JOSEPH D. RIFFLE,
Grievant,
v. Docket No. 99-DOT-485
DEPARTMENT OF TRANSPORTATION/
DIVISION OF HIGHWAYS,
Respondent.
DECISION
Joseph D. Riffle (Grievant) initiated this grievance on October 3, 1997, alleging
he was improperly denied a merit raise. He seeks a 5% pay increase as relief. The
grievance was denied at level one on October 9, 1997. Grievant appealed to level two,
and the grievance was denied at that level on January 14, 1998. Upon appeal to level
three, a hearing was held on August 14, 1998, followed by a written decision denying the
grievance dated November 8, 1999. On November 16, 1999, Grievant requested a default
judgment at level four, which was denied by Order dated March 3, 2000. A level four
hearing was held in the Grievance Board's office in Elkins, West Virginia, on June 14,
2000. Grievant represented himself, and Respondent was represented by counsel, Nedra
Koval. This matter became mature for consideration on July 11, 2000, upon receipt of
Grievant's fact/law proposals.
(See footnote 1)
The following findings of fact are made from a preponderance of the evidence of
record.
Findings of Fact
1. Grievant is employed by Respondent Division of Highways (DOH) as a
Transportation Worker II Craftsworker.
2. On March 4, 1997, Grievant received his annual performance evaluation for
the 1996 calendar year. Employees of DOH are rated in eight different categories and can
receive one of three ratings in each category: needs improvement, satisfactory, or
exceeds expectations.
3. Grievant received an overall rating of meets or exceeds expectations on his
1996 performance evaluation. However, he received a needs improvement rating in the
category of attendance, with the comment from his supervisor that Grievant needed to pay
more attention to use of sick leave. L III, Gr. Ex. 2.
4. DOH Secretary Fred VanKirk issued a memorandum dated June 17, 1997,
to all DOH supervisors entitled Merit Increase Program. This memorandum provided
guidelines for recommending merit raises, stating in part that 1996 performance
evaluations would be used as the basis for all recommendations, and that [a]ny employee
who has received at least one 'Needs Improvement' on the subject evaluation is ineligible
for an increase. L III, Joint Ex. 1.
5. Six of the ten employees in Grievant's local organization received at least
one needs improvement rating on their 1996 performance evaluations and were
disqualified from receiving merit raises. The remaining four employees received merit
increases.
6. Grievant made no effort to challenge his 1996 performance evaluation
through the grievance procedure. 7. Lawrence Knight, who is also employed at Grievant's local organization,
received a satisfactory rating in the area of attendance, but his evaluation contained the
comment pay more attention to length of breaks. Mr. Knight was one of the four
employees who received a merit increase in 1997.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden
of proving his 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 generally recognized as evidence of greater
weight, or which is more convincing than the evidence which is offered in opposition to it.
Miller v. W. Va. Dep't of Health & Human Resources, Docket No. 96-HHR-501 (Sept. 30,
1997);
Petry v. Kanawha County Bd. of Educ., Docket No. 96-20-380 (Mar. 18, 1997).
Where the evidence equally supports both sides, the employee has not met his burden of
persuasion.
Dixon v. W. Va. Div. of Corrections, Docket No. 98-CORR-243 (Aug. 24,
1998).
See Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No.
92-HHR-486 (May 17, 1993).
In accordance with the rules of the West Virginia Division of Personnel (DOP),
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 Administrative Rule, 143 C.S.R. 1 § 5.08(a) (1998).
See Morris v. W. Va. Dep't of Transp., Docket No. 97-DOH-167 (Aug. 22, 1997);
King v.W. Va. Dep't of Transp., Docket No. 94-DOH-340 (Mar. 1, 1995). However, 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.
Little v. W. Va. Dep't of Health & Human Resources, Docket No.
98-HHR-092 (July 27, 1998);
Morris,
supra;
Salmons v. W. Va. Dep't of Transp., Docket
No. 94-DOH-555 (Mar. 20, 1995);
Terry v. W. Va. Div. of Highways, Docket No.
91-DOH-186 (Dec. 30, 1991);
Osborne v. W. Va. Div. of Rehabilitation Serv., Docket No.
89-RS-051 (May 16, 1989).
The majority of Grievant's arguments surround his allegations that he should not
have received a needs improvement rating for attendance on his 1996 performance
evaluation. If he had not received that rating, he would have been eligible for a merit
increase in 1997. However, Grievant did not grieve that evaluation at the time it was
performed. Personnel actions, such as annual performance evaluations, which are subject
to challenge through the grievance procedure within ten days of the date they are issued,
may not later be disputed in a timely grievance challenging a subsequent action.
See
Cummings v. W. Va. Dep't of Transp., Docket No. 95-DOH-104 (Jan. 12, 1995);
Perdue
v. Dep't of Health & Human Resources, Docket No. 93-HHR-050 (Feb. 4, 1994).
See also
Vincent v. W. Va. Dep't of Transp., Docket No. 97-DOH-519 (May 13, 1998);
Galloway v.
Div. of Banking, Docket No. 98-DOB-167 (Sept. 22, 1998). Accordingly, Grievant cannot
now challenge the propriety of his performance rating in 1996. Because Grievant's
allegations of discrimination and harassment are based upon the rating he received on
that evaluation which he did not grieve, they must fail. Grievant also alleges that Mr. Knight, who received a merit raise in 1997, should not
have been eligible, because his performance evaluation was not performed correctly.
Specifically, Grievant alleges that Mr. Knight should also have received a needs
improvement rating for attendance, because the comment was made that he needed to
pay more attention to the length of breaks. Grievant argues that this constitutes favoritism,
which is defined by
W. Va. Code § 29-6A-2(h), as "unfair treatment of an employee as
demonstrated by preferential, exceptional or advantageous treatment of another or other
employees." In order to establish a
prima facie showing of favoritism, a grievant must
establish the following:
(a) that he is similarly situated, in a pertinent way, to one or more other
employee(s);
(b) that the other employee(s) have been given advantage or treated with
preference in a significant manner not similarly afforded him;
and,
(c) that the difference in treatment has caused a substantial inequity to him
and that there is no known or apparent justification for this difference.
Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18,
1999);
Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998).
See
McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). If
grievant establishes a
prima facie case of favoritism, a respondent may rebut this showing
by articulating a legitimate reason for its action. However, the grievant can still prevail if
he can demonstrate that the reason proffered by respondent was mere pretext.
Prince v.
Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990). Under the circumstances presented here, Grievant has failed to establish a
prima
facie case of favoritism. Because the merits of the evaluations themselves are not before
this Grievance Board at this time, the only remaining issue is whether or not the raises
were properly granted. DOH has provided a clear justification for why Grievant was not
granted a raise and Mr. Knight was, based upon Commissioner VanKirk's directive
regarding who would be eligible for merit raises.
Moreover, it is irrelevant to the issue presented in this case whether Mr. Knight's
merit raise was properly granted or not. Whether or not Mr. Knight received a raise would
have no effect on whether or not Grievant received one. As previously discussed, it is
obvious that Grievant's eligibility for a merit increase was decided based upon the
Commissioner's policy. This Grievance Board has previously held that there is nothing
which prohibits an employer from setting higher standards of performance for eligibility for
merit raises, so long as the raises are ultimately awarded based upon job performance and
other measures of merit as set forth in DOP's Administrative Rule.
Stover v. W. Va. Dep't
of Admin., Docket No. 00-ADMN-024 (March 31, 2000). Grievant has failed to establish
that his eligibility for a merit raise in 1997 was based upon any improper considerations.
Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law
1. In non-disciplinary matters, Grievant has the burden of proving his 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. 2. 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 Administrative Rule, 143 C.S.R. 1 §
5.08(a) (1998).
See Morris v. W. Va. Dep't of Transp., Docket No. 97-DOH-167 (Aug. 22,
1997);
King v. W. Va. Dep't of Transp., Docket No. 94-DOH-340 (Mar. 1, 1995).
3. Personnel actions, such as annual performance evaluations, which are
subject to challenge through the grievance procedure within ten days of the date they are
issued, may not later be disputed in a timely grievance challenging a subsequent action.
See Cummings v. W. Va. Dep't of Transp., Docket No. 95-DOH-104 (Jan. 12, 1995);
Perdue v. Dep't of Health & Human Resources, Docket No. 93-HHR-050 (Feb. 4, 1994).
See also Vincent v. W. Va. Dep't of Transp., Docket No. 97-DOH-519 (May 13, 1998);
Galloway v. Div. of Banking, Docket No. 98-DOB-167 (Sept. 22, 1998).
4. Grievant did not grieve his 1996 performance evaluation in a timely manner,
so he cannot challenge it within the context of this grievance regarding merit raises.
5. There is nothing which prohibits an employer from setting higher standards
of performance for eligibility for merit raises, so long as the raises are ultimately awarded
based upon job performance and other measures of merit as set forth in DOP's
Administrative Rule.
Stover v. W. Va. Dep't of Admin., Docket No. 00-ADMN-024 (March
31, 2000).
6. Grievant has failed to establish that DOH's determination that he was
ineligible for a merit raise in 1997, due to having received a needs improvement rating
on his 1996 performance evaluation, was based upon any improper factors.
Accordingly, this grievance is
DENIED.
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, and 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.
Date: July 19, 2000 ___________________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1