Issue: Qualification-Recruitment/Selection; All; Ruling Date June 28, 2001; Ruling #2001-003; Agency: Department of Juvenile Justice; Outcome: Not Qualified.

In the matter of Department of Juvenile Justice No. 2001-003

June 28, 2001

The grievant has requested a ruling on whether the issues raised in his grievance initiated with the Department of Juvenile Justice on October 24, 2000 qualify for a hearing. The grievant claims that management discriminated against him based on his age. He also claims that management misapplied or unfairly applied policy during the selection process.

The grievant was employed as a Corrections Officer at the Department of Juvenile Justice (agency) from September 1998 until he resigned to accept other employment on December 29, 2000.¹ In September 2000, the grievant was interviewed by a two-member panel for an Instructor position at the agency, but was not selected for a third and final interview for this position with the Superintendent. The grievant asserts that the agency discriminated against him when it selected a younger candidate for a third interview and ultimately for the promotion.² At that time, the grievant was 49 years old and the successful candidate was in his 30’s. The grievant further asserts that he was the most qualified candidate based on his seniority, supervisory and related work experience. The grievant states that he possessed over 20 years of supervisory experience while the younger candidate only had 4 years of supervisory experience. The grievant also states that he had directly related instructional work experience while the younger candidate had none.

Additionally, the grievant claims that the agency misapplied or unfairly applied policy when it allowed one of its second interview panel members to coach the remaining candidates just prior to their third interview. The panel member in question reported to this Department that he only shared words of encouragement with all three third interview candidates, together, before their third interview with the Superintendent.

The grievant further claims that his immediate supervisor threatened to sabotage his chances of receiving a third interview and that the agency allowed it to occur. The agency has indicated that the grievant’s immediate supervisor was not in a position to influence the interview process. The immediate supervisor also denies ever making the threat in question.³

The grievance procedure recognizes management’s exclusive right to manage the operations of state government, including the hiring or promotion of employees within an agency.⁴ Inherent in this right is the authority to weigh the relative qualifications of job applicants and determine the "best-suited" person for a particular position based on the knowledge, skills and abilities required. Grievances relating solely to the contents of personnel policies and the hiring of employees within an agency "shall not proceed to a hearing."⁵Accordingly, a grievance challenging the selection process does not qualify for a hearing unless there is evidence raising a sufficient question as to whether the selection process was tainted by discrimination, retaliation, discipline, or a misapplication of policy.⁶ In this case, the grievant has alleged that age discrimination and policy misapplication tainted the process.

The grievant alleges that the agency discriminated against him because of his age when it did not select him for a third and final interview which ultimately prevented him from being considered for the promotion to the Instructor position. For a claim of age discrimination in the hiring or selection context to qualify for a hearing there must be more than a mere allegation that discrimination has occurred. Rather, an employee must be forty years of age or older, and must present evidence raising a sufficient question as to whether he (1) was qualified for the position for which the employer was seeking applicants; (2) was rejected despite being qualified for the position; and (3) was rejected in favor of a substantially younger candidate on the basis of age.⁷ Where the agency, however, presents a legitimate, nondiscriminatory reason for the employment action taken, the grievance should not qualify for a hearing, unless there is sufficient evidence that the agency’s stated reason was merely a pretext or excuse for age discrimination.⁸

As a person over forty years of age, the grievant is protected from age discrimination. The grievant also appears to have been qualified for the Instructor position, as evidenced by his selection for a first and second interview. He was nevertheless rejected and a substantially younger candidate was chosen. However, the agency has presented a legitimate, non-discriminatory reason for not selecting the grievant for a third interview--the grievant did not respond well to the interview questions and did not demonstrate the abilities to function as an Instruction supervisor. Further, the grievant presented no evidence that the agency’s stated reason was merely a pretext or excuse for age discrimination. Nor did this Department’s ruling investigation reveal any such evidence. Accordingly, this issue does not qualify for a hearing.

Misapplication of Policy

The grievant alleges that the agency misapplied policy during the selection process when it allowed management to coach or prepare the remaining candidates for their third interview and when it allowed his immediate supervisor’s negative sentiments towards him to influence their decision not to select him for a third interview. For a grievance to qualify for a hearing, an employee must present evidence raising a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged action, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy. The applicable policy in this case is the state’s hiring and selection policy (DHRM Policy 2.10)(effective 9/25/00).

First, we see nothing in state policy that precludes a member of a panel from coaching or giving a joint pep talk to all candidates chosen by that panel to proceed to the next phase of the selection process. Thus, it cannot be said that a panel member violated a mandatory policy provision or acted in such a way as to create an unfair disadvantage for the grievant. Indeed, the grievant could not have been disadvantaged by the pep talk since it occurred after his second interview, after management had considered his qualifications and suitability and decided that he would not advance to the third and final interview. Second, the grievant has presented insufficient evidence to support his claim that his immediate supervisor improperly influenced management’s decision not to extend a third and final interview to him for the position in question. Accordingly, this issue does not qualify for a hearing.

Finally, the grievant claims that he was more qualified than the successful candidate based upon his seniority, supervisory and instructional related work experience. State hiring policy, however, is designed not only to determine who may be technically qualified to perform the duties of a position, but also to ascertain which candidate is best-suited for the position. Although seniority and direct work experience may be important factors, they are not the sole determinants in determining which candidate is best suited. In any event, the panel members have the authority under DHRM Policy No. 2.10 to assess all the relevant qualifications of each interviewed candidate and to recommend those candidates they deem best-suited for the third and final interview.⁹ Accordingly, this issue does not qualify for a hearing.

For information regarding the actions the grievant may take as a result of this ruling, please refer to the enclosed sheet. If the grievant wishes to appeal this determination to the circuit court, he must notify the human resources office, in writing, within five workdays of receipt of this ruling. If the court should qualify this grievance, within five workdays of receipt of the court’s decision, the agency will request the appointment of a hearing officer unless the grievant notifies the agency that he does not wish to proceed.