PETER SAUCHUCK,
            Grievant,

v.                                                 Docket No. 00-PEDTA-059

WEST VIRGINIA PARKWAYS ECONOMIC
DEVELOPMENT AND TOURISM AUTHORITY,
            Respondent.

D E C I S I O N

      Grievant, Peter Sauchuck, filed this grievance against the West Virginia Parkways Economic Development and Tourism Authority ("PEDTA"), on or about May 27, 1999. His Statement of Grievance reads:

      This grievance was denied at all lower levels and appealed to Level IV on February 14, 2000.   (See footnote 1)  A Level IV hearing was held on October 5, 2000, in the Grievance Board's Beckley Office. This grievance became mature for decision on November 15, 2000, after receipt of Respondent's proposed findings of fact and conclusions of law.   (See footnote 2) 
Issues and Arguments

      Grievant contends his years of service from another State agency should be applied or transferred to his years of service at PEDTA, and after his ninety day probationary period, he should have received the same pay as a PEDTA employee with ten plus yearsof service. Grievant notes his increment pay, retirement, and sick and annual leave were transferred.       
      Respondent asserts Grievant was paid exactly what he was told he would be paid, and after the probationary period, he received the same raise all new employees in his classification received. Respondent notes Grievant was never told he would receive a raise commensurate with a ten year employee, and indeed, Grievant did not know the pay scale of a ten year employee until some time after he started work.
      After a detailed review of the record in its entirety, the undersigned Administrative Law Judge makes the following Findings of Fact.
Findings of Fact

      1.      Grievant applied for a position with PEDTA, after hearing about the job opening through word of mouth. He never saw a job posting for the position.
      2.      At the time of his application, Grievant had worked for the Department of Health and Human Resources at Pinecrest Hospital for approximately eleven years.
      3.      Grievant was interviewed and selected by PEDTA's Selection Board. During this interview, Grievant did not ask, nor he was he told he would receive a raise commensurate with a PEDTA employee with ten plus years of service after the ninety day probationary period.
      4.      Grievant was told his beginning salary would be $6.62 an hour, and it was.
      5.      In a letter dated February 10, 1999, from then General Manager William Gavin, Grievant was again informed his starting salary would be $6.62 an hour. This letter also stated:
      6.      This letter noted Grievant's starting date was February 22, 1999, and Grievant should contact Carrie Roaché if he had any questions.
      7.      Sometime after receiving this letter, Grievant contacted Ms. Roaché, but he did not ask if he would receive the pay of a ten plus year employee after ninety days.
      8.      Grievant received his orientation from Ms. Roaché on February 23, 1999. She told him what his starting salary would be, and that he would probably receive a pay increase after ninety days. She did not state the amount of this increase, as the pay scale is subject to change. She also did not state he would be paid as an employee with ten plus years of service with PEDTA after ninety days.   (See footnote 3) 
      9.      Grievant did not ask Ms. Roaché at his orientation if he would be paid as an employee with ten plus years of service with PEDTA after ninety days.
      10.      After Grievant had been employed by PEDTA for approximately two weeks to a month, he saw a pay scale for his classification posted at work. He assumed he would receive a pay increase to a ten plus year employee after the first ninety days, an increase in his rate of pay to $14.30. He did not clarify this assumption with anyone.      11.      Grievant's salary increased to $8.83 an hour as noted on the pay chart after the ninety probationary period.
      12.      After Grievant did not receive the pay increase he believed would get, he filed this grievance.
      13.      No evidence was submitted to demonstrate that any other new hire had ever received the amount or type of pay increase based on years of service with another State agency Grievant assumed would occur.
      14.      Pay rates for classifications are set out in PEDTA's pay chart, and this chart denotes the raises after three months, six months, twelve months, eighteen months, twenty-four months, etc.
      15.      PEDTA's past practice has always been to interpret years of service to mean years of service with PEDTA.
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 the W. Va. Educ. & State Employees Grievance Bd. 156 CSR. 1 § 4.19 (1996); Howell v. W. Va. Dep't of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990). See W. Va. Code § 29-6A-6. See also Holly v. Logan County Bd. of Educ., Docket No. 96-23- 174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988).
      While it is understandable that Grievant would like to receive an eight dollar an hour pay increase after working three months at PEDTA, there is no evidence to suggestGrievant was promised this increase, or that any other similarly situated employee has ever received such an increase. General Manager Gavin's letter was very specific as to what benefits would transfer, and what would be different. If Grievant had questions or assumptions of which PEDTA was unaware, he had the responsibility to clarify them.
      Although PEDTA could have chosen to transfer the years of service for new hires who had formerly served with another State agency, this determination is a management decision. Grievant did not identify any statute, policy, rule, or regulation that is being violated by PEDTA's decision to treat all incoming PEDTA employees as new hires. Ms. Roaché testified there is no policy on this specific subject, as it has never been raised as an issue before; thus, there was no necessity to formulate a policy.
      As previously held by this Grievance Board, "[a] [g]rievant's belief that his supervisor's management decisions are incorrect is not a grievable event unless these decisions violate some rule, regulation, or statute, or constitute a substantial detriment to or interference with his effective job performance or health and safety." Ball v. Dep't of Highways, Docket No. 96-DOH-141 (July 31, 1997). See W. Va. Code § 29-6A-2(i); Rice v. Dep't of Transp./Div. of Highways, Docket No. 96-DOH-247 (Aug. 29, 1997). Grievant has not shown such violations, interference, or detriment.
This grievance can also be interpreted as Grievant's' disagreement with PEDTA's interpretation of a term, "years of service pay". It is well within PEDTA's authority and responsibility to make such management decisions and to interpret the term "years of service" to means the years an employee works for PEDTA. Such management decisions are to be judged by the arbitrary and capricious standard.       "Generally, an action is considered arbitrary and capricious if the agency 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 was so implausible that it cannot be ascribed to a difference of opinion. See Bedford County Memorial Hosp. v. Health and Human Serv., 769 F.2d 1017 (4th Cir. 1985); Yokum v. W. Va. Schools for the Deaf and the Blind, Docket No. 96-DOE-081 (Oct. 16, 1996)." Trimboli v. Dep't of Health and Human Resources, Docket No. 93-HHR-322 (June 27, 1997). Arbitrary and capricious actions have been found to be closely related to ones that are unreasonable. State ex rel. Eads v. Duncil, 198 W. Va. 604, 474 S.E.2d 534 (1996). An action is recognized as arbitrary and capricious when "it is unreasonable, without consideration, and in disregard of facts and circumstances of the case." Eads, supra (citing Arlington Hosp. v. Schweiker, 547 F. Supp. 670 (E.D. Va. 1982)). " While a searching inquiry into the facts is required to determine if an action was arbitrary and capricious, the scope of review is narrow, and an administrative law judge may not simply substitute her judgment for that of a board of education. See generally, Harrison v. Ginsberg, [169 W. Va. 162], 286 S.E.2d 276, 283 (W. Va. 1982)." Trimboli, supra.
      Where the plain language of a policy, memo, or agency document does not compel a different result, some deference must be extended to the agency in interpreting its own materials. See Dyer v. Lincoln County Bd. of Educ., Docket No. 95-22-494 (June 28, 1996). Where the language in a policy is susceptible to varying interpretations, this Grievance Board will give reasonable deference to the agency's interpretation of its own memos or charts. See Dyer, supra; Edwards v. W. Va. Parkways Dev. and Tourism Auth.,Docket No. 97-PEDTA-420 (May 7, 1998). See generally W. Va. Dep't of Health v. Blankenship, 189 W. Va. 342, 431 S.E.2d 681 (1993); Princeton Community Hosp. v. State Health Planning & Dev. Agency, 174 W. Va. 558, 328 S.E.2d 164 (1985); Jones v. Bd. of Trustees, Docket No. 94-MBOT-978 (Feb. 29, 1996); Foss v. Concord College, Docket No. 91-BOD-351 (Feb. 19, 1993). Thus, PEDTA's interpretation of the provisions in its pay chart and the term "years of service pay" is entitled to some deference by this Grievance Board, unless this interpretation is inherently unreasonable. Dyer, supra. See also Watts v. W. Va. Dep't of Health & Human Resources, 195 W. Va. 430, 465 S.E.2d 877 (1995).
      Again it is understandable Grievant would wish to receive a large increase after three months, PEDTA's interpretation of the term is reasonable, based on past practice, and is not arbitrary and capricious. The difference between paying a new employee eight dollars and fourteen dollars and hour is significant. Further, it is appropriate for PEDTA to seek to reward its long-term employees for their years of service, and allowing an employee with ninety days with the agency to receive the same compensation as a ten year employee could have a serious effect on the morale of more senior employees.
      It also appears Grievant is arguing he has been discriminated against in some way. W. Va. Code § 29-6A-2(d) defines discrimination 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."
      To prove discrimination a grievant must establish a prima facie case which consists of demonstrating:

      and,


If a grievant establishes a prima facie case, a presumption of discrimination exists, which the respondent can rebut by presenting a legitimate, nondiscriminatory reason for the action. However, a grievant may still prevail if he can demonstrate the reason given by the respondent was pretextual. Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      Grievant has not established a prima facie case. He failed to identify any other similarly situated employee who was treated differently.
      The above-discussion will be supplemented by the following Conclusions of Law.
Conclusions of Law

      1.      As this grievance does not involve a disciplinary matter, Grievant has the burden of proving of his grievance by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State Employees Grievance Bd. 156 CSR 1 § 4.19 (1996); Howell v. W. Va. Dep't of Health & Human Resources, Docket No. 89-DHS-72 (Nov. 29, 1990). See W. Va. Code § 29-6A-6. See also Holly v. Logan County Bd. of Educ., Docket No. 96- 23-174 (Apr. 30, 1997); Hanshaw v. McDowell County Bd. of Educ., Docket No. 33-88-130 (Aug. 19, 1988).       2.      A grievant's belief that his supervisor's management decisions are incorrect is not grievable unless these decisions violate some rule, regulation, or statute, or constitute a substantial detriment to, or interference with, the employee's effective job performance or health and safety. W. Va. Code § 29-6A-2(i). See, Rice v. Dep't of Highways, Docket No. 96-DOH-247 (Aug. 29, 1997); Ball v. Dep't of Highways, Docket No. 96-DOH-141 (July 31, 1997).
      3.      Grievant did not demonstrate PEDTA's decision to treat all incoming employees as new hires violated some rule, regulation, policy, or statute, or constituted a substantial detriment to, or interference with, his effective job performance or health and safety.
      4.      Grievant did not demonstrate PEDTA's management decision, the interpretation of the term "years of service pay", was arbitrary and capricious.
      5.      W. Va. Code § 29-6A-2(d) defines discrimination 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."
      6.      To prove discrimination a grievant must establish a prima facie case which consists of demonstrating:


      and,

If a grievant establishes a prima facie case, a presumption of discrimination exists, which the respondent can rebut by presenting a legitimate, nondiscriminatory reason for the action. However, a grievant may still prevail if he can demonstrate the reason given by the respondent was pretextual. Steele v. Wayne County Bd. of Educ., Docket No. 89-50-260 (Oct. 19, 1989).
      7.      Grievant has not met his burden of proof and demonstrated PEDTA has discriminated against him in any way. Grievant did not establish any other employee has been treated differently than he, and received the assumed pay increase.
      Accordingly, this grievance is DENIED.

      Any party 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.                                                                                                  JANIS I. REYNOLDS
                                           ADMINISTRATIVE LAW JUDGE

Dated: December 28, 2000


Footnote: 1
      Grievant also claimed a default occurred at Level II. This claim was denied on December 15, 1999, by Docket No. 99-PEDTA-297D.
Footnote: 2
      Grievant was represented by Boyd Lilly a co-worker and union member, and Respondent was represented by General Counsel, David Abrams.
Footnote: 3
      At the Level IV hearing, Grievant testified Ms. Roaché went over the material too quickly, but he did not complain about this until after he had filed his grievance. However, Grievant signed his Orientation Checklist under the statement, "[t]he above items have been discussed with me and explained to my satisfaction."