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:

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:

Grievant sought as relief:

      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:

      A grievant alleging discrimination must establish a prima facie case by demonstrating:
and,


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.

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:

These Rules go on to address the effect of a salary advancement as follows:




      

      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:

and,


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
       Grievant's supervisor responded to the first grievance at Level I on November 12, 1998, that he agreed that Grievant should receive a 5% merit increase. He responded to the second grievance on that same date, stating he agreed with Grievant. The grievances then proceeded to Level II, after being held in abeyance for a period of time while DOH sought a rule interpretation by the Division of Personnel. Grievant's second level supervisor responded on February 22, 1999, that he was without authority to grant the relief sought. Grievant appealed to Level III, where a hearing was held on April 28, 1999. Grievant waived the statutory timelines for issuance of a decision. The Level III decision denying the grievance was issued on April 10, 2000, with the long delay explained in the decision as being a result of chronic staffing problems. Grievant appealed to Level IV on April 24, 2000. This grievance was transferred to the undersigned for administrative reasons on May 30, 2000, and a Level IV hearing was held on June 21, 2000. Grievant appeared and represented himself. DOH did not appear for the hearing, and did not request a continuance. An unsuccessful attempt was made to locate DOH's attorney, Timbera Wilcox. The hearing was held without DOH. This matter became mature for decision on July 12, 2000, the deadline for submission of written argument. Neither party submitted written argument.
Footnote: 2
       Although Grievant also placed evidence in the record regarding merit increases awarded in the Spring of 1998, those merit increases were based upon employee performance during 1996. Grievant placed no evidence in the record regarding his own performance during 1996. Accordingly, whether Grievant should have received a merit increase in the Spring of 1998 will not be further addressed.