
    CIRCUIT COURT OF AMHERST COUNTY
    Hite, Collins, and Coley v. Central Virginia Training Center
    January 3, 1991
   By JUDGE KENNETH M. COVINGTON

The issues are the same in each of these grievance appeals so they will be dealt with together. The basic question is whether the failure to be promoted is a grievable matter.

The grievance procedure for State employees does not permit a grievance for failure to be promoted unless the employee can show established promotional policies or procedures were not followed or applied fairly, or, as in this case, there is a complaint of age discrimination.

After reviewing the evidence in the record in each of these cases, it is my judgment that the complainants have failed to make a sufficient showing that there is any factual basis upon which to conclude that age was a factor considered by the hiring authority and hence discriminated against either of the complainants. It is my judgment that these matters are not therefore grievable on the issue of age discrimination.

The review of the evidence on the question of whether policies and procedures were followed or applied fairly leads the Court to reach a different conclusion. The burden of the grievants on this issue is not to prove the allegations but to make a sufficient showing to establish a factual dispute on the issue. It is in my judgment that they have done this by the evidence that puts in question whether the B.F.O.Q. requirements were properly advertised and considered when the position was filled. I have concluded therefore that this matter is grievable and should be submitted to a panel for hearing on this second issue only.  