 461 (1988); Shepherdstown Vol. Fire Dep't v. W. Va. Human Rights Comm'n, 309 S.E.2d 342 (1983); Webb v. Mason County Bd. of Educ., Docket No. 89-26-56 (Sept. 29, 1989). If theRespondent rebuts the claim of reprisal, the grievant may then establish by a preponderance of the evidence that the offered reason(s) are merely pretextual. Burchell v. Bd. of Trustees/Marshall Univ., Docket No. 97-BOT-011 (Aug. 29, 1997).

      8.      Grievant established a prima facie case of retaliation.
      9.      BCSE rebutted Grievant's prima facie case of retaliation.
      Accordingly, the 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.

                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated August 29, 2000


Footnote: 1
            Grievant called several of her co-workers as witnesses. They testified to her competence as a Legal Assistant, but had little if any knowledge of the selection process and demonstrated no flaws in it.