AVERY C. GORE,
Grievant,
v. DOCKET NO. 98-DOH-461
WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,
DIVISION OF HIGHWAYS,
Respondent.
D E C I S I O N
This grievance was filed by Grievant Avery C. Gore against Respondent, West
Virginia Department of Transportation, Division of Highways ("DOH"), on or about October
19, 1998. Grievant alleges he should have been selected for an Equipment Storeroom,
Supervisor II position, because the successful applicant did not meet the minimum
qualifications as described in the Supervisor II job description.
(See footnote 1)
As relief he sought,
"promotion to Supervisor I in the maintenance storeroom where I am currently employedor if this can not be accomplished, I will accept the Supervisor II position in the Equipment
Storeroom as stated in the above grievance."
(See footnote 2)
The following Findings of Fact are made based upon the record developed at Level
III.
Findings of Fact
1. Grievant is employed by DOH as a Storekeeper III in District Two.
2. On August 24, 1998, DOH posted a Supervisor II vacancy. The posting
stated the job duties as, "[u]nder general supervision, performs supervisory work
overseeing employees engaged in technical work required [sic] advanced training.
Performs employee evaluations, approves annual and sick leave, disciplinary actions and
other employee [a]ctivities. May be a working supervisor performing related work of a more
advanced level than the subordinates supervised. Performs related work as required."
This position was stationed in the equipment storeroom.
3. The minimum qualifications for the posted position were a four-year college
degree and "two years of full-time or equivalent part-time paid experience in the area of
assignment, one year of which must have been in an administrative or supervisorycapacity." Additional experience in the area of assignment could be substituted for
education.
4. The Division of Personnel lists the areas of assignment for a Supervisor II as
arts and humanities, auditing/accounting, bookkeeping, budget and budget planning,
clerical, education/training/library, food services, general supervision, health, inspection,
laundry services, law enforcement/investigation, natural resources, office management,
purchasing, security, and taxation.
5. Grievant, Dennis Lawson, and three other people applied for the posted
position.
6. Mr. Lawson was chosen to fill the posted position.
7. Grievant was employed by DOH as a Storekeeper III from 1992, and began
supervising college students in June 1993. From 1987 to 1992 he was employed by DOH
as an audit clerk II, and supervised three custodians from November 1988. From 1986 to
1987 he was employed by DOH as a Storekeeper I, from 1981 to 1986 as a Craftsman II,
and for three months in 1981 as an Auto Parts Clerk II, all non-supervisory positions. From
1978 to 1981 he was employed by DOH as an Auto Parts Clerk II, supervising four
employees, and prior to that he was employed in the private sector in a supervisory
position for two years. He earned 63 credit hours at Marshall University from 1970 to 1974.
8. Mr. Lawson was employed by DOH as a Transportation Crew Chief from
1990 to 1997, and supervised 5 crew chiefs and 25 work release employees. Prior to that,
he had worked in another supervisory job for DOH from October 1989. From 1980 to 1982
he worked for DOH as an Inspector and Craftsworker I, and in that capacity had performed
office work, kept daily logs of materials used on road projects, filled work orders, performedequipment repair, and changed tires, oil and spark plugs, among other things. He does not
hold a four-year college degree.
9. Both Grievant and Mr. Lawson met the minimum qualifications, as confirmed
by DOH's Division of Human Resources.
10. Wilson Braley, District Two Engineer, interviewed the applicants and chose
Mr. Lawson to fill the posted vacancy based upon his demonstrated supervisory
qualifications, leadership qualities, and maturity in the ability to work with other employees,
which he believed exceeded Grievant's qualifications, and made him the best qualified
candidate.
Discussion
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). The arbitrary and capricious
standard of review of personnel decisions requires a searching and careful inquiry into the
facts; however, the scope of review is narrow, and the undersigned may not substitute her
judgment for that of the agency.
See generally,
Harrison v. Ginsberg, 169 W. Va. 162, 286
S.E.2d 276 (1982). The undersigned cannot perform the role of a "super-interviewer" in
matters relating to the selection of candidates for vacant positions.
Thibault,
supra.
Generally, an agency's 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). If a grievantcan 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.
Grievant argued that the required year of supervisory or administrative experience
had to be in a storeroom, and Mr. Lawson did not have this type of experience. He pointed
out that the Storekeeper I classification specification states that two years experience as
a stock clerk or in a clerical capacity in connection with a large-scale warehouse operation
or in handling materials is required, and asserted that Mr. Lawson would not have this
experience, and accordingly could not be hired either as a Storekeeper or a Supervisor.
He further pointed out that the classification of Highways Storekeeper had been recently
placed in the Supervisor II classification, and that the minimum requirements for the
Highways Storekeeper were "five years experience as a storekeeper, in inventory control
or procurement in connection with large scale warehouse operation, one year of which
must have included supervisory responsibility." However, the current classification
specification does not contain this same requirement, and Grievant has not demonstrated
his interpretation of the area of assignment is necessary. No evidence was presented
regarding the specific job duties of the posted vacancy to support Grievant's interpretation.
Respondent found Mr. Lawson to be minimally qualified, and the best qualified applicant,
and Grievant has not demonstrated this conclusion was arbitrary and capricious.
Finally, Grievant submitted for consideration a Grievance Board decision issued May
1, 1998, in
Blake v. West Virginia Department of Transportation, Docket Number 97-DOH-
416. He did not indicate how he felt this decision was relevant to his grievance. Afterreviewing that decision, the undersigned finds no resemblance between Mr. Blake's
grievance and the present grievance. The decision in
Blake includes findings of fact that
a number of factors were considered by the respondent which should not have been
considered regarding the grievant's personal life, and a conclusion that the grievant
demonstrated favoritism and retaliation. These findings were important to the conclusion
that the respondent's action was arbitrary and capricious. None of these factors exist in
the present grievance.
The following Conclusions of Law support the Decision reached.
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 Nat. Resources, Docket
No. 96-DNR-218 (May 30, 1997).
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 the successful applicant,
that the successful applicant was not minimally qualified, or that DOH's decision was
otherwise arbitrary and capricious or clearly wrong.
Accordingly, this grievance is DENIED.
Any party or the Division of Personnel may appeal this decision to the Circuit Court
of Kanawha County or 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. 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.
BRENDA L. GOULD
Administrative Law Judge
Dated: January 13, 1999
Footnote: 1