In re Cerutti

In re Cerutti (98-118); 169 Vt. 300; 733 A.2d 752

[Filed 28-May-1999]

  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
  40 as well as formal  revision before publication in the Vermont Reports. 
  Readers are requested to notify the Reporter  of Decisions, Vermont Supreme
  Court, 109 State Street, Montpelier, Vermont 05609-0801 of any  errors in
  order that corrections may be made before this opinion goes to press.


                                 No. 98-118


In re Arlene Cerutti	                              Supreme Court

                                                      On Appeal from
                                                      Labor Relations Board
     	

                                                      March Term, 1999



Catherine L. Frank, Chair  

  William H. Sorrell, Attorney General, and David K. Herlihy, Assistant
    Attorney General, Montpelier, for Appellant.

  Samuel C. Palmisano, VSEA General Counsel, Montpelier, for Appellee.
  

PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.

       MORSE, J.  The State appeals a decision of the Vermont Labor Relations
  Board  sustaining the grievance of Arlene Cerutti and promoting her to the
  position of Account Clerk B  in the Department of Agriculture.  The Board
  found that the Department had violated § 11.01 of  the State Rules and
  Regulations for Personnel Administration by failing to review her written 
  performance evaluations in its decision to fill the position, and that,
  because of the violation,  grievant was entitled to the job, together with
  back pay and interest.  We reverse.

       Grievant graduated from Johnson State College in 1989 with a degree in
  business  management and began work with the Department of Agriculture as a
  secretary in 1990.   Grievant's duties as a secretary included entering
  information in a computer database and  answering the telephone.  In 1997,
  the Account Clerk B position opened, involving "elementary  accounting work
  at a sub-professional level of responsibility in maintaining bookkeeping
  and  accounting records through the application of accounting theory and
  practice."  The Department 

 

  initiated an open competitive application process to fill the vacancy, and
  in March of 1997,  grievant, who was the only in-house candidate, applied
  for the job.  

       On April 2, the personnel department informed grievant that she was
  eligible to compete  for the position, provided that she pass an accounting
  skills examination.  Grievant completed the  exam on April 9, and performed
  well with a score of ninety-six.  She immediately informed the 
  business/personnel manager, and he scheduled an interview for her later
  that day.  The other four  candidates selected for interviews, three of
  whom were state employees in other departments and  one of whom was a
  temporary state employee, were afforded at least one day notice to prepare 
  for the interview.  The business/personnel manager testified before the
  Board that he scheduled  her interview that day because he was "worried
  that she thought that we were trying to bypass her  because we were
  starting to do the interviews before she had taken the exam."  He also
  testified  that grievant never indicated that she was unprepared or that
  she would have preferred more time  before the interview. 

       The three-member hiring panel that conducted the interviews consisted
  of the deputy  commissioner for Administration and Enforcement, the
  business/personnel manager, and the  former Account Clerk B, who had been
  promoted to another government post.  Interviews were  completed on April 9
  and 10, and each panelist ranked the candidates in order of preference
  based  on their evaluations.  Grievant was ranked last out of five by each
  member of the hiring panel.  Grievant concedes, and the Board acknowledged,
  that her interview could have been better.  

       Following the interviews, the Department hired the candidate ranked
  first by each of the  panelists as the new Account Clerk B.  The successful
  candidate had recently received a degree  in business administration from
  the University of Vermont with a concentration in accounting.  He was
  employed as a temporary Accountant A with the Department of Public Safety
  when the  panel selected him for the Account Clerk B position.  In
  addition, he scored a ninety-nine on the  accounting skills examination,
  the highest of any candidate competing for the job.  The panel  ranked the
  other three candidates interviewed at various levels between grievant and
  the selected 

 

  candidate.

       On July 7, grievant petitioned the Board to review the Department's
  failure to promote her  to the Account Clerk B position.  Grievant
  maintained that the Department had failed to consider  her written
  performance evaluations in its hiring decision and that her "excellent"
  written  evaluations would have gotten her the job over the other four
  candidates, her poor interview  notwithstanding.  Grievant also claimed
  that the State discriminated against her on the basis of  gender.

       The Board found no evidence of gender discrimination, but found that
  the Department had  violated Personnel Rules and Regulations § 11.01 by
  failing to consider grievant's written  performance evaluation in its
  hiring decision.  The Department panel, however, had not reviewed  any
  candidate's performance evaluations.  The Board ruled that, if grievant's
  written evaluations  had been considered, she would have been promoted to
  Account Clerk B over the other  candidates.  The Board ordered the
  Department to promote grievant to the Account Clerk B  position, and
  awarded her back pay and interest.  The State appealed.

       The State maintains that the Board erred by concluding grievant would
  have been  promoted to Account Clerk B if the Department had considered her
  written performance  evaluations.  The State also claims that the Board's
  interpretation of § 11.01 is unreasonable  because it creates an
  enforceable right in an employee to overturn a hiring decision if the
  employer  did not review written evaluations.

       Section 11.01 of the State of Vermont Rules and Regulations for
  Personnel Administration  provides that, "[a]s far as is practicable and
  feasible, a vacancy shall be filled by promotion of a  qualified employee
  based upon individual performance, as evidenced by recorded performance 
  evaluation reports, and capacity for the new position."  Grievant's written
  performance evaluation  for 1994-95 indicated an overall rating of
  "excellent."  Grievant's supervisor was instructed by  her superiors not to
  give "excellent" ratings for the following year so she opted for no written 
  evaluation whatsoever that year.  As a result, grievant received a
  presumptive "excellent" for the 

 

  that year.

       The State concedes that the Department did not consider grievant's
  written performance  evaluations regarding her work as a secretary in the
  years preceding her application for  promotion.  The State notes, however,
  that two of the three members of the hiring panel were well  aware of
  grievant's performance evaluations before the interview.  The deputy
  commissioner  signed grievant's secretarial performance evaluation for
  1994-95.  The business/personnel  manager testified that he was aware that
  she had "an excellent performance evaluation in the file."  The State
  claims that the failure to review grievant's performance evaluations was
  harmless  because the Department hired the best applicant for the Account
  Clerk B position.  

       The Board found that "[g]rievant should have benefitted from [Section
  11.01], but did not  due to the employer's failure to take her performance
  evaluations into account," and concluded  "that grievant would have been
  promoted into the Account Clerk B position if the employer had  not
  violated § 11.01."  In rendering its decision, the Board noted that any
  shortcoming in  grievant's interview should not have outweighed the intent
  of § 11.01, and that grievant, a  qualified in-house employee, should have
  been promoted over the candidate from outside the  Department.

       We recognize that the Board is entitled to substantial deference in
  rendering its decisions,  and we will reverse its conclusions only when
  clearly erroneous.  See In re Butler, 166 Vt. 423,  425, 697 A.2d 659, 661
  (1997).  We are aware that, "[i]n reviewing the Board's conclusion, this 
  Court may only ask whether the findings of fact taken as a whole justify
  the Board's ultimate  conclusion."  In re VSEA, 164 Vt. 214, 216, 666 A.2d 1182, 1183 (1995) (citations omitted); see  also In re AFSCME Local 490,
  153 Vt. 318, 321, 571 A.2d 63, 65 (1989) ("If the record contains  factual
  support for the Board's conclusion, we will leave it undisturbed.")  We
  find clear error  here.   

       We do not need to address the Board's interpretation of § 11.01 as a
  mandate for  employers to consider performance evaluations in every hiring
  decision.  We determine that the 
  
 

  Board's conclusion that grievant, ranked fifth out of five candidates
  interviewed, would have  surpassed the other applicants if the Department
  had considered her written evaluations can be  supported only by
  speculation. 

       Based on the evidence in the record, even had the Department factored
  grievant's written  evaluations into its hiring decision, any inference
  that grievant would have been chosen over the  other four candidates is
  unreasonable.  There is also much to be said for the position of the 
  dissenting member of the Board in this case, recognizing that "making the
  last placed candidate  the first and skipping over three other state
  employees, is an inappropriate use of Board authority,  and creates more
  inequalities than it resolves."  See In re Gorruso, 150 Vt. 139, 145, 549 A.2d 907, 635 (1988) (Board may not arbitrarily to substitute its judgment
  for that of State).

       Having learned at oral argument that grievant obtained another
  position at an even higher  salary than the Account Clerk B position, we
  need not remand to the Board to review other  possible remedies for failure
  to consider grievant's performance evaluations in the hiring process.

       Reversed.   	  	               

                                        FOR THE COURT:

                                        ___________________________________
                                        Associate Justice