In the matter of Virginia Department of Transportation’s Case No. 5163

Hearing Date: April 13, 2001
Decision Issued: April 19, 2001

Grievant applied for the position of Contract Administrator with the Virginia Department of Transportation at the Residency in which she is currently employed. The position was given to another applicant. On January 17, 2001, Grievant filed a grievance to challenge the hiring decision. The outcome of the Third Resolution Step was not satisfactory to the Grievant and she requested a hearing. The Agency qualified the matter for a hearing on March 4, 2001. On March 22, 2001, the Department of Employment Dispute Resolution assigned this appeal to the Hearing Officer. On April 13, 2001, a hearing was held at the Agency’s regional office.

Grievant
Legal Assistant Advocate
Human Resource Officer
Assistant Resident Engineer
External Resident Engineer
Hiring Manager

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 Agency had an opening for the position of Contract Administrator in its local Residency. A Contract Administrator has numerous responsibilities including: preparing contract documents, overseeing the permit program, performing field engineering, administering the subdivision and rural additions programs, etc. The position was advertised to the general public and Grievant applied. The Human Resource staff in the Residency reviewed the applications. Grievant and six others met the minimum qualifications for the position and were selected for interviews. One person withdrew from the applicant pool before being interviewed.

The Agency chose to use a Panel to fill the Contract Administrator position. The Panel consisted of the Hiring Manager (male), Assistant Resident Engineer (male), and a Resident Engineer from another Residency (female) ("External Resident Engineer"). The Hiring Manager was the Resident Engineer for the Residency where Grievant was employed. The Assistant Resident Engineer had served for five years as the Contract Administrator at the Residency before being promoted to his current position. He had served on approximately ten panels before serving on Grievant’s panel. The External Resident Engineer had been employed by the Agency for eight years. She had participated in a panel interviewing for a Contract Administrator position in another Residency. Grievant had applied and interviewed for the position in the other Residency but was not selected. All three Panel members had completed VDOT Selection Training.

Immediately following the final interview, the Panel met to discuss the candidates. The Hiring Manager and the Assistant Resident Engineer asked the External Resident Engineer for her opinion as to the best two candidates. They asked for her opinion because she had not previously worked with any of the candidates and they felt she would be able to offer an objective perspective. She identified a male as the best suited and a female as the alternate candidate but did not rank Grievant as among the top two candidates. The Hiring Manager and the Assistant Resident Engineer had also concluded that the male and female identified by the External Resident Engineer were the number one and two candidates. Neither the Hiring Manager nor the Assistant Resident Engineer discussed their experiences in working with Grievant at the Residency.

Following the selection of the best suited candidate and an alternate candidate, the Hiring Manager instructed the Assistant Resident Engineer to draft the Interview Summary for each candidate. An Interview Summary is used to summarize a candidate’s responses to Panel questions and to state whether the candidate has been selected for the position.

Grievant’s Interview Summary contains several errors. The Assistant Resident Engineer readily admits making these mistakes. For example, the Interview Summary states, "Grievant’s only stated maintenance experience was guardrail replacement experience, which does not meet the requirements of this position." Grievant actually had substantial maintenance experience which satisfied the requirements of the position. Grievant’s answers to the Panel questions reflected her depth of maintenance experience. In addition, Grievant’s Interview Summary concludes, "Based on [Grievant’s] experience and answers to interview questions, we feel that she does not possess the required knowledge, skills and abilities for this position." The Assistant Resident Engineer admits Grievant has the necessary minimum knowledge, skills, and ability required for the position. What he intended to say was that Grievant did not have the most suited strengths and qualities needed to be selected for the position in light of the other candidates interviewed. Although the Assistant Resident Engineer admits the Interview Summary contains several mistakes, he says the mistakes were unintentional and not for the purpose of diminishing Grievant’s ranking for the position.

After drafting the Interview Summary, the Assistant Resident Engineer gave it to the Hiring Manager for his review. The Hiring Manager approved the draft without making any changes.

Grievant challenges the hiring decision as being an unfair application or misapplication of hiring policy because the Agency discriminated against her based on her gender.

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 Procedures Manual ("P&PM") Policy 2.10.¹ 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 must have attended VDOT Selection Training or received equivalent training. VDOT Policy 2.10(IV)(B). "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 established that the Agency unfairly applied or misapplied the Hiring Policy. Grievant has not alleged or proven any defects with the Agency’s screening process. Panel members had received the necessary prerequisite training. The interview questions were appropriate for the position. Immediately following the final interview, the Panel met and discussed each candidate. The Resident Engineer from another district was the first to offer her rankings of the candidates. She ranked the male as her first choice with a female as her second choice. The two other panel members agreed with that ranking.

Grievant objects to errors in the Interview Summary, which appear to minimize and misstate her accomplishments. Her concern is understandable. Without knowing the circumstances surrounding the preparation of the Interview Summary, she could reasonably conclude that the Agency had attempted to arbitrarily reduce her relative ranking for the position. The Agency, however, concedes it misstated the depth of Grievant’s maintenance experience, but contends the error was an oversight and did not constitute a violation of the Hiring Policy. The Hearing Officer concludes that the Agency’s mistakes in preparing the Interview Summary constitute harmless error because the Panel had already ranked the candidates and selected the best suited candidate before the Interview Summary was drafted. The drafting of the Interview Summary was ministerial in nature.

Classified employees are to be selected without discrimination based on gender. On January 17, 1998, Governor Gilmore issued Executive Order 2 stating:

The Governor’s Executive Order 2 forms the basis for P&PM § 2.05. Policy 2.05(II)(A)(1) prohibits employment discrimination based on gender. This prohibition applies to "all aspects of the application process and/or the employment relationship, including: A. hiring, demotion, promotion, layoff, and transfer …." P&PM § 2.05(III)(A).

Grievant is in a protected class because of her gender. Other than showing that she is in a protected class, Grievant has not presented any other evidence of sex discrimination. It is not necessary to conduct an in-depth analysis of the law governing gender discrimination. Grievant did not establish disparate treatment through direct evidence of intentional discrimination or mixed motive, or through circumstantial evidence. Grievant did not establish disparate impact by presenting evidence to challenge the Agency’s system for selecting candidates. Grievant has not met her burden of proof.

For the reasons stated herein, Grievant’s request for relief is denied.

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.

Section 7/2(d) of the Grievance Procedure Manual provides that 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