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Weimer v. Public Service Commission of West Virginia

Supreme Court of West Virginia

June 29, 2018

James C. Weimer, Petitioner Below, Petitioner
v.
Public Service Commission of West Virginia, Respondent Below, Respondent and Robert Weiford, Intervenor Below, Respondent

          Kanawha County 16-AA-99

          MEMORANDUM DECISION

         Petitioner James C. Weimer, pro se, appeals the June 28, 2017, order of the Circuit Court of Kanawha County affirming the September 29, 2016, decision of the West Virginia Public Employees Grievance Board denying his grievance challenging the appointment of Respondent Robert Weiford to a "Engineer Senior" position for which petitioner also applied. Respondent Public Service Commission of West Virginia ("PSC"), by counsel Belinda B. Jackson, filed a summary response.[1] Petitioner filed a reply.

         The 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 briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's orders is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner is a long-term "Engineer Associate" with the PSC. On February 27, 2015, the PSC posted two job classifications for the same opening within its division of gas pipeline safety. According to the testimony of Elizabeth Sharp, the PSC's human resources manager, the posting of the single job opening under both "Engineer Senior" and "Technical Analyst Senior" classifications was not unusual and occurs to expand the applicant pool and "find the best suitable candidate for the position." Both petitioner and Mr. Weiford, then an employee of the West Virginia American Water Company ("WVAWC"), applied for the position as engineers. The "Engineer Senior" posting described the job opening as:

At an administrative and supervisory level assisting with the functions of the gas pipeline safety division, this position will be responsible for the following duties: assist with the day to day management of inspection schedules and staff, including time sheet and expense account; assist [the] director in development of division policies and procedures and monitoring budget; collect, generate[, ] and furnish data and paperwork associated with the federal pipeline safety grant program and assist with the annual program review; write and evaluate compliance actions for enforcement; act in place of the director when [the] director is unavailable; lead investigations of pipeline accidents and incidents, including collection evidence[, ] providing expert testimony . . . .

         (Emphasis added.).

         According to the testimony of Rebecca White of the West Virginia Division of Personnel ("DOP"), [2] a person such as petitioner or Mr. Weiford would know to apply due to the "Engineer Senior" posting which "established" the job opening. To be eligible to fill the vacancy, an applicant was required to meet the minimum qualifications listed in the posting, which were "eight years of full-time or equivalent part-time paid employment as a licensed professional engineer in a responsible capacity in charge of engineering projects." The PSC interviewed all seven minimally-qualified applicants. Mary Friend, the director of the PSC's gas pipeline division, developed the interview questions in consultation with Ms. Sharp. Ms. Friend determined that the questions should focus on the supervisory skills that an applicant would need to fill the position. The interview panel consisted of Ms. Friend, who was a licensed professional engineer, and two managers of different divisions within the PSC, with Ms. Sharp also present in order to ensure compliance with applicable employment policies. Ms. Friend and the two managers scored each applicant according to their answers to the questions previously developed by Ms. Friend and asked of every applicant. Once the scores were tabulated, Mr. Weiford ranked first with a score of 140. Petitioner ranked sixth out of the seven applicants, with a score of 125.

         Consequently, Ms. Friend checked Mr. Weiford's references including Jeff Ferrell, Mr. Weiford's direct supervisor at his former job with WVAWC. Mr. Ferrell informed Ms. Friend that Mr. Weiford had a good work ethic with "no issues" and that he would recommend Mr. Weiford for the "Engineer Senior" position. Ms. Friend recommended to Michael A. Albert, the PSC's chairman, that the position be offered to Mr. Weiford. Following Mr. Albert's approval of Ms. Friend's request, Ms. Sharp sent the necessary paperwork to the DOP. Ms. White testified that the DOP validated that Mr. Weiford met the minimum qualifications for the "Engineer Senior" position:

. . . In looking at his application, he's with [WVAWC] since 1996 to present. In going over his duties, all of these duties I deemed, along with the first [p]ersonnel [s]pecialist review, they are professional engineer in nature. Though his license was not obtained until 2005, we would not give credit until the start of 2005 when he actually obtained his [p]rofessional [e]ngineer license.
So with that, the dates from 2005 to present, that would be a little over nine years. So[, ] he would meet the minimum qualifications for [the "Engineer Senior" position].

         Ms. White further testified that it is a legitimate practice for an agency such as the PSC to select a candidate out of the applicant pool prior to having that candidate's minimum qualifications validated by the DOP, explaining that "[w]e do not govern that." Accordingly, on May 20, 2015, the DOP sent Mr. Weiford a notice of eligibility stating that he was qualified for the "Engineer Senior" position within the PSC's gas pipeline division. On June 15, 2015, the PSC appointed Mr. Weiford to the position with the title of manager of the gas pipeline division.

         On June 25, 2015, petitioner filed a grievance challenging Mr. Weiford's appointment, requesting that it be rescinded and that he be appointed to the position or that he be given an equivalent open position. Petitioner also moved that Mr. Albert, the PSC's chairman, recuse himself from the initial levels of the grievance process given Mr. Albert's former employment as an attorney for WVAWC. Mr. Albert subsequently scheduled the level one grievance hearing for July 10, 2015, and denied petitioner's motion for his recusal, finding that petitioner "failed to explain or establish any basis for disqualification." On June 30, 2015, Mr. Weiford was allowed to intervene in petitioner's grievance. The level one hearing was rescheduled to August 24, 2015, and, at petitioner's request, held as a conference. Petitioner's grievance was denied at level one. At level two, the parties participated in meditation which did not lead to a resolution.

         At level three, an administrative law judge ("ALJ") with the West Virginia Public Employees Grievance Board held an evidentiary hearing on May 16, 18, and 19, 2016. Petitioner, Mr. Weiford, Ms. Sharp, Ms. White, Ms. Friend, and the two managers, who interviewed the applicants with Ms. Friend during the hiring process, all testified at the hearing. Mr. Weiford testified with regard to discipline that he had received at his former job with WVAWC due to a safety incident. Ms. Friend testified that, while she would have preferred that Mr. Weiford had disclosed the incident during his interview, she did not believe that the incident was significant because the same supervisor at WVAWC who disciplined Mr. Weiford also recommended him for the "Engineer Senior" position:

Q. Do you think that's something that his reference and his direct supervisor, who actually gave him the safety reprimand, should have disclosed to you ...

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