Issue: Qualification, Recruitment/Selection; Ruling Date April 30, 2001; Ruling #2001-007; Agency: Department of Mental Health, Mental Retardation and Substance Abuse Services; Outcome: Not qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Mental Health, Mental Retardation and Substance Abuse Services

Ruling No. 2001-007

April 30, 2001

The grievant has requested a ruling on whether her November 8, 2000 grievance with the Department of Mental Health, Mental Retardation and Substance Abuse Services ("agency") qualifies for a hearing.1 She claims that she was denied the opportunity to compete for a job vacancy because of (1) the agency’s decision not to advertise the position, and (2) pre-selection. Additionally, she claims that she was given inaccurate information regarding the selection process. For the reasons set forth below her grievance is not qualified for hearing.

FACTS

The grievant was employed by the agency as Food Operations Assistant A. In July of 2000, the agency advertised a vacancy for a Food Operations Assistant B, Position 00236. Selection for the Assistant B position would have been a promotion for the grievant because her Assistant A position carried a grade 1 rating and the Assistant B position carried a grade 2 rating. Shortly after advertising the position, the agency administratively closed recruitment for the position without filling the position. The grievant claims that she was led to believe that the position would be reopened for recruitment at a future date.

On September 25, 2000, the Commonwealth implemented the first phase of a new compensation reform plan. On that date, 1650 classified positions were condensed into approximately 300 broader roles. Consequently, the grievant’s former classification of Food Operations Assistant A was "cross-walked" (assigned) to the role of Food Technician I. Also crosswalked into the role of Food Technician I was the former classification of Food Operations Assistant B. Additionally, in September, the agency announced an opening for a Food Service Worker. The opening was listed as Position 00239. Position 00239 had historically been an Assistant A, grade 1, position. The grievant did not apply for this position. The agency then used the 00239 applicant pool to fill the Position 00236 vacancy. Accordingly, the 00236 vacancy was never advertised after July of 2000, and was filled by an employee who had applied for the 00239 vacancy.

DISCUSSION

By statute and under the grievance procedure, management has the authority to determine who is best-suited for a particular position by determining the knowledge, skills, and abilities necessary for the position and by assessing the qualifications of the candidates. Accordingly, claims relating to a selection process do not qualify for a hearing unless the grievant presents evidence raising a sufficient question as to whether discrimination, retaliation or discipline may have improperly influenced the process, or whether policy may have been misapplied.2 The grievant essentially alleges that the agency: (1) misapplied policy by failing to advertise the 00236 vacancy before filling it, (2) made misrepresentations regarding the selection process, and (3) engaged in pre-selection.

Misapplication or Unfair Application of the Hiring/Selection Policy

For an allegation of misapplication of policy or unfair application of policy to qualify for a hearing, there must be facts that raise 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 Commonwealth’s hiring policy is designed to ascertain which candidate is best suited for the position, not just to determine who might be qualified to perform the duties of the position.3

The grievant asserts that the agency violated policy by filling the Position 00236 vacancy without advertising it. The applicable policy is the Department of Human Resources Management ("DHRM") Policy 2.10. Policy 2.10 states that "[a]gencies must list all job announcements for vacant classified positions that are open to State Employees Only and/or Open Recruitment in RECRUIT, except as noted in the following situations: . . . similar vacancies (same Role, duties/work title, organizational unit, and geographic area) that become vacant, or funded, within 90 calendar days from the position closing date of the similar vacancy; (same Role, duties/work title and location).4 " The two positions filled by the agency were "similar" vacancies: they were assigned to the same role (Food Service Technician 1), were comprised of the same duties (meal preparation and delivery) and were to be performed at the same institution. Further, the position was vacant within the requisite 90 calendar day period.5 Accordingly, the agency did not violate policy by filling the position without re-advertising it.

Misinformation Regarding the Job Selection Process

The grievant also claims that she was given inaccurate information regarding the selection process. Assuming without deciding that the grievant received conflicting stories regarding who ultimately made the hiring decisions and when those decisions were reached, this Department concludes that any misinformation regarding those determinations does not constitute a qualifiable issue. Although all complaints may proceed through the three resolution steps, thereby allowing employees to bring legitimate concerns to management’s attention, only certain issues qualify for a hearing.6 Claims based on inaccurate statements are not among the issues identified by the General Assembly as qualifying for grievance hearings.7

Pre-selection

Finally, the grievant also states that pre-selection may have tarnished the selection process. State law and policy require that hiring and promotions shall be based on merit.8 Thus, pre-selection--merely going through the motions of the selection process when the outcome has been predetermined--violates law and policy.

Based on preliminary evidence, this Department concludes that there may have been some irregularities in the selection process with respect to the interview process.9 However, a more thorough examination of facts at hearing is not warranted in this instance because the grievant failed to apply for the 00239 position. Thus, a hearing officer would be unable to award any meaningful relief if this Department qualified the grievance for hearing -- once a hearing officer concludes that a misapplication or unfair application of policy occurred, the hearing officer can only "order the agency to reapply the policy from the point at which it became tainted."10 It appears that if the selection process was indeed tainted, it was corrupted at some point following the initial round of interviews. Therefore, because the grievant never applied for the position, she could not be considered as a potential candidate for the position even if the hearing officer ordered the selection process to be redone at the point at which it became tainted (some time after the first round of interviews).

APPEAL RIGHTS AND OTHER INFORMATION

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, please 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 she does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant

1 Please note that recent changes to the grievance statute have resulted in changes to the grievance procedure. Because this grievance was initiated after July 1, 2000, this ruling is issued in accordance with the rules contained in the new procedure manual (Grievance Procedure Manual, effective July 1, 2000).
2 See Va. Code § 2.1-116.06; Grievance Procedure Manual § 4.1, pages 10-11.
3 DHRM Policy No. 2.10, page 2 of 14 (effective date September 25, 2000).
4 DHRM Policy No. 2.10, pages 3-4 of 14. (Emphasis added).
5 A literal interpretation of this provision would indicate that positions must become vacant within 90 calendar days of the closing date of the similar vacancy. However, DHRM interprets this provision to also include those positions that remain vacant within 90 calendar days of the specified closing date.
6 See Va. Code § 2.1-116.06; Grievance Procedure Manual § 4.1 (a-c), pages 10-11.
7 Id. Moreover, statements regarding who made the hiring decisions and when concern events that took place after the selection process had been completed. Accordingly, such statements did not impact the selection process itself. Furthermore, assuming that someone made a statement that led the grievant to think that the 00236 position would be advertised in the future, such a statement alone would not have violated state hiring policy. As previously discussed, Policy 2.10 did not require an additional or separate posting of the 00236 position.
8 Va. Code § 2.111 states that "in accordance with the provision of this chapter all appointments and promotions to and tenure in positions in the service of the Commonwealth shall be based upon merit and fitness, to be ascertained, as far as possible, by the competitive rating of qualifications by the respective appointing authorities." (Emphasis added). See also DHRM Policy 2.10, generally, which (i) mandates that selection be based on the determination of who is "best suited" for a position, and (ii) demands that an applicant's knowledge, skills, and abilities be used to determine suitability.
9 Based on this Department's investigation, there is no evidence that the selection process was tainted prior to the interview phase of the selection process.
10 Rules for Conducting Grievance Hearings, page 10.