CHARLESTON – The state Supreme Court finally settled a four-year dispute over a job promotion at the Department of Transportation with its affirmation of the Circuit Court of Kanawha County’s decision that put the original woman selected back into the position.

The court issued a memorandum decision in the matter on June 28 with Justice Robin Jean Davis dissenting and Justice Margaret L. Workman not participating.

The state Department of Transportation posted a position for an Administrative Services Manager in 2009 and several interviewees were chosen. Deborah L. Hale and Kristen Cook were among those selected for interviews and Cook was eventually selected for the new position.

Hale filed a grievance because she was not selected and the grievance was denied. After mediation failed, Hale appealed and was granted a hearing before an administrative law judge.

The ALJ granted Hale’s grievance, ordering the DOT to place her in the position with increased compensation and all additional pay, benefits and back pay with interest dating back to April 10, 2010.

The DOT appealed the ALJ’s decision to the circuit court and the circuit court reversed the decision by its order of Feb. 17, 2012. Hale then appealed the circuit court’s decision to the state’s final authority on the matter.

“This Court has previously held that ‘a final order of the hearing examiner for the West Virginia Educational Employees Grievance Board . . . should not be reversed unless clearly wrong,’” the court wrote.

“While petitioner argues that the circuit court applied an incorrect standard of review in reaching its decision to reverse, the Court finds that petitioner is entitled to no relief in regard to this assignment of error. A review of the order in question shows that the circuit court found ‘that the decision of the ALJ for the [Grievance Board] was clearly wrong in view of the reliable, probative and substantial evidence on the whole record.’

“The circuit court noted that the ALJ’s decision indicated flaws with the selection process, such as inaccurate ratings for each interviewee, and also the fact that Mr. Black suffered a cough that caused him to excuse himself, which deprived petitioner of a valid interview. However, the circuit court found that the testimony established that ‘the interviewers had logical reasons for the ratings that were given to [petitioner] and [Respondent Cook].’

“While petitioner argues that the circuit court’s finding in this regard constitutes error because these issues cannot be seen as anything other than ‘a significant flaw in the selection process,’ the Court agrees with the circuit court’s reasoning on this issue.

"Respondent DOT’s actions were valid because their decision was supported by substantial evidence, as addressed above, and by a rational basis regarding their reasons for selecting Respondent Cook. As such, the Court finds no error in the circuit court’s finding that the ALJ erred in substituting her judgment for that of the interviewers in identifying an alleged flaw in the selection process.

The circuit court had found that Hale had to establish that she was the most qualified of the applicants in order to win the grievance. Hale argued before the court that this was incorrect, that she only had to prove that she was more qualified than Cook.

“In regard to petitioner’s remaining assignment of error, the Court finds no merit... we find that petitioner could not even establish that she was more qualified than Respondent Cook. As such, petitioner has failed to establish error on the part of the circuit court.

“For the foregoing reasons, we find no error in the decision of the circuit court and its February 17, 2012 order reversing the Grievance Board’s decision is affirmed.”

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