JOHN PORTER,
Grievant,
v. Docket No. 05-DOH-231
DEPARTMENT OF TRANSPORTATION/
DIVISION OF HIGHWAYS,
Respondent.
DECISION
John Porter (“Grievant”) initiated this proceeding on March 8, 2005, alleging
entitlement to a 5% pay increase after obtaining grader certification. After denials at the
lower levels, Grievant appealed to level four on June 30, 2005. Once a level four hearing
was scheduled, the parties elected to submit this grievance for a decision based upon the
record developed below, accompanied by fact/law proposals, which were submitted by
Respondent on December 13, 2005.
(See footnote 1)
This matter was transmitted to the undersigned
administrative law judge on December 19, 2005.
The following material facts have been proven by a preponderance of the evidence
contained in the record.
Findings of Fact
1. Grievant has been employed by the Division of Highways (“DOH”) for
approximately sixteen years, assigned to District Two, Wayne County. He became a
Transportation Worker 3 (“TW 3”), Equipment Operator, in 2000. 2. Grievant obtained DOH training in order to become certified as a grader
operator, and his certification was effective October 11, 2005.
3. Richard Massie is also employed in District Two as a TW 3, Equipment
Operator. He became certified as a grader operator in October of 1988, while classified
as a TW 3.
4. Mr. Massie received a pay raise after he obtained his grader certification, but
the record contains no evidence regarding the reason for the increase.
5. Daniel Keith Viers is employed in District Two as a TW 3, Equipment
Operator. He became certified as a grader operator on July 21, 1989, and was classified
as a TW 3 at that time. Mr. Viers received a pay raise sometime after becoming certified,
but the record contains no evidence regarding the reason for the increase.
6. Wilmer Napier and Randal Meddings are employed by DOH in District 2.
Both became certified on certain equipment while classified as Transportation Worker 2s
(TW 2). After obtaining equipment certification, both were reallocated to TW 3 and
received a 5% pay raise as a result of the reallocation.
7. Roy Caldwell is employed by DOH as a Transportation Worker 3, and he
became certified as a grader operator on June 27, 1989. There is no information of record
regarding whether he received a pay raise close to that time.
8. Employee Information Forms for all of the individuals whom Grievant claims
received salary increases related to certification show that--at various times throughout
their work history--they received salary adjustments, which are across-the-board pay
increases granted by the state, and salary advancements, which are merit pay increases.
Discussion
As this grievance does not involve a disciplinary matter, Grievant has the burden of
proving his claims by a preponderance of the evidence. Procedural Rules of the W. Va.
Educ. & State Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2004);
Howell v. W. Va.
Dep't of Health & Human Res., 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).
"The preponderance standard generally requires proof that a reasonable person would
accept as sufficient that a contested fact is more likely true than not."
Leichliter v. W. Va.
Dep't of Health & Human Res., Docket No. 92-HHR-486 (May 17, 1993).
Grievant contends that he has been subjected to unlawful discrimination, arguing
that other employees in his classification have obtained equipment certification and
received a 5% salary increase as a result of becoming certified. Discrimination is defined
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.”
W. Va. Code § 29-6A-2(d). In discussing discrimination claims under the grievance
statutes, the Supreme Court of Appeals has noted that “[t]he crux of such claims is that the
complainant was treated differently than similarly situated employees[.]”
Bd. of Educ. v.
White, 216 W. Va. 242, 605 S.E.2d 814, 818 (2004).
In the instant case, Grievant simply has not provided evidence to support his
allegations. Although Mr. Massie and Mr. Viers both testified that they received a 5% pay
increase because of their certification, DOH records do not support their contentions. The
evidence of record only shows that both have received merit increases and across-the-board pay increases over the years. “Mere allegations alone without substantiating facts
are insufficient to prove a grievance.” Baker v. Bd. of Directors/W. Va. Univ. at
Parkersburg, Docket No.97-BOT-359 (Apr. 30, 1998); See Harrison v. W. Va. Bd. of
Directors/Bluefield State College, Docket No. 93-BOD-400 (Apr. 11, 1995). While other
employees may have been reallocated to a higher classification after obtaining equipment
certifications, there can be no dispute that Grievant is not similarly situated to such
employees.
Moreover, there is no mechanism, either in law or fact, for providing employees with
a pay raise related to obtaining certification, beyond that granted to employees who are
reallocated. As recently noted in Kinser v. Department of Transportation, Docket No. 05-
DOH-070 (Oct. 28, 2005), under the Division of Personnel's Administrative Rule, 143
C.S.R. 1, there are only three ways in which a state employee may receive a raise: on
promotion to a position in a different classification with a higher pay grade, based on merit
as shown by recorded measures of performance, and by earning an annual increment
increase. See Antolini, et al. v. Div. of Natural Res., Docket No. 03-DNR-094 (Oct. 29,
2003). Clearly, none of these situations apply to Grievant, so he has proven no entitlement
to a pay increase.
The following conclusions of law are consistent with the foregoing.
Conclusions of Law
1. In a non-disciplinary grievance, Grievant has the burden of proving his claims
by a preponderance of the evidence. Procedural Rules of the W. Va. Educ. & State
Employees Grievance Bd. 156 C.S.R. 1 § 4.21 (2004);
Howell v. W. Va. Dep't of Health &Human Res., 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. “Mere allegations alone without substantiating facts are insufficient to prove
a grievance.”
Baker v. Bd. of Directors/W. Va. Univ. at Parkersburg, Docket No.97-BOT-
359 (Apr. 30, 1998);
See Harrison v. W. Va. Bd. of Directors/Bluefield State College,
Docket No. 93-BOD-400 (Apr. 11, 1995).
3. Grievant has failed to prove by a preponderance of the evidence that DOH
employees have received pay raises solely because they received certification to operate
particular equipment.
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
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: January 25, 2006
______________________________
DENISE M. SPATAFORE
Administrative Law Judge
Footnote: 1