                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Jaime C. Walker,

Petitioner Below, Petitioner                                                      FILED

                                                                             September 5, 2017
vs.) No. 16-0659 (Pocahontas County 15-AA-102)                                   RORY L. PERRY II, CLERK

                                                                               SUPREME COURT OF APPEALS

                                                                                   OF WEST VIRGINIA

Pocahontas County Board of Education,
Respondent Below, Respondent

                               MEMORANDUM DECISION
        Petitioner Jaime C. Walker, by counsel J. Steve Hunter, appeals the Circuit Court of
Kanawha County’s June 10, 2016, order reversing the decision of the West Virginia Public
Employees Grievance Board (“the Board”). Respondent Pocahontas County Board of Education
(“BOE”), by counsel Denise M. Spatafore and Jason S. Long, filed a response in support of the
circuit court’s order. On appeal, petitioner argues that the circuit court erred in reversing the
decision of the Board because the circuit court erred in finding that petitioner had not timely filed
his grievance and in reversing the Board’s decision granting him relief.

        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.

        In June of 2013, the BOE posted two school service personnel job vacancies for a
mechanic and a chief mechanic. Both of the postings set out the terms of employment as 240-day
positions to be effective July 1, 2013, and to continue for the remainder of the 2012-2013 school
year. Petitioner, who was qualified for both positions, submitted his application for both job
vacancies and, prior to filing his applications, passed the mechanic competency test, was on the
emergency mechanic substitute list, and had been employed by the BOE for approximately
twelve years. After submitting his applications, petitioner was interviewed for both positions by
the BOE school superintendent, C.C. Lester. During the course of the interview process,
petitioner specifically inquired as to whether the positions would be increased to 261-day
positions or if the positions would remain as listed. The superintendent stated that the positions
would not be changed and would remain 240-day positions. Petitioner later withdrew his
applications for both positions. Thereafter, Justin Tyler and Ian Bennett submitted applications
for the two posted positions.

       In July of 2013, the BOE selected Mr. Tyler to fill the chief mechanic position and Mr.
Bennett to fill the mechanic position under 240-day contracts that were retroactive to July 1,
2013, and continued for the remainder of the 2013-2014 fiscal year. Sometime after Mr. Tyler
and Mr. Bennett accepted the positions as offered, they appeared before the BOE and requested

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that their contracts be increased to 261-day positions. The requests were placed on the BOE’s
July of 2013 meeting agenda and later approved by the BOE effective July 31, 2013. Petitioner
did not work during the summer months and was out of state. He heard about the BOE’s contract
modification from a friend on or about July 31, 2013.

       In August of 2013, petitioner filed a Level One grievance challenging the modification of
the contract terms, from 240 days to 261 days, after they were filled. Following a hearing, the
Board denied petitioner’s grievance on September of 2013.

        In September of 2013, petitioner appealed the denial to Level Two of the grievance
procedure. Following an unsuccessful mediation, petitioner appealed to Level Three in January
of 2014. Following a hearing, the Administrative Law Judge (“ALJ”) issued a decision in July of
2015 in which it found that petitioner demonstrated an interest in the posted positions and had
standing to challenge the change in the contract terms as a misleading notice of the vacancies to
applicants and potential applicants. In July of 2015, the BOE appealed the ALJ’s decision to the
circuit court. By order entered on June 10, 2016, the circuit court reversed the ALJ’s decision
and found that petitioner’s grievance was not timely filed as required by West Virginia Code §
6C-2-1 and that he did not have a valid excuse for the untimely filing. It is from this order that
petitioner appeals.

       The Court has previously established the relevant standard of review:

               “Grievance 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.” Syllabus Point 1, Cahill v. Mercer County Bd. of Educ., 208 W.Va. 177,
       539 S.E.2d 437 (2000).

Syl. Pt. 1, Darby v. Kanawha Cty. Bd. of Educ., 227 W.Va. 525, 711 S.E.2d 595 (2011). Further,
we have held that

               “[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.”
       Syl. pt. 1, Randolph Cnty. Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524
       (1989).

Syl. Pt. 3, Armstrong v. W.Va. Div. of Culture and History, 229 W.Va. 538, 729 S.E.2d 860
(2012). Upon our review, the Court finds that the circuit court did not err in reversing the
Board’s decision.




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        On appeal to this Court, petitioner argues that the circuit court erroneously found that his
grievance was not timely filed as required by West Virginia Code § 6C-2-1. Petitioner contends
that the grievance time limits were tolled because, as a BOE employee “holding [a] 200-day
[contract], he was not working and his workplace was ‘legally closed by policy and practice . . .
between the first week of June and the middle of August.’” The Court, however, does not agree.

        We begin our analysis with a review of West Virginia Code § 6C-2-4(a)(1), which
identifies the time limits for filing a grievance. It provides that

       [w]ithin fifteen days following the occurrence of the event upon which the
       grievance is based, or within fifteen days of the date upon which the event
       became known to the employee, or within fifteen days of the most recent
       occurrence of a continuing practice giving rise to a grievance, an employee may
       file a written grievance with the chief administrator stating the nature of the
       grievance and the relief requested and request either a conference or a hearing. . . .

Id. West Virginia Code § 6C-2-2(c) defines “days” as “working days exclusive of Saturday,
Sunday, official holidays and any day in which the employee’s workplace is legally closed under
the authority of the chief administrator due to weather or other cause provided for by statute,
rule, policy or practice.” Further, the only time an employee is excused from complying with the
timelines established in West Virginia Code § 6C-2-4 is when the employee “is not working
because of accident, sickness, death in the immediate family or other cause for which the
grievant has approved leave from employment.” W.Va. Code § 6C-2-3(a)(2).

        Here, there is no dispute that petitioner did not timely file his grievance. According to the
record, the BOE modified Mr. Tyler and Mr. Bennett’s contracts on July 29, 2013. Petitioner
heard about the BOE’s contract modification on or about July 31, 2013 and initiated a grievance
with the Board on August 23, 2013, more than fifteen days following the contract modification.
Contrary to the ALJ’s finding otherwise, petitioner’s late filing was not excused by any
exception established in West Virginia Code § 6C-2-1. Petitioner was not working due to an
accident, sickness, death in the family or other approved leave. Moreover, there is no provision
in the law that excuses an employee, like petitioner, from filing a grievance within the timelines
established by statute because the grievable incident occurred during a time that was outside his
normal contract term. Further, while petitioner did not work during a portion of the summer
months, this time period “closure” pertains to his employment contract, rather than the
workplace itself. As petitioner acknowledges in his appeal, school facilities are often open during
the summer months, used for summer school programs, and employ service personnel during
those programs. See West Virginia Code § 18-5-39 (2000). Moreover, even employees like
petitioner with 240-day contracts continue to work throughout the calendar year in order to
comply with legislative mandates regarding the minimum amount of days for student instruction.
See W. Va. Code § 18-5-45 (2017). For the foregoing reasons, we find no error in the circuit
court’s June 10, 2016, order reversing the decision of the Board.

       As for petitioner’s contention that the BOE violated the notice requirements of West
Virginia Code § 18A-4-8b. West Virginia Code § 18A-4-8b(2) provides that



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       [n]otice of a job vacancy shall include the job description, the period of
       employment, the work site, the starting and ending time of the daily shift, the
       amount of pay and any benefits and other information that is helpful to
       prospective applicants to understand the particulars of the job. The notice of a job
       vacancy in the aide classification categories shall include the program or primary
       assignment of the position. Job postings for vacancies made pursuant to this
       section shall be written to ensure that the largest possible pool of qualified
       applicants may apply. Job postings may not require criteria which are not
       necessary for the successful performance of the job and may not be written with
       the intent to favor a specific applicant.

Despite petitioner’s argument that the BOE’s subsequent modification in the employment
contract terms rendered the job vacancy postings inaccurate, the evidence on the record
established that, at the time the job vacancies were posted, the information in those postings were
accurate and complied with West Virginia Code § 18A-4-8b. Moreover, nothing in the record
suggests that the superintendent who interviewed petitioner had any reason to anticipate that the
BOE might later alter the contract terms of the two vacant positions.

       Further, West Virginia Code § 18A-4-19(a) provides that

       [n]otwithstanding the provisions of section eight-b of this article relating to school
       service personnel or any other section of this code to the contrary, any alteration
       of an employment contract of a service personnel employee who is employed for
       more than two hundred days, which alteration changes the number of days in the
       employment term, shall not be deemed a creation of a new position, nor shall such
       alteration require the posting of the position.

Here, after hiring Mr. Tyler and Mr. Bennett, the BOE altered their employment contract terms
based on the “compelling reasons” as to why their contract terms should be increased given the
nature of their job duties. As such, respondent exercised its statutory authority to increase the
employment contract terms pursuant to West Virginia Code § 18A-4-19(b). Therefore, we find
no error.

        Based on our reasoning above, we affirm the circuit court’s June 10, 2016, order
reversing the decision of the Board.
                                                                               Affirmed.

ISSUED: September 5, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

DISQUALIFIED:
Justice Margaret L. Workman
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