HOBERT UNRUE, SR.
v. DOCKET NO. 95-DOH-287
WEST VIRGINIA DIVISION OF HIGHWAYS
DECISION
Grievant, Hobert Unrue, Sr., has been employed by the West Virginia Division of
Highways (Respondent) for over 18 years and is currently a Storekeeper II. Grievant filed
his grievance on June 8, 1994, alleging that:
Following my job interview for the position of Warehouse Storekeeper III, at the
Equipment Division, I asked my supervisors, Henry Lilly and Debra Ferrell, if a
selection had been made. They stated that due to Mr. Bob Garton's 5 years
experience as an assistant manager at Hardees fast food restaurant, he was more
qualified than I to hold this position.
As relief, Grievant desires to be instated to the Warehouse Storekeeper III position, instead
of Mr. Garton, the successful applicant and an employee of Respondent. Grievant's immediate supervisor denied relief, at Level I, on June 14, 1994, and
Grievant appealed his case to Level II that same day. At Level II, the grievance was denied
on June 21, 1994, and Grievant appealed to Level III on June 23, 1994. At Level III,
hearings were held on November 18, 1994, and December 1, 1994.
(See footnote 1)
At Level III, the three
member evaluation panel rendered the following decision:
A careful and accurate review and evaluation of the skills and experience of both
Mr. Garton and Mr. Unrue shall be performed by the Human Resources Division
aided by the Division of Personnel and the EEO Division. Verification of any
purported supervisory experience for either applicant and its pertinence to work
in the warehouse shall be performed as well. Should it be determined by this
review and evaluation that the Grievant is in fact more qualified and/or skilled
than Mr. Garton, then the relief sought by the Grievant in his original signed
statement shall be granted. If it is determined that Mr. Garton is more qualified
and/or skilled, then he shall retain the position he currently holds. (Emphasis in
original.)
At Level IV, an evidentiary hearing was held at the Grievance Board's Elkins Office
on December 4, 1995.
(See footnote 2)
The case became mature on January 3, 1996, the deadline for
postmarking briefs.
(See footnote 3)
The following findings of fact are properly made from the record.
FINDINGS OF FACT
1. Grievant is currently employed by the Respondent as a Storekeeper II, and has held
that position since 1983.
2. The Equipment Division advertised to fill a vacancy for a Warehouse Storekeeper
III.
3. On May 16, 1994, Grievant applied for the position of Warehouse Storekeeper III.
4. On May 17, 1994, Bob Garton submitted an application to fill the same vacancy.
5. In June or July 1994, Mr. Garton was selected by Henry Lilly and Debra Ferrell,
Grievant's supervisors, to fill the Warehouse Storekeeper III vacancy.
6. Grievant does not meet the minimum requirements for the Warehouse Storekeeper
III position.
DISCUSSION
In a case such as this where the issue is the non-selection of Grievant for a position,
"the grievance procedure set forth in
W.Va. Code §29-6A-1,
et seq., is not intended to be
a 'super interview,' but rather, allows for a review of the legal sufficiency of the selection
process. Furthermore, an agency's decision as to which candidate is most qualified will be
upheld unless shown to be arbitrary or capricious or clearly wrong."
Thibault v. Div. of
Rehabilitation Services, Docket No. 93-RS-489 (July 29, 1994). However, even before one
analyzes whether Respondent's actions were arbitrary or capricious or clearly wrong, it is
important to determine whether Grievant satisfies the requirements for the position in
question. In this case, the position in question is that of Warehouse Storekeeper III. The
experience requirements for that position are as follows:
Four years of full-time or equivalent part-time paid experience as a stock
clerk, or in a clerical capacity in connection with large-scale warehouse operations,
or in handling materials, one year of which included supervisory responsibility.
At issue is whether Grievant has one year of supervisory experience. Grievant in his
application for the Warehouse Storekeeper III position listed a prior position that he held
with Respondent from April 1984 to April 1985,
(See footnote 4)
in which he maintains that he supervised
three
(See footnote 5)
people who held the title Mechanic II, and also ordered the parts that these
mechanics needed.
However, Respondent introduced a letter from Mr. Charles Mullenex, Grievant's
supervisor during the time in question, which stated that Grievant was not the supervisor
of the three Mechanic IIs. Regarding these three Mechanic IIs, Grievant testified, at Level
III, that he: (1) did not do any performance evaluations, (2) did not sign their payroll
sheets, and (3) did not sign their sick or annual leave slips.
Therefore, after careful examination of all of the evidence presented, the undersigned
finds that Grievant did not prove by a preponderance of the evidence, that he held asupervisory position from April 1984 to April 1985; and consequently, Grievant did not meet
the minimum requirements for the Warehouse Storekeeper III position. Thus, no violation
has been shown in the non-selection of Grievant for the position since he was not qualified.
In order for Grievant to pursue the second part of his grievance, whether the selection
of Mr. Garton was proper, he must show he was "adversely affected" by the employment
decision being challenged.
Weaver v. Mason Co. Bd. of Educ., Docket No. 94-26-028 (Oct.
25, 1994); and
Mullins v. Kanawha Co. Bd. of Educ., Docket No. 94-20-364 (Dec. 29, 1994).
Since Grievant is not qualified for the position in question he does not have standing to
challenge the selection process.
Mullins,
supra at 11.
In addition to the foregoing findings of fact and narration, it is appropriate to make the
following formal conclusions of law.
CONCLUSIONS OF LAW
1. In non-disciplinary matters the grievant must prove all of the allegations constituting
the grievance by a preponderance of the evidence. Crow v. W.Va. Dept. of Corrections,
Docket No. 89-CORR-116 (June 30, 1989); Bonnett v. W.Va. Dept. of Highways, Docket
No. 89-DOH-043 (Mar. 29, 1989).
2. Grievant failed to prove by a preponderance of the evidence that he had one year
of supervisory experience or that he is entitled to the position in question as a matter of law.
3. Given that Grievant was not minimally qualified for the position, he lacked standing
to complain about alleged improprieties in the selection of another individual for the
vacancy as he has not shown that he has "adversely affected" by the employment decisionbeing challenged. Weaver, supra; Mullins, supra.
Accordingly, the grievance must be DENIED.
DATED: 1/22/96 JEFFREY N. WEATHERHOLT, ADMN. LAW JUDGE
Footnote: 1 The second hearing was held because a subpoenaed witness, Mr. Bob Garton, reported
sick the morning of the November 18, 1994, hearing.
Footnote: 2 At that time, Mr. Jeff Black, Director, Human Resources Division, reported that both
applicants had been declared ineligible because neither Grievant nor Mr. Garton meet the
minimum requirements for the position in question, in that neither applicant possessed one
year of supervisory experience. Mr. Black further presented evidence that Mr. Garton was
demoted effective December 16, 1995, from the Warehouse Storekeeper III position to his
original position.
Footnote: 3 Grievant's brief was hand delivered on January 3, 1996, and Respondent chose not to
file a brief.
Footnote: 4 At the Level IV hearing, Grievant testified that the dates on his application were
approximate dates, and that he held this position until August 1985. The record is also
unclear as to what Grievant's job title was during that period of time. Grievant's application
for the Warehouse Storekeeper III position fails to specify a title for that period of time,
while Grievant's representative says that Grievant has been a Storekeeper II since 1983, a
letter introduced by Grievant states that his title was Parts Expeditor, during the period in
question.
Footnote: 5 A letter introduced by Grievant states that Grievant supervised four mechanics.