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Mayle v. Barbour County Board of Education

Supreme Court of West Virginia

January 8, 2018

Connie Elaine Mayle, Petitioner Below, Petitioner
v.
Barbour County Board of Education, Respondent Below, Respondent

         Kanawha County 16-AA-85

          MEMORANDUM DECISION

         Petitioner 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.

         This 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.

         Petitioner 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.

         From 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.

         On 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.

         Petitioner 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.[1] 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.

         Petitioner 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 appeals.

         We have 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).

         On 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.

         Upon 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 § 18A-4-8b(a).

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 that ...

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