Connie Elaine Mayle, by counsel John Everett Roush, appeals
the Circuit Court of Kanawha County's January 31, 2017,
order affirming the West Virginia Public Employees Grievance
Board's denial of her grievance. Respondent Barbour
County Board of Education, by counsel Howard E. Seufer Jr.
and Joshua A. Cottle, filed a response. On appeal, petitioner
argues that the circuit court erred in determining that her
lack of certification as an Early Childhood Classroom
Assistant Teacher ("ECCAT") permitted the
employment of a less-senior aide with ECCAT certification for
an ECCAT position.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
was employed by respondent as a special education aide during
the 2014-2015 school year. Due to a lack of need, however,
petitioner's employment was terminated at the end of the
2014-2015 year. Petitioner's name was thereafter placed
on the preferred recall list.
July 14, 2015, to July 21, 2015, respondent posted a notice
of vacancy for the position of Early Childhood Classroom
Assistant Teacher/Kindergarten Aide/Supervisory
Aide/Transportation Aide. Respondent did not notify
petitioner of this vacancy, and she did not apply.
Nonetheless, due to petitioner's placement on the
preferred recall list, she was considered for the position
along with four other people. On July 27, 2015, respondent
appointed Sherry Jones to fill the posted vacancy. At the
time the appointment was made, petitioner did not hold an
ECCAT certification, but Ms. Jones did.
August 4, 2015, petitioner filed a Level One grievance
alleging a violation of West Virginia Code §
18A-4-8b(p), which requires that respondent notify anyone on
the preferred recall list of position openings. Following an
evidentiary hearing, petitioner's grievance was denied on
the basis that any error in failing to notify her of the
position opening was harmless because, even assuming
notification had been provided, Ms. Jones would still have
been appointed due to her superior qualifications.
thereafter appealed to Level Two of the grievance procedure.
Following an unsuccessful mediation at Level Two, petitioner
received an "Order of Unsuccessful Mediation, "
then appealed to Level Three. By order entered on August 26,
2016, petitioner's grievance was again denied on the
basis that respondent's failure to notify her of the
vacancy was moot in light of the fact that respondent would
have nonetheless appointed Ms. Jones to the position.
appealed the Level Three denial to circuit court alleging
several grounds as error. Of relevance to the instant appeal,
petitioner alleged as error the finding that her lack of
ECCAT certification permitted employment of a less-senior
aide. On January 31, 2017, the circuit court entered its
"Final Order" finding that "the Administrative
Law Judge correctly held that the [p]etitioner was not
qualified for the Aide/ECCAT vacancy [and] [p]etitioner's
seniority as an [a]ide did not count as seniority as an
ECCAT[.]" Accordingly, the circuit court affirmed the
Level Three decision. It is from this order that petitioner
previously held that, "[w]hen reviewing the appeal of a
public employees' grievance, this Court reviews decisions
of the circuit court under the same standard as that by which
the circuit court reviews the decision of the administrative
law judge." Syl. Pt. 1, Martin v. Barbour Cty. Bd.
of Educ., 228 W.Va. 238, 719 S.E.2d 406 (2011). A
reviewing circuit court may set aside a decision "where
it is 'arbitrary, capricious, an abuse of discretion, or
contrary to law.'" Id. at 240, 719 S.E.2d
at 408. Further,
[g]rievance rulings involve a combination of both deferential
and plenary review. Since a reviewing court is obligated to
give deference to factual findings rendered by an
administrative law judge, a circuit court is not permitted to
substitute its judgment for that of the hearing examiner with
regard to factual determinations. Credibility determinations
made by an administrative law judge are similarly entitled to
deference. Plenary review is conducted as to the conclusions
of law and application of law to the facts, which are
reviewed de novo.
Id. at 239, 719 S.E.2d at 407, Syl. Pt. 2 (citation
and internal quotations omitted). Finally, "[a] final
order of the hearing examiner for the West Virginia [Public]
Employees Grievance Board, made pursuant to W.Va. Code,
[6C-2-1], et seq. [ ], and based upon findings of
fact, should not be reversed unless clearly wrong."
Martin, 228 W.Va. at 239, 719 S.E.2d at 407, Syl.
Pt. 3 (internal quotations and citation omitted).
appeal, petitioner contends that the circuit court erred in
holding that her lack of an ECCAT certificate permitted
respondent to appoint a less-senior aide, who held ECCAT
certification, to the position at issue. Petitioner cites
West Virginia Code § 18A-4-8b(d)(2) for the proposition
that all ECCAT classification titles have been placed into
the aide classification category. This statute provides that
"[p]araprofessional, autism mentor, early classroom
assistant teacher and braille or sign support specialist
class titles are included in the same classification category
as aides[.]" Petitioner contends that, as a result,
employees holding any classification within the aide
classification category are qualified for ECCAT positions,
that all employees within the aide classification category
are to be given first priority in filling ECCAT positions,
and that no specific ECCAT seniority accrues; rather,
"[s]ervice in ECCAT positions results in the accrual of
'aide' seniority." Consequently, because
petitioner had more aide seniority than Ms. Jones, she
maintains that she was qualified for the position at issue
and should have been appointed to it.
review of the record before this Court, we do not find that
the circuit court was clearly wrong in discounting
petitioner's arguments concerning the effects of West
Virginia Code § 18A-4-8b(d)(2). County school boards, in
filling school personnel vacancies, must make decisions
"on the basis of seniority, qualifications and
evaluation of past service." W.Va. Code §
Qualifications means the applicant holds a classification
title in his or her category of employment as provided in
this section and is given first opportunity for promotion and
filling vacancies. Other employees then shall be considered
and shall qualify by meeting the definition of the job title