Issue: Qualification; Discrimination-Race; Recruitment/Selection-All; Ruling Date June 11, 2001; Ruling #2001-BBB; Agency: Department of Health; Outcome: Not Qualified. Appealed to the Circuit Court for the City of Hampton on 7-11-01; Affirmed on 8-08-01.

QUALIFICATION RULING OF DIRECTOR

In the matter of Virginia Department of Health June 11, 2001

Ruling #2001-BBB

The grievant has requested a ruling on whether the issues raised in her May 1, 2000 grievance with the Virginia Department of Health qualify for a hearing. The grievant claims that management pre-selected the successful candidate, misapplied state hiring policy and discriminated against her based on her race during the selection process.

The grievant is employed as a Public Health Associate A (formerly grade 4). She is an African American female. From September 1999 through April 2000, the grievant had been temporarily assigned to the position of Fiscal Assistant (Public Health Associate B, formerly grade 5). In February 2000, the agency advertised the Fiscal Assistant position. The grievant applied for the position on February 22, was interviewed on March 9, 2000, but was not selected.

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. In addition, grievances relating solely to the contents of personnel policies and the hiring of employees within an agency "shall not proceed to a hearing."² Accordingly, 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 misapplied policy and discriminated against her because of her race in the selection process for the position of Public Health Associate B. The successful candidate’s and grievant’s applications, interview evaluations, and the panel recommendation were carefully reviewed for purposes of this ruling. These issues raised by the grievant are discussed in turn below.

For a claim of misapplication of policy or unfair application of policy to qualify for a hearing, the grievant must present evidence raising a sufficient question as to whether management violated a mandatory policy provision, or whether the challenged activity, in its totality, was so unfair as to amount to a disregard of the intent of the applicable policy.

The grievant alleges that the "Position did not have to [be] advertised to the General Public in accordance with the Public Health Associate" pilot program. The agency has responded that the Public Health Occupations Enhanced Banding Environment (PHOEBE) pilot program was intended to provide managers with greater flexibility in filling public health positions –for example, through reallocation, lateral transfer, internal or open recruitment. However, under no circumstances did the PHOEBE pilot program require that managers utilize one means of filling a position over another. The agency reviewed its hiring practices in light of this grievance and found that the grievant’s Health District has filled all positions through competitive recruitment, without exception. The grievant has not presented sufficient facts to show that management acted inconsistently with this policy by not electing to advertise in the present case. Accordingly, this issue does not qualify for a hearing.

The grievant also alleges that her supervisors made "misleading statements" regarding changes that were made to the Fiscal Assistant position description. The grievant asserts that she inquired about the full duties of the position the month before it was advertised and was told that they would not change. However, when she was given the updated position description immediately prior to the interview process, the grievant saw that it listed many duties that she had not performed while acting in the position.

As stated above, management has the exclusive right to manage the methods and means by which work is accomplished, including the prerogative to revise the duties of a position description. In this case, the agency has responded that part of the reorganization of the fiscal office included reviewing and updating all fiscal-related position descriptions. In any event, the agency has also presented facts showing that the Fiscal Assistant position description did not significantly change after the position was advertised. For example, the descriptions both contain identical wording in the sections titled "chief objectives," "work tasks and duties," "independent work actions and decisions," and "qualifications and experience." Management has explained that the grievant simply was not asked to perform all the duties when acting in the Fiscal Assistant position because they did not have the resources to train her for those duties.

Regardless of whether the grievant was made aware of any changes to the position description, all candidates for the position who were interviewed, including her, were presented with the updated position description at the time of their interviews on March 9, 2000. Although it is understandable that the grievant desired the training and other support that would have prepared her to be a better candidate for the position, there is no requirement in policy that agencies provide this to employees who are "acting" in a position. The grievant has not presented sufficient evidence to show that management violated policy or acted so unfairly in this regard as to violate the intent of policy. Accordingly, this issue also does not qualify for a hearing.

The grievant claims that the successful candidate was preselected for the position, without regard to his knowledge, skills and abilities, or his suitability to the position. The grievant offers comments allegedly made by the successful candidate that he intended to retire in the state system as evidence for her preselection claim. The grievant alleges that a member of the interview panel informed the successful candidate to review the first paragraph of the position description carefully for the interview. In addition, the grievant believes that the interview questions asked by the panel were oriented to the duties that the successful candidate was already performing in his position in the office.

The applicable state policy requires that candidates be hired based on their knowledge, skills and abilities.⁴ Thus, preselection (in other words, proceeding through a selection process with the outcome determined from the beginning, without regard to the candidate’s knowledge, skills, abilities and suitability) would violate policy. Even assuming for the purposes of this ruling that the successful candidate had stated his hope to retire with the State, the grievant has not presented facts to show a connection between that statement and the selection decision by the hiring authority. In addition, both the grievant and the successful candidate picked up a copy of the updated position description at the same time (fifteen minutes prior to their interviews). And even assuming that the panel member had informed the successful candidate to review the first paragraph of the position description carefully, that alone is insufficient evidence of preselection.

Finally, the agency has provided facts showing that the Fiscal Assistant position was an accounts receivable position before and after the position description was updated in March 2000. Further, the agency has shown that the interview questions asked of all candidates were related to the accounting principles associated with accounts receivable work. There is no evidence to support the claim that the questions were not related to the duties of the position, either before or after it was updated, or that the questions were tailored to a particular candidate’s experience or strengths.

The grievant also claims that she was not selected for the position because of her race. Grievances that may be qualified for a hearing include actions related to discrimination on the basis of race.⁵ For a claim of race 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 race. A grievant may accomplish this by coming forward with evidence: (1) that she is a member of a 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 nondiscriminatory 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.⁶

As an African American, the grievant is a member of a protected class. For purposes of this ruling, we will assume she is qualified for the position, and in spite of her qualifications, she was not selected. Management, however, has provided a nondiscriminatory reason for its hiring decision --the successful candidate had an associate’s degree in Accounting and experience in the kind of accounts receivable work required for the Fiscal Assistant position, while the grievant did not. It is not discriminatory for management to assess the level and scope of relevant accounting and fiscal experience among the applicants and to give that factor great weight in determining the best-suited candidate. The grievant has presented no evidence to suggest that the agency’s stated reasons for its hiring decision are a mere pretext for discrimination. Therefore, 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, she 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 she does not wish to proceed.

Neil A.G. McPhie, Esquire
Director

Jeffrey L. Payne
Employment Relations Consultant