STEPHEN M. SMITH,

                              Grievant,

v v.


WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,

                              Respondent.

DECISION

      Stephen M. Smith (Grievant) filed this grievance pursuant to W. Va. Code §§ 29-6A- 1, et seq., on January 7, 2000, alleging that Respondent West Virginia Parkways Economic Development and Tourism Authority (Parkways) failed to post a position.
      This grievance was denied at Level I, on January 10, 2000, by Immediate Supervisor Wesley Roles; and at Level II, on February 2, 2000, by Director of Tolls James V. Kelley. A Level III hearing was held on March 6, 2000. Grievant was represented at this hearing by Boyd Lilly of the West Virginia State Employees Union, and Parkways was represented by A. David Abrams, Jr., Esq. This grievance was denied at Level III by Grievance Evaluator D. L. Lake on March 28, 2000.
      The parties agreed that this grievance could be decided at Level IV based upon the record developed at the lower levels. The parties were given until June 26, 2000, to submit proposed findings of fact and conclusions of law, both did so, and this grievance became nature for decision on that date.
      The following Findings of Fact pertinent to the resolution of this matter have beendetermined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT
      1.      Grievant works as a Toll Foreman at Parkways' North Beckley toll facility (North Beckley).
      2.      By memo dated December 20, 1999, Parkways General Manager Larry Cousins announced that the position of Supervisor at North Beckley would be eliminated when the Supervisor of North Beckley retired, and its duties assumed by the Supervisor of the nearby Toll Barrier B, Wesley Roles.
      3.      On or about January 1, 2000, the Supervisor of North Beckley retired, and Mr. Roles began supervising both facilities.
      4.      Parkways Personnel Policy I - 1, entitled Employment Procedures, states “[s]election [b]oards will be established to select for employment opportunities that occur as a result of vacancies in existing positions.”
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); Steadman v. Securities and Exchange Commission, 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 LawDictionary (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 argues that Parkways violated its policy when it failed to post the position of Supervisor at North Beckley. As relief, he seeks to be made whole and complete. However, the preponderance of evidence in this grievance shows that there was no position to post.
      Parkways established that there are six Toll Foremen supervising seven Toll Collectors at North Beckley, and that the Foremen there are capable of administering the daily operations of North Beckley, rendering a full-time Supervisor there unnecessary; that North Beckley is located close to Toll Barrier B, making supervision of North Beckley by Roles feasible, even in emergencies;   (See footnote 1)  that the position of Supervisor at North Beckley was eliminated for those reasons; and that Parkways has no policy forbidding a vacant position from being eliminated.
      Parkways Personnel Policy I - 1, entitled Employment Procedures, states “[s]election [b]oards will be established to select for employment opportunities that occur as a result of vacancies in existing positions.” (emphasis added). It is understandable that when Grievant saw his old boss replaced by a new boss, he asked why the position had not been posted. However, the position his old boss held had been eliminated, and so nolonger “existed,” as contemplated by Parkways's policy.
      Even assuming, for the sake of argument, that Policy I -1 is subject to different interpretations, this Grievance Board must give reasonable deference to Parkways' interpretation of its own policy. Edwards v. W. Va. Parkways Economic Development and Tourism Auth., Docket No. 97-PEDTA-426 (May 7, 1998). The undersigned does not have authority to second guess a state employer's employment policy, to order a state agency to make a discretionary change in its policy, or to substitute his management philosophy for Parkways'. Skaff v. Pridemore, 200 W. Va. 700, 490 S.E.2d 787 (1997), Settle v. W. Va. Parkways Economic Development and Tourism Auth., Docket No. 00-PEDTA-031 (May 23, 2000).
      Accordingly, this grievance must be denied. 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 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); Steadman v. Securities and Exchange Commission, 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 theevidence equally supports both sides, a party has not met its burden of proof. Id.
      2.      Parkways Personnel Policy I - 1, entitled Employment Procedures, states “[s]election [b]oards will be established to select for employment opportunities that occur as a result of vacancies in existing positions.”
      3.      Parkways was not required to post the position Supervisor at North Beckley, as that position had been eliminated.
      4.      Grievant failed to prove, by a preponderance of the evidence, that Parkways violated its policy when it failed to post the position of Supervisor at North Beckley.
      Accordingly, the 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. 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 § 29A5-4(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 7, 2000


Footnote: 1
            The undersigned Administrative Law Judge takes administrative notice that the official highway map of West Virginia places these two facilities approximately eight miles apart.