Issue: Misapplication of Hiring Policy and Discrimination in Selection Process; Hearing Date: December 14, 2000; Decision Date: December 18, 2000; Agency: Department of General Services; Hearing Officer: David J. Latham, Esq.; Case Number: 5073
Department of Employment Dispute Resolution
DIVISION OF HEARINGS
DECISION OF HEARING OFFICER
In the matter of Department of General Services Case Number 5073
Hearing Date: December 14, 2000
Decision Issued: December 18, 2000
PROCEDURAL BACKGROUND
Because of conflicting schedules
of the parties, the hearing could not be docketed until the 38th day following
appointment of the Hearing Officer. In a pre-hearing conference, the Hearing
Officer advised the parties that he has no authority to direct the agency to
promote the grievant to the position to which she aspires. The Hearing Officer's
authority in such cases, if appropriate, is limited to directing the agency
to redo either the entire selection process or a portion thereof.
APPEARANCES
Grievant
Attorney for grievant
Representative for Agency
Human Resources representative
Seven witnesses for Agency
ISSUES
Was the hiring policy misapplied in filling a Scientist Senior position? Were the interview questions appropriate for the position? Was the grievant discriminated against in the hiring process?
FINDINGS OF FACT
The grievant filed a grievance alleging that the Department of General Services (hereinafter referred to as "agency") misapplied its hiring policy when it selected a candidate other than the grievant to fill a Scientist Senior position in the water chemistry laboratory. She further alleged discrimination based on her ethnicity, gender, and age. Following denial of relief at the third resolution step in the grievance process, the agency head qualified the grievance for a hearing.
The grievant has been employed by the agency since 1992. She was initially hired as a Chemist Assistant; in 1994 she was promoted to her current position of Scientist. She holds BS and MS degrees, both in Chemistry.
In early May 2000, the agency posted a job opening for position CL161, Scientist Senior1. The job posting notice specified that qualifications include a Bachelor's degree in chemistry or a related field, and that a graduate degree is preferred. This position is the next level above the grievant's current position and is located in the grievant's section - the water chemistry laboratory (also known as the Water Group). A total of 15 applications were received for this job posting. The Bureau Director selected the Laboratory Certification Officer to be the panel interview chairperson. The chairperson had previously participated in at least eight selection panels and had been the chairperson in three of those panels. While interview panels usually include three interviewers, three of the panels in which the Laboratory Certification Officer participated had included only two panelists. She had previously received training for panel chairpersons from Human Resources.
The panel chairperson selected two other people to assist her in screening applications and formulating questions to be used during the interview sessions. One of the people selected is the Water Group Manager. He is the direct supervisor of all employees in the water chemistry laboratory including both Scientists and Scientists Senior. Agency practice and policy provides that the manager of the position being filled may not participate in the interview process. Therefore, the Water Group Manager helped to formulate questions and assisted in selecting the list of applicants to be interviewed but did not participate in the interview process. The third person selected by the panel chairperson was a coworker of the grievant; this coworker had been promoted to Scientist Senior in March 2000. These three people formulated 20 interview questions that were then reviewed by the Bureau Director. After he determined them to be appropriate for the position, the questions were sent to Human Resources for review. Human Resources evaluated the questions against the posting notice and also determined them to be appropriate for the posted position2.
The panel chairperson and the other two members of the screening panel reviewed the 15 applications received and concluded that six candidates should be interviewed. The six people selected for an interview included all applicants who are in race codes B and D. In other words, all applicants in protected minority classifications were given an interview. The panel chairperson could have attempted to obtain a third person to participate in the interview panel. She did not do so for two reasons. First, her position requires a great deal of travel and she found it more difficult to find a mutually convenient time for the interviews with three panelists than with two panelists. Second, the agency had utilized only two interviewers on panels on many prior occasions and this was, therefore, not an unusual procedure.
The panel chairperson and the Scientist Senior conducted interviews of the six applicants including the grievant over the course of three days. The preapproved list of 20 questions was asked of all six applicants. All applicants had ample opportunity to respond to each question. Of the 20 questions, 12 were related to technical and quality assurance aspects of the position. Eight questions were either general or were related to the leadership aspects of the position. Those eight questions are quoted below:
1. Please describe your experience relative to the job announcement.
9. How have you motivated your co-workers to perform their daily jobs in concurrence with an approved laboratory QA Plan?
14. Indicate things you have done in your current position that have made the organization act more as a team.
15. How has your initiative improved your workplace? Give three examples.
16. Give three examples of your leadership. What are some positive and negative aspects of being a leader?
17. Give three examples of how you work well with people, both co-workers and customers.
19. Describe your experience with training others.
20. Is there anything you would like to add about your previous experience that will help us in evaluating your application? Are there any questions you have which we can answer for you?
On the evening of the third day, the two panelists conferred and selected one candidate to be recommended to the Bureau Director. The entire interview package including all interview questions and responses were forwarded to the Bureau Director along with the recommendation for one candidate to be selected. The Bureau Director reviewed the interview package and the application of the candidate recommended by the panel. Finding no reason to disagree with the recommendation, the Bureau Director accepted the recommendation and advised Human Resources that the recommended candidate should be selected and promoted to the position.
The person recommended by the panel, and selected for the position, is a coworker of the grievant and had also been a Scientist (the same job classification as the grievant) at the time of the interviews. The selected person has been employed by the agency since 1994. He was initially hired as an assistant chemist and then promoted in January 1997 to the position of Scientist. He holds a BS degree in Chemistry.
Departmental statistics for indicate that of all Scientist Seniors hired during the past year, one third have been minorities.
APPLICABLE LAW AND OPINION
The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees.It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee's ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace Murray v. Stokes, 237 Va. 653, 656 (1989).
Code § 2.1-116.05(A) sets forth the Commonwealth's grievance procedure and provides, in pertinent part:
It shall be the policy of the Commonwealth, as an employer, to encourage the resolution of employee problems and complaints . . . To the extent that such concerns cannot be resolved informally, the grievance procedure shall afford an immediate and fair method for the resolution of employment disputes which may arise between state agencies and those employees who have access to the procedure under § 2.1-116.09.
To establish procedures on hiring for employees of the Commonwealth of Virginia the Department of Personnel and Training promulgated Hiring Policy No. 2.10 effective September 16, 1993. The Commonwealth's objective is to utilize an efficient and consistent hiring process that promotes equal employment opportunity. Section VI addresses Selection and notes the following under subsection A. with regard to personnel involved in the selection process:
Policy No. 2.10 does not specify either the composition of the panel or the number of panelists that should be on a panel.
The agency has formulated its own internal policy HR-1, effective July 1, 1998, regarding the employment process. Section IV provides the following:
Interview Panels Interview panels are not mandatory for selection of either classified or wage applicants. However, no applicant will be selected without having been interviewed and their qualifications assessed against the needs of the position. Panels of two or more individuals may be useful in the screening and selection process when:
A. Interviewing for supervisor or management positions.
B. There are a number of internal applicants, or
C. The recommendation of a technical expert may be useful.Panels can help insure that selected candidates are chosen on an impartial basis. The purpose of panels is to make recommendation to the hiring authority regarding employment selections. The hiring authority remains responsible for the final selection. (Emphasis added)
In this case, the panel chairperson has provided a plausible explanation for her decision to limit the interview panel to two people. The grievant has not presented any evidence to contradict the chairperson's reasons. The grievant submitted a memorandum dated October 1, 1988 that she had obtained from someone in personnel. That memorandum states that interview panels shall consist of three or more persons. However, the agency has satisfactorily demonstrated that more recent policy memoranda (cited above) promulgated by both the Department of Personnel and Training and the agency have superseded the 1988 memorandum3.
The grievant's primary objection to the selection process involves her belief that the Scientist Senior member of the panel made his selection because he had a personal preference for the candidate that was selected to fill the position. In support of her belief, she testified that both of these people worked together on the same work team prior to the selection. She also overheard these two individuals during lunch breaks discussing activities in which they had participated outside the office. From these facts (neither of which were contradicted by the agency), the grievant concluded that the personal relationship between these two persons was such as to unduly influence the Scientist Senior in his selection of the chosen candidate. The Scientist Senior maintains that his choice for the selected candidate was based on the results of the interview process, not on any perceived personal relationship.
Viewing the evidence in the light most favorable to the grievant, the Hearing Officer concludes that the Scientist Senior may have been more comfortable with the selected candidate because of their personal relationship. He may also have been more likely to favor the selected candidate because he had worked directly with him and knew his technical abilities. However, even assuming this to be true, the grievant has not shown that this was the sole cause or even a contributing factor in the ultimate selection of the candidate. Two panelists, not one, made the decision to recommend the selected candidate. The panel chairperson had extensive experience as both an interview panelist and as a chairperson. The grievant has not shown that the Scientist Senior was able to unduly influence the panel chairperson into selecting a person that she did not believe was the best qualified applicant. The Hearing Officer carefully assessed the testimony, demeanor and position of the panel chairperson; there is no indication that she would have allowed herself to be inappropriately influenced in making the selection of the successful candidate. In any case, the grievant has presented no evidence to support such a suggestion.
Moreover, the interview panel made only a recommendation; it did not make the final selection of the successful candidate. The panel sent its recommendation to the Bureau Director. If the Director, in his review of the interview package, had concluded that the selected person was not the best qualified candidate, he could have bypassed the panel's recommendation and selected another candidate. He did not do so. There has been neither any suggestion nor any evidence that would bring the Bureau Director's decision into question.
The grievant's second objection to the selection process is that, in her opinion, the majority of the interview questions were subjective and more appropriate for a management position. Of the 20 interview questions, the Hearing Officer finds that 70 percent (14) were technical in nature, i.e., the questions were either specific technical questions or could have been answered with objective, not subjective, data. There were six questions (9, 14, 15, 16, 17 & 19) that required answers that would to some degree require subjectivity to evaluate. Therefore, it is concluded that the substantial majority of the questions were objective - not subjective.
Moreover, the job posting notice contains multiple references to the need for a team leader. Being a team leader is a dynamic situation that cannot be quantified. Evaluation of the abilities necessary for team leadership necessarily involves subjectivity. Approximately 50 percent of the job posting notice discusses the need for "a team leader," "coordination of work-flow with staff assignments," "train staff," "resolve customer issues," "strong leadership, communication and motivational skills," and "dynamic team leader with ability to work well with others." A candidate's ability to fulfill requirements such as these cannot be measured by the candidate's technical knowledge or skills. Such ability can only be evaluated in an interview by asking subjective-type questions. The Hearing Officer must conclude that the number and type of subjective questions asked during the interview was consonant with the requirements of the position as enunciated in the job posting notice.
The grievant's third objection is her belief that she has been discriminated against because of her ethnicity, gender, age and her prior complaints to management4. In her grievance, the grievant alleged that the Scientist Senior is prejudiced, bigoted and chauvinist. The two examples she provided are subject to multiple interpretations, however, the grievant failed to provide any testimony or to question the Scientist Senior about these examples during the hearing. The grievant also cites the relatively small number of blacks in management as evidence of a conspiracy to limit promotions of blacks. Such an assertion is merely an inference without evidence to support it. In any case, such a general charge is more appropriately dealt with in another forum - not in a grievance on a specific hiring selection process. Other assertions in the grievance were either similarly general in nature without supporting evidence or were not addressed by the grievant during the hearing even though the agency's witnesses were cross-examined.
As noted at the outset of this decision, the Hearing Officer is not in a position to determine who is the best candidate for this position. However, in an effort to ascertain whether the selected candidate's interview responses vis-à-vis the grievant's responses were supportive of the panel's recommendation, the Hearing Officer has compared responses on those questions that involve non-technical questions5. The responses of the two panelists are consistent with each other, i.e., both panelists recorded answers from the interviewees that demonstrate that both heard the same answer. It also demonstrates that both panelists based their opinion on the same set of answers. Without judging the relative merit of the two applicants, the Hearing Officer could find nothing in his review of the answers that would cause one to disagree with the panel's recommendation.
On October 10, 2000, the grievant sent a written response to the agency commenting on the third-step response to her grievance. In that response, she stated:
…I agreed with him [agency director] that without the names of some of those persons cited in the facts supporting my grievance, it would be difficult for the first, second, and third respondents to determine if my supporting facts did support my grievance.
Throughout the grievance process, the grievant has consistently referred to witnesses that would support the allegations in her grievance. However, she has consistently refused to divulge the names of these witnesses during the investigatory phase of the grievance process. The grievant failed to bring any witnesses to this grievance hearing. The grievant stated in the written response that she would not reveal the names of witnesses on advice from her advisors. A Hearing Officer can base his decision only upon the evidence presented during the hearing. Phantom witnesses can offer no evidence and are therefore of no value in adjudicating the issue before the Hearing Officer.
In summary, the grievant has not borne the burden of proof to show, by a preponderance of the evidence, that the agency misapplied its hiring process, that the interview questions were inappropriate or that there is any evidence that she was discriminated against in the selection process.
DECISION
The relief sought by the grievant is granted in part and denied in part.
The grievant's request to have all facts that she has stated be thoroughly and objectively investigated is granted. The grievant has been afforded a full evidentiary hearing, at which she was represented by counsel, and all evidence presented at that hearing has been completely and objectively reviewed.
The grievant's request to be promoted to the position of Scientist Senior is denied.
APPEAL RIGHTS
As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more
detail, this hearing decision is subject to administrative and judicial review.
Once the administrative review phase has concluded, the hearing decision becomes
final and is subject to judicial review.
Administrative Review
This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:
1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director's authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the hearing decision is not in compliance. The Director's authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director's authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.
A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.
A hearing officer's original decision becomes a final hearing decision, with no further possibility of an administrative review, when:
1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.
Judicial Review of Final Hearing Decision
Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.
David J. Latham
Hearing Officer