### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Daniel L. Frost, 

### FILED

Petitioner Below, Petitioner June 12, 2015

RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS vs) No. 14-0841 (Kanawha County 14-AA-49)

OF WEST VIRGINIA

Bluefield State College and the Bluefield State College Board of Governors, Respondents Below, Respondents



### MEMORANDUM DECISION

Petitioner Daniel L. Frost, by counsel Derrick W. Lefler, appeals the order of the Circuit Court of Kanawha County, entered July 24, 2014, that affirmed the final order of the West Virginia Public Employees Grievance Board which denied petitioner’s grievance against Respondents Bluefield State College and the Bluefield State College Board of Governors. Respondents, by counsel Kristi A. McWhirter, filed a response.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

From 1995 to 2001, petitioner was employed by Bluefield State College (the “College”) on a full time basis as a painter, a trades worker, or a trades worker lead. Since 2001, petitioner has been employed at the College as a Counselor II. Petitioner is also a licensed master plumber and master electrician, and holds certifications in HVAC, welding, and insulation. Petitioner also holds a Master of Arts Degree in Strategic Leadership and has his own construction company that specializes in kitchen and bathroom remodeling.

Petitioner claims he has a tense relationship with the College’s administration in general, and with Shelia Johnson, the College’s Vice President for Financial and Administrative Affairs, in particular, given that he has filed several successful grievances against the College. For example, in 1997, petitioner successfully asserted that he was misclassified as a “trades worker” when he was, in fact, a “trades worker lead.” Petitioner asserts he was also active in assisting other employees with their grievances, was openly and vocally critical of the College’s practices in a number of areas, and successfully challenged the College’s failure to fully fund classified positions in accordance with the “Mercer Classification System.”

In 2007, the position of physical plant director at the College became vacant upon the retirement of Clyde Harrison, who had served in that position for twenty years. The College did

1not post the position. Instead, Sheila Johnson contracted with Mr. Harrison to handle some of his former duties on a part-time basis and delegated other duties to Mr. Harrison’s former

administrative assistant.

On May 7, 2007, petitioner filed a grievance regarding the College’s failure to post the physical plant director position. Three years and considerable litigation later, the College was required to post and fill the physical plant director position. The job description was posted in September of 2010. 1 To apply for the position, applicants were required to complete the College’s employment application and to submit a cover letter, resume, three professional references, and transcripts. Petitioner submitted a resume for the physical plant director position, but did not submit a cover letter, transcripts, or the College’s employment application. Although not required to do so, Christina Brogdon, then the College’s Human Resources Director, gave petitioner an opportunity to submit the missing materials. Petitioner claims that the College already had the missing materials in his employee file, but he nevertheless submitted the requested information.

Ms. Johnson served as both the hiring manager and supervisor for the physical plant director job. In that position, she nominated the five members of the hiring committee including the committee’s chair, who were then approved by the College’s President. The hiring committee included the chair, Dr. Steve Bourne, then the College’s Dean of the College of Business; and members Paul Rutherford, the College’s Purchasing Director; James Crenshaw, the College’s Supervisor of Campus Services; Roger Owensbee, Assistant Professor Mining Engineering at the

1 The posting listed the qualifications for the physical plant director position as a bachelor’s degree in business, public administration, industrial engineering, or a related field; and four to six years of experience performing and directing the work of a physical plant, commercial construction staff or related personnel. The physical plant director was to be responsible for:

(1) the College’s entire maintenance program, including the oversight of campus facilities, structures, HVAC systems, equipment, fleet services, grounds, and

emergency management;

(2) the day-to-day operations of the physical plant, including the oversight of the efficient operation of building maintenance, campus grounds, energy initiatives, campus safety and compliance;

(3) assisting with short-term and long-term facilities planning, capital projects, and the oversight of such projects;

(4) the management of the fiscal and personnel resources for the Physical Plant department; and

(5) the supervision of approximately twenty-five employees.

2College; and Dr. Tracey Anderson, the College’s Director of Institutional Research and Effectiveness. Two of the members of the hiring committee, Paul Rutherford and James Crenshaw, were directly supervised in their jobs by Ms. Johnson.

On November 1, 2010, Ms. Johnson met with the hiring committee to discuss the committee’s guidelines and procedures. However, she did not attend any of the hiring committee’s other meetings, nor did she participate in the evaluation of the individual applicants.

Petitioner was one of fourteen people who (1) applied for the physical plant director position, and (2) were found to be, at least, minimally qualified to hold the position. The hiring committee reviewed the applications of these fourteen and chose to interview four. Petitioner was not one of the four applicants selected for an interview.

Ultimately, the hiring committee recommended that applicant Brian Bales be hired as the physical plant director. Mr. Bales had twenty-two years of related experience, which included seven years as the facilities manager at a regional community hospital. In that position, Mr. Bales supervised sixteen employees; planned and directed the hospital’s facilities department; oversaw plant operations, security, and environmental services; and maintained the budget for the hospital’s facilities and utilities departments. Prior to his employment as a facilities manager, Mr. Bales worked as a service technician for a national food chain. In that position he maintained facilities and repaired mechanical equipment. Mr. Bales holds a diploma from Virginia Highlands Community College in HVAC/Electrical, but does not hold a bachelor’s degree. Therefore, in accordance with various policies and State regulations, four years of Mr. Bale’s relevant experience was substituted for the bachelors’ degree required in the job posting for the physical plant director.

On December 15, 2010, petitioner filed a grievance in which he claimed that the hiring committee’s decision not to interview him was retaliatory and driven by the College’s desire to keep him from a position of significant authority that was under the direction of Ms. Johnson.

In 2013, a two-day evidentiary hearing was held on the merits of petitioner’s grievance. On January 29, 2014, the grievance board denied petitioner’s grievance. The grievance board found that petitioner had proven a prima facie case of retaliation; however, it concluded that respondents’ evidence showed that the hiring committee’s decision not to interview petitioner for the physical plant director position was based upon legitimate, non-retaliatory reasons that related to the qualifications of each applicant. The grievance board also found that although the successful candidate, Brian Bales, did not hold a college degree as required by the physical plant director job posting, his twenty plus years in health facilities’ management served as a substitute for a college degree. 2

Petitioner appealed the grievance board’s decision to the circuit court. By order entered July 25, 2014, the circuit court found that petitioner had established a prima facie case of retaliation based on his evidence that (1) he initiated multiple grievances against respondents

2 This finding was incorrect. Although Mr. Bales had worked for more than twenty years in health facilities, only seven of those years were in management.

3which he successfully pursued in circuit court; (2) Ms. Johnson, who had extensive involvement in these grievances, appointed the hiring committee who decided not to interview petitioner; (3) the decision not to interview petitioner ensured his non-selection for the job; and (4) the decision not to interview petitioner was made after the resolution of his grievance that resulted in the posting of the physical plant director position. Despite these findings, the circuit court affirmed the grievance board’s order denying petitioner’s grievance on the ground that he failed to carry his burden of proof that respondents had a pretextual basis for denying petitioner an interview. Specifically, the circuit court found that (1) the hiring committee made an independent review of the fourteen minimally qualified applicants and selected the four interviewees based on their relevant experience and qualifications; and (2) petitioner entered no credible evidence before the grievance board that the members of the hiring committee knew about petitioner’s grievances or had been instructed to exclude petitioner from the interview process.

Petitioner now appeals the circuit court’s order. We review such appeals under the following standard of review.

“Grievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obligated to give deference to factual findings rendered by an administrative law judge, a circuit court is not permitted to substitute its judgment for that of the hearing examiner with regard to factual determinations. Credibility determinations made by an administrative law judge are similarly entitled to deference. Plenary review is conducted as to the conclusions of law and application of law to the facts, which are reviewed de novo.” Syl. pt. 1, Cahill v. Mercer Cnty. Bd. of Educ ., 208 W.Va. 177, 539 S.E.2d

437 (2000).

Syl. Pt. 1, Shanklin v. Bd. of Educ. of Cnty. of Kanawha , 228 W.Va. 374, 375, 719 S.E.2d 844, 845 (2011).

Petitioner raises three assignments of error on appeal. Petitioner first argues that both the grievance board and the circuit court erred in finding that respondents made a prima facie case that they had legitimate, non-retaliatory reasons for failing to interview petitioner for the physical plant director position.

The evidence in the record on appeal supports the grievance board’s and the circuit court’s finding that the hiring committee’s selection decisions were based solely upon the qualifications of the applicants as they related to the job description for the physical plant director position. That evidence includes the fourteen applications at issue in this appeal which show that the four applicants selected for an interview (1) had direct, full-time experience working in or managing physical plants and/or health care facilities, commercial construction companies, higher education institutions, or towns; (2) had supervised, evaluated and managed large numbers of employees; and (3) had experience managing and controlling large budgets. Conversely, at the time petitioner applied for the physical plant director position, he had been working for more than a decade in a non-supervisory, non-management position. Moreover, he did not have any direct experience supervising large numbers of employees, let alone physical plant or facilities employees. Petitioner had also never managed a large budget. Finally, his

4commercial construction experience was limited to his company, which focused solely on kitchen and bathroom remodeling.

The evidence in the record on appeal also includes the testimony of four of the five members of the hiring committee: Dr. Bourne, Mr. Crenshaw, Mr. Rutherford, and Dr. Anderson. Each testified (1) that the sole focus of their work was to select the best applicant for the job, and (2) that they chose the interviewees based solely on the relevance of their education and experience in light of the requirements of the physical plant director position. Therefore, based on the record on appeal and the circuit court’s detailed findings in the order on appeal, we cannot say that the circuit court erred in finding that respondents made a prima facie case that they had legitimate, non-retaliatory reasons for opting not to interview petitioner for the physical plant director position.

Petitioner next argues that the circuit court erred in affirming the grievance board where the grievance board failed to consider petitioner’s evidence regarding respondents’ alleged actions to deter him from applying for other positions. In support of this argument, petitioner highlights the testimony of Ms. Johnson, Ms. Brogdon (formerly the College’s Human Resources Director), and Mr. Harrison (the former physical plant director) at the grievance board hearing. In the order of appeal, the circuit court properly considered all of the evidence relevant to the alleged bias by administrators at the College, including the testimony of Ms. Johnson, Ms. Brogdon, and Mr. Harrison. With regard to petitioner’s claims that Ms. Johnson unfairly influenced the hiring committee’s decision, the circuit court found that her exposure to the hiring committee was relatively minimal given that she attended only the hiring committee’s initial meeting which related to the interview selection process, and not to the individual applicants. Further, none of the four hiring committee members who testified at the grievance board hearing said that they were aware of any bias against petitioner on Ms. Johnson’s part or on the part of any other administrator at the College. Nor did any hiring committee member claim to be aware of any other jobs petitioner may have applied for at the College. In light of this evidence, we find the circuit court did not err in finding that petitioner failed to prove that any alleged bias on the part of the College’s administrators had any impact on the decisions made by the hiring

committee.

Petitioner’s third and final assignment of error is that the circuit court erred in affirming the denial of petitioner’s grievance where the grievance board erroneously found that Mr. Bales’s had twenty years of experience in health facilities management, when, in fact, he only had seven years of management experience. Although the grievance board did err in finding that Mr. Bales had twenty years of management experience, we concur with the circuit court’s finding that this minor error did not affect the validity of the grievance board’s decision in this matter. The question here involves the manner in which the interviewees were selected. On appeal, petitioner does not claim that the hiring committee misunderstood the number of years Mr. Bales served in a management position. Thus, we find this assignment of error to be without merit.

Having reviewed the circuit court’s “Final Order” entered July 24, 2014, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to

this memorandum decision.

5For the foregoing reasons, we affirm.

ISSUED: June 12, 2015

CONCURRED IN BY:

Justice Robin Jean Davis Justice Brent D. Benjamin

Justice Menis E. Ketchum Justice Allen H. Loughry II

DISQUALIFIED :

Chief Justice Margaret L. Workman Affirmed.

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