LARRY A. STOVER,

                        Grievant,

v.                                                       Docket No. 00-ADMN-024

WEST VIRGINIA DEPARTMENT OF ADMINISTRATION,
WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE AGENCY,

                        Respondent.

D E C I S I O N

      On December 13, 1999, Larry A. Stover (Grievant) initiated this grievance pursuant to W. Va. Code §§ 29-6A-1, et seq., alleging that Respondent West Virginia Department of Administration, West Virginia Public Employees Insurance Agency (PEIA), had improperly discriminated against him on the basis of his political affiliation by not awarding him a merit raise. The grievance was denied at Level I by his immediate supervisor, and Grievant appealed to Level II. On December 15, 1999, PEIA Deputy Director Michael Atkins denied the grievance at Level II. Grievant timely appealed to Level III, and an evidentiary hearing was conducted by Grievance Evaluator Keith Huffman on January 4, 2000. A Level III decision denying the grievance was issued by Mr. Huffman on January 10, 2000. Grievant appealed to Level IV on January 18, 2000. On February 23, 2000, a Level IV hearing was conducted in this Grievance Board's office in Charleston, WestVirginia.   (See footnote 1)  At the conclusion of that hearing, the parties agreed on a briefing schedule, and this matter became mature for decision on March 23, 2000, the deadline for receipt of written post-hearing arguments.
      Based upon a preponderance of the credible evidence contained in the record established at Levels III and IV, the following Findings of Fact pertinent to resolution of this grievance have been determined.
FINDINGS OF FACT
      1.      Grievant is employed by Respondent West Virginia Public Employees Insurance Agency (PEIA) as its designated Controller. He holds the personnel classification of Accounting Services Manager III.
      2.      Kimberly Covert is PEIA's Chief Financial Officer. In that capacity, she serves as Grievant's immediate supervisor. Ms. Covert's first opportunity to rate Grievant arose in October 1999, after she had worked for PEIA approximately one and one-half years.
      3.      Robert L. Ayers is PEIA's Executive Director. Mr. Ayres was recommended for this position by unspecified individuals with leadership roles in the Democratic Party.
      4.      Prior to becoming an employee of PEIA approximately two and one-half years ago, Grievant served in various leadership roles with the Republican Party in West Virginia. Ms. Covert is also a member of the Republican Party.             5.      On October 4, 1999, Joseph F. Markus, Secretary of the West Virginia Department of Administration, issued a memorandum entitled “Merit Salary Increase Guidelines.” That memorandum contained the following provisions pertinent to this grievance:
      II.      Eligibility and Criteria


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J Ex 1 at L III (emphasis in original).
      6.      On October 26, 1999, Ms. Covert issued a performance evaluation to Grievant, rating his performance for the previous 12 months. PEIA employees are rated on a three-level scale where the highest rating (3) is assigned when an employee “exceeds expectations,” a median rating (2) is assigned when an employee “meetsexpectations,” and the lowest rating (1) is assigned when an employee “needs improvement.” Grievant was rated on 37 performance factors, receiving an “exceeds expectations” rating on 3 factors, a “meets expectations” rating on 30 factors, and a “needs improvement” rating on 4 factors. Applying a standard averaging formula, Grievant's ultimate “numeric score” for the rating period was 1.97.
      7.      Under the rating system employed by PEIA, a numeric score of 2.51 to 3.00 equates to a categorical rating of “exceeds expectations,” while 1.51 to 2.50 results in a “meets expectations” rating, and a score of 1.00 to 1.50 results in a “needs improvement” rating. Consistent with this scale, Grievant received an overall rating of “meets expectations.”
      8.      Prior to issuing Grievant's evaluation, Ms. Covert met with Mr. Ayers to review her proposed evaluation of Grievant. No changes in her initial evaluation resulted from that meeting. Grievant's political affiliation was not discussed with Mr. Ayers.
      9.      Grievant made no effort to challenge his 1999 performance evaluation through the grievance procedure.
      10.      In November 1999, Mr. Ayers determined that merit raises would be limited to those employees who received a 2.0 or higher rating on their most recent performance appraisal, reflecting “average” or better performance. Mr. Ayers had not previously identified any particular criteria that would be applied in awarding merit raises for 1999.
      11.      Attendance records were not specifically considered in awarding merit raises to PEIA employees in 1999.      12.      Grievant was determined to be ineligible for a merit raise based upon his overall performance evaluation score of 1.97. Two other PEIA employees who were otherwise eligible for a merit raise were not recommended for merit pay increases because their evaluation scores were under 2.00. J Ex 1 at L III.
      13.      All otherwise eligible PEIA employees with an overall score of 2.00 or higher on their most recent performance evaluation received merit raises ranging from 2.38 to 8.54%. J Ex 1 at L III. One employee who received an overall score above 2.00 and did not receive a merit raise was determined ineligible, apparently because she had taken a downgrade to a lower classification without loss of pay.
      14.      No PEIA employees with an overall score below 2.00 on their most recent performance evaluation received a merit raise. J Ex 1 at L III.
      15.      On October 25, 1999, Grievant rated a subordinate employee with an overall score of 2.30. G Ex C. When merit raises were distributed in PEIA, that employee's evaluation was recorded as a 2.32 overall score. It was not shown that the employee's official performance form was changed, or that the number recorded on the merit raise listing was anything more than a clerical error.
      16.      Ms. Covert and two other PEIA employees, whom she identified as having a Republican political affiliation, received 1999 performance ratings above the 2.00 level, and likewise received merit raises.
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 theW. 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).
      Grievant attempted to challenge his most recent performance evaluation, because this was the “recorded measure of performance” upon which the current cycle of merit raises was primarily based. 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).
      In any event, there was no credible evidence that Ms. Covert considered Grievant's political affiliation in rendering his performance evaluation, or that Grievant's politics was ever discussed with Mr. Ayers, who reviewed the evaluation before it was presented to Grievant. Indeed, Ms. Covert credibly testified that she did not raise or lower Grievant's rating after discussing her proposed rating with Mr. Ayers. Further, Grievant's evidence relating to his evaluation was very general, comparing his performance with other PEIA employees, not just those under Ms. Covert's supervision. Although Grievant was rated on 37 separate factors, there was no persuasive evidence that any one factor was rated improperly. As this Grievance Board has previously noted, rendering performance evaluations is not an exact science, and ratings may vary to some degree from rater torater. Collins v. W. Va. Dep't of Transp., Docket No. 98-DOH-103 (July 27, 1999). Grievant's contention that he should have been given a performance improvement plan is without merit, because such plans are only required under DOP Policy 17 (G Ex B at L IV) when an employee's performance falls below the “meets expectations” level. Grievant's performance was rated at the “meets expectations” level.   (See footnote 2) 
      Grievant claimed discrimination in violation of W. Va. Code § 29-6A-2(d) on the basis of his political affiliation and participation. Discrimination is defined in that Code section 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." W. Va. Code § 29-6A-2(d). This Grievance Board has determined that a grievant, in order to establish a prima facie case   (See footnote 3)  of discrimination under W. Va. Code § 29-6A-2(d), must demonstrate the following:



Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992). See Flint v. Bd. of Educ., No. 25898 (W. Va. Sup. Ct. of Appeals Dec. 10, 1999). Once a grievant establishes a prima facie case of discrimination under § 29-6A-2(d), the employer can offer legitimate reasons to substantiate its actions. Thereafter, the grievant may show that the reasons offered for disparate treatment are merely pretextual. Hickman v. W. Va. Dep't of Transp., Docket No. 94-DOH-435 (Feb. 28, 1995). See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986); Hendricks v. W. Va. Dep't of Tax & Revenue, Docket No. 96-T&R-215 (Sept. 24, 1996); Runyon v. W. Va. Dep't of Transp., Docket Nos. 94- DOH-376 & 377 (Feb. 23, 1995).
      Grievant is similarly situated to other employees in PEIA in that he was eligible for a merit raise under DOP's Administrative Rule, and he did not receive a merit raise, when nearly all other PEIA employees did receive merit raises.   (See footnote 4)  Accordingly, Grievant established a prima facie case of generic discrimination in regard to his not being awarded a merit raise in 1999. PEIA explained that Mr. Ayers determined that merit raise eligibility should be restricted to those employees who had an overall performance evaluation score of 2.0, or higher. This score represents an “average” score on the scale employed by the Department of Administration. Because performance evaluations are specifically tied to merit raises under DOP's Administrative Rule, PEIA has articulated a job-related reasonfor treating Grievant differently than other PEIA employees who received merit increases.       The ultimate issue is whether the 2.0 limitation was established as a pretext for discrimination against Grievant, on the basis of politics, or any other reason that is not job- related. The memorandum from Secretary Markus contains guidelines for merit raises in the Department of Administration. The only firm limitation in that guidance is that employees whose overall rating falls in the “needs improvement” category (below 1.50), will not be awarded merit raises. Secretary Markus encouraged, but did not require, agencies to give at least $600 annual raises to all employees who obtained scores in the “meets expectations” category, or better. Based upon Secretary Marcus' memorandum, all PEIA employees were eligible for merit raises.
      Mr. Ayers elected to raise the bar for merit raises, limiting eligibility to PEIA employees whose evaluations were at least “average.” Not every PEIA employee was rated above average by their supervisors. Thus, Grievant and two other employees with lower evaluations than Grievant, were eliminated from consideration.   (See footnote 5)  It is unfortunate that Grievant was disqualified from a merit raise despite receiving a “meets expectations” rating. However, Grievant has not pointed to any statute, law, policy, or regulation which precludes an agency from setting higher standards for merit raises, so long as the salary increases ultimately awarded are based upon job performance, or other measures of merit permitted under DOP's Administrative Rule. Indeed, had Mr. Ayers decided to limit merit raises to employees who received an overall “exceeds expectations” rating, he could havedone so. Although Mr. Ayers' decision to limit merit raises ended up impacting primarily upon Grievant, he has not demonstrated that this decision was directed solely at him, or made for any prohibited reason. See Crowder v. W. Va. Dep't of Tax & Revenue, Docket No. 94-T&R-545 (Feb. 28, 1995).
      Consistent with the foregoing discussion, the following Conclusions of Law are made in this matter.
      
CONCLUSIONS OF LAW

      1.      In a grievance which does not involve a disciplinary matter, the 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.      "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- 186 (Dec. 30, 1991).
      3.      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 Admin. 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).      4.      Discrimination is defined in W. Va. Code § 29-6A-2(d) 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.” In order to establish a prima facie case of discrimination under W. Va. Code § 29-6A-2(d), a grievant must demonstrate the following:




Parsons v. W. Va. Dep't of Transp., Docket No. 91-DOH-246 (Apr. 30, 1992); Hickman v. W. Va. Dep't of Transp., Docket No. 94-DOH-435 (Feb. 28, 1995).
      5.      Once a grievant establishes a prima facie case of discrimination under W. Va. Code § 29-6A-2(d), the employer can offer legitimate reasons to substantiate its actions. Thereafter, the grievant may show that the reasons offered for disparate treatment are merely pretextual. Hickman, supra. See Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981); Frank's Shoe Store v. W. Va. Human Rights Comm'n, 178 W. Va. 53, 365 S.E.2d 251 (1986).
      6.      Although Grievant established a prima facie case of discrimination in regard to his exclusion from merit raises awarded to virtually all other PEIA employees, his employer established that Grievant was excluded from consideration because his mostrecent performance evaluation was slightly below average, a reason that is properly related to job performance. Grievant failed to establish that this limitation was a pretext for improper discrimination on the basis of Grievant's political affiliation, or any other reason that was not job-related.

      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." 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.

                                                                                                  LEWIS G. BREWER
                                                ADMINISTRATIVE LAW JUDGE

Dated: March 31, 2000


Footnote: 1
      Grievant appeared pro se. PEIA was represented by Senior Assistant Attorney General Donald Darling, and Department of Administration Assistant General Counsel Heather A. Connolly.
Footnote: 2
      There was no evidence introduced to show what Grievant's evaluation had been for the prior year, or if he had even received another evaluation since coming to work for PEIA.
Footnote: 3
      A prima facie case generally refers to a set of facts which, if not rebutted or contradicted by other evidence, would be sufficient to support a ruling in favor of the party establishing such facts. See Black's Law Dictionary 1353 (4th ed. 1968).
Footnote: 4
      Grievant's “evidence” that he was the victim of political discrimination essentially involved nothing more than speculation and inference. Grievant presented no persuasive evidence to support this claim. See, e.g., Baker v. Bd. of Trustees, Docket No. 97-BOT- 359 (Apr. 30, 1998).
Footnote: 5
      It is not entirely clear from the record, but the evidence suggests that one of the other two employees retired, while a second employee was dismissed from employment, prior to the date merit raises became effective.