### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Deborah Yost VanDervort, 

### FILED Petitioner Below, Petitioner 

### November 16, 2018 vs) No. 18-0037 ( Kanawha County 16-AA-118) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA West Virginia Public Service Commission, Defendant Below, Respondent

and

Matthew J. Minney, Intervenor Below, Respondent



### MEMORANDUM DECISION

Petitioner Deborah Y. VanDervort, by counsel John Everett Roush, appeals the December 13, 2017, order of the Circuit Court of Kanawha County that denied petitioner’s grievance before the Public Employee’s Grieva nce Board. Respondent West Virginia Public Service Commission (“PSC”), by counsel Belinda B. Jackson, filed a response. Respondent Matthew J. Minney, by counsel E. Taylor George and Michael E. Mullins, 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affirming the orde r of the circuit cour t is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner Deborah Y. VanDervort is an attorney employed with the PSC as an Administrative Law Judge (“ALJ”). Petitioner has been continuously employed with the PSC since she was hired in August of 1989. Petitioner first served as an Attorney 2, in the Consumer Advocacy Position, before taking a position as an Administrative Law Judge in January of 2004. In June of 2014, petitioner was promoted to the position of ALJ-2. In October of 2014, the PSC posted the position of Deputy Chief Administrati ve Law Judge. This position required five years of full-time or part-time experience as an attorney with trial experience or as a judge of a court of record, and encompasses the following supervisory duties:

“Performs advanced level administrati ve legal work, a ssisting the Chief Administrative Law Judge in the supe rvision and directi on of the division including assisting in time management . . . general supervision of division employees. Performs work as requi red and as directed by the Chief

1Administrative Law Judge. Responsible for assisting the Chief Administrative in directing and supervising the work of the professional legal staff, which may include assigning cases, setting hearing dates, assuring case calendar is kept current, reviewing recommended decisions an d other orders by administrative law judges or hearing examiner for lega l accuracy . . . Assists in training administrative law judges and ot her division personnel . . .

The PSC established a policy and procedure for filling the position that included a scoring framework to evaluate candidates for the position:

Legal experience (10 points); Adjudication Experience (10 points); Ability to communicate (10 points); Familiarity with Utility law (10 points); Indications of initiative (20 points); Judicial Temper ament (25 points); Receptive Personality (ability to work with others) (25 points); Indications of leadership and management abilities (45 points); and Quality of legal writing samples and ability to defend them (45 points).

The PSC also developed interview questions desi gned to measure each app licant’s qualifications based on the hiring criteria. An interview pane l was composed of three individuals, Keith George, Chief ALJ of the PSC; Ingrid Ferrell, Executive Secretary of the PSC; and Elizabeth Sharp, PSC human resources representative. Ther e were seven applicants for the Deputy ALJ position, and all of the applicants were current employees of the PSC. After each interview, the interviewee was scored according to the weighted selection criteria by Chief ALJ George and Ms. Ferrell. Respondent Matthew J. Minney scored highest, receiving 176 points. Petitioner was ranked fourth, receiving 143 points. Respondent Minney was selected for the position. At the time of his selection, Respondent Minney was employed as an attorney with the PSC. Prior to his tenure at the PSC, he served an unexpired term as Prosecuting Attorney for Calhoun County, was a writ clerk for the Supreme Cour t of Appeals of West Virginia, and served as a law clerk for a circuit court judge.

On February 27, 2015, petitioner filed a grieva nce with the Public Employee’s Grievance

Board. 1 In her grievance, she complained that Ch ief ALJ George’s decisi on to hire Respondent Minney, a younger, non-minority male, who had ne ver previously served as an ALJ, was “arbitrary, capricious, and based on favoritism,” and alleged discrimination against petitioner on the basis of age and sex. 2 Petitioner requested, as relief, th at she be employed as the Deputy Chief ALJ, or in the alternative, to be paid the equivalent pay of the Deputy Chief ALJ. A Level I grievance hearing was scheduled on March 18, 2015. Prior to that hearing, on March 4, 2015, the hearing administrator notified Respondent Mi nney that his rights may be substantially and adversely affected by the grievance, and on March 9, 2015, Respondent Minney filed an Intervention Form, requesting to be made a party to the grievance. Following a motion to

1 Petitioner also filed a complaint with th e West Virginia Huma n Rights Commission and the United States Equal Employ ment Opportunity Commission.

2 Petitioner was sixty-two years of age at the time she file d the grievance. Respondent Matthew Minney is younger th an petitioner and male.

2continue by petitioner’s couns el, a hearing was held on Apr il 7, 2015, and the grievance was denied by order entered Apr il 28, 2015. The Commission found that petitioner had the burden to prove the elements of her grievance, and that there was insufficient evidence to demonstrate that there was any flaw in the process used to select the Deputy Chief ALJ. Specifically, the Commission found that petitioner did not demonstrate that discrimination occurred, that the selection process was flawed, or that Re spondent Minney did not meet the minimum requirements for the position.

Petitioner appealed the decision, and the ma tter proceeded to Level II, which required

mediation. A mediation session was conducted on June 4, 2015, but was unsuccessful. A Level III evidentiary hearing was held on February 29, 2016. At this hearing, petitioner was represented by Gordon Simmons, a non-attorney union representative. At the hearing, petitioner presented the testimony of four witnesses: Chief ALJ George, Ms. Sharp, Ms. Ferrell, and petitioner. At the hearing, peti tioner alleged that the proceedings below were unfair because the interview questions asked and the criteria upon which the applicants were scored were not related to the job descri ption contained in the job posting. Pe titioner also complained about the weight given to the scoring crit eria, asserting that it was error for the PSC to weigh “receptive personality”, and “indications of leadership and management ability”, over experience as an adjudicator. She also alleged discri mination on the basis of age and sex.

At the hearing, Chief ALJ George, during di rect examination, produced contemporaneous records of a series of incidents regarding the petitioner. The documents chronicled incidents between petitioner and other employees and numer ous disagreements with secretaries and other staff. These documents were admitted over petiti oner’s objection; howeve r, the circuit court agreed to schedule an additional day of the hearin g in order to allow petitioner to present rebuttal

evidence. The other witnesses testified to the inte rview process, and to pe titioner’s reputation for being difficult to work with and being quick to take offense. On that second day, petitioner testified and sought to intr oduce a number of documents and e-mails. Respondent Minney objected, stating that the contents of the e-mails were privileged communications between jurists, and the ALJ sustained the objectio n, but allowed petitioner to testify to the contents of the

documents. Petitioner testified that she had a heavy workload, that Chief ALJ George acknowledged her hard work, and that she personally sacrificed for her employment. Petitioner

also testified that Chief ALJ George made disparaging commen ts to petitione r about hiring

women and older candidates.

Petitioner’s arguments were rejected, and the Grievance Board denied her grievance by order entered November 14, 2016. The Grievance Boar d held that petitioner failed to meet her burden of proof regarding her discrimination clai m, and failed to present any evidence that she was treated differently from her co-workers. Furt her, the Grievance Board found that petitioner’s objection to interview questions that related to the applicant’s leadership style and motivational style were reasonable, as the questions related to the management role of the Deputy Chief, and were important to the Chief ALJ.

The Grievance Board also f ound, regarding the crite ria for selection, that it was not unreasonable for the PSC to weigh “leadershi p and management ability,” and “receptive personality”, over “legal experience,” experience as an adjudicator”, and “familiarity with

3utilitarian law.” The Grievance Board noted that Chief ALJ George determined that the most important functions for the Deputy Chief ALJ are the management and supervision of staff, and so the weight of factors was not arbitrary and capricious. The Gr ievance Board also determined that petitioner could not show that Respondent Minney was not qualified for the position. As a result, the grievance was denied.

Petitioner appealed the decision of the Grie vance Board to the Circuit Court of Kanawha County. In her appeal, petitioner complained th at the Grievance Board improperly admitted the documents submitted by Chief ALJ George, but de nied the admission of petitioner’s evidence and that the evidence was improperly weighed by the ALJ. Based upon the pleadings in the record, the circuit court affirmed the decision of the Grievance Board by order entered December 13, 2017. It is from that order th at petitioner now appeals.

Petitioner raises four assi gnments of error on appeal. 3 Petitioner complains that (1) the circuit court erred in excluding e- mails that petitioner sought to in troduce into the record; (2) the circuit court erred in failing to find a fatal flaw in the hiring process where the PSC relied upon unsubstantiated opinions about petitioner in ma king its hiring decision and in finding that petitioner had a contentious relati onship with her co-workers; (3) th e circuit court e rred in failing to find that petitioner was the most qualified app licant for the position of Deputy Chief ALJ; and (4) the circuit court erred in finding that peti tioner did not establish a claim for discrimination based upon sex and age.

We have held that “[w]hen reviewing the a ppeal of a public employees grievance, this

Court reviews decisions of the ci rcuit court under the same standa rd as that by which the circuit

court reviews the decision of the administrative law judge.” Syl. Pt. 1, Martin v. Barbour Cty. Bd. of Educ. , 228 W. Va. 238, 719 S.E.2d 406 (2011). The circ uit court reviews the decisions of the ALJ under the following standard:

[g]rievance rulings involve a combination of both deferential and plenary review. Since a reviewing court is obl igated 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 fact ual 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, whic h are reviewed de novo.” Syl. pt. 1, Cahill v. Mercer Cnty. Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).

3 Petitioner also claimed as an assignment of error that the circuit court and Grievance Board “erred in failing to find a fatal flaw in the hiring process by the respondent’s reliance upon negative statements which had not been previously shared with petitione r.” However, petitioner did not raise this assignme nt of error in her appeal before th e circuit court. We have held that “[e]rrors assigned for the first time on appeal will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court had objection been raised there.’” Syl. Pt. 1, State v. Berry , 227 W. Va. 221, 707 S.E.2d 831 (2011) (internal citations omitted).

4Syl. Pt. 2, Martin . Moreover we have held that, “[a] fina l order of the hearing examiner for the West Virginia [Public] Employees Grievance Bo ard, made pursuant to W.Va. Code, [6C–2–1],

et seq. [ ], and based upon findings of fact, should not be reversed unless clearly wrong.” Syl. Pt. 3, id. (citation omitted).

First, petitioner argues that the circuit c ourt erred in affirming the ALJ’s decision to exclude certain e-mails that petitioner wished to introduce at the hearing. Petitioner avers that the PSC cited her perceived inability to work harm oniously with co-workers as a main factor in not awarding her the position. Petitioner explains th at she sought to introduce certain e-mails that she believed countered that perception; however , the ALJ would not permit them into evidence. The PSC objected to the admission of the e-mails , citing deliberate pr ocess privilege, which exempts records of an administ rative decision from disclosure. See Daily Gazette Co. Inc. v. W. Va. Development Office , 198 W. Va. 563, 572, 482 S.E.2d 180, 189 (1996)(“The deliberative process privilege has been applied to exempt from disclosure written internal government communications, such as opinions and recommenda tions, which reflect an agency’s deliberative or decision-making processes.”)(internal citation omitted).

The circuit court found that petitioner waived her right to contest the exclusion of her evidence because she did not present any authority to rebut the objection of judicial privilege. The circuit court found that it was petitioner’s responsibility to redact the documents, or

otherwise limit them in order to make them ad missible. The circuit c ourt found further that petitioner failed to lodge the documents in the r ecord, make an offer of proof, or preserve the documents for appeal, and without the documents the circuit court could not make a proper determination of their admissibility. We have held that, “‘[r]ulings on the admissibility of evidence are largely with in a trial court’s sound discretion and should not be disturbed unless

there has been an abuse of discretion.’ State v. Louk, W.Va., 301 S.E.2d 596, 599 (1983).” Syl. Pt. 2, State v. Peyatt , 173 W. Va. 317, 315 S.E.2d 574 (1983).W e agree with the circuit court’s

determination and find no error.

Petitioner next argues that the circuit court erred in failing to find a fatal flaw in the hiring process, which petitioner cl aims was tainted by unsubstantiat ed opinions of employees of the PSC. Similarly, petitioner claims, as error, that the circuit court and AL J erred in finding that petitioner had a contentious relati onship with her co-workers. We have held that, “[w]e must uphold any of the ALJ’s factual fi ndings that are supported by s ubstantial evidence, and we owe

substantial deference to inferences drawn from these facts.” Conner v. Barbour Cty. Bd. of

Educ. , 200 W. Va. 405, 407-08, 489 S.E .2d 787, 789-90 (1997). Here, the record reflects that during the Level III hearing, Chief ALJ George produced contemporaneous documentation of incidents of discord involving petitioner. The r ecord further reflects that the documents were largely e-mails, Chief ALJ George wrote to hi mself, logging the incidents of petitioner’s behavior toward other employees and a “repeated pattern of disagreements with secretaries and staff.” Accordingly, we find no error.

Petitioner also argues that the circuit court e rred in failing to find that she was the most qualified applicant for the position. Petitioner co mplains that the selection process afforded undue weight to certain characteristics over others, a nd asserts that if one were to remove criteria regarding interpersonal skills, she is the most qualified candidate for th e position. The circuit

court and Grievance Board found that the selection process was not flawed. Citing Jesse Clark v.

5Department of Transportation , W. Va. Educ. St. Emp. Griev. Bd., Docket No. 05-DMV-453, 3 (January 23, 2007), the circuit court found that

[i]n selecting a candidate for a manage ment position, the a ppointing authority may consider subjective factors outside of a rote calculation of length and experience. For example an employer may consider the appropr iate personality traits and abilities necessary to motivate and supervise subordinates. An applicant with less seniority may possess superior quali ties or qualifications for a particular position.

Generally, “[a]n agency’s decision as to who is the best qualified applicant will be upheld unless shown by the grievant to be arbitrary and capricious or clearly wrong.” Thibault v. Div. of

Rehab. Serv ., W. Va. Educ. St. Emp. Griev. Bd., Docket No. 93-RS-489, (July 29, 1994). Further, “‘[t]he ‘clearly wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which presume an agency’s acti ons are valid as long as the decision is supported by substantial evidence or by a ra tional basis.’ Sy llabus Point 3, In re Queen, 196 W.Va. 442, 473 S.E.2d 483 (1996).” Syl., Adkins v. W. Va. Dep’t of Educ. , 210 W. Va. 105, 556 S.E.2d 72 (2001). Here, the evidence reveals th at petitioner was one of seven applicants for the position of Deputy ALJ, and, among the applic ants, petitioner rank ed fourth with 143 points. The record further reflects that the relationships betw een the ALJs became strained and “sometimes combative” and that Chief ALJ George was seeki ng a candidate to foster a more collegial and productive work environment for the ALJs. Accord ingly, upon our review of the record, we find

no error.

Finally, petitioner claims that the circuit court erred in fi nding that petitioner was not discriminated against on the basi s of her age and sex. Petitioner argues that, pursuant to West Virginia Code § 6C-2-2, she pr oved below that she was discrimi nated against by showing that she was treated differently than a younger male employee and was passed over for a promotion in his favor. For purposes of a grievance proceeding, “discrimination” is defined as “any differences in the treatment of similarly situated employees, unless the differences are related to the actual job responsibilit ies of the employees or are agreed to in writing by the employees.” W. Va. Code § 6C-2-2(d). Here, the circuit court found that petitione r provided no ev idence that she was treated differently from her co lleagues. The record reflects that all applicants were granted a ninety minute interview, were asked the same que stions, and were scored on the same criteria. Petitioner provided no evidence, save her own te stimony, to support her contention that she was treated differently than similarl y situated employees, despite being given an extra day to produce

additional evidence. As a re sult, we find no error.

The circuit court’s order refl ects its thorough analysis of the grounds properly raised in this petition for appeal. Having reviewed the opinion order entered December 13, 2017, we hereby adopt and incorporate th e circuit court’s well-reasoned findings and conclusions. The Clerk is directed to attach a copy of the circ uit court’s order to this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

6ISSUED: November 16, 2018

CONCURRED IN BY:

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice Paul T. Farrell sit ting by temporary assignment

DISQUALIFIED:

Chief Justice Margaret L. Workman

Justice Tim Armstead

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