ROBERT JONES,

                  Grievant,

v.                                                DOCKET NO. 00-RS-046

DIVISION OF REHABILITATION SERVICES
and DIVISION OF PERSONNEL,

                  Respondents.

D E C I S I O N


      This grievance was filed by Grievant, Robert Jones, against Respondent, Division of Rehabilitation Services ("DRS"), on November 30, 1999, alleging he had been treated unfairly when merit raises were awarded, and seeking “to be recognized for a merit pay increase.”
      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 was employed by DRS as a Senior Disability Evaluation Specialist.   (See footnote 2) 
      2.      James S. Jeffers, former Director of DRS, issued a Memorandum to managers and supervisors on August 31, 1999, providing general instructions for recommending merit increases. The memorandum indicates that no more than 30% of existing permanent staff could be recommended for merit increases, and merit increases could not be awarded to employees whose performance evaluations did not reflect a rating of at least 4.0 in quantity of cases processed, 4.0 in quality of work, and 4.0 overall. These criteria were not used in awarding merit increases the previous year.
      3.      The rating on the employee performance evaluation in quantity of cases is determined using a formula which has been in place for a number of years. The total number of cases processed by the employee is divided by the number of weeks in the year, and that number has been assigned a numerical rating on the evaluation.
      4.      Merit increases for the 1998-99 fiscal year appeared in DRS employee paychecks issued October 31, 1999.
      5.      Grievant's overall rating on his performance evaluation was 4.7 out of a possible 5.0. His rating in quantity of cases processed was 3.0. Grievant received a rating of 5.0 in 8 out of 10 categories, including work quality, and a rating of 4.0 in communication ability. Grievant was not eligible for a merit increase and did not receive one.       6.      During the 1998-99 fiscal year, Grievant acted as a part-time hearing officer, and conducted eight hearings. Preparation, case review, the hearing itself, and writing the decisions took Grievant at least 16 days. In addition, other employees often came to him with questions, and seeking his advice. On average, he spent about one hour a day assisting other employees. He also took on other duties consistent with his classification. His supervisor, Daniel Kalo, considered all of these activities on Grievant's performance evaluation.
      7.      Mr. Kalo supervises 10 employees, including two other Senior Disability Evaluation Specialists. One of the other Senior Disability Evaluation Specialists received a merit increase. She received at least a 4.0 in quantity and quality of work, and received a 4.7 rating overall on her 1998-99 performance evaluation. The record does not reflect the ratings of any other employees who received merit increases.
      8.      This grievance was filed on November 30, 1999, after Grievant met with Jane Johnstone on November 23, 1999, and was informed for the first time what criteria were used in awarding merit increases. Grievant had sent a letter to Ms. Johnstone on November 22, 1999, asking what criteria had been used.
      9.      Respondent raised a timeliness defense at Level II.
Discussion

      DRS asserted this grievance should be dismissed as untimely filed. The burden of proof is on the respondent asserting that a grievance was not timely filed to prove this affirmative defense by a preponderance of the evidence. Hale and Brown v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996). If the respondent meets this burden,the grievant may then attempt to demonstrate that he should be excused from filing within the statutory timelines. Kessler v. W. Va. Dep't of Transp., Docket No. 96-DOH-445 (July 29, 1997).
      The first issue which needs to be addressed is whether this defense was timely raised by DRS. Effective July 1, 1998, W. Va. Code § 29-6A-3 requires the respondent to raise the issue of timeliness at or before Level II. DRS did so.
      As to when a grievance must be filed, W. Va. Code § 29-6A-3(a) provides, in pertinent part:
      A grievance must be filed within 10 days following the occurrence of the event upon which the grievance is based. W. Va. Code § 29-6A-4(a) provides, in pertinent part:
Only working days are counted in determining when the 10 day time period runs for filing a grievance. Holidays are not counted. W. Va. Code § 29-6A-2(c).
      The time period for filing a grievance ordinarily begins to run when the employee is unequivocally notified of the decision being challenged. Harvey, supra; Kessler v. W. Va. Dep't of Transp., Docket No. 96-DOH-445 (July 28, 1997). See Rose v. RaleighCounty Bd. of Educ., 199 W. Va. 220, 483 S.E.2d 566 (1997); Naylor v. W. Va. Human Rights Comm'n, 180 W. Va. 634, 378 S.E.2d 843 (1989). In this particular matter, Grievant received notice on or about October 31, 1999, that he had not received a merit increase. He did not file his grievance within 10 days of learning he had not received a merit increase.
      Grievant argued, however, that he did not know what criteria were used in awarding merit increases until November 23, 1999, and the grievable event occurred when he became aware of this. Grievant waited from October 31, 1999, until November 22, 1999, to inquire about the criteria. He gave no explanation for this delay.   (See footnote 3)  The grievable event was the failure to receive a merit increase, not knowledge of the criteria. Grievant's delay in filing a grievance over the failure to receive a merit increase is not excused by the fact that he was not aware of the criteria for awarding merit increases at the time they were awarded.
      Even if this grievance were timely filed, Grievant would not prevail. 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).       In this case, DRS based the merit increases on performance evaluations. In addition to looking to the overall rating, it looked to two other areas of the performance evaluation, quantity and quality, and required a minimum rating in those categories as well in order to be eligible for a merit increase.

Tucci v. Dep't of Transp., Docket No. 94-DOH-592 (Feb. 28, 1995) (footnote omitted). DRS's policy for awarding merit increases is likewise not inconsistent with the Division of Personnel's Administrative Rules regarding how merit increases are to be awarded. See Woods v. Dep't of Health and Human Resources, Docket No. 97-HHR-248 (Sept. 22, 1997).
      Grievant did not contest the ratings he received on his performance evaluation. His argument was that he should have been told what criteria would be used to award merit raises so he could have focused on those areas, and that he was discriminated againstbecause he has taken on other duties which resulted in his lesser rating in quantity of cases processed. Indeed, Grievant was not treated fairly in this regard, although he has pointed to no law, rule, or policy which requires that an employee be told what factors will be utilized in awarding merit increases. From all indications Grievant was a good, hard working employee who performed valuable services for his employer. His evaluation was excellent. Had he been told he had to meet a certain case quota in order to qualify for a merit increase, he would have had the opportunity to make adjustments to at least try to achieve this goal.
      However, “[a] grievant must demonstrate more than a flaw in the merit increase process. As previously stated, a grievant must also demonstrate that, had the process been properly conducted, she would have received a merit increase. Stone v. W. Va. Alcohol Beverage Control Comm'n, Docket No. 97-ABCA-151 (Aug. 21, 1997).” Karr v. W. Va. Bureau of Employment Programs, Docket No. 98-BEP-145 (Aug. 28, 1998). Grievant did not point to any other employee who received a merit increase who was less deserving than he was. To the contrary, the only evidence regarding another employee who received a merit increase was an employee in the same classification as Grievant, whose overall performance evaluation rating was identical to Grievant's, and in addition, she had processed enough cases to receive at least a 4 in quantity, whereas Grievant received a 3. “Obviously, many employees have good evaluations and would be deserving of a merit increase. Unfortunately, there will always be a limited number of merit increases to award, and management decisions have to be made about who should receive them, utilizing the evaluations and the guidelines. See Bittinger v. Bureau of EmploymentPrograms, Docket No. 98-BEP-164 (Dec. 7, 1998).” Collins v. Dep't of Transp., Docket No. 98-DOH-103 (July 27, 1999).
      The following Conclusions of Law support the Decision reached.
Conclusions of Law

      1.      The burden of proof is on the party asserting that a grievance was not timely filed to prove this affirmative defense by a preponderance of the evidence. Hale and Brown v. Mingo County Bd. of Educ., Docket No. 95-29-315 (Jan. 25, 1996).
      2.      A grievance must be filed within 10 working days following the occurrence of the event upon which the grievance is based. W. Va. Code § 29-6A-4(a).
      3.      The event upon which the grievance was based was the award of merit increases. Grievant was aware on October 31, 1999, that he did not receive a merit increase. He did not file his grievance within 10 days of learning he did not receive a merit increase.
      4.      No facts were shown which would excuse Grievant's late filing.

      Accordingly, this grievance is DENIED.

      Any party 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 theGrievance 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:      June 22, 2000


Footnote: 1
       Grievant's supervisor responded at Level I on December 2, 1999, that he was unable to grant the relief sought. Grievant appealed to Level II on that same day. His second level supervisor likewise responded that he was without authority to grant the relief sought, and indicated that the grievance was untimely. Grievant appealed to Level III, where a hearing was held on January 18, 2000. The hearing examiner recommended that this grievance be granted, however, that recommendation was rejected by Janice A. Holland, Interim Director, by Decision denying the grievance on January 31, 2000. Grievant appealed to Level IV on February 2, 2000. A Level IV hearing was held on March 28, 2000. Grievant represented himself, DRS was represented M. Claire Winterholler, Esquire, and the Division of Personnel was represented by Lowell D. Basford, Assistant Director, Classification and Compensation Division. This matter became mature for decision on April 13, 2000, upon receipt of DRS' written argument. Neither Grievant nor Personnel submitted written argument.
Footnote: 2
Grievant found other employment and resigned his position. His last day of employment for DRS was March 20, 2000.
Footnote: 3
DRS did not explain why employees were not told the criteria used in awarding merit increases either before they were awarded or at the time they were awarded. This information would certainly be important to an employee.