JOSEPH D. RIFFLE,

      Grievant,

v.                                                      Docket No. 99-DOT-485

DEPARTMENT OF TRANSPORTATION/
DIVISION OF HIGHWAYS,

      Respondent.

DECISION

      Joseph D. Riffle (“Grievant”) initiated this grievance on October 3, 1997, alleging he was improperly denied a merit raise. He seeks a 5% pay increase as relief. The grievance was denied at level one on October 9, 1997. Grievant appealed to level two, and the grievance was denied at that level on January 14, 1998. Upon appeal to level three, a hearing was held on August 14, 1998, followed by a written decision denying the grievance dated November 8, 1999. On November 16, 1999, Grievant requested a default judgment at level four, which was denied by Order dated March 3, 2000. A level four hearing was held in the Grievance Board's office in Elkins, West Virginia, on June 14, 2000. Grievant represented himself, and Respondent was represented by counsel, Nedra Koval. This matter became mature for consideration on July 11, 2000, upon receipt of Grievant's fact/law proposals.   (See footnote 1) 
      The following findings of fact are made from a preponderance of the evidence of record.

Findings of Fact
      1.      Grievant is employed by Respondent Division of Highways (“DOH”) as a Transportation Worker II Craftsworker.
      2.      On March 4, 1997, Grievant received his annual performance evaluation for the 1996 calendar year. Employees of DOH are rated in eight different categories and can receive one of three ratings in each category: “needs improvement,” “satisfactory,” or “exceeds expectations.”
      3.      Grievant received an overall rating of “meets or exceeds expectations” on his 1996 performance evaluation. However, he received a “needs improvement” rating in the category of attendance, with the comment from his supervisor that Grievant needed to “pay more attention to use of sick leave.” L III, Gr. Ex. 2.
      4.      DOH Secretary Fred VanKirk issued a memorandum dated June 17, 1997, to all DOH supervisors entitled “Merit Increase Program.” This memorandum provided guidelines for recommending merit raises, stating in part that 1996 performance evaluations would be used as the basis for all recommendations, and that “[a]ny employee who has received at least one 'Needs Improvement' on the subject evaluation is ineligible for an increase.” L III, Joint Ex. 1.
      5.      Six of the ten employees in Grievant's local organization received at least one “needs improvement” rating on their 1996 performance evaluations and were disqualified from receiving merit raises. The remaining four employees received merit increases.
      6.      Grievant made no effort to challenge his 1996 performance evaluation through the grievance procedure.      7.      Lawrence Knight, who is also employed at Grievant's local organization, received a “satisfactory” rating in the area of attendance, but his evaluation contained the comment “pay more attention to length of breaks.” Mr. Knight was one of the four employees who received a merit increase in 1997.
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 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).
      The majority of Grievant's arguments surround his allegations that he should not have received a “needs improvement” rating for attendance on his 1996 performance evaluation. If he had not received that rating, he would have been eligible for a merit increase in 1997. However, Grievant did not grieve that evaluation at the time it was performed. 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). Accordingly, Grievant cannot now challenge the propriety of his performance rating in 1996. Because Grievant's allegations of discrimination and harassment are based upon the rating he received on that evaluation which he did not grieve, they must fail.      Grievant also alleges that Mr. Knight, who received a merit raise in 1997, should not have been eligible, because his performance evaluation was not performed correctly. Specifically, Grievant alleges that Mr. Knight should also have received a “needs improvement” rating for attendance, because the comment was made that he needed to pay more attention to the length of breaks. Grievant argues that this constitutes favoritism, which is defined by W. Va. Code § 29-6A-2(h), as "unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees." In order to establish a prima facie showing of favoritism, a grievant must establish the following:


      and,


Frantz v. W. Va. Dep't of Health & Human Resources, Docket No. 99-HHR-096 (Nov. 18, 1999); Blake v. W. Va. Dep't of Transp., Docket No. 97-DOH-416 (May 1, 1998). See McFarland v. Randolph County Bd. of Educ., Docket No. 96-42-214 (Nov. 15, 1996). If grievant establishes a prima facie case of favoritism, a respondent may rebut this showing by articulating a legitimate reason for its action. However, the grievant can still prevail if he can demonstrate that the reason proffered by respondent was mere pretext. Prince v. Wayne County Bd. of Educ., Docket No. 90-50-281 (Jan. 28, 1990).      Under the circumstances presented here, Grievant has failed to establish a prima facie case of favoritism. Because the merits of the evaluations themselves are not before this Grievance Board at this time, the only remaining issue is whether or not the raises were properly granted. DOH has provided a clear justification for why Grievant was not granted a raise and Mr. Knight was, based upon Commissioner VanKirk's directive regarding who would be eligible for merit raises.
      Moreover, it is irrelevant to the issue presented in this case whether Mr. Knight's merit raise was properly granted or not. Whether or not Mr. Knight received a raise would have no effect on whether or not Grievant received one. As previously discussed, it is obvious that Grievant's eligibility for a merit increase was decided based upon the Commissioner's policy. This Grievance Board has previously held that there is nothing which prohibits an employer from setting higher standards of performance for eligibility for merit raises, so long as the raises are ultimately awarded based upon job performance and other measures of merit as set forth in DOP's Administrative Rule. Stover v. W. Va. Dep't of Admin., Docket No. 00-ADMN-024 (March 31, 2000). Grievant has failed to establish that his eligibility for a merit raise in 1997 was based upon any improper considerations.
      Consistent with the foregoing, the following conclusions of law are made.
Conclusions of Law

      1.      In non-disciplinary matters, 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.      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).
      3.      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).
      4.      Grievant did not grieve his 1996 performance evaluation in a timely manner, so he cannot challenge it within the context of this grievance regarding merit raises.
      5.      There is nothing which prohibits an employer from setting higher standards of performance for eligibility for merit raises, so long as the raises are ultimately awarded based upon job performance and other measures of merit as set forth in DOP's Administrative Rule. Stover v. W. Va. Dep't of Admin., Docket No. 00-ADMN-024 (March 31, 2000).
      6.      Grievant has failed to establish that DOH's determination that he was ineligible for a merit raise in 1997, due to having received a “needs improvement” rating on his 1996 performance evaluation, was based upon any improper factors.
      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, and 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.

Date:      July 19, 2000                  ___________________________________
                                          DENISE M. SPATAFORE
                                          Administrative Law Judge


Footnote: 1
      Respondent elected not to file a post-hearing submission.