v. DOCKET NO. 96-DOH-004
WEST VIRGINIA DEPARTMENT OF TRANSPORTATION/
DIVISION OF HIGHWAYS,
Respondent.
Grievant, Johnny Ratliff, grieves his failure to receive a merit increase in November
1994, and alleges this failure "violated W V DOH administrative Rules Vol 9 Chapter 15."
This Section is the "Merit Increase Policy" of the Division of Highways("DOH")
Administrative Operating Procedures and requires merit increases to be based on
"meritorious performance while taking into consideration such factors as equitable pay
relationships and length of service." He requests as relief to receive "an increase in wages
effective November 15, 1994." This grievance was denied at Levels I, II, and III. At the
Level IV hearing, the parties supplemented the record developed below. This grievance
became mature for decision on October 15, 1996, the deadline for the parties' proposed
findings of fact and conclusions of law.
(See footnote 1)
The following Findings of Fact are derived from the record.
1. Grievant is employed by DOH as a Transportation Worker II at the Heaters
maintenance facility in Braxton County.
2. In November 1994, DOH supervisors were directed to recommend deserving
employees for a merit increase. A set number of increases for each of the four areas in
Grievant's district was decided in advance based on the number of employees in each area
and the amount of money to be awarded. Approximately one-third of the employees in
each area would receive increases. Three raises were to be awarded in Grievant's area.
3. The November 1994 increases were based on the 1993 evaluations and
other guidelines established by DOH and the Division of Personnel("DOP").
4. Grievant's supervisor recommended four employees for the November 1994
increase. They were Gary Gillispie, Steve Hughes, Junior Self, and Grievant.
5. The three employees who received the increases were Gary Gillispie, Steve
Hughes, and Terry "Mike" Chapman, Grievant's supervisor. The final decisions on these
merit raises were made by Frank Belknap, the County Supervisor.
6. Grievant's hire date is October 2, 1979, and he makes $8.69 an hour.
Grievant's 1993 evaluation rated him overall as "meets or exceeds expectations." Heexceeded expectations in seven areas and was rated as satisfactory in the eighth.
Grievant received a merit increase in February 1994.
(See footnote 2)
7. Mr. Hughes is an Equipment Operator II, and his hire date is October 27,
1989. He received $8.35 an hour prior to the raise, and $8.56 after the raise. His
evaluation rated him as exceeds expectations in six categories and satisfactory in the
remaining two. Mr. Hughes had improved significantly in the last two years and
management wished to reward this improvement. He also received a merit increase in
February 1994.
8. Mr. Gillispie is an Equipment Operator II, and his hire date is June 2, 1978.
He received $8.79 per hour before the merit increase and $9.01 after the raise. He was
rated as exceeds expectations in six categories and satisfactory in the remaining two. He
had not received a merit increase since 1985.
9. Mr. Chapman is the Crew Leader at Heaters, and as such he was evaluated
by Mr. Belknap, his direct supervisor. He received one exceeds expectations and eight
satisfactories on his evaluation. He was paid $9.89 an hour prior to the November 1994
increase and $10.01 after the increase. He had not received a merit increase since 1991.
10. Mr. Belknap, stated that Mr. Chapman rated his employees "too high", and
this fact had been discussed with him. The closeness in the ratings of all Mr. Chapman's
employees made it difficult to differentiate between employees and to select individuals for
merit raises. 11. Other individuals who had the same evaluation as Grievant did not receive
raises. At least one individual, who did not receive a merit increase, had a higher
evaluation than Grievant.
12. If there had been an opportunity to award another merit increase at Heaters,
Mr. Belknap would have awarded it to Gale Stalnaker. Mr. Stalnaker has been employed
by DOH since October 16, 1979, and his rate of pay was $8.89.
(See footnote 3)
He frequently functions
as the Crew Leader in Mr. Chapman's absence, and his evaluation was the same as
Grievant's. Level III Trans. at 41-47.
Both DOH and DOP have written guidelines to be considered when awarding merit
increases. DOH is required by DOP's Administrative Rules to base all such salary
advances on "performance evaluations and other recorded measures of performance."
183 CSR 1.5.08(a)(1993).
(See footnote 4)
DOH rules require merit increases to be based on "meritorious
performance while taking into consideration such factors as equitable pay relationships and
length of service." DOH Admin. Operating Procedures Vol. IX, Ch. 15. It is clear that DOH
took into consideration both its own regulations and those of DOP in awarding the three
merit raises. The combining of these two sets of rules and guidelines is at times a difficult
fit, especially when there is a limited number of raises to be awarded. It must be notedGrievant did not argue DOP's regulations were not followed, he only argued DOH did not
follow its own rules on merit raises.
The testimony also reveals the problems that are created when employees are rated
so highly and so similarly. Obviously, many employees at Heaters had good to excellent
evaluation and could be deserving of a merit increase. Unfortunately, there were only
three increases to be given, and some management decisions had to be made about who
should receive them utilizing the evaluations and the guidelines.
Although Grievant could have received a merit increase, he has not met his burden
of proof and demonstrated that he was more deserving than some of the other individuals
who also did not receive increases. Even if the performance evaluations were the only
thing taken into consideration, Grievant still has not proven he would have been chosen
for the increase. The testimony was clear that several employees who had evaluations the
same as Grievant's and one employee, who had a better evaluation, did not receive a merit
increase. Also, Mr. Belknap testified he would have awarded the raise to Mr. Stalnaker,
and Mr. Stalnaker had the same evaluation as Grievant. Roberts v. Dept. of Admin./Div.
of Personnel, Docket No. 94-DOP-182 at 18 (Dec. 1, 1994).
(See footnote 5)
Additionally, the reasons given for the individuals selected to receive increases fell
within the established guidelines. The fact that Mr. Chapman's evaluations were lower
than some other employees is not dispositive if the issue. He was rated by another
evaluator, who testified that the ratings given to the other employees were too high. The
undersigned will take administrative notice that the evaluation of employees, even on the
same form, will vary somewhat from rater to rater as the assessment of employees'
performance is not an exact science. Further, Mr. Chapman had not received a merit
increase since 1991.
Mr. Gillispie's evaluation was very similar to Grievant's, he had greater seniority than
Grievant, and he had not received a merit increase since 1985. As with Mr. Gillispie, Mr.
Hughes' evaluation was almost the same, and he made less money than Grievant, even
after he received this merit increase. Mr. Hughes' supervisors also indicated they had seen
a great improvement in his performance, and they wanted to reward this behavior.
As has been frequently stated by this Grievance Board, "[a]n 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."
Terry v. W. Va. Div. of Highways, Docket No. 91-DOH-186 (Dec. 30, 1991). Here, Grievant
has failed to meet his burden of proof and demonstrate that DOH's actions violated any
policy or was arbitrary or capricious. No one disputes Grievant is a good employee, but
unfortunately for Grievant, there were limited funds available.
The above-discussion will be supplemented by the following Conclusion of Law.
1. Grievant has the burden of proving his case by a preponderance of the
evidence in a nondisciplinary matter. Tucci v. W. Va. Dept. of Transp./ W. Va. Div. of
Highways, Docket No. 94-DOH-592 (Feb. 28, 1995).
2. "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." Terry v. W. Va. Div. of Highways, Docket No. 91-DOH-
186 (Dec. 30, 1991).
3. Grievant has failed to meet his burden of proof and demonstrate that he was
more deserving of a November 1994 merit increase than others who did not receive one.
Roberts v. Dept. of Admin./Div. of Personnel, Docket No. 94-DOP-182 at 18 (Dec. 1,
1994).
4. Grievant has failed to meet his burden of proof and demonstrate Respondent
failed to follow its Merit Increase Policy when awarding the November 1994 merit
increases.
Accordingly, this grievance is DENIED.
Any party or the West Virginia Division of Personnel may appeal this decision 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. 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. Any appealing party must advise this office of the intent to appeal and
provide the civil action number so that the record can be prepared and transmitted to the appropriate
court.
__________________________________
JANIS I. REYNOLDS
Administrative Law Judge
Dated: January 31, 1997