EMERY MARCUM, JR.,
Grievant,
v. DOCKET NO. 00-DOH-155
DEPARTMENT OF TRANSPORTATION,
DIVISION OF HIGHWAYS,
Respondent.
D E C I S I O N
Grievant, Emery Marcum, Jr., filed two grievances against Respondent, Department
of Transportation, Division of Highways ("DOH"), which were consolidated at Level III of
the grievance procedure. The first was filed on November 12, 1998. His statement of
grievance reads:
I am being discriminated against. I have just learned that other employees
were awarded merit increases on 9/1/98 and 10/1/98. I believe I should
have been awarded a merit increase also, based on Div. of Highways and
Division of Personnel policies.
As relief Grievant sought a 5% merit increase retroactive to 9/1/98, or that I, in any other
way be made whole. Also I am requesting that I receive back pay.
The second grievance was also filed on November 12, 1998. The statement of
grievance reads:
I have been informed that the settlement agreement I signed on 9/10/98
precludes me from receiving any additional salary advancements within a
12-month period. I believe this violates Div. of Personnel Rule 5.08 in that
the settlement should not be considered a salary advancement as defined
in this rule.
Grievant sought as relief:
I request that the settlement be amended, or that it be otherwise clarified,
that this settlement of a prior grievance cannot be held against me in
consideration for salary advancements within the 12-month period, and that
I, in any other way be made whole.
At his Level IV hearing Grievant withdrew his claim for back pay, asking only that
any merit increase to which he was entitled be awarded from the date of the decision.
The following Findings of Fact are made based upon the record developed at
Levels III and IV.
(See footnote 1)
Findings of Fact
1. Grievant has been employed by DOH since July 20, 1995, and is an
Equipment Operator II.
2. Sometime prior to February 27, 1997, Grievant filed a grievance over his
starting rate of pay. That grievance was settled on September 10, 1998, and he received
$1,528.83 in back pay. The settlement agreement states that Grievant was granted a
salary advancement effective September 16, 1998, in the amount of 10% over his salary
at that time, bringing his salary from $8.98 per hour to $9.88 per hour, in addition to the
back pay. The settlement agreement does not mention the quality of Grievant'sperformance, or that the increase in pay is to compensate Grievant based upon merit;
rather, the agreement states the payment is to compromise disputed claims.
3. Merit increases awarded in September and October 1998 were based upon
employee performance during 1997.
(See footnote 2)
Grievant did not receive a merit increase in 1998.
The reasons given to him by his supervisor for not receiving a merit increase were that he
was not eligible because of the terms of the settlement agreement, and he abuses leave
time.
4. Grievant was not aware when he signed the settlement agreement that it
would preclude him from receiving a merit increase for 12 months, and he would not have
signed it if he had known this.
5. Grievant's 1997 evaluation states that he needs improvement in his
attendance and that he uses too much leave time. He was rated as exceeds expectations
in two areas, and satisfactory in the remaining five categories on the evaluation form.
Grievant did not make any written comments on his evaluation indicating he disagreed with
it, nor did he grieve it. It was signed by Grievant and his supervisor, Ray Messer, Jr., on
March 30, 1998, with Grievant checking the boxes on the evaluation which indicated he
agreed with all of the conclusions reached by his supervisor and that his evaluation was
fair and impartial.
6. Grievant suffered an on the job injury to his back on February 27, 1997, and
was off work for 10 to 11 months, returning to work in early 1998. He was on light duty
when he returned to work. He continues to need physical therapy two to three times a
week, and must visit the doctor one or two times each month. He uses a lot of sick andannual leave for these appointments. Mr. Messer considered Grievant's leave usage for
the first three months of 1998 when completing the 1997 performance evaluation.
7. Several other employees told Grievant evaluations had nothing to do with
merit raises.
8. There are 10 employees in Grievant's section. Of those 10, 2 received a
2.5% merit increase in 1998 based upon 1997 evaluations. Johnny Kirk, a foreman,
received a merit increase on September 1, 1998. His 1997 evaluation shows he received
one rating of exceeds expectations and eight satisfactories, with one of those ratings
relating to supervision of other employees, an area in which not all employees were rated.
John Howard Marcum, an Equipment Operator II, received a merit increase on October 1,
1998. He received three exceeds expectations and six satisfactories on his 1997
evaluation, including a rating of satisfactory in supervision of other employees. Mr. Messer
did not complete John Howard Marcum's 1997 evaluation, because he was not in his unit
at that time.
9. Mr. Messer did not recommend Grievant for a merit increase in the fall of
1998, because he thought he needed to improve on his use of leave time. He has also,
however, been trying through merit increases, to bring the lowest paid employees up to the
same pay as everyone else in his unit. In addition to looking at employee evaluations, Mr.
Messer considers extra effort expended by employees on the job, whether the employee
shows interest in his work, promptness in reporting to work, whether the employee calls
in to report off work, and use of leave, in deciding who to recommend for merit increases.
His goal was to rate all his employees the same on their 1997 evaluations, as he believed
they all did a good job. If one employee received a needs improvement, he rated him as
exceeds expectations in two areas. If an employee had no needs improvement ratings,
he gave him one exceeds expectations. 10. Grievant is the second highest paid employee in his unit. There are more
senior employees in his unit who make less than Grievant.
11. DOH's Merit Pay Plan for use in awarding pay increases for the 1998-99
fiscal year provides that performance evaluations and other recorded measures of
performance are to be used as the primary bases for merit increase recommendations;
however, equitable pay relationships and length of service may also be considered.
Discussion
In nondisciplinary matters, the grievant has the burden of proving his case by a
preponderance of the evidence. Tucci v. W. Va. Dep't of Transp./Div. of Highways, Docket
No. 94-DOH-592 (Feb. 28, 1995). A grievant seeking a merit increase must prove he is
more entitled to the increase than another employee who received such an increase.
Tallman v. W. Va. Div. of Highways, Docket No. 91-DOH-162 (Jan. 31, 1992).
In accordance with 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 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). "An action is arbitrary and capricious if the agency making the decision did not rely
on criteria intended to be considered; explained or reached the decision in a manner
contrary to the evidence before it; or reached a decision that is so implausible that it
cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v.
Health and Human Servs., 769 F.2d 1071 (4th Cir. 1985). An action may also be arbitrary
and capricious if it is willful and unreasonable without consideration of facts. Black's Law
Dictionary, at 55 (3d Ed 1985). Arbitrary is further defined as being 'synonymous with bad
faith or failure to exercise honest judgment.' Id." Trimboli v. W. Va. Dep't of Health and
Human Servs./ Div. Of Personnel, Docket No. 93-HHR-322 (June 27, 1997).
Grievant alleged the failure to award him a merit increase was discriminatory,
arguing he was treated differently because he was rated as needing improvement in
attendance on his 1997 evaluation, when it was improper to assign him this rating, as his
extensive leave usage occurred in 1998, after he returned to work from his injury, and the
leave usage was legitimate. He argued that had his evaluation been properly completed,
he would have received a rating of satisfactory in leave usage, and his evaluation would
have been better than the evaluations of the employees who received merit increases. It
will first be noted that John Marcum's evaluation would have still been better than
Grievant's. Grievant's evaluation would have been slightly better than Mr. Kirk's.
W. Va. Code § 29-6A-2(d) defines discrimination, for purposes of the grievance
procedure, 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.
A grievant alleging discrimination must establish a prima facie case by
demonstrating:
(a) that he is similarly situated in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his employer in a manner
that the other employee(s) has/have not, in a significant particular;
and,
(c) that such differences were unrelated to actual job responsibilities of the
grievant and/or the other employee(s), and were not agreed to by the
grievant in writing.
Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
Once a
prima facie case has been established, a presumption exists, which the
employer may rebut by demonstrating a "legitimate, nondiscriminatory reason" for its
action. Grievant may still prevail by establishing that the rationale given by the employer
is "mere pretext".
Id.
Grievant has not demonstrated he was discriminated against. First, Grievant signed
his evaluation stating he had discussed it with his supervisor and agreed with it. If he
thought it was wrong, this would have been the time to say so. Further, Grievant's
supervisor's testimony was that he believed all of his employees had performed equally
well overall, and he tried to reflect this on the evaluations. With this view as to the
performance of his employees in mind, Mr. Messer then compared his employees' salaries,
and recommended two employees for merit increases whose salaries he believed needed
to be higher, in relation to the salaries of their co-workers. While Mr. Messer's method of
evaluating his employees is questionable, he treated all of his employees the same in
evaluating them. As Grievant was the second highest paid employee in the unit, he was
not discriminated against in the merit increase process.
Further, [o]rdinarily, 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).
Stover v.
Dep't of Admin., Docket No. 00-ADMN-024 (Mar. 31, 2000). Such is the case here.
Grievant completely agreed with his evaluation when he signed it, and did not file a
grievance over the evaluation. The question in this case is whether Grievant should have
received a merit increase, not whether his evaluation was properly completed. Grievant's
reliance on his co-workers' representations that merit increases are not based upon
performance evaluations was misplaced, and is not the type of representation by
management upon which an employee may rely to delay the filing of a grievance.
Although not argued by Grievant, it should be pointed out that DOH was allowed
to consider where employee's salaries fell when determining how to allocate the limited
number of merit increases.
This Grievance Board has had several cases in which the employer has
limited the pool of applicants based on multiple factors. Roberts v. Dept.
of Admin./Div. of Personnel, Docket No. 94-DOP-182 (Dec. 1, 1994)
(employees with raises within one year were ineligible, supervisors were
directed to pay close attention to equitable relationships among employees
and use of leave time); Delauder v. Dept. of HHR/Child Advocate Office,
Docket No. 92-HHR-483 (Aug. 31, 1993) (employee who had received any
pay raise during past two years not considered); Clemens/Cordray v. Dept.
of Highways, Docket Nos. 90-DOH-033, 041 (Sept. 28, 1990) (supervisor
did not consider employees awarded a merit increase within the past two
years); Osborne v. Div. of Rehab. Serv., Docket No. 89-RS-051 (May 16,
1989) (individuals with previous merit increases were not automatically
entitled to merit increase even if performance stayed the same, supervisors
directed to check for pay inequity). In Roberts, supra, this Board held that
factors that had already been assessed in the evaluation, such as leave
time, could not be utilized again to limit the pool of applicants. Other
decisions, while noting merit increases had been limited to those who had
not had an increase in the prior years, have not found this restriction to
violate either DOP's or DOH's regulations.
Tucci v. Dep't of Transp., Docket No. 94-DOH-592 (Feb. 28, 1995) (footnote omitted).
Grievant also argued that he should not have been excluded from consideration for
a merit increase because the settlement agreement called the pay increase a salary
advancement. He argued no policy or rule addresses the effect of a settlement agreement
on future merit increases, and that the Division of Personnel's policy precluding anemployee from receiving more than a 10% salary advancement in 12 months applies to
merit increases. He pointed out that the increase in his salary as a result of the settlement
agreement was not a merit increase, but rather was the settlement of a past claim
regarding his starting salary. He further argued that salary advancements result from
across the board increases, changes to the pay plan, or changes as a result of moving an
employee from one classification to another, and that his settlement did not fall within any
of these categories.
DOH argued that Grievant signed the settlement agreement indicating he had read
and understood it, and the settlement agreement states that the increase in pay is a salary
advancement.
"The law favors and encourages the resolution of controversies by contracts of
compromise and settlement rather than by litigation; and it is the policy of the law to uphold
and enforce such contracts if they are fairly made and are not in contravention of some law
or public policy." Syl. Pt. 1,
McDowell County Bd. of Educ. v. Stephens, 191 W. Va. 711,
447 S.E.2d 912 (1994). "This Grievance Board has recognized the principle that
grievance settlements should be upheld unless it is proven by a preponderance of the
evidence that the settlement was not fairly made or was in contravention of some law or
public policy.
Adkins v. Logan County Bd. of Educ., Docket No. 95-23-190 (Sept. 29,
1997);
Vance v. Logan County Bd. of Educ., Docket No. 95-23-190 (Mar. 15, 1996)."
Fiorini v. W. Va. Div. of Highways, Docket No. 98-DOH-001 (Aug. 17, 1998).
There was no evidence that the settlement agreement was not fairly made, or was
in contravention of some law or public policy. Accordingly, it cannot be set aside.
The next issue is whether the settlement agreement precluded Grievant from
receiving a merit increase for 12 months. Where the terms of a contract are clear and
unambiguous, they must be applied and not construed.
Orteza v. Monongalia County
General Hosp., 318 S.E.2d 40 (W. Va. 1984). A valid written agreement using plain andunambiguous language is to be enforced according to its plain meaning and should not
be construed.
R.E.S., Inc. v. Trio Foods Enterprises, Inc., 395 S.E.2d 217 (W. Va. 1990).
The expressed intention of the parties to contract shall be controlling and courts cannot
rewrite the contract for them.
Correct Piping Co. v. City of Elkins, 308 F. Supp. 431
(D.C.W. Va. 1970).
Rush v. W. Va. Dep't of Health and Human Resources, Docket No.
94-HHR-279 (Feb. 7, 1995). In determining the intent of the parties at the time they
entered into the agreement, the terms of the agreement should first be examined.
See
Greco v. Dep't of the Army, 852 F.2d 558 (Fed. Cir. 1988).
Dye v. Dep't of Educ., Docket
No. 99-DOE-217 (Sept. 16, 1999).
The settlement agreement refers to the increase in Grievant's salary as a salary
advancement. The Division of Personnel's Administrative Rules define salary
advancement as follows:
3.84 Salary Advancement: A discretionary advancement in salary granted
in recognition of the quality of job performance.
These Rules go on to address the effect of a salary advancement as follows:
(a) Basis - All salary advancements shall be based on merit as evidenced by
performance evaluations and other recorded measures of performance e.g.
quantity of work, quality of work, and attendance.
(b) Eligibility - Salary advancements are limited to permanent employees.
(c) Amount - Salary advancements are limited to a maximum established and
subject to change by the State Personnel Board, and shall not cause the
new salary to exceed the maximum of the pay grade to which the employee's
class is allocated. The State Personnel Board shall establish the maximum
for salary advancements by policy on implementation of the pay plan [i.e. as
of 5/1/94, no more than 10% in any 12-month period] as specified in
subsection 5.02. of this rule.
(d) Exceptions - An employee with seven years of total state service who has
attained the maximum or above in the range, or is within 5% of the maximum
in the range and the proposed salary advancement would result in the
employee's salary exceeding the maximum in the range for the class, without
any increase in salary in the immediately preceding twelve months is eligible
for a salary advancement as prescribed in the adoption of a new pay plan.
(e) Effective Dates - Salary advancements for permanent employees are
effective on or after the date on which the employees become eligible for the
salary advancements.
Grievant's argument that the increase in his pay was to adjust his starting pay, is
not supported by the plain language of the settlement agreement. The agreement states
that the parties agreed to settle the grievance by granting Grievant a salary advancement
effective September 16, 1998 and backpay. The agreement goes on to state that it is
being made as a compromise of disputed claims, and is not to be construed as an
admission of fault or liability. The 10% adjustment in Grievant's pay effective more than
two years after he began his employment with DOH, had nothing to do with his starting rate
of pay.
Likewise, however, the increase in Grievant's salary clearly was not a salary
advancement as that term is used in the Division of Personnel's Rules, as it was not
based upon merit. The settlement agreement makes it clear that the salary increase is
simply a compromise being made to settle the grievance. The settlement agreement does
not mention any meritorious service on Grievant's part, nor does it state that it will affect
his ability to receive merit increases in the future. Absent some evidence that someone
at DOH explained to him that the increase would be considered a merit increase and would
preclude him from being awarded further increases for 12 months, Grievant had no reason
to believe that the use of the words salary advancement in the agreement meant merit
increase. Thus, the undersigned concludes that the settlement agreement did not
preclude Grievant from being considered for a merit increase for a period of 12 months
following the increase in his pay.
Nonetheless, and most importantly, Grievant has not demonstrated that his job
performance during 1997, a year when he was only on the job for two months, was so
superior to the performance of the other employees to whom he compared himself, that heshould have received a merit increase, and it was arbitrary and capricious not to award
him one.
The following Conclusions of Law support the Decision reached.
Conclusions of Law
1. In nondisciplinary matters, the grievant has the burden of proving his case
by a preponderance of the evidence.
Tucci v. W. Va. Dep't of Transp./Div. of Highways,
Docket No. 94-DOH-592 (Feb. 28, 1995). A grievant seeking a merit increase must prove
he is more entitled to the increase than another employee who received such an increase.
Tallman v. W. Va. Div. of Highways, Docket No. 91-DOH-162 (Jan. 31, 1992).
2. A grievant alleging discrimination must establish a
prima facie case by
demonstrating:
(a) that he is similarly situated in a pertinent way, to one or more other
employee(s);
(b) that he has, to his detriment, been treated by his employer in a manner
that the other employee(s) has/have not, in a significant particular;
and,
(c) that such differences were unrelated to actual job responsibilities of the
grievant and/or the other employee(s), and were not agreed to by the
grievant in writing.
Steele, et al. v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
W.
Va. Code § 29-6A-2(d).
3. Grievant did not demonstrate he was treated differently from any other
employee by his supervisor either when he was evaluating his employees, or when he was
deciding who should be recommended for a merit increase.
4. Ordinarily, 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).
Stover v.
Dep't of Admin., Docket No. 00-ADMN-024 (Mar. 31, 2000).
5. "The law favors and encourages the resolution of controversies by contracts
of compromise and settlement rather than by litigation; and it is the policy of the law to
uphold and enforce such contracts if they are fairly made and are not in contravention of
some law or public policy." Syl. Pt. 1,
McDowell County Bd. of Educ. v. Stephens, 191 W.
Va. 711, 447 S.E.2d 912 (1994). "This Grievance Board has recognized the principle that
grievance settlements should be upheld unless it is proven by a preponderance of the
evidence that the settlement was not fairly made or was in contravention of some law or
public policy.
Adkins v. Logan County Bd. of Educ., Docket No. 95-23-190 (Sept. 29,
1997);
Vance v. Logan County Bd. of Educ., Docket No. 95-23-190 (Mar. 15, 1996)."
Fiorini v. W. Va. Div. of Highways, Docket No. 98-DOH-001 (Aug. 17, 1998).
6. Grievant did not demonstrate that the settlement agreement was not fairly
made, or was in contravention of some law or public policy. Accordingly, it cannot be set
aside.
7. Where the terms of a contract are clear and unambiguous, they must be
applied and not construed.
Orteza v. Monongalia County General Hosp., 318 S.E.2d 40
(W. Va. 1984). A valid written agreement using plain and unambiguous language is to be
enforced according to its plain meaning and should not be construed.
R.E.S., Inc. v. Trio
Foods Enterprises, Inc., 395 S.E.2d 217 (W. Va. 1990). The expressed intention of the
parties to contract shall be controlling and courts cannot rewrite the contract for them.
Correct Piping Co. v. City of Elkins, 308 F. Supp. 431 (D.C.W. Va. 1970).
Rush v. W. Va.
Dep't of Health and Human Resources, Docket No. 94-HHR-279 (Feb. 7, 1995).
8. Looking at the plain language of the settlement agreement, the salary
increase received by Grievant was not an adjustment to his starting salary. Likewise, theplain language of the settlement agreement, which provides that it is a compromise of
disputed claims, and which does not ever address the quality of Grievant's performance,
precludes a finding that the use of the phrase salary advancement renders the increase
in Grievant's salary a merit increase. The Division of Personnel's Administrative Rule
which prevents an employee from receiving more than a 10% salary advancement in a 12
month period, was not applicable to the increase received by Grievant as a result of
settling his grievance, and he was not precluded from receiving a merit increase after the
settlement was entered into.
9. Grievant did not demonstrate he was more entitled to a merit increase than
another employee.
Accordingly, this grievance is DENIED.
Any party or the Division of Personnel may appeal this Decision to the circuit court
of the county in which the grievance arose, or the Circuit Court of Kanawha County. 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 Grievance Board with the civil action number so that the record can be
prepared and transmitted to the circuit court.
_____________________________
BRENDA L. GOULD
Administrative Law Judge
Date: August 10, 2000
Footnote: 1