LOIS FRY, .
V. .DOCKET NUMBER 95-BOT-376
WEST VIRGINIA BOARD OF TRUSTEES at .
MARSHALL UNIVERSITY, .
Grievant, Lois Fry, is an employee of the West Virginia Board
of Trustees and works at Marshall University. She is currently
assigned the classified title of Administrative Associate. On July
10, 1995, she filed the instant grievance against the Employer,
pursuant to West Virginia Code §18-29-1, et seq., claiming that it
had violated W. Va. Code §18B-7-1 by not selecting her for the
position of Payroll Representative that it posted for bid and
filled in late June, 1995. Grievant claims that she is, at least,
as equally qualified for the position as the successful candidate
and has more seniority; therefore, she should have been awarded the
(See footnote 1)
The grievance was denied at levels one and two, and appealed to level four on August 24, 1995.
(See footnote 2)
An evidentiary hearing
was held at this Grievance Board's Charleston, West Virginia office
on November 28, 1995, and the case became mature for decision on
Positions of the Parties
The statutory provision Grievant relies upon, W. Va. Code
§18B-7-1(d), states as follows:
A nonexempt classified employee, including a
nonexempt employee who has not accumulated a minimum
total of one thousand forty hours during the calendar
year or whose contract does not extend over at least nine
months of a calendar year, who meets the minimum
qualifications for a job opening at the institution where
the employee is currently employed, whether the job be a
lateral transfer or a promotion, and applies for same
shall be transferred or promoted before a new person is
hired unless such hiring is affected by mandates in
affirmative action plans or the requirements of Public
Law 101-336, the Americans with Disabilities Act. If
more than one qualified, nonexempt classified employee
applies, the best-qualified nonexempt classified employee
shall be awarded the position. In instances where such
classified employees are equally qualified, the nonexempt
classified employee with the greatest amount of
continuous seniority at the state institution of higher
education shall be awarded the position. A nonexempt
classified employee is one to whom the provisions of the
federal Fair Labor Standards Act, as amended, apply.
Grievant argues that she is just as qualified for the position in
question as the successful applicant, another Marshall University
employee; therefore, she was entitled to the position based upon
her greater seniority within the institution. The Employer
contends that Ms. Pertee was the most qualified candidate for theposition; therefore, it was not bound to award the position to
Grievant based upon her seniority. It avers that this Code
allows for the hiring of the most qualified, in-house candidate,
and that seniority only comes into play whenever the top two or
more in-house candidates are equally qualified for the position in
The following findings of fact are properly deduced from the
evidentiary record in the case.
Findings of Fact
1. On May 26, 1995, the Employer posted the position of
Payroll Representative as vacant at Marshall University.
2. Forty-two individuals, including eight internal candi
dates, applied for the position.
3. Grievant submitted an application for the position.
4. The job posting listed the following as the position's
Associate's degree in accounting or a related field and
two years of payroll or related experience (or equiva
lence). Basic knowledge of accounting functions; ability
to operate computer utilizing various software programs,
and knowledge of state and federal laws concerning
payroll such as exempt status, social security, etc.
5. Marshall's Department of Human Resources decided that only
six of the candidates, all internal applicants, met the minimum
requirements for the position and recommended that these six
employees be interviewed.
6. Grievant was found qualified for the position and was
interviewed. 7. The interview committee was made up of the payroll
department director, the manager and three payroll representatives.
Each committee member reviewed the applicants' applications and
developed their own questions to ask each candidate during an
8. Based upon the information provided to the interviewers,
they each completed an Applicant Evaluation Form where the
following factors were considered: knowledge of specific job and
job related topics, experience, ability to communicate, interest in
position and our organization, overall motivation to succeed,
appearance and habits, poise, insight and alertness and
personality. For each of these nine factors, the candidates were
rated as O for unsatisfactory, 1 for some deficiencies evident, 2
for satisfactory, 3 for above average or 4 for clearly outstanding.
The ratings were then totaled.
9. The successful candidate was the interviewee who was given
the most points by the most interviewers. Ms. Pertee was awarded
the position because she recieved the top score on the Applicant
Evaluation Form from three of the five interviewers.
10. Grievant was ranked as the fourth highest scorer by two
of the interviewers and the sixth highest by the other three
Both Grievant and the Employer correctly interpret Code
7-1. This provision requires that institutions of higher education
transfer or promote their internal, nonexempt classified employeesto vacant positions, as opposed to hiring outside candidates, if
the internal candidates are minimally qualified. However, if there
is more than one minimally qualified, internal candidate, the
institution may decide who shall be promoted or transferred based
upon a best-qualified standard. Only when the institution
decides that two or more internal candidates are equally qualified
does seniority determine who receives the position in question.
The real issue here is whether the Employer erred in determining
that Ms. Pertee was better qualified for the position than
In deciding this case, it must be noted that the Undersigned
may not play the role of a superinterviewer and substitute his
judgment for that of the Employer in determining who was the most
qualified candidate for the position of Payroll Representative.
Here, only a review of the legal sufficiency of the selection
process, at the time it occurred, is allowed. Stover v. Kanawha
County Bd. of Educ.
, Docket No. 89-20-75 (Jun. 26, 1989). The
exercise of administrative judgment by appropriate personnel as to
which candidate is the most qualified for a position vacancy will
be upheld unless shown to be arbitrary or capricious or clearly
wrong. Sloan v. West Virginia Univ.
, Docket No. BOR-88-109 (Sep.
30, 1989), p. 6. It is recognized that a determination of whom is
the most qualified for a position necessarily results from a
subjective decision-making process. See
, Harper v. Mingo County
Bd. Of Educ.
, Docket No. 93-29-064 (Sep. 27, 1993). An ALJ's
subjective assessment of two individuals' qualifications isirrelevant, if both candidates, as here, are minimally qualified.
Bourgeois v. Bd. of Trustees
, Docket No. 93-BOT-268A (Mar. 29,
1994), p. 7, citing
. Finally, an agency's action
is arbitrary and capricious if the agency did not rely on the
factors that were intended to be considered, entirely ignored
important aspects of the problem, explained its decision in a
manner contrary to evidence before it, or reached a decision that
is so implausible that it cannot be ascribed to a difference of
, at 3, citing, Bedford County. Memorial Hosp. V.
Health and Human Serv.
, 769 Fed 2d. 1017 (4th Cir. Va., 1985).
Grievant has failed to establish sufficient evidence to
support a conclusion that the Employer abused it discretion by
acting arbitrarily or capriciously in selecting Sharon Pertee for
the position in question. She has also not shown that the decision
was clearly wrong in light of the information presented to the
Employer. Grievant has approached the case by attempting to show
the decision to promote Ms. Pertee to the position of Payroll
Representative was subjective, and that she was just as qualified
or more qualified for the position based upon her demonstrated
qualifications and credentials. Based upon a review of the
evidence, Grievant has failed to prove that the decision was based
upon improper factors, that the Employer has ignored important
aspects of the candidates' backgrounds or credentials, that it
expressed its decision in a manner contrary to its own findings, or
that it reached an implausible decision. Finally, she has failed
to show that the selection process was significantly flawed to thepoint that the outcome would have been different had the flaw not
occurred. Therefore, Grievant has failed to meet her burden of
The foregoing discussion is hereby supplemented by the
following conclusions of law.
Conclusions of law
1. Grievant bears the burden of proving her claims by a
preponderance of the evidence. See
, W. Va. Code
2. Grievant has failed to prove that the Employer has abused
its discretion, acted arbitrarily or capriciously or that its
decision was clearly wrong in light of the facts it was presented.
3. Grievant has failed to establish that the Employer's
selection process, at issue herein, was sufficiently flawed in that
an absence of any flaw would have resulted in a different result.
Therefore, this grievance is hereby DENIED
Any party may appeal this decision to the Circuit Court of
Kanawha County or to the Circuit Court of Cabell County and such
appeal must be filed within thirty (30) days of receipt of this
decision. W. Va. Code
§18-29-7. 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. Any appealing party must advise this office of the
intent to appeal and provide the civil action number so that the
record can be prepared and transmitted to the appropriate court.
ALBERT C. DUNN, JR.
Administrative Law Judge
March 27, 1996