MARTIN T. ALLAN
v. Docket No. 91-BOD-504 WEST VIRGINIA BOARD OF DIRECTORS OF THE STATE COLLEGE SYSTEM/FAIRMONT STATE COLLEGE

D E C I S I O N

Martin T. Allan, employed by the West Virginia Board of

Directors of the State College System at Fairmont State College (FSC) as a Building Service Worker, on October 30, 1991, filed a grievance alleging, "I feel that I have been wrongly discriminated against in not being selected for the position of Routeperson. I feel that my qualifications are better than that of the person selected for the position." The claim was denied at Levels I and II and Grievant appealed to Level IV, waiving Level III consideration pursuant to W.Va. Code 18-29-4(c). The parties agreed to submit the matter for decision on the basis of the Level II evidentiary record. Grievant, representing himself, did not file any brief; the brief for FSC was filed March 4, 1992.
At Level II Grievant asserted that he believed he was

discriminated against because of a speech impediment he has. He testified that he considered himself more qualified for the Routeperson position than the individual selected, Bucky Poling, because he has worked for FSC for over six years, including two years in the warehouse as a delivery person, while at the time of the selection Mr. Poling was only a temporary employee. Forty-nine individuals applied and Grievant was one of the twelve interviewed by a three-person selection committee. All three members of the committee testified. They stated that Mr. Poling had served in the Routeperson position as a temporary employee and they recommended him for the permanent position because he had proven himself exceptionally capable in the temporary slot and because he had more than six years' experience as a trucker. Kenneth Dillon, the Director of the Physical Plant at FSC, who made the final determination, stated that Mr. Poling
was an hourly, temporary hire and we assigned him in there to assist and so during the few months he was there he got the opportunity through circumstances to demonstrate his abilities and his work and, of course, he overwhelmingly did so in a most effective way. People would say, well, had I been there I would have had the same opportunity. Well, other people were there in different times and capacities and did not exploit the opportunity in the same way that Mr. Poling did. He performed in a most extraordinary way. He's intelligent, articulate, resourceful, very aggressive; he's a self-starter, quick learner[;] this person is a very solid person. .... The thing that you have to keep in mind here is that experience has to be measured by the appropriateness of it or the relevance of it. A person can have a delivery role for a furniture company that may not be that similar to that position. That position is not just a delivery [job]. That position, if you recall the job description,[] has numerous tasks in it that relate to warehousing function, to receiving material and unpacking and inspecting materials, a processing the paperwork attendant to the receiving and charging and delivery of materials, answering the telephone when they are at the station when no one else is there to answer it, so it's a multifaceted position and it's not, as perceived by some people that were applicants, as just truck driver or Routeperson per se.
While Mr. Dillon's explanation does refer to Mr. Poling as "articulate" and includes mention that the position does require talking on the telephone, that alone is insufficient to establish discrimination, particularly since there is no indication that Grievant has difficulty communicating adequately, and Mr. Dillon, like the three members of the committee, denied that Grievant's having a speech impediment in any way was considered. Finally, Grievant simply did not establish he was better qualified for the position than Mr. Poling.
In short, Grievant's assertion of discrimination remains just that; there is no substantial evidence of record that supports it. In addition to the findings of fact and conclusions of law contained in the foregoing discussion, the following is appropriate:

Conclusion of Law Grievant did not establish that he was discriminated against in not being selected for the Routeperson position, nor did he establish that he was better qualified for that position. Accordingly, the grievance is DENIED.
Any party may appeal this decision to the Circuit Court of Kanawha County or to the Circuit Court of Marion County and such appeal must be filed within thirty (30) days of receipt of this decision. W.Va. Code 18-29-7. Neither the West Virginia Education and State Employees Grievance Board nor any of its Administrative Law Judges is a party to such appeal and should not be so named. Any appealing party must advise this office of the intent to appeal and provide the civil action number so that the record can be prepared and transmitted to the appropriate court.

SUNYA ANDERSON ADMINISTRATIVE LAW JUDGE March 19, 1992

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