Issue: Qualification/Discrimination, (Race, Sex, Age); Recruitment/Selection/All; Ruling Date: November 19, 2001; Ruling #2001-192; Agency: Department of Corrections; Outcome: Not qualified.

In the matter of Department of Corrections/ No. 2001-192

November 19, 2001

The grievant has requested a ruling on whether her July 13, 2001 grievance with the Department of Corrections (DOC) qualifies for a hearing. She claims that she was the superior candidate for a position in her agency but was denied the job due to improper pre-selection and discrimination. For the reasons set forth below, her grievance does not qualify for a hearing.

The grievant has been employed by DOC for nineteen years and is a Secretary Senior. In April 2001, the department advertised a vacancy for a Surveillance Officer position. The applicant pool selected for interviewing included nine other individuals in addition to the grievant. The office manager at the facility interviewed all ten candidates.

In her grievance, the grievant states that she believes she is qualified for the Surveillance Officer position, based on her years of experience with DOC. Furthermore, she notes that she has never had any written notices, complaints, or demotions, and has consistently maintained a rating of "exceeds expectations" on all of her performance evaluations. Although the position does not require a college degree, she plans to graduate from community college in 2002 and transfer her credits to a four-year university.

The applicant who was ultimately selected for the position had been volunteering at the facility for four months prior to receiving his job offer. His duties as a volunteer were basically that of a Surveillance Officer; he collected urine samples, conducted breath tests, and visited jails and homes of offenders. He received "on-the-job" training for these tasks. His experience prior to volunteering at DOC included restaurant and construction work.

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.¹ In this case, the grievant alleges that she has been discriminated against, based on her race, gender, and age, and that the selection policy has been misapplied or unfairly applied.

For a claim of racial or gender 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 she was not selected for the position because of her protected class.² A grievant may accomplish this by coming forward with evidence: (1) that she is a member of the protected class; (2) that she is qualified for the position; and (3) that in spite of her qualifications, she 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 a hearing, unless there is sufficient evidence that the agency’s stated reason is merely a pretext or excuse for improper discrimination.³

As an African-American female,⁴ the grievant is a member of a protected class. Thus, the grievant must present facts that establish that she was qualified for the position of Surveillance Officer and that she was rejected for the position because of her gender or race. The grievant demonstrated that she was qualified for the position. She has both experience and education in the field of corrections. Furthermore, she has proven her abilities to management, and in fact, received a very high rating in her job interview.⁵

The grievant asserts that because the successful candidate for the position was a white male, she lost the position because of her gender and race. It is up to management to put forth a legitimate, non-discriminatory reason for not selecting the grievant for the position. During this Department’s investigation, management reported that the successful candidate was chosen for the position because of his demonstrated ability to carry out the functions of the Surveillance Officer job. In his four months of volunteering with the Department, the applicant had essentially been performing as a Surveillance Officer, and management had been very satisfied with his performance. The grievant, on the other hand, while a strong candidate for the position, had never once demonstrated an interest in performing the functions of a Surveillance Officer in her nineteen years with the Department. Since her interview, however, she has expressed interest in learning the skills of a Surveillance Officer and her supervisors have indicated that they will assist her in obtaining those skills.

Management has voiced a legitimate, non-discriminatory reason for hiring the successful candidate over the grievant. The grievant may present evidence that this reason was merely pretext - an excuse - for discrimination. In her grievance and during this investigation, the only evidence the grievant has presented in support of her claim of discrimination is that (1) the office manager did not tell her when the Surveillance Officer position became available, (2) the office manager does not share other relevant information with her, and (3) the officer manager sits in her chair and does not immediately move when she returns to her desk. Although this evidence may demonstrate a supervisory conflict, it is insufficient to demonstrate discrimination against the grievant based on her race or her gender. As such, her claims of racial and gender discrimination fail.

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 she (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. ⁶Where the agency, however, presents a legitimate, non-discriminatory 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. In support of her claim for age discrimination, the grievant relies on the same incidents as she does for her claims of racial and gender discrimination. She reports that she is forty-five years old, and that the successful candidate for the position is in his mid-twenties. Furthermore, as discussed above, the grievant’s education and experience qualified her for the Surveillance Officer position. However, once again, there is no evidence that her age played any part in the hiring authority’s decision to hire another individual for the job. The agency’s decision does not appear to be based on the age of either of the candidates, but on the qualifications of the successful candidate, and the grievant provides no evidence to the contrary. Therefore, this issue does not qualify for a hearing.

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. State 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. ⁷It is the Commonwealth’s policy that hiring and promotions be competitive and based on merit—knowledge, skills, and abilities.⁸ Thus, pre-selection (merely going through the motions of the selection process when the outcome has been predetermined), regardless of merit or suitability violates that policy.

In support of her charge of pre-selection, the grievant alleges that management showed favoritism to the successful candidate throughout the selection process. For example, the grievant alleges that a co-worker overheard the office manager on the telephone, asking the Human Resources Unit whether the volunteer’s job application had arrived. The hiring authority denies that the telephone conversation took place as described above. He says that the conversation was misinterpreted, and that he was merely gathering the names of applicants who had been referred for interviews. He says he did not ask about any applicants specifically. Furthermore, another co-worker reported to the grievant that on May 24, the hiring authority called the volunteer/applicant into his office, shook his hand, and congratulated him because his application had been referred for an interview. ⁹Management has determined that the conversation between the office manager and the successful candidate may have, in fact, taken place, although there is no proof of the conversation. With respect to these examples, management conceded that the hiring authority did use improper judgement throughout the interview process, but concluded that these actions do not prove that the hiring authority pre-selected anyone for the position.

The grievant further alleges that on the following day, she asked whether her application had been referred, and the hiring authority told her that no one else had been informed about their referrals. If it is true that the other applicant received notice the prior day, the grievant claims that the inconsistent statement made by the hiring authority indicates favoritism for the other applicant. The hiring authority conducted interviews on June 5, without an interview panel. The grievant believes that failure to call a panel for interviews indicates that the office manager already had someone in mind for the job. As further evidence, the grievant cites to an incident on June 7, where the other candidate apologized to her in case he got the position, because he did not want there to be any "hard feelings" if he got the job and she did not. The grievant believes that this conversation proves that the other applicant had been promised the job. Management does not interpret this apology as evidence of pre-selection, but believes that the applicant was merely concerned about maintaining a good working relationship, in the event that he was hired. During this Department’s investigation, the grievant also noted that the hiring authority had asked at least two other employees what they thought about the other applicant in the position, but did not ask them their opinions about the grievant in the position. She also stated that during the Second Step Meeting, the hiring authority admitted that he assisted the grievant in preparing his job application, but said that he would have helped anyone fill out his application.

This Department concludes that while the hiring authority may have used poor judgement through the selection process, his actions do not demonstrate that any applicant was pre-selected, without regard to merit or suitability, for the position of Surveillance Officer. In this case, the successful candidate possessed the qualifications posted for the position, and he had demonstrated his ability to perform the functions of the job. While it may not have been proper to assist the applicant in filling out his job application, that alone does not prove that the hiring authority had already decided to hire him. Furthermore, according to DOC policy, it is standard procedure for the hiring authority to contact the Human Resources Unit concerning applicants being referred for interviews. ¹⁰Additionally, the hiring authority did not violate policy by notifying the applicant that his application had been referred.

With respect to the job interviews, there is no evidence that the hiring authority showed favoritism to one applicant. A selection panel is not required, and applicable policy indicates that the hiring authority may, alone, conduct interviews.¹¹ Also, in accordance with policy, the hiring authority developed a standard set of interview questions, which were asked of all applicants referred for interviews. Upon reviewing the office manager’s interview notes, it appears that equal attention was given to each applicant, and his recommendations do not demonstrate that one applicant was favored over any others. ¹²Furthermore, the successful candidate’s apology to the grievant is not an indication that the job had been promised to him.

The grievant also asserts that her knowledge, skills, and abilities exceed those of the selected applicant. As evidence of her qualifications for the position, she notes that she is nearing completion of a college degree, whereas the successful candidate is not currently enrolled in a college program. Furthermore, she cites to her nineteen years of employment, while the other applicant’s background is primarily in restaurants and bars, with only a few months of service to DOC. However, education and experience are only some of the factors considered by management that ultimately determine who is best suited for a position. In this case, a college degree was not a requirement for the position. Management concluded that the demonstrated abilities of the successful application made him a stronger candidate. The grievant’s assertions merely reflect that the grievant’s perception of her qualifications and suitability for the position differ from that of management. Because policy gives management the discretion to determine who is best-suited for the job, the grievant’s perceptions of her qualifications and suitability cannot support a claim that management misapplied or unfairly applied policy. Accordingly, this issue does not qualify for a hearing.

In her grievance, the grievant alleges that the individual who was hired as a Surveillance Officer included some misleading statements concerning his educational background on his application for employment. Further, she claims that he has been seen sleeping on the job since his hiring. These are serious allegations, but do not qualify for a hearing. The Grievance Procedure Manual expressly states that an employee’s grievance must "pertain directly and personally to the employee’s own employment." ¹³These claims relate specifically to the Surveillance Officer, not to the grievant, and therefore do 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, she should 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, Esq.
Director

Leigh A. Brabrand
Employment Relations Consultant