EVELYN KAY KING,

                                    Grievant,

v.                                                

                                                      

DIVISION OF REHABILITATION SERVICES,

                                    Respondent.

DECISION

      Evelyn King (Grievant) is employed by the Division of Rehabilitation Services (DRS), as an Office Assistant III at DRS' Mullens office. Grievant alleges that she was subjected to discrimination and an arbitrary and capricious decision when she did not receive a merit pay increase.
      This grievance was denied at Level I, on January 5, 2000, by immediate supervisor Gerald Scott; and at Level II, on January 20, 2000. A Level III hearing was held on March 3, 2000, before Katherine L. Dooley, Esq. Grievant was represented at this hearing by Richard Duelley, and DRS was represented by Warren Morford, Esq. This grievance was denied at Level III on March 17, 2000.
      A Level IV hearing was held on May 19, 2000, before the undersigned administrative law judge, at the Grievance Board's Beckley office. Grievant was represented at this hearing by Richard Duelley and L. P. King, Jr., and DRS was represented by Warren Morford, Esq. and Assistant Attorney General M. Claire Winterholler. The parties were given until June 30, 2000, to submit proposed findings offact and conclusions of law, DRS did so, and this grievance became mature for decision on that date. The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT

      1.      Grievant is employed by DRS as an Office Assistant III at its Mullens office.
      2.      By memorandum of August 31, 1999, DRS Director James S. Jeffers (Jeffers) set forth DRS' Merit Increase Plan for 1999. This memo stated that Performance Increases of 4% were possible for employees with an overall rating of 4.0 and ratings of 4.0 or above in both quality and quantity; that Incentive Increases of 1% were possible for employees who completed 90% of their Management and Performance System (MAPS) goals or, if they were not subject to MAPS,   (See footnote 1)  completed all of their job duties; that Outstanding Incentive Increases of 3.5% were possible for employees who completed 100% of their MAPS goals or, if not subject to MAPS, completed all of their job duties and exceeded more than one job duty;   (See footnote 2)  and that merit increases were to be awarded “strictly in keeping with the criteria published.”
      3.      Jeffers's memorandum ordered that “[r]ecommendations [for merit increases] will be solicited from first line supervisors of each district operational unit.”
      4.      Jeffers's memorandum ordered that the supervisors of DRS districtsrecommending merit increases “submit [a] prioritized list that begins with the employee with the highest overall performance rating[,]” and “[l]ist employees in priority order by their overall performance rating with the highest rating listed as first on the list.”
      5.      DRS evaluates its employees on a scale of 1 to 5, with a 1 rating signifying a major weakness, a 2 rating signifying a weakness, a 3 rating signifying adequate performance, a 4 rating signifying a strength, and a 5 rating signifying a major strength.
      6.      Under the conditions described in Jeffers's memorandum, Grievant's supervisor, District IV Manager Judy Riffe (Riffe) found that she could recommend only three employees for merit increases.      
      7.      By memorandum dated September 3, 1999, Riffe requested flexibility to recommend merit increases for employees who had made significant contributions to DRS, but who would not qualify under the conditions described in Jeffers's memorandum.
      8.      Riffe was given the flexibility she requested, and merit increases were recommended for ten of District IV's 34 employees, some of whom had overall ratings of less than 4.0 and ratings of less than 4.0 in quality and quantity.
      9.      A memorandum, dated September 8, 1999, from Riffe to her manager, Charles Lovely, recommending ten District IV employees for merit increases, failed to list employees in priority order by their overall performance ratings.
      10.      Grievant was in the pool of 34 employees in DRS District IV eligible for and considered for a merit increase in 1999.
      11.       Grievant's 1999 performance evaluation rated her a 4 in work quantity, a 3in work quality,   (See footnote 3)  and 3.9 overall. Grievant completed all of her job duties and exceeded more than one job duty.
      12.      DRS awarded merit increases to six District IV employees with overall ratings lower than Grievant's. One of these employees had a 3 rating in work quality. Three of these employees were, like Grievant, not subject to MAPS.
DISCUSSION

      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd., 156 C.S.R. 1 § 4.19 (1996); Steadman v. Securities and Exchange Comm'n, 450 U.S. 91 (1981); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6. A preponderance of the evidence is defined as "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR- 486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.      Grievant alleges that she was subjected to discrimination and an arbitrary and capricious decision when she did not receive a merit pay increase during DRS' 1999 round of merit increases, and seeks a merit increase of 7.5%, effective December 1, 1999.   (See footnote 4)  DRS responded, at Level III, that it complied with the conditions described in Director Jeffers's memorandum of August 31, 1999. At Level IV, DRS changed its position, arguing that although it properly departed from those conditions in awarding merit increases, Grievant was still not deserving of a merit increase.
      Under the rules of the West Virginia Division of Personnel, salary advancements must be based on merit as indicated by performance evaluations and other recorded measures of performance, such as quantity of work, quality of work, and attendance.
W. Va. Div. of Personnel Admin. Rule, 143 C.S.R. 1 § 5.8(a) (1998). See King v. W. Va. Dep't of Transp., Docket No. 94-DOH-340 (Mar. 1, 1995). Only "information that has been preserved in written form and can be referred to for later assessment" may be considered a "recorded measure of performance." Hodges v. W. Va. Dep't of Health and Human Resources, Docket No. 97-HHR-190 (Apr. 13, 1998). See Woods v. Dep't of Health and Human Resources, Docket No. 97-HHR-248 (Sept. 22, 1997); Riffle v. W. Va. Dep't of Transp., Docket No. 92-DOH-138 (Aug. 21, 1992); Tallman v. W. Va. Div. of Highways, Docket No. 91-DOH-162 (Jan. 31, 1992).      A grievant must demonstrate more than a flaw in the merit increase process. A grievant must also demonstrate that, had the process been properly conducted, she would have received a merit increase. Stone v. W. Va. Alcohol Beverage Control Comm'n, Docket No. 97-ABCA-151 (Aug. 21, 1997). An employer's decision on merit increases will generally not be disturbed unless shown to be unreasonable, arbitrary and capricious, or contrary to law or properly-established policies or directives. Terry v. W. Va. Div. of Highways, Docket No. 91-DOH-185 (Dec. 30, 1991); Osborne v. W. Va. Div. of Rehabilitation Serv., Docket No. 89-RS-051 (May 16, 1989). Grievants seeking merit increases must prove they were more entitled to the increase than another employee who received one. Tallman, supra.
      However, this Grievance Board has found that an agency's decision to grant a lower ranked employee a merit increase when a higher ranked employee does not receive one to be incorrect, if all other factors are equal. Setliff v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 97-DOH-262 (July 27, 1998); Morris, supra; Ratliff v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 96-DOH-004 (Jan. 31, 1997); Parsons/Clemmer v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 97-DOH-289 (Oct. 30, 1997).
      W. Va. Code § 29-6A-2(d) defines "discrimination" as "any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees." To establish a prima facie case of discrimination, Grievant must show:


Hendricks v. W. Va. Dep't of Tax and Revenue
, Docket No. 96-T&R-215 (Sept. 24, 1996).       Once the grievant establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, a grievant may still prevail if she can demonstrate the reason given by the respondent was mere pretext. Steele v. Wayne County Bd. of Educ., Docket No. 89-50- 260 (Oct. 19, 1989).
      Grievant established that she was in the pool of 34 employees in DRS District IV eligible for and considered for a merit increase in 1999, and thus similarly situated to them. She was, to her detriment, treated by her employer in a manner that the other employees were not, in a significant particular; by being denied a merit increase while other employees received merit increases. Finally, Grievant established that such differences were unrelated to actual job responsibilities of the grievant and/or the other employees, by demonstrating that several employees with lower job performance evaluations were given merit increases, while Grievant was not. Grievant has established a prima facie case of discrimination.
      A preponderance of the credible evidence of record in this grievance shows that DRS awarded merit increases to six District IV employees with overall ratings lower thanGrievant's. Three of these employees were, like Grievant, not subject to MAPS. R.S.   (See footnote 5)  had an overall rating in 1999 of 3.8. G.S. had an overall rating in 1999 of 3.8. K.P. had an overall rating in 1999 of 3.8. C.S. had an overall rating in 1999 of 3.7.      D.S. had an overall rating in 1999 of 3.6, with a 3 in work quality.      R.B. had an overall rating in 1999 of 3.6. G.B. had an overall rating in 1999 of 3.6, with a 3 in work quality.   (See footnote 6)  As noted in Finding of Fact 10, Grievant's 1999 performance evaluation rated her a 4 in work quantity, a 3 in work quality, and 3.9 overall.
      DRS offered no evidence to demonstrate a legitimate, nondiscriminatory reason for this employment action. In fact, the credible testimony of DRS's witnesses at Level IV consisted primarily of each witness passing blame for its departure from Riffe's authorized departure from the merit increase policy set forth in Director Jeffers's memorandum of August 31, 1999, to higher and higher, but never quite identified, persons above them in DRS's management hierarchy. Accordingly, DRS failed to rebut Grievant's prima facie case of discrimination.      
       In applying the “arbitrary and capricious” standard, a reviewing body applies a narrow scope of review, limited to determining whether relevant factors were considered in reaching that decision, and whether there has been a clear error of judgment. Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg,169 W.Va. 162, 286 S.E.2d 276 (1982). Moreover, a decision of less than ideal clarity may be upheld if the agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra at 286, Hill and Cyrus v. Kanawha County Bd. of Educ., Docket No. 96- 20-362 (Jan. 30, 1997). An employer's decision on merit increases will generally not be disturbed unless shown to be unreasonable, arbitrary or capricious, or contrary to law or properly established policies or directives. Terry v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 91-DOH-186 (Dec. 30, 1991).
      The undersigned finds that relevant factors were not considered by DRS in its merit pay decisions. It is clear that Riffe was authorized to depart from the criteria set forth in Jeffers's memorandum of August 31, 1999, even though it stated that merit increases were to be awarded “strictly in keeping with the criteria published.” Having received the flexibility to depart from these criteria and award a greater number of merit increases to deserving District IV employees, DRS engaged in a second departure from its merit increase policy when Riffe's memorandum, recommending ten District IV employees for merit increases, failed to list employees in priority order by their overall performance ratings. Had she done so, Grievant would have been seen to be more deserving of a merit increase than six employees who were recommended, including one, D.S., who did not qualify for a merit increase under either set of criteria. As the record in this grievance is devoid of any evidence that DRS granted flexibility in its policy that the merit increases go to “employees in priority order by their overall performance rating with the highest rating listed as first on the list[,]” Grievant has demonstrated that, had the process been properly conducted, she would have received a merit increase, Stone, supra, and that she wasmore entitled to an increase than other employees who received one. Tallman, supra. DRS's decision denying Grievant a merit increase was arbitrary and capricious, and contrary to its properly established policies or directives. Terry, supra.
      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
CONCLUSIONS OF LAW

      1. Grievant has the burden of proving her grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd., 156 C.S.R. 1 § 4.19 (1996); Payne v. W. Va. Dep't of Energy, Docket No. ENGY-88-015 (Nov. 2, 1988). See W. Va. Code § 29-6A-6. A preponderance of the evidence is defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      2.      W. Va. Code § 29-6A-2(d) defines "discrimination" as "any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees." To establish a prima facie case of discrimination, Grievant must show:



Hendricks v. W. Va. Dep't of Tax and Revenue
, Docket No. 96-T&R-215 (Sept. 24, 1996).       3. Once the grievant establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, a grievant may still prevail if he can demonstrate the reason given by the respondent was mere pretext. Steele v. Wayne County Bd. of Educ., Docket No. 89-50- 260 (Oct. 19, 1989).
      4. Grievant established a prima facie case of discrimination with respect to the other District IV employees who were eligible for merit pay increases in 1999.
      5. DRS failed to rebut Grievant's a prima facie case of discrimination.
      6. An employer's decision on merit increases will generally not be disturbed unless shown to be unreasonable, arbitrary or capricious, or contrary to law or properly established policies or directives. Terry v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 91-DOH-186 (Dec. 30, 1991).
      7.       In applying the 'arbitrary and capricious' standard, a reviewing body applies a narrow scope of review, limited to determining whether relevant factors were considered in reaching that decision, and whether there has been a clear error of judgment. Bowman Transp. v. Arkansas-Best Freight System, 419 U.S. 281, 285 (1974); Harrison v. Ginsberg, 169 W.Va. 162, 286 S.E.2d 276 (1982). Moreover, a decision of less than ideal clarity may be upheld if the agency's path in reaching that conclusion may reasonably be discerned. Bowman, supra at 286, Hill and Cyrus v. Kanawha County Bd. of Educ., Docket No. 96- 20-362 (Jan. 30, 1997).
      8.      DRS failed to comply with its policy with respect to its 1999 round of merit pay increases.
      9.      Grievant established, by a preponderance of the evidence, that she was more entitled to a merit increase than other employees who received them. Tallman v. W. Va. Div. of Highways, Docket No. 91-DOH-162 (Jan. 31, 1992).
      Accordingly, this grievance is GRANTED, and Respondent DRS is ORDERED to award Grievant a 7.5% merit pay increase, retroactive to December 1, 1999, plus interest.
      Any party or the West Virginia Division of Personnel may appeal this decision to the Circuit Court of Kanawha County or to the circuit court of the county in which the grievance occurred. Any such appeal must be filed within thirty (30) days of receipt of this decision. W. Va. Code § 29-6A-7 (1998). 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. However, the appealing party is required by W. Va. Code § 29A- 5-4(b) to serve a copy of the appeal petition upon the Grievance Board. The appealing party must also provide the Board with the civil action number so that the record can be prepared and properly transmitted to the appropriate circuit court.

                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated July 13, 2000


Footnote: 1
            Clerical positions within DRS, such a Grievant's, are not subject to MAPS.
Footnote: 2
            The record does not reflect what is required for an employee to exceed more than one job duty. DRS' job performance evaluations do not contain an “exceeds” category.
Footnote: 3            Grievant's immediate supervisor, Gerald Scott, testified without contradiction at Level IV that, in rating Grievant with a 3 in work quality, he was obeying instructions from his superiors to evaluate his subordinates more conservatively; that a 4 rating would have been disapproved by his superiors, so that he had kept her overall rating at 3.9 since 1984; that Grievant's work merited a 4 in work quality and had been so rated in the past; that he did not know that a 4 in work quality would be required by the 1999 merit increase criteria; and that he let Grievant pick which of the ten areas of her evaluation would receive the 3 rating.
Footnote: 4            The 7.5% figure appears to be a combination of the Performance Increase and the Outstanding Incentive Increase described in Jeffers's memorandum of August 31, 1999. It is noted that the other two employees in DRS's Mullens office, G.S. and D.S., each received 7.5% merit increases, and that another employee in a position similar to Grievant, J.W., grieved DRS's failure to award him a merit increase, and settled for a 7.5% increase at Level II.
Footnote: 5            Due to privacy concerns expressed by DRS, Grievant's co-workers in District IV will be identified by their initials.
Footnote: 6            Like Grievant, these six employees all either achieved their MAPS goals or, if not covered by MAPS, exceeded more than one job duty.