                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

                                                                                  FILED
Wyatt L. Graham,                                                                  April 28, 2014
Petitioner Below, Petitioner                                                 RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs) No. 13-0975 (Kanawha County 12-AA-46)

The Board of Education of Wetzel County, West Virginia,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Wyatt L. Graham, by counsel Andrew J. Katz, appeals the August 1, 2013,
order of the Circuit Court of Kanawha County that affirmed the decision of the West Virginia
Public Employees Grievance Board (“Grievance Board”) denying his grievance following his
suspension without pay from his job as a bus operator. Respondent, by counsel Richard S.
Boothby, filed a summary response. Petitioner filed a reply. Petitioner argues on appeal that the
Grievance Board did not have adequate support for finding that he was insubordinate and that,
even if he was insubordinate, he should have received a shorter suspension.

        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.

        The evidence at the level three hearing before the Administrative Law Judge (“ALJ”)
revealed that petitioner has been employed by respondent as a bus operator for fifteen years.
During the 2011-12 school year, petitioner drove Bus 1 until it became inoperable due to
mechanical issues in May of 2012, when he began driving Bus 21. On April 19, 2012,
respondent, through its Director of Ancillary Services, Brian Jones, sent a memorandum to
petitioner and other bus operators stating that they were required to check in their bus for a
cleanliness inspection on the operator’s last day of employment. On May 31 2012, petitioner
avers that he cleaned out his bus, Bus 21. The next day, June 1, 2012, petitioner went to check in
the bus, but, according to petitioner, respondent’s employee, Brian Jones, refused to take the bus
and asked for Bus 1. Petitioner then walked away from Mr. Jones out of frustration, with Mr.
Jones following behind asking him questions, which were ignored. On June 8, 2012,
respondent’s School Superintendent, Diane Watt, called petitioner and discussed the option of
coming into work that day in order to finish checking in Bus 21, but petitioner refused. Petitioner
argues he believed he was beyond the end of his contractual employment period and would not
be paid for that day, so he did not come to work.

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         On June 11, 2012, Ms. Watt wrote petitioner stating that she was seeking to suspend him
for three days without pay for insubordination and not checking in a bus. In the letter, Ms. Watt
stated that she reviewed petitioner’s service record for the purpose of finding grounds to mitigate
a disciplinary response, but instead found “[t]he opposite is in fact the case.” Ms. Watt stated that
she would raise the issue at an upcoming board meeting. At the board meeting, respondent voted
to ratify petitioner’s suspension and approved petitioner’s suspension without pay for three days.
On July 11, 2012, petitioner filed a grievance with the Grievance Board, arguing that he was not
insubordinate and that, even if he was insubordinate, respondent was excessive in suspending
him more than one day. By order entered February 14, 2013, the ALJ denied petitioner’s
grievance and upheld respondent’s suspension. Petitioner appealed to the Circuit Court of
Kanawha County, where the Grievance Board’s order was affirmed by order entered August 1,
2013. It is from this order that petitioner appeals.

        Petitioner raises the same assignments of error on appeal that he raised in the circuit court
below. He argues that the ALJ and circuit court erred in holding that petitioner’s conduct on June
1, 2012, constituted insubordination and that, even if he was insubordinate, he should not have
been suspended without pay for more than one day. As support, petitioner argues that the circuit
court and ALJ “ignored” several factual assertions. Petitioner did not, however, argue that the
ALJ did not consider his arguments, only that the ALJ erroneously concluded that petitioner was
insubordinate and that his insubordination was not mitigated by his work history. Additionally,
petitioner argues that his three-day suspension was excessive and that it should have been
reduced because he made “every effort to comply” with respondent’s directives.

        This Court will not reverse evidentiary findings made by the ALJ unless clearly wrong.
Randolph Co. Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). Conclusions of
law, and the application of law to the facts, are reviewed de novo. Martin v. Randolph Co. Bd. of
Educ., 195 W.Va. 297, 465 S.E.2d 399 (1995); Syl. Pt. 2, Maikotter v. University of West
Virginia Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999). Having reviewed the circuit
court’s order denying petitioner’s appeal, entered on August 1, 2013, we hereby adopt and
incorporate the circuit court’s well-reasoned findings and conclusions as to the assignments of
error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to
this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.




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ISSUED: April 28, 2014

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis

DISQUALIFIED:

Justice Margaret L. Workman




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