HARRY D. HONAKER,

                              Grievant,

v.


WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,
DIVISION OF HIGHWAYS,

                              Respondent.

DECISION
      Harry D. Honaker (Grievant), a Transportation Services Supervisor employed by Respondent W. Va. Department of Transportation, Division of Highways (DOH), District 9, filed a grievance pursuant to W. Va. Code §§ 29-6A-1, et seq., alleging that he was the victim of discrimination in the granting of merit pay increases by DOH. This grievance was denied at Level I, on April 14, 1998, by Eugene Ray Tuckwiller, and at Level II, on April 16, 1998, by Regional Operations Engineer Robert C. Ware (Ware). A Level III grievance hearing was held on September 29, 1998, before Hearing Examiner Brenda Craig Ellis. Grievant was represented at this hearing by Steve Rutledge of the American Federation of State, County and Municipal Employees Council 77, and DOH was represented by Nedra Koval, Esq. By correspondence dated September 14, 1999, the grievance was denied at Level III by DOH Commissioner Samuel H. Beverage.   (See footnote 1)  A Level IV hearing was held on November 15, 1999, at the Grievance Board's Beckley office, before the undersigned administrative law judge. At this hearing, Grievant was again represented bySteve Rutledge, and DOH was represented by Krista Duncan, Esq. The parties were given until December 13, 1999, to submit proposed findings of fact and conclusions of law, and this matter became mature for decision on that date.
      The following Findings of Fact pertinent to resolution of this matter have been determined based upon a preponderance of the credible evidence of record.
FINDINGS OF FACT
      1 Grievant is employed by DOH as a Transportation Services Supervisor, commonly known as a Sign Shop Supervisor. Grievant works at DOH's District Nine Area Sign Shop in Lewisburg, also known as Organization #0997.
      2.      Each time merit pay increase money becomes available, DOH formulates a policy governing how that money is to be distributed.
      3.      As money for merit pay increases becomes available, DOH allocates that money among its ten districts. Within each district, the District Engineer/Administrator distributes the money to the organizations within the district.
      4.      In District Nine, in 1998, a separate pool of merit pay increase money was designated for supervisors.
      5.      Other District Nine supervisors are David Austin (Austin), a Supervisor II at the Equipment shop (DOH Organization #0970), who supervises approximately three subordinates; Martin Smith (Smith), a Transportation Crew Chief who supervises approximately five buildings and grounds subordinates within DOH Organization #0957; Delmas Waid (Waid), a Construction Superintendent who supervises approximately fifteen bridge building subordinates within DOH Organization #0998; and Stephen Wade (Wade),a Supervisor II who supervises approximately ten maintenance subordinates within DOH Organization #0958.
      6.      Between January 1, 1989, and April 8, 1998, the filing date of this grievance, Austin received six merit pay increases totaling $798.00; Smith received two merit pay increases totaling $389.00; Waid received six merit pay increases for a total that cannot be determined from the record;   (See footnote 2)  and Wade received five merit pay increases totaling $616.00.   (See footnote 3) 
      7.      DOH has a Sign Shop Supervisor in each of its ten districts.
      8.      DOH collects and distributes data comparing the relative performance of its ten sign shop organizations.
      9.      These data show that, among seven of DOH's ten sign shop organizations,   (See footnote 4)  for the year preceding June 30, 1998, Grievant's organization painted the most miles of white roadway striping, the second most miles of yellow roadway striping, and the most roadway striping overall.
      10.       DOH did not compare Grievant with its nine other Sign Shop Supervisors when it awarded merit pay increases.
      11.      Between January 1, 1989, and April 8, 1998, the filing date of this grievance,District One Sign Shop Supervisor James Russell received six merit pay increases totaling $680.00; District Two Sign Shop Supervisor Edwin Layman received four merit pay increases for a total that cannot be determined from the record; District Three Sign Shop Supervisor Robert Dailey received six merit pay increases totaling $726.00; District Four Sign Shop Supervisor Francis Knight received five merit pay increases totaling $539.00; District Five Sign Shop Supervisor Larry Biser received three merit pay increases for a total that cannot be determined from the record; District Six Sign Shop Supervisor James Wurtzbacher received four merit pay increases for a total that cannot be determined from the record; District Seven Sign Shop Supervisor Richard Thomas received four merit pay increases totaling $314.00; District Eight Sign Shop Supervisor Ronald Wyatt received four merit pay increases for a total that cannot be determined from the record; Grievant received three merit pay increases totaling $533.00; and District Ten Sign Shop Supervisor Noah Whitlow received six merit pay increases for a total that cannot be determined from the record.
      12.      DOH's Administrative Operating Procedures provide for granting merit increases to a limited number of employees based upon meritorious performance, while taking into consideration such factors as equitable pay relationships and length of service.
DISCUSSION

      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 defined as“evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      
Grievant alleges that he was the victim of discrimination in the granting of merit pay increases by DOH, and seeks a salary adjustment retroactive to ten days before this grievance was filed. Under 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 § 5.8(a) (1998). See King v. W. Va. Dep't of Transp., Docket No. 94-DOH-340 (Mar. 1, 1995). Only "information that has been preserved in written form and can be referred to for later assessment" may be considered a "recorded measure of performance." Hodges v. W. Va. Dep't of Health and Human Resources, Docket No. 97-HHR-190 (Apr. 13, 1998). See Woods v. Dep't of Health and Human Resources, Docket No. 97-HHR-248 (Sept. 22, 1997); Riffle v. W. Va. Dep't of Transp., Docket No. 92-DOH-138 (Aug. 21, 1992); Tallman v. W. Va. Div. of Highways, Docket No. 91-DOH-162 (Jan. 31, 1992).
      A grievant must demonstrate more than a flaw in the merit increase process. A grievant must also demonstrate that, had the process been properly conducted, he would have received a merit increase. Stone v. W. Va. Alcohol Beverage Control Comm'n, Docket No. 97-ABCA-151 (Aug. 21, 1997). An employer's decision on merit increases willgenerally 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-185 (Dec. 30, 1991); Osborne v. W. Va. Div. of Rehabilitation Serv., Docket No. 89-RS-051 (May 16, 1989). Grievants seeking merit increases must prove they were more entitled to the increase than another employee who received one. Tallman, supra.
      However, this Grievance Board has found that an agency's decision to grant a lower ranked employee a merit increase when a higher ranked employee does not receive one to be incorrect, if all other factors are equal. Setliff v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 97-DOH-262 (July 27, 1998); Morris, supra; Ratliff v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 96-DOH-004 (Jan. 31, 1997); Parsons/Clemmer v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 97-DOH-289 (Oct. 30, 1997).
      Grievant does not claim discrimination with respect to any particular round of merit pay increases, although his evidence tended to focus on the 1998 round of merit pay increases, but rather that he was the victim of discrimination because an inequitable relationship exists between his pay and the pay of others to whom he argues he is similarly situated.
      DOH's Administrative Operating Procedures, Volume IX, Chapter 15, Section C (Rev. August 15, 1981) at pp. 1-2, state, in pertinent part, as follows: “MERIT INCREASE POLICY[:] Purpose: [t]he purpose of this policy is to provide for granting merit increases to a limited number of employees (both hourly and salaried) based upon meritorious performance, while taking into consideration such factors as equitable pay relationships and length of service.”       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 by the employees." To establish a prima facie case of discrimination, Grievant must show:



Hendricks v. W. Va. Dep't of Tax and Revenue
, Docket No. 96-T&R-215 (Sept. 24, 1996).       Once the grievant establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, a grievant may still prevail if he can demonstrate the reason given by the respondent was mere pretext. Steele v. Wayne County Bd. of Educ., Docket No. 89-50- 260 (Oct. 19, 1989).
      DOH argues that Grievant is not similarly situated to other supervisors within the pool of District Nine supervisory employees eligible for merit pay increases, because he is in a different organization and classification than they are, and is not similarly situated to other Sign Shop Supervisors in other DOH districts, because they were not within the pool of District Nine supervisory employees eligible for merit pay increases. Under DOH's view, Grievant is an island unto himself, unable to compare his record of merit pay increases to any other DOH employee.       However, the uncontradicted and credible testimony of Ware and Black established that DOH established a pool of merit pay increase money for supervisors within District Nine, and it is well settled that Grievant may compare himself to other DOH employees within the pool of District Nine supervisors eligible for merit pay increases, even if they are differently classified. Tallman, supra (Heavy Equipment Operator II compared to Maintenance Crew Leader I), Hall v. W. Va. Dep't of Transp./Div. Of Highways, Docket No. 96-DOH-035 (Jan. 31, 1997)(Transportation Worker II compared to Supervisor), Ratliff, supra (Transportation Worker II compared to Equipment Operator IIs and Crew Leaders).       Accordingly, Grievant is similarly situated to other DOH employees within the pool of District Nine supervisors eligible for merit pay increases, and Grievant may attempt to show that he was more entitled to a merit pay increase than another employee who received one.
      The evidence in this grievance establishes that the two District Nine supervisors who received merit pay increases in 1998, Waid and Austin, had either better evaluations or more seniority than Grievant. Performance evaluations and length of service are among the “recorded measures of performance” to be employed when determining which employees deserve merit pay increases. King, supra, Hodges, supra.
      In 1997, the last year from which performance evaluations were made part of the record, Waid was rated as successful overall, while exceeding expectations in three categories. Austin's 1997 evaluation rated him as successful overall, with no “exceeds,” as did Grievant's. Regarding length of service, Waid began working for DOH in 1971,Austin in 1978, and Grievant in 1987.   (See footnote 5)  It thus appears that Waid had better evaluations than Grievant, and Austin had more seniority. Accordingly, Grievant has failed to establish that he was more entitled to a merit pay increase than another employee who received one, and has also failed to show that his different treatment, in not being awarded a merit pay increase while Waid and Austin were each awarded one, was unrelated to their actual job responsibilities. Grievant has failed to establish a prima facie case of discrimination with respect to the District Nine supervisors who were in his 1998 merit pay increase pool.
      As noted above, Grievant also argues that he is similarly situated to the nine other Sign Shop Supervisors in the nine other DOH districts. DOH responds that Grievant cannot be compared to them, because they are in different pools for merit increase purposes, they are evaluated by different supervisors, and to do so would introduce rater variability to the process. DOH also contends that permitting employees to compare themselves to employees in other districts would be prohibitively unwieldy, as DOH has some 5,000 employees.
      For the following reasons, the undersigned concludes that Grievant is similarly situated to the other nine Sign Shop Supervisors. They hold identical positions, perform identical work, and are apparently identically classified as #8377 Transportation Services Supervisors. All ten Sign Shop Supervisors were equally subject to DOH's statewide merit pay increase plan. DOH introduced no evidence to show why the striping of roadways in other areas of the state was different than in District Nine, and the classification specification for the Transportation Services Supervisor position does not distinguishbetween Transportation Services Supervisors working in different regions of the state. DOH makes a valid point when it argues that allowing pay comparisons among some 5,000 employees would be impractical, but that is not what Grievant seeks. Grievant seeks to be compared to only nine other employees, which is the smallest number of one-to-a- district positions possible in a ten district system. DOH's position also ignores the fact that it already compares its ten sign shop organizations in minute detail, as noted above, with respect to their productivity in miles of roadway striped in both white and yellow, costs per unit, units planned, and year-to-date cost, with no apparent difficulty.
      DOH Director of Human Resources Jeff Black credibly testified that District Engineers/Administrators get equitable pay across district lines, and that no DOH policy or practice prevented comparing the same positions in different districts. Finally, with respect to DOH's argument that comparing employees across district lines introduces rater variability, it is noted that DOH employees in different districts are evaluated on identical forms under identical rules; that such variability already exists in the record of this grievance, as Grievant, Austin, Waid, Smith, and Wade were all evaluated over the past decade by various individuals, and that such variability is an accepted part of the evaluation process, as the assessment of employee performance is not an exact science. Ratliff, Hall, supra.
      Most importantly, however, the plain language of DOH's policy, set forth above, speaks to equitable pay relationships throughout DOH, and contains no language that would support DOH's contention that such equitable pay relationships apply only within DOH's ten districts. The clear and express language of this policy is not subject to interpretation, because it does not admit of more than one meaning, See State v. Boatright,184 W. Va. 27, 399 S.E.2d 57 (1990), Goff v. W. Va. Dep't of Educ., Docket No. 93-DOE- 446 (Sept. 9, 1994), and it may not be construed to include within it something that was not intended. See Derengowski v. United States, 404 F.2d 778 (8th Cir. 1968), Goff, supra. The clear and express language of this policy permits a grievant to seek an equitable pay relationship with other DOH employees, providing he can show that he is similarly situated to them.
      As noted in Finding of Fact 11, to the extent that such calculations can be made from the record in this grievance, Grievant is tied with another Sign Shop Supervisor for the fewest merit pay increases, three, during the past decade. Grievant's three raises add up to the second lowest total increase, $533.00, in merit increases over that period.
      Accordingly, Grievant has established that he was similarly situated, in a pertinent way, to DOH's nine other Sign Shop Supervisors and that he was, to his detriment, treated by his employer in a manner that they were not.
      However, the record does not establish that he was more entitled to a particular raise or series of raises than the other Sign Shop Supervisors, because the record does not include the evaluations of the other Sign Shop Supervisors, or the year-by-year annual merit pay increase polices that were in effect as merit pay decisions were made. Although the record reflects that Grievant performed at or near the top of the list of Sign Shop Supervisors with respect to roadway striping in the 1997 - 1998 fiscal year, it lacks sufficient other recorded measures of performance for the undersigned to conclude that Grievant was more deserving of a merit pay increase than another employee who received one. W. Va. Div. of Personnel Admin. Rule, 143 C.S.R. 1 § 5.8(a) (1998), Tallman, supra. Grievant has failed to establish a prima facie case of discrimination with respect to DOH'snine other Sign Shop Supervisors.
      Finally, Grievant also argued that because his merit increases over the past decade were below the average of the increases given to both the supervisors within District Nine and the Sign Shop Supervisors in DOH's other districts, Grievant was entitled to have his pay increased to the average. However, Grievant cited no authority in support of this argument, and the undersigned is aware of none. See Largent v. W. Va. Div. of Health, 192 W. Va. 239, 452 S.E.2d 42 (1994), Cooper v. W. Va. Dep't of Public Safety, Docket No. 96-DPS-458 (Apr. 9, 1997), Goff, supra.
      Allocating merit pay increases is a difficult task, especially when there are a limited number of raises to be awarded, numerous employees have demonstrated satisfactory performance, and employees are similarly rated. An agency must balance many factors in its merit pay increase decisions, and its judgments will, of necessity, often be subjective ones. Often, some agency employees began work with relevant experience, justifying a higher initial salary. When such workers are given percentage pay increases, they naturally move farther ahead in salary, because their percentage increases were based upon their higher salaries. Obviously, many DOH employees had satisfactory evaluations and could be deserving of a merit increase. Unfortunately, there were a limited number of merit increases that could be awarded, and management decisions had to be made about who should receive them. DOH did so, and the undersigned declines to disturb its decisions based upon the limited record in this grievance.
      The following conclusions of law support the decision reached.
CONCLUSIONS OF LAW
      1. 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 defined as “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black's Law Dictionary (6th ed. 1991); Leichliter v. W. Va. Dep't of Health & Human Resources, Docket No. 92-HHR-486 (May 17, 1993). Where the evidence equally supports both sides, a party has not met its burden of proof. Id.
      2. An employer's decision on merit increases will generally not be disturbed unless shown to be unreasonable, arbitrary or capricious, or contrary to law or properly established policies or directives. Terry v. W. Va. Dep't of Transp./Div. of Highways, Docket No. 91-DOH-186 (Dec. 30, 1991).
      3.      DOH's Administrative Operating Procedures provide for granting merit increases to a limited number of employees based upon meritorious performance, while taking into consideration such factors as equitable pay relationships and length of service.
      
4. 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 by the employees." To establish a prima facie case of discrimination, Grievant must show:


Hendricks v. W. Va. Dep't of Tax and Revenue
, Docket No. 96-T&R-215 (Sept. 24, 1996).       5. Once the grievant establishes a prima facie case, the burden shifts to the employer to demonstrate a legitimate, nondiscriminatory reason for the employment action. Id. However, a grievant may still prevail if he can demonstrate the reason given by the respondent was mere pretext. Steele v. Wayne County Bd. of Educ., Docket No. 89-50- 260 (Oct. 19, 1989).
      6. Grievant failed to establish a prima facie case of discrimination with respect to the District Nine supervisors who were in his 1998 merit pay increase pool.
      7. Grievant failed to establish a prima facie case of discrimination with respect to DOH's nine other Sign Shop Supervisors.
      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 appealingparty 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.

                                          
                                                ANDREW MAIER
                                          ADMINISTRATIVE LAW JUDGE

Dated April 24, 2000




Footnote: 1
      1 The record does not reveal why the Level III decision in this grievance took almost one year.
Footnote: 2
      2 This occurred when an hourly employee became salaried during this decade.
Footnote: 3
      3 Because DOH established, at the Level IV hearing in this grievance, that Grievant's calculations of these figures were partially incorrect, the undersigned administrative law judge has recalculated all figures appearing in this Decision.
Footnote: 4
      
      4      The record does not reflect why the DOH printout containing this information does not contain data for all ten of its sign shops.
Footnote: 5
      5      Grievant has some 23 years of service with DOH, but his service was interrupted some 11 years ago.