DIVISION OF HEARINGS

In the matter of Virginia Department of Transportation Case No. 5135

Hearing Date: March 6, 2001
Decision Issued: March 23, 2001

Grievant applied for the position of Assistant Resident Engineer with the Virginia Department of Transportation at the Residency in which he is currently employed. The position was given to another applicant. On August 29, 2000, Grievant filed a grievance to challenge the hiring decision. The Third Resolution Step was completed on September 22, 2000. The outcome of the Third Resolution Step was not satisfactory to the Grievant and he requested a hearing. The Agency qualified the matter for a hearing on January 30, 2001. On February 7, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On March 6, 2001, a hearing was held at the Agency’s regional office. Upon the motion of a party, the Hearing Officer found just cause to grant an extension of the 30 day time frame for issuing the decision because of the conflicting schedules of the parties.

Grievant
Agency Representative
Retired Resident Engineer
Private Contractor
Utilities Engineer
Resident Engineer in another District
Human Resource Manager
Resident Engineer

Whether the Agency properly applied its hiring policy.

The burden of proof is on the Grievant to show by a preponderance of the evidence that the Agency unfairly applied or misapplied its hiring policy. GPM §§ 4.1(b)(1); 5.8. A preponderance of the evidence is evidence which shows that what is sought to be proved is more probable than not. GPM § 9.

After reviewing the evidence presented and observing the demeanor of each witness, the Hearing Officer makes the following findings of fact:

The Virginia Department of Transportation employs Grievant as a Transportation Contract Administrator.¹ He has held that position since 1992. Grievant attended college for one year and has been working for the Agency for 38 years. He is 58 years old. Early in his career he was a Construction Inspector² with the Residency.

In addition to his regular duties, Grievant has lead the "Employee Involvement Team" for three years. The team focuses on improving safety for VDOT employees. Furthermore, Grievant is the Residency’s Equal Employment Opportunity coordinator.

In 2000, the Residency’s Assistant Resident Engineer position became vacant. Grievant applied for the position. The Position Announcement specified certain duties and qualifications as follows:

(Grievant Exhibit 2).

The Agency’s Human Resources staff screened the candidates to determine if they possessed the minimum knowledge, skills, and abilities. Grievant met the minimum qualifications and he was granted an interview.

On July 6, 2000, a three member panel, including the Resident Engineer, interviewed Grievant. The Resident Engineer was designated by the Agency as the Hiring Manager responsible for the final selection decision. The Agency prepared a list of 10 questions³ for all the candidates. None of the questions focused specifically on the applicant’s ability to prioritize multiple tasks.

The Agency conducted a second interview on July 18, 2000 with a separate panel of two individuals.⁴ The Resident Engineer did not participate directly in the second interview but no evidence was submitted suggesting the second interview influenced her decision.

An Interview Summary is required for each applicant interviewed. This form allows a summary of each applicant’s strengths and weaknesses as related to the requirements of the position. The Resident Engineer drafted these summaries and for the Grievant she wrote:

(Grievant Exhibit 4). (Emphasis added).

Grievant was not selected for the Assistant Resident Engineer position. The Resident Engineer selected another Residency employee. She chose the Selected Candidate over the Grievant for two primary reasons. First, the Selected Candidate had a college degree in construction technology whereas Grievant had one year of college. Second, she felt that the Grievant was not capable to prioritizing multiple tasks whereas the Selected Candidate was very good at handling multiple tasks. She felt that both were strong candidates but that the Selected Candidate was best suited for the position.

The Selected Candidate is age 30 and had been employed by the Agency as a Senior Inspector before the interview. He reported to the Project Engineer who reported to the Assistant Resident Engineer. When the Selected Candidate was selected as Assistant Resident Engineer, he skipped a level in the chain of command. (Grievant Exhibit 1).

Prior to becoming the Resident Engineer approximately one year ago, the Resident Engineer worked for approximately eight years as the Assistant Resident Engineer. During that period of time she was Grievant’s direct supervisor and his primary evaluator. Her evaluations of Grievant were favorable. She often rated him as exceeding expectations. None of her evaluations of Grievant mentioned his inability to handle multiple tasks.

Classified employees are to be selected "based upon merit and fitness, to be ascertained, as far as possible, by the competitive rating of qualifications …." Va. Code § 2.1-111. Agency positions must be filled in accordance with Department of Human Resource Management’s Policies and Procedure Manual ("P&PM") Policy 2.10. ⁶ The Agency also has a companion Hiring Policy entitled VDOT Policy 2.10. For the purpose of this decision, these policies are collectively referred to as the Hiring Policy.

The State Hiring Policy 2.10 requires agencies to post job announcements, screen candidates based on their knowledge, skills, and abilities, conduct interviews, and select the person best suited for the position. "Agencies have discretion to use selection panels to interview applicants and recommend applicants to the individual making the final hiring decision." P&PM § 2.10(VI)(A)(2). "Panel members shall make a recommendation regarding their choice of applicant(s) to the individual making the final hiring decision." P&PM § 2.10(VI)(A)(2)(d).

Interviews are a required step in the selection process. A set of questions must be developed to ask of each applicant. These questions should seek information "related to the applicant’s knowledge, skills, and ability to perform the job." Questions that are not job-related or that are contrary to Equal Employment Opportunity standards are not permitted. P&PM § 2.10(VI)(B).

The individual responsible for making the selection decision is called the Hiring Manager. VDOT Policy 2.10(II)(C). The Hiring Manager must select the candidate who is "best suited for the position applying fair hiring practices (i.e. VDOT/DPT policies, EO/AA goals, and employment laws). VDOT Policy 2.10(IV)(I)(c).

Grievant has not alleged or proven any defects with the Agency’s screening process. His objections focus on the selection process following the screening of candidates.⁷

Grievant has met his burden of proving that the Agency failed to follow the Hiring Policy. This is because the Resident Engineer reduce Grievant’s candidate ranking based on her personal opinion of his ability to prioritize multiple tasks when that opinion had no underlying factual basis.

When an individual is both the Hiring Manager and the former supervisor of two or more competing candidates, the individual must maintain a delicate balance between using information from the interview process and information based on the supervisor’s personal knowledge of the candidates. If the hiring decision is based solely on the supervisor’s personal knowledge of the candidates, the selection process is reduced to the level of an insignificant ministerial procedure. If the hiring decision is based solely on the contents of the interviews, the supervisor’s personal observations and direct insight into the performance of candidates are rendered irrelevant. Policy 2.10 does not anticipate either extreme. Instead, Policy 2.10 is intended to provide a framework for the harvesting of information from candidates and soliciting the thoughts of the panel while not excluding a supervisor’s personal knowledge of a candidates’ work performance.⁸

Based on the evidence presented and the Hearing Officer’s observation of the Resident Engineer, it appears that she made the hiring decision based more on her personal knowledge of the candidates rather than on the interviews supplemented by her personal knowledge. In other words, the balance between the interview process and her personal knowledge was tilted too far in favor of her personal knowledge. Thus, the hiring decision was arbitrary or capricious.⁹ There are several reasons why the Hearing Officer reaches this conclusion.

First, the Resident Engineer concluded that the Grievant had difficulty prioritizing multiple tasks and she included that conclusion in his Applicant Assessment.¹⁰ The Hearing Officer asked her for an example of when Grievant could not handle multiple tasks. The Resident Engineer paused in silence for approximately 34 seconds and then answered in general terms without giving a single example. After supervising Grievant for eight years, she should be able to give several examples of when Grievant failed to handle multiple tasks in a satisfactory manner. This is especially true in light of the Resident Engineer’s comment in the Applicant Assessment that while she was the Assistant Resident Engineer she had to intervene because of Grievant’s weakness in prioritization.

Second, the Resident Engineer’s written evaluations of Grievant lack any comments about his supposed inability to prioritize multiple tasks. The Resident Engineer frequently offered comments in the appropriate sections of Grievant’s evaluations, but never mentioned a deficit in handling multiple tasks. The Performance Plan portion of the evaluation process contains a section entitled "Development Plan and Suggestions" which specifically asks the manager to "Address how the employee can enhance performance." The Resident Engineer did not mention in any of Grievant’s performance plans that he should work on improving his ability to prioritize multiple tasks. If prioritizing tasks was a problem, the Resident Engineer would have included her concerns in Grievant’s performance plans or in the evaluations.

Third, several of Grievant’s performance evaluations suggest he handled multiple tasks well. For example, in the October 6, 1998 performance evaluation, the Resident Engineer comments on Grievant’s overall performance by stating:

Fourth, based on the Hearing Officer’s review of Grievant’s position description, Grievant’s comments during the hearing, and the testimony of other witnesses, it appears that much of Grievant’s current job requires him to regularly handle multiple tasks while facing deadlines. All of Grievant’s prior supervisors and co-workers testified that Grievant handled multiple tasks well. The consistency of their testimony suggests the Resident Engineer’s conclusion is unfounded.

Fifth, the written interview questions did not directly address a candidate’s ability to prioritize multiple tasks. Without comment from the Resident Engineer, none of the persons asking questions could have known about Grievant’s supposed inability to prioritize. For the Resident Engineer to lower her assessment of Grievant’s management capabilities, she must have relied solely on her opinion and not on the recommendation of the other members of the interview panel.

The phrase "best suited for the position" is not defined in the Hiring Policy, but surely it means more than the personal preference of a supervisor based primarily on her unsubstantiated and undocumented opinion of an employee’s weakness. The Hearing Officer does not know who was the best suited candidate for the Assistant Resident Engineer position, but the Hearing Officer does know that Grievant was not appropriately considered for the position under the Hiring Policy.

When a Hearing Officer concludes that an agency has failed to comply with policy, the Hearing Officer’s authority is limited to ordering the agency to comply with the policy. GPM § 5.9(a)(5). The Agency complied with policy governing the screening process but failed to comply with policy governing the selection process. Thus, the Agency must repeat the selection process in accordance with the Hiring Policy. The Hearing Officer will allow the Agency to have flexibility in how it wishes to repeat the selection process. The Agency may repeat the candidate interviews with revised questions or it may simply reconsider its decision. If the Agency chooses to reconsider its decision, it may not factor into that reconsideration a comparison of the candidates’ ability to prioritize multiple tasks.

The Hearing Officer recommends that the Agency, in its sole discretion, determine whether the Resident Engineer should remain as the Hiring Manager for the purpose of repeating the selection process.

For the reasons stated herein, the Agency is Ordered to repeat the selection process for the Assistant Resident Engineer position at the Facility in accordance with the Commonwealth’s and VDOT’s Hiring Policy.

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 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.

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.

Carl Wilson Schmidt, Esq.
Hearing Officer

¹ Grievant's position description states the chief objective of his position as: "Performs review and development of all paperwork necessary to initiate, advertise, construct, and submit necessary final documentation for SAAP and no plan contracts, coordination of the clearing of right of way and adjustment of utilities, assists in the preparing of final assemblies for all other construction project finals. Serves as liaison between the Residency Office and the contractors and Residency Inspectors as well as liaison between the Residency Office and the District Contract Control Technician."
² Grievant's position description as a Construction Inspector states the chief objective of his position as: "Inspects all phases of contract construction work as it is performed including grading, drainage, paving and bridge construction to ensure compliance with specifications, plans, designs and standards."
³ The questions were as follows:

1. As noted in the position opportunity announcement for this position, the individual selected will provide assistance to the Resident Engineer in administering the construction and maintenance programs as well as dealing very closely with local government officials. What experience have you had which you feel qualifies you to administer these programs?
2. What experience have you had in budget preparation and monitoring, including the types of budgets that you have prepared?
3. Describe your management style? How would you improve on it?
4. It is often difficult to make an unpopular decision, knowing that it's not possible to please everyone. Have you ever had to make one of these decisions? Tell us about it.
5. How would you describe the effectiveness of your written communication skills? Oral communication skills?
6. How do you attempt to persuade others to your way of thinking?
7. How would you determine whether the office staff was under too much pressure? What would you do to address the situation?
8. In what ways do you feel the people who report to you might find you difficult to work for?
9. Tell us about a time when you surpassed all job expectations by going "the extra mile".
10. This position is about managing resources and being a leader of people. If your co-workers and subordinates were asked to rate you as a leader, what do you feel their comments would be?

⁴ Two additional questions were asked:

1. What do you see as the most important role of the Assistant Resident Engineer? Why and how would you assure you did well in fulfilling this role?
2. Most managers will say "our people are our most important asset". Is this true? What new ideas do you have to recognize this most important asset?
(Grievant Exhibit 4).

⁵ The Resident Engineer was the Assistant Resident Engineer when the Assistant Resident Engineer supposedly intervened to help the Grievant.
⁶ The Department of Human Resource Management modified its Policy 2.10 effective March 1, 2001. This decision is based on the policy in effect prior to March 1, 2001.
⁷ Grievant alleged the Agency discriminated against him based on his age. He is over 58 years old and the Selected Candidate is 30 years old. It is not necessary for the Hearing Officer to address the issue of age discrimination because this appeal can be resolved on other grounds.
⁸ Policy 2.10 does not state that only the information collected during the screening and interview process can be considered when determining the best suited candidate. One could argue that because the Policy specifically addresses contacting references for the selected candidate that references are permitted only after the top candidate has been selected and not before. The Hearing Officer will not impose this requirement because it is the responsibility of the Department of Human Resource Management and/or the Agency to determine whether such a requirement should exist.
⁹ Arbitrary or capricious is defined as "Unreasonable action in disregard of the fact or without a determining principle." Grievance Procedure Manual § 9. The Resident Engineer's decision to exclude Grievant from further consideration was arbitrary or capricious because she relied, in part, on her opinion of Grievant that was not supported by answers to the interview questions or by her own testimony.
¹⁰ Instructions to the Interview Summary form state that the Applicant Assessment should include a "brief summary of the applicant's specific strengths and weaknesses as related to the requirements of the position."