Opinion
Supreme Court No. S-12861.
January 14, 2009.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Michael R. Spaan, Judge, Superior Court No. 3AN-05-12376 CI.
Clarito Villaflores, pro se, Anchorage, Appellant.
William E. Milks, Assistant Attorney General, Juneau, Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti and Winfree, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
After Clarito Villaflores responded to fifteen postings for positions with the State of Alaska and was not hired, he filed fifteen complaints in superior court alleging discrimination based on age, race, and national origin. The superior court consolidated all fifteen cases and granted the State summary judgment. Because there were no genuine issues of material fact and the State was entitled to judgment as a matter of law, we affirm.
II. FACTS AND PROCEEDINGS
Villaflores is an American citizen of Asian and Filipino descent who moved from the Philippines to Alaska in 1993. Between 2004 and 2007 he unsuccessfully responded to fifteen State job postings representing twenty-two openings, including two magistrate posts, a human rights field representative position, and positions for several levels of investigator and human resource specialist.
Villaflores included information in each application about his education and work experience. Over the past thirty years Villaflores has earned several academic degrees, including a Bachelor of Arts, Bachelor of Laws, Master of Laws, and a Master of Arts in Pacific Rim Studies. He also has earned a Doctor of Business Administration through a distance learning program. By November 2005 he had completed thirty credits towards a Master of Public Administration at the University of Alaska Anchorage. Villaflores's applications do not indicate that he has practiced law in the Philippines or the United States, or that he has ever been licensed to practice law anywhere.
Villaflores's applications reflect that his only paid work experience was as a security screener, security guard, and substitute teacher. His applications also list some unpaid work experience, including a position as a "Labor and Management Consultant" for Villaflores College, a school in the Philippines owned by his relatives. Villaflores explained vaguely that he advised the college about legal and management issues — "they just give me a call for any problem at the school about labor laws and about administrative laws." When asked how much time he dedicated to the position weekly, he responded, "[i]t depends." Several applications also indicated that in March 2005 he was "officially installed" in an unpaid position as Vice-President for External Affairs for Villaflores College, responsible for raising scholarship money for students. As of March 2007 he had not yet solicited any contributions on the school's behalf.
Between October 2005 and August 2006 Villaflores filed fifteen complaints against the State because he had not been interviewed or hired for any of the positions in the fifteen employment postings. His arguments in each case were nearly identical: he alleged that he possessed academic credentials superior to the successful applicant, that no reasonable hiring manager exercising impartial judgment would have chosen the successful applicant instead, and that he was not interviewed or hired because of his age, race, and national origin.
The superior court consolidated all fifteen lawsuits. The State moved for summary judgment on all claims, contending that Villaflores was unqualified for the positions for which he applied. The court granted the State's motion, finding that the State had presented proof on each of Villaflores's claims through affidavit or sworn deposition testimony, that Villaflores had offered no facts in opposition to show that a genuine issue of material fact existed, and that the State was entitled to judgment as a matter of law. The court denied Villaflores's motion for reconsideration and dismissed Villaflores's consolidated action in October 2007.
Villaflores appeals pro se.
III. DISCUSSION
A. Standard of Review
We independently review a grant of summary judgment, drawing all reasonable factual inferences in favor of the non-moving party. Once the moving party has made a prima facie showing that it is entitled to judgment on the established facts as a matter of law, the non-movant must demonstrate that a genuine issue of material fact "exists to be litigated by showing that it can produce admissible evidence reasonably tending to dispute the movant's evidence." We will affirm a grant of summary judgment only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. B. The Superior Court Did Not Err By Granting Summary Judgment in the State's Favor.
Perkins v. Doyon Universal Servs., 151 P.3d 413, 415-16 (Alaska 2006).
Harrold v. Artwohl, 132 P.3d 276, 279 (Alaska 2006) (quoting French v. Jadon, Inc., 911 P.2d 20, 23 (Alaska 1996)).
Hammond v. State, Dep't of Transp. Pub. Facilities, 107 P.3d 871, 874 (Alaska 2005).
Villaflores argues that the State should have hired him instead of other applicants because he is Asian and Filipino-American and because he has superior academic credentials. Pointing to Miller v. Safeway, Inc. and Raad v. Alaska State Commission for Human Rights, Villaflores argues that he made a prima facie discrimination case by showing that: (1) as a Filipino-American, he is a member of a protected class; (2) he has superior educational qualifications; (3) he was neither interviewed nor hired despite those qualifications; and (4) the hired persons were not within the same protected class. He thus urges us to reverse the grant of summary judgment and instruct the superior court to enter judgment in his favor because he has established a prima facie discrimination case.
102 P.3d 282, 291 (Alaska 2004).
86 P.3d 899, 904 (Alaska 2004).
Villaflores alleged age, race, and national origin discrimination before the superior court, but his arguments on appeal are limited to race and national origin. Because Villaflores does not address age discrimination in his points on appeal or briefing, we deem the issue waived. See, e.g., Adamson v. Univ. of Alaska, 819 P.2d 886, 887 (Alaska 1991) (concluding that an issue will not be considered on appeal when it is only cursorily addressed in the opening brief); Oceanview Homeowners Ass'n, Inc. v. Quadrant Constr. Eng'g, 680 P.2d 793, 797 (Alaska 1984) (issues not raised in points on appeal are deemed waived).
Villaflores also argues that "race is relevant and shall be considered as one of the factors in the hiring process when an applicant is a minority[.]" Villaflores misreads our precedent. The cases Villaflores cites do not support his contention that the State should have considered his race and given him preferential treatment on that basis. See Raad, 86 P.3d 899; Miller, 102 P.3d 282.
Alaska Statute 18.80.220(a)(1) prohibits employers from refusing to hire an applicant because of his race or national origin. When no direct evidence of discriminatory intent exists, we apply a three-part burden-shifting test originally described by the United States Supreme Court in McDonnell Douglas Corp. v. Green. Under the McDonnell Douglas test, the complaining party bears the initial burden of establishing a prima facie case of discrimination. If the complainant establishes a prima facie case of discrimination, the burden shifts to the employer to advance "a legitimate, nondiscriminatory reason for the employment action." If the employer succeeds in meeting its burden, the burden then shifts back to the complainant "to show that the employer's offered explanations are pretextual."
Raad, 86 P.3d at 904 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). We adopted the McDonnell Douglas test in Brown v. Wood, 575 P.2d 760, 770 (Alaska 1978).
Raad, 86 P.3d at 904.
Id.
Id.
The elements of a prima facie showing of discrimination are that: "(1) the complainant belongs to a protected class; (2) the complainant applied for and was qualified for a job for which the employer was seeking applications; (3) the complainant was rejected despite his qualifications"; and (4) the employer filled the disputed position by hiring someone who is "not within the same protected class as the complainant." Assuming the complainant makes a prima facie case of employment discrimination, the employer must then demonstrate that it had "legitimate, nondiscriminatory reasons" for hiring someone else. "[T]he employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." In other words, "the employer must articulate legitimate business reasons existing at the time" it made the employment decision. Preferring internal candidates and candidates with more relevant work experience are legitimate, nondiscriminatory bases for employing one candidate over another.
Id. at 904-05 (citing Haroldsen v. Omni Enters., 901 P.2d 426, 430 (Alaska 1995) and Alaska State Comm'n for Human Rights v. Yellow Cab, 611 P.2d 487, 490 (Alaska 1980)).
Id. at 905; Perkins, 151 P.3d at 416.
Raad, 86 P.3d at 905 (quoting Veco, Inc. v. Rosebrock, 970 P.2d 906, 919 (Alaska 1999)).
Id. (quoting Thomas v. Anchorage Tel. Util., 741 P.2d 618, 624 (Alaska 1987)) (emphasis omitted).
Perkins, 151 P.3d at 417. In Perkins, the plaintiff alleged that an animal care center discriminated against him on the basis of race when it did not hire him for two positions, animal enforcement officer and kennel technician. Id. at 415. The employer explained that it hired an internal candidate for the animal enforcement officer position and that it hired another applicant for the kennel technician position because that applicant had more relevant experience than the plaintiff. Id. We affirmed summary judgment in the employer's favor regarding both jobs because we concluded that these were legitimate, nondiscriminatory reasons for hiring one candidate over another. Id. at 417-18.
Once the employer articulates a legitimate, nondiscriminatory reason for its employment decision, the burden shifts back to the complainant to demonstrate that the employer was more likely motivated by discriminatory reasons, which is usually done by showing that the proffered explanation was a pretext for discrimination. "[A] complainant may demonstrate pretext either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." A complainant may show pretext by presenting: (1) direct evidence of discrimination, (2) comparative evidence, or (3) statistical evidence. "Even as to claims on which the evidence is barely sufficient to establish a prima facie case of discrimination, that evidence remains relevant to the issue of pretext."
Raad, 86 P.3d at 905.
Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
Id. at 905.
Id. at 910.
Evidence of disparity in qualifications need not be enough to "slap" a fact finder in the face to justify a finding of pretext, but the complainant must offer "something more than unsupported assumptions and speculation." Summary judgment is appropriate if the complainant's only evidence consists of his own subjective belief that the employer's asserted grounds for its hiring decision are a pretext.
Id. at 906, 910 (rejecting a rule used in other jurisdictions that evidence of a disparity in qualifications must be "so apparent as to jump off the page and slap us in the face to support a finding of pretext").
Perkins, 151 P.3d at 416 (quoting Mahan v. Arctic Catering, Inc., 133 P.3d 655, 661 (Alaska 2006)).
Id.
We need not decide whether Villaflores made a prima facie case on any of his claims, because (1) the State presented substantial admissible evidence regarding each of the claims to demonstrate that its hiring managers had legitimate, nondiscriminatory reasons for hiring other individuals, and (2) Villaflores has not presented any evidence, other than his own unsupported assumptions and speculations, that the State's offered reasons were pretextual. Accordingly, we affirm summary judgment on all of Villaflores's claims. We address the evidence for each claim below.
1. Magistrate IV positions
Villaflores applied for Magistrate IV positions in Ketchikan and Kenai. The minimum qualifications for magistrates are statutorily mandated. An applicant must be a United States and Alaska citizen, at least twenty-one years old, and an Alaska resident for at least six months immediately preceding appointment. The recruitment bulletins for both magistrate positions also stated that "graduation from an accredited law school with an LLB or JD degree is preferred." Magistrates issue arrest warrants and preside over misdemeanor and minor offense arraignments, bail hearings, trials, sentencings, felony first appearances, and preliminary hearings. They also conduct small claims trials and hearings in domestic violence, dissolution, uncontested divorce, custody, and other domestic relations hearings.
See AS 22.15.160.
AS 22.15.160(b).
Villaflores applied for the Magistrate IV position in Kenai in September 2004. Fifteen people applied and at least eight of them had experience practicing law. The area court administrator stated in her affidavit that the Third Judicial District had never hired a non-attorney for a Magistrate IV position in the ten years before the position opened. The panel therefore decided not to interview any candidate who had not practiced law, including Villaflores. The hiring panel chose the successful applicant, a white male, because he had "directly relevant experience" as a magistrate in the Fourth Judicial District. A practicing attorney since 1989, he had experience in criminal prosecution and defense, commercial law, and general litigation. He also had acted as business counsel and worked as a deputy county attorney before moving to private practice.
Villaflores applied for the Magistrate IV position in Ketchikan in December 2005. The job was similar to the Magistrate IV position in Kenai. Fourteen people applied, including four licensed and practicing attorneys. Presiding Superior Court Judge Larry R. Weeks of the First Judicial District was responsible for the hiring decision. Judge Weeks explained in an affidavit that he chose the successful applicant, a white woman, because she had several years' experience working as a deputy magistrate in Ketchikan, held that position when she was hired, and had experience training other magistrates within the district. She had a great deal of experience as a lawyer in Alaska, having been admitted in 1982 and having practiced both public and private criminal defense before becoming a deputy magistrate. She was a Ketchikan resident, having lived and worked there for many years.
Judge Weeks stated that he favored applicants who already were familiar with the community and who would be more likely to stay for an extended period. According to Judge Weeks, individuals who move to rainy and isolated areas for court system positions commonly leave after short tenures. He also explained his preference for qualified in-house candidates, because (1) he would know the person's abilities, and (2) in-house hiring sustains morale and encourages people to remain with the court. He stated that he did not interview any other candidates, including Villaflores, because they did not possess the combined legal experience, court employment, and familiarity with Ketchikan that he believed was important for a successful candidate in this position.
Villaflores asserts that the practicing attorney requirement for the Magistrate IV positions was a pretext for rejecting him on the basis of his race and national origin, but offers nothing more than his own subjective belief and unsupported speculations to support this claim. We note that Villaflores was not singled out and rejected as the only non-lawyer applicant. Of the fifteen Kenai applicants, seven were rejected because they were not practicing lawyers. Judge Weeks did not interview any of the other Ketchikan applicants, lawyers or not, because the successful candidate was so uniquely qualified for the job.
Assuming Villaflores made a prima facie case of discrimination on the Kenai and Ketchikan Magistrate IV positions, we conclude that the State presented adequate evidence to show that it had legitimate, nondiscriminatory reasons for hiring other candidates and that Villaflores failed to show that the State's offered reasons were pretextual.
2. Executive branch positions
Job openings within the executive branch are posted via recruitment bulletins on the State's recruitment website, Workplace Alaska. A recruitment bulletin describes the minimum job qualifications, lists questions about the "desired qualifications," and instructs applicants to provide in their cover letters an explanation to support each "yes" answer to the desired job qualifications questions:
In the Applicant Cover Letter of the Job Qualifications Summary, the applicant will need to provide a brief explanation to support each "Yes" answer to the Job Specific Questions. If using work experience not already documented in your Applicant Profile, also provide the employer name, your job title, dates of employment and whether full- or part-time. Applicant Profiles and Job Qualification Summaries will be reviewed to determine if the responses are supported and minimum qualifications are clearly met. If they are not, the applicant will not advance to the interview and selection phase of the recruitment. (Emphasis added).
The questions are designed to elicit information about an applicant's relevant work experience, and although some questions focus on an applicant's basic interpersonal and organizational skills, others address job-specific skills, education, and experience. This information enables hiring officials to determine if an applicant is qualified for the position.
Applicants must complete an applicant profile and job qualification summary. The applicant profile contains basic personal information about education, training, work history, residency, criminal history, and veteran status. It also permits applicants to volunteer date and country of birth, ethnicity, and gender, but hiring managers do not receive this information as part of the hiring process. The job qualification summary is job-specific and requires the applicant to describe relevant education and work experience and to answer job-specific questions about minimum and desired qualifications.
Villaflores responded to employment bulletins for positions as a Human Resource Specialist, Investigator, Human Resources Technician, and Human Rights Field Representative. We address each executive branch position in turn, but in the interest of brevity and judicial economy, we focus our discussion on whether the State adequately demonstrated that its hiring decisions were based on legitimate, nondiscriminatory reasons. In each instance, we conclude that the State met its burden. Because Villaflores offers only his own subjective beliefs and unsupported speculations to show that the State's explanations were pretextual, we conclude that it was proper to grant summary judgment in favor of the State.
a. Human Resource Specialist (HRS) Positions
Villaflores applied for eight Human Resource Specialist positions:
(1) Human Resource Specialist I (PCN 02-N06025)
Villaflores applied for this position in January 2006. Sarah Brinkley, HRS III, and Diane Larocque, HRS II, were on the hiring panel. This position was a non-permanent, one-project assignment involving a classification study for the Department of Transportation regarding airport leasing specialists. The required minimum qualifications could be fulfilled by any one of seven combinations of educational background and clerical or technical experience. Villaflores indicated that he had each of the seven possible combinations. A separate set of desired qualifications questions asked applicants if they had experience in job analysis and position classification; experience assisting managers in evaluating organizational structures and recommending changes; superior oral and written communication skills; and previous demonstrated success in a job performing under distant supervision.
Thirty-eight applications were reviewed. Those who did not follow instructions by providing information in their cover letters to support each "yes" answer to the job-specific questions were eliminated from further consideration, including Villaflores. Villaflores admitted in his deposition that he did not have the preferred qualifications and that he responded "yes" to the questions based solely on his education.
Brinkley stated in her affidavit that this was a sensitive matter and that previous classification experience, particularly for the State of Alaska, was therefore "highly desirable." The position also required someone who could work independently with minimal supervision because Brinkley was in Juneau and the job would be in Anchorage. According to Brinkley, the successful candidate was "ideal" for this non-permanent, one-project classification position because she was a retired State of Alaska classification employee whose prior experience working for the Department of Transportation and Public Facilities enabled her to perform the job with minimal supervision.
(2) Human Resource Specialist I (PCN 02-DOA07)
Villaflores applied for this posting, representing two openings, in February 2006. Judith Porter, HRS IV, and Camille Brill, HRS III, were on the hiring panel. This position required, at a minimum, a bachelor's degree, four years of clerical or technical experience, or an equivalent combination of education and experience. The desired qualifications questions asked whether applicants had prior experience involving responsibility for providing guidance or consultation about employer/employee dispute resolution, performance management, and progressive discipline; at least two years of experience analyzing issues, applying rules or regulations, and/or preparing written decisions or recommendations; experience investigating and responding to formal grievances, complaints, or appeals; and "effective working knowledge" of Alaska collective bargaining agreements.
Thirty-five applications were reviewed to determine if the candidates met the minimum qualifications and followed the instructions by providing supporting information in their cover letters for "yes" answers to the qualifications questions. Applicants who failed to do so, including Villaflores, were not considered further. Villaflores was one of twenty-five applicants disqualified because they failed to follow instructions.
Ten applicants were still under consideration after review, in part because they provided "comprehensive" explanations for the "yes" answers in their applications, and four of them were offered interviews. Brill and Porter chose the successful applicants, both white women, because their applications and complete cover letters demonstrated applicable work experience, and they interviewed well. Both candidates had several years of verifiable related work experience, and one had "demonstrated exceptional writing skills," which was important for the specific position she filled.
(3) Human Resources Specialist I (PCN 05-7010)
Villaflores applied for this position in March 2006. Judith Porter, HRS IV, and Kim Peterson, HRS III, were on the hiring panel. This position involved minimum required and desired qualifications identical to the HRS I position posted as PCN 02-DOA07, including experience with dispute resolution, Alaska collective bargaining agreements, and writing decisions.
Fourteen applications were reviewed to determine if the candidates met the minimum qualifications and followed the instructions. Five applicants survived review, in part because they provided comprehensive support for the "yes" answers in their applications. The remainder, including Villaflores, were not considered further because they failed to support their answers. The successful applicant, an Alaska Native, had twenty-one years of human resources experience working for the State, worked in the same job class and department in the employee services unit, and had a contractual right to consideration and transfer.
(4) Human Resources Specialist I (PCN 02-1012 PCN 12-4305 listed as 02-DOA05)
Villaflores applied for this position, representing two openings, in February 2006. Chad Diekmann, HRS II, and Aaron Gelston, HRS II, were on the hiring panel. Again the minimum qualifications required a bachelor's degree, four years of clerical or technical experience, or an equivalent combination of education and experience. The desired qualifications questions asked if applicants had research, analysis, and customer service experience; position classification training; experience writing decisions and recommendations; and ability to handle details while working under pressure or deadlines.
Twenty-three applications were reviewed to determine if the candidates met minimum qualifications and followed the instructions by providing explanations in their cover letters for their "yes" answers to the desired qualifications questions. Twelve applicants were further considered. The remainder, including Villaflores, were not. Diekmann explained in his affidavit that Villaflores did not follow instructions and demonstrated a lack of attention to detail, making it difficult to use his application to assess his writing and analytical abilities.
The two successful applicants demonstrated excellent writing skills, attention to detail, and good analytical skills. One applicant was a current employee in the classification section who already had demonstrated knowledge and experience with Alaska's classification system. Diekmann was her direct supervisor, and he observed that she performed well. She also had extensive relevant experience outside her work with the State, and provided appropriate supporting information in her cover letter. The second successful applicant also had extensive relevant experience, including researching information, analyzing documents, interviewing people, and preparing written documents. Although she had not previously worked for the State, her work experience supported the desired qualifications for the position.
(5) Human Resource Specialist II (PCN 01-355 PCN 01-7462)
Villaflores responded to this posting, representing two HRS II positions, in April 2004. Penny Beiler, HRS IV, Camille Brill, HRS III, and Jackson Steele were on the hiring panel. These positions were responsible for investigating and resolving formal and informal human rights complaints filed against the Executive Branch and for preparing the State's position for presentation before enforcement agencies. The minimum qualification for these positions was one year of professional-level human resource work, equivalent to a Human Resource Specialist I, Payroll Supervisor, or Payroll Specialist I. The desired qualifications were at least one year of experience conducting complex investigations; "full working knowledge" of human rights laws in Alaska; experience training adults; experience mediating complaints; at least one year of analytical writing experience; and the ability to argue in support of management's actions.
Thirty-two applications were reviewed to determine if the applicants met the minimum qualifications and followed the instructions by providing explanations in their cover letters for their "yes" answers to the desired qualifications questions. Eight applicants received further consideration. Villaflores's application was not considered further because he did not explain his "yes" answers to the desired qualifications questions and his application did not demonstrate the work experience necessary for the job.
Beiler hired two applicants from this posting, a white man and a black woman. One had nine years of experience conducting investigations, four years of EEO experience, and roughly five years of training experience. The other had eight years of EEO investigation and training experience in the military.
(6) Human Resource Specialist II (PCN 20-1024)
Villaflores applied for this position in May 2006. The hiring panel consisted of Camille Brill, HRS IV, Nicki Neal, deputy director of the Division of Personnel, and Stacy Bentley, HRS II. The minimum qualification was at least one year of professional-level human resources experience or two years of professional administrative experience. The desired qualifications questions asked if the applicant had experience with dispute resolution, performance management, or progressive discipline; two years of experience analyzing issues and applying rules, laws, or regulations in preparing written decisions or recommendations; and experience investigating and responding to formal grievances, complaints, and appeals. Other questions asked if the applicant had experience interpreting and applying collective bargaining agreements and writing detailed reports based on research and interviews.
Twenty-two applications were reviewed to determine whether the applicants met the minimum qualifications and had followed the instructions by providing supporting information in their cover letters. Fourteen applicants did not meet the selection criteria and were eliminated from consideration, including Villaflores. Of these, two reported possessing doctorate-level education but did not advance further because they did not demonstrate that they possessed the required work experience.
Neal and Brill agreed that the successful applicant demonstrated skills necessary for an HRS II. She had served as Deputy Commissioner of the Department of Corrections and thus was familiar with Department of Corrections issues, an important qualification because she would be one of several people responsible for supporting the Department of Corrections. She also interviewed well and submitted a thorough application that demonstrated excellent writing skills. (7) Human Resources Specialist III (PCN 18-7462)
Villaflores applied for this position in July 2005. Nicki Neal, an HRS IV at the time, and Melinda Cosgrove, who was Director of the Division of Personnel at the time, were on the hiring panel. The required minimum qualifications were three years of professional human resource experience. The desired qualifications questions asked applicants if they possessed various leadership, writing, and interpersonal skills and work history demonstrating: responsibility for providing consultation to senior management on matters of labor relations, performance management, and organization design; responsibility for strategic workforce planning and development; teaching supervisory and management skills; and at least one year of experience supervising professional human resource staff.
Thirty-one applications were reviewed to determine whether the applicants met the minimum qualifications and had followed the instructions by providing supporting information in their cover letters. Villaflores was not considered for the position because he did not meet the minimum qualifications and because education was not an adequate substitute for the minimum three years of human resources work experience. The hiring panel further considered five applicants, but no one was hired. The position was posted a second time, and it was then filled by an internal candidate with more than twenty years of human resources experience who had previously occupied the job classification in a different section.
(8) Human Resources Specialist IV (02-2033)
Villaflores applied for this position in July 2005. Melinda Cosgrove, who was Director of the Division of Personnel at the time, and Pam Day, HRS IV, were on the hiring panel. The HRS IV position for which they were hiring would serve as the Classifications Manager. The minimum required qualification was two years' advanced professional human resource work experience. The desired qualifications questions addressed applicants' work experience involving responsibility for organization development, position classification, and strategic workforce planning; strong writing and oral communication skills; at least one year of experience supervising professional-level employees; responsibility for providing guidance and support to various personnel, including senior management, in one or more human resources disciplines; and strong leadership and customer service skills.
Twenty-two applications were reviewed to determine whether the applicants met the minimum qualifications and had followed the instructions by providing supporting information in their cover letters. Nine applicants received further consideration and twelve, including Villaflores, did not.
Cosgrove stated that Villaflores answered "no" to every single desired qualifications question and that although he answered "yes" to the required minimum qualifications, he did not describe any such experience. She observed that he listed security guard and substitute teacher as his only paid work experience. She explained that the hiring panel interviewed all applicants who met the minimum qualifications and answered "yes" to the desired qualifications questions; the panel did not interview Villaflores because he did not demonstrate that he had the requisite management experience and he did not meet the minimum qualifications. The successful applicant was an internal hire with thirteen years of experience working in human resources, including four years as an HRS III and Statewide Planning and Research Team Leader.
b. Investigator Positions
Villaflores responded to employment bulletins for three types of investigator positions: Investigator II (two openings), Investigator III (three openings), and Investigator IV (one opening): (1) Investigator II (PCN 07-3070 PCN 07-3071)
Villaflores responded to this posting, representing two Investigator II positions, in May 2006. Paul Grossi, Investigator IV, Janet Parker, Administrative Manager III, and Michael Monagle, Program Manager, were on the hiring panel. The required minimum qualifications included either one year of entry-level investigative experience or six months' experience plus a bachelor's degree in a related field. The desired qualifications included at least one year of experience interpreting state labor law, regulations, and policies; work experience applying provisions of state labor law; experience conducting criminal investigations; more than two years' experience gathering and analyzing facts and applying logical reasoning; basic working knowledge of evidentiary rules, service of legal process, and legal rights; undercover investigative experience; a willingness to travel on short notice; and experience working in a fast-paced environment.
Eighteen applications were reviewed to determine whether the applicants met the minimum qualifications and followed the instructions in the recruitment bulletin. Because Villaflores did not have actual investigatory work experience, he was not considered further; he was one of five applicants who did not meet pre-interview qualifications criteria. Thirteen applicants remained eligible after review and the panel ultimately interviewed six candidates.
Grossi hired the two successful applicants because they were most qualified based on their work experience, performance in the interviews and tests, and because they received positive references. One of the successful applicants was half-Korean. One candidate had more than fourteen years of law enforcement and investigative work history, and was working in the investigations unit of the Alaska Office of Children's Services. The other had over fourteen years of work experience as a certified police officer, including work as a police investigator, and was then working for the Alaska Department of Corrections.
(2) Investigator III (PCN 08-2088, 08-2073, 08-2102)
Villaflores responded to this posting, representing three Investigator III positions, in March 2006. Brian Howes, Investigator III, and Richard Younkins, Chief Investigator, were on the hiring panel. The required minimum qualifications included one year of journey-level professional investigative experience equivalent to an Investigator II. The desired qualifications included a minimum of three years' experience in all of the following: investigative experience as a member of a military intelligence or criminal investigative component in the armed forces, public service, or private sector in which the principal duties consisted of independently conducting investigations, preparing comprehensive reports, and testifying in court; independently conducting sensitive, complex, and diverse criminal or administrative investigations; working with large caseloads; gathering, preserving, and reporting facts, statements, affidavits, and other evidence for use in legal actions; using interviewing and interrogation techniques; researching, interpreting, and applying statutes and regulations; and using tact, exercising discretion, and demonstrating a capacity for obtaining cooperation and confidence of others.
Twenty-five applications were reviewed to determine whether the applicants met the minimum qualifications and followed the instructions in the recruitment bulletin. Seventeen applicants remained eligible after review. Villaflores was one of the applicants who was not interviewed because he lacked the requisite professional investigative experience and failed to explain his "yes" answers.
Two of the successful applicants were white men and one was a Latina woman. One had twelve years' experience as a criminal investigator with the U.S. Army; the second had twenty years of law enforcement and investigations work experience, including State investigator experience and several years as a U.S. Air Force investigator; the third had thirteen years of experience as an investigator and loss prevention manager supervising investigations for a large retail company.
(3) Investigator IV (PCN 07-3068)
Villaflores responded to this posting in March 2006. Janet Parker, Administrative Manager III, Paul Lisankie, Director, and Mike Monagle, Program Coordinator, were on the hiring panel. The required minimum qualifications included four years of investigative experience, including one year at the advanced/lead level, performing varied and difficult criminal or civil investigations equivalent to an Investigator III. The desired qualifications included at least four years' experience interpreting state labor law, regulations, and policies; work experience applying provisions of State labor law; experience answering telephones, interacting with customers and co-workers in a professional manner while dealing with angry, hostile people; at least four years' experience supervising employees; more than three years of job-related experience gathering and analyzing facts, applying logical reasoning, drawing conclusions, and making appropriate recommendations; experience administering a small statewide program; basic working knowledge of evidentiary rules, service of legal process, and citizens' legal rights; and experience performing undercover investigations.
Eight applications were reviewed to determine whether the applicants met the minimum qualifications and followed the instructions in the recruitment bulletin. Three applicants remained eligible after review. Villaflores was not considered because his cover letter was incomplete and he did not follow the bulletin instructions.
The successful applicant had extensive experience performing investigations. He had spent almost ten years as Director of the Division of Workers' Compensation, and when he applied for the position he was the regional supervising investigator for the Wage and Hour Division of the Department of Law. He had considerable experience applying Alaska labor law. He also had supervised many employees, including administering the Division of Workers' Compensation and supervising a Wage and Hour Division office.
3. Human Resources Technician II (PCN 25-3097 20-1068)
Villaflores responded to this posting, representing two openings, in March 2006. Aaron Gelston, HRS II, and Brooke Scott, HRS I, were on the hiring panel. The Human Resources Technician II provides customer service and technical assistance to the Division of Personnel's classification section. The required qualifications included six months' entry-level technical experience in human resources work equivalent to Human Resource Technician I, a high school diploma, and one year of advanced clerical experience, or one year of post-secondary education. The desired qualifications included excellent customer service skills, proficiency in Microsoft Word and Excel, experience using AKPAY (the State's payroll system), and various other interpersonal and organizational skills.
Ten applications were reviewed to determine whether the applicants met the minimum qualifications and followed the recruitment bulletin instructions. Seven applicants survived review, but Villaflores was not one of them. Gelston explained that Villaflores did not provide in his cover letter any information supporting his "yes" answers, did not follow the instructions, and incorrectly answered several questions.
Two current State employees with directly relevant work experience were hired as a result of this recruitment. Both successful applicants were women, one was Asian. One was a Human Resource Technician I at the time of hire, she fully explained her qualifications in her cover letter, and she had experience with Word and AKPAY. The other also explained her experience in her cover letter, had experience with Word and AKPAY, and met the remaining desired qualifications.
4. Human Rights Field Representative III (PCN 01-9008)
Villaflores applied for this position with the Alaska State Commission for Human Rights ("the Commission") in March 2006. Stephen Koteff, Chief of Enforcement, and Evelyn Abello, Investigations Director, were on the hiring committee. Required minimum qualifications included one year of experience as a Human Rights Field Representative II with the State of Alaska or the equivalent elsewhere. Preferred qualifications included knowledge of civil rights laws and procedure and the theories of discrimination; knowledge of investigatory techniques and principles; ability to analyze evidence and to draw logical conclusions; ability to conduct impartial investigations and settlement negotiations; experience reading and understanding statutes and regulations, court decisions, and legal proceedings; ability to make contemporaneous typewritten recordings of witness statements or testimony; effective oral and written communication skills; skills to deal effectively with individuals under stressful situations; and skills to deal effectively with people of various economic, cultural, and educational backgrounds.
The Commission received thirteen applications, but four applicants did not submit the required writing sample and were not considered further. Koteff reviewed the remaining nine applications and writing samples and rated each candidate based on their experience in areas relevant to an investigator's duties and on their writing ability. The highest score was a total of sixty-six points, while Villaflores received a total of thirty-two points. Villaflores received a high score for education (second-highest among the applicants considered), but overall his was the lowest score because he had no experience as an investigator, no experience practicing law, and little or no civil rights experience.
Koteff and Abello interviewed three people, but decided that none possessed the requisite skills and abilities for the position. The position was posted three more times due to a lack of qualified applicants. After the fourth posting, Koteff and Abello interviewed one candidate who had nine and one-half years of experience as a private investigator, nine years of experience as a deputy sheriff, paralegal training, and whose writing sample demonstrated strong writing skills. Because of the lack of qualified applicants to consider, Koteff and Abello posted a fifth notice. The Commission's executive director ultimately hired the person interviewed as a result of the fourth posting, a Latino man.
IV. CONCLUSION
We AFFIRM.