Issue: Qualification/Discrimination(religion); Ruling Date November 28, 2001; Ruling #2001-190; Agency: Department of Corrections; Outcome: Not qualified

COMMONWEALTH of VIRGINIA

Department of Employment Dispute Resolution

QUALIFICATION RULING OF DIRECTOR

In the matter of Department of Corrections/No. 2001-190

November 28, 2001

The grievant has requested a ruling on whether his June 11, 2001 grievance with the Department of Corrections (DOC) qualifies for a hearing. The grievant claims that management discriminated against him in the selection process for the position of Corrections Sergeant because of his religion.

FACTS

The grievant is employed as a Corrections Officer. In April 2001, the grievant applied and was interviewed for the position of Corrections Sergeant, but was not selected. He asserts that the agency failed to fairly consider his application and discriminated against him based on his Muslim religion.

DISCUSSION

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.1 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 the agency "shall not proceed to a hearing." 2Accordingly, a grievance challenging the selection process does not qualify for a hearing unless there is evidence raising a sufficient question as to whether discrimination, retaliation, discipline, or a misapplication of policy has occurred.3 In this case, the grievant alleges that management discriminated against him in the selection process for the position of Corrections Sergeant because of his religion.

For a claim of religious discrimination in the hiring or selection context to qualify for a hearing, there must be more than a mere allegation that discrimination has occurred. The grievant must present facts that raise a sufficient question as to whether he was not selected because of his religion. A grievant may accomplish this by coming forward with evidence: (1) that he is a member of a protected class; (2) that he is qualified for the position; and (3) that in spite of his qualifications, he was rejected for the position. If, however, the agency comes forward with a legitimate, non-discriminatory reason for its actions, the grievance should not qualify for hearing, unless there is sufficient evidence that the agency’s stated reason is merely a pretext or excuse for improper discrimination. 4

As a Muslim, the grievant is a member of a protected class. Furthermore, the grievant’s qualifications are clearly recognized by his receiving a first round interview. 5Finally, it is undisputed that the grievant was not selected for the Sergeant position. The agency, however, has stated two legitimate non-discriminatory reasons for its decision to exclude the grievant from the second round of interviews.

First, the panel gave greater weight to the overall corrections experience of those selected for follow-up interviews. In this regard, two of the finalists had ten years of corrections experience as compared to the grievant’s five years. 6The third finalist had corrections experience equal to the grievant but also had a college degree in a behavioral science discipline. 7It cannot be said that the interview panel unlawfully discriminated against the grievant by assessing the level and scope of corrections and behavioral science experience among the applicants, or by giving those factors added weight.8

The second reason stated by the agency for its decision was that the applicants who were granted second interviews did a better job of fielding the questions posed at the first round than did the grievant. While an interview panel’s rating of responses to interview questions is often prone to some degree of subjectivity, there is no evidence that the grievant’s responses were downgraded as a result of his religion.

CONCLUSION

For the reasons discussed above, this grievance does not qualify for a hearing. For information regarding the actions that 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 should notify his Human Resources Office, in writing, within five workdays of receipt of this ruling. If the court should qualify his grievance, within five workdays of receipt of the court’s decision, the agency will request the appointment of a hearing officer unless he notifies them that he does not want to proceed.

Neil A. G. McPhie, Esquire
Director

June M. Foy
Senior Consultant

1Va. Code § 2.2-3004 (B).
2Va. Code § 2.2-3004 (C).
3Grievance Procedure Manual, § 4.1 (c), page 11.
4See Hutchinson v. INOVA Health System, Inc., 1998 U.S. Dist. LEXIS 7723 (E.D. Va. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); See also Cabral v. Medical College of Virginia Hospital, 1998 U.S. App. LEXIS 6610 (4th Cir. 1998).
5Only those applicants meeting minimal qualifications are granted interviews.
6Under the agency's initial rating scale, employees received one point for each year of corrections experience up to a maximum of 10 available points.
7The agency allotted 2 points for an associates degree; 4 for a bachelors; and 6 for a doctoral degree. The grievant was awarded a total of 17 points for his combined corrections, supervisory, law enforcement, and educational experience. Two of those who were granted second interviews had total scores of 21, and the remaining applicant who advanced to a second interview had a score of 20.
8The only purported evidence cited by the grievant provided in support of his claim that he was the best-qualified applicant was his prior 16 months service as a Corrections Sergeant. For the reasons discussed above, this 'evidence' is not sufficient to warrant a hearing.