6. Please make your recommendations using a total merit dollars
base of no more than 5 % of your agency's total payroll.
7. Division of Personnel Administrative Rule, Section 5.8(c), limits
merit salary increases to a maximum of 10 % in any twelve-month period.
8. Given the performance criteria, I strongly recommend that the
minimum increase be $600 (except for low performance).
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.
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:
(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;
(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.
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:
(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;
(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.
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