                             STATE OF WEST VIRGINIA 

                           SUPREME COURT OF APPEALS


Deborah Yost VanDervort,
Petitioner Below, Petitioner                                                      FILED
                                                                             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 Grievance 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 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 order of the circuit court 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 Administrative 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 administrative legal work, assisting the Chief
       Administrative Law Judge in the supervision and direction of the division
       including assisting in time management . . . general supervision of division
       employees. Performs work as required and as directed by the Chief

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       Administrative 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 and other orders by administrative law
       judges or hearing examiner for legal accuracy . . . Assists in training
       administrative law judges and other 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 Temperament (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 designed to measure each applicant’s qualifications
based on the hiring criteria. An interview panel 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. There 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 Court of Appeals of West Virginia, and served as a law clerk for a
circuit court judge.

        On February 27, 2015, petitioner filed a grievance with the Public Employee’s Grievance
Board.1 In her grievance, she complained that Chief ALJ George’s decision to hire Respondent
Minney, a younger, non-minority male, who had never 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, that 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 Minney 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 the West Virginia Human Rights Commission and
the United States Equal Employment Opportunity Commission.
       2
        Petitioner was sixty-two years of age at the time she filed the grievance. Respondent
Matthew Minney is younger than petitioner and male.
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continue by petitioner’s counsel, a hearing was held on April 7, 2015, and the grievance was
denied by order entered April 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 Respondent Minney did not meet the minimum
requirements for the position.

        Petitioner appealed the decision, and the matter 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, petitioner 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 description contained in the job posting. Petitioner also complained about the
weight given to the scoring criteria, 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 discrimination on the basis of age and sex.

         At the hearing, Chief ALJ George, during direct examination, produced contemporaneous
records of a series of incidents regarding the petitioner. The documents chronicled incidents
between petitioner and other employees and numerous disagreements with secretaries and other
staff. These documents were admitted over petitioner’s objection; however, the circuit court
agreed to schedule an additional day of the hearing in order to allow petitioner to present rebuttal
evidence. The other witnesses testified to the interview process, and to petitioner’s reputation for
being difficult to work with and being quick to take offense. On that second day, petitioner
testified and sought to introduce 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 objection, 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 comments to petitioner 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 Board held that petitioner failed to meet her
burden of proof regarding her discrimination claim, and failed to present any evidence that she
was treated differently from her co-workers. Further, 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 found, regarding the criteria for selection, that it was not
unreasonable for the PSC to weigh “leadership and management ability,” and “receptive
personality”, over “legal experience,” experience as an adjudicator”, and “familiarity with

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utilitarian 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 Grievance 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 Grievance Board to the Circuit Court of Kanawha
County. In her appeal, petitioner complained that the Grievance Board improperly admitted the
documents submitted by Chief ALJ George, but denied 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 that petitioner now appeals.

        Petitioner raises four assignments of error on appeal.3 Petitioner complains that (1) the
circuit court erred in excluding e-mails that petitioner sought to introduce 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 making its hiring decision and in finding that
petitioner had a contentious relationship with her co-workers; (3) the circuit court erred in failing
to find that petitioner was the most qualified applicant for the position of Deputy Chief ALJ; and
(4) the circuit court erred in finding that petitioner did not establish a claim for discrimination
based upon sex and age.

        We have held that “[w]hen reviewing the appeal of a public employees grievance, this
Court reviews decisions of the circuit court under the same standard 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 circuit 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 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).

       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 petitioner.” However, petitioner
did not raise this assignment of error in her appeal before the 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).



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Syl. Pt. 2, Martin. Moreover we have held that, “[a] final order of the hearing examiner for the
West Virginia [Public] Employees Grievance Board, 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 court 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 harmoniously with co-workers as a main factor in
not awarding her the position. Petitioner explains that 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 process privilege, which
exempts records of an administrative 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 recommendations, 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 admissible. The circuit court found further that
petitioner failed to lodge the documents in the record, 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 within 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).We 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 claims was tainted by unsubstantiated opinions of employees of
the PSC. Similarly, petitioner claims, as error, that the circuit court and ALJ erred in finding that
petitioner had a contentious relationship with her co-workers. We have held that, “[w]e must
uphold any of the ALJ’s factual findings that are supported by substantial 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 record further reflects that the documents were
largely e-mails, Chief ALJ George wrote to himself, 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 erred in failing to find that she was the most
qualified applicant for the position. Petitioner complains that the selection process afforded
undue weight to certain characteristics over others, and asserts that if one were to remove criteria
regarding interpersonal skills, she is the most qualified candidate for the position. The circuit
court and Grievance Board found that the selection process was not flawed. Citing Jesse Clark v.

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Department 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 management position, the appointing authority
       may consider subjective factors outside of a rote calculation of length and
       experience. For example an employer may consider the appropriate personality
       traits and abilities necessary to motivate and supervise subordinates. An applicant
       with less seniority may possess superior qualities 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 actions are valid as long as the decision is supported
by substantial evidence or by a rational basis.’ Syllabus 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 that petitioner was one of seven applicants for the position of
Deputy ALJ, and, among the applicants, petitioner ranked fourth with 143 points. The record
further reflects that the relationships between the ALJs became strained and “sometimes
combative” and that Chief ALJ George was seeking a candidate to foster a more collegial and
productive work environment for the ALJs. Accordingly, upon our review of the record, we find
no error.

        Finally, petitioner claims that the circuit court erred in finding that petitioner was not
discriminated against on the basis of her age and sex. Petitioner argues that, pursuant to West
Virginia Code § 6C-2-2, she proved below that she was discriminated 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 responsibilities 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 petitioner provided no evidence that she
was treated differently from her colleagues. The record reflects that all applicants were granted a
ninety minute interview, were asked the same questions, and were scored on the same criteria.
Petitioner provided no evidence, save her own testimony, to support her contention that she was
treated differently than similarly situated employees, despite being given an extra day to produce
additional evidence. As a result, we find no error.

        The circuit court’s order reflects 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 the circuit court’s well-reasoned findings and conclusions. The
Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.


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ISSUED: November 16, 2018

CONCURRED IN BY:

Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment


DISQUALIFIED:

Chief Justice Margaret L. Workman
Justice Tim Armstead




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