                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Connie Elaine Mayle,                                                              FILED
Petitioner Below, Petitioner                                                  January 8, 2018
                                                                             EDYTHE NASH GAISER, CLERK
vs) No. 17-0204 (Kanawha County 16-AA-85)                                    SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA

Barbour County Board of Education,
Respondent Below, Respondent


                               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

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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



       1
         The procedure applicable to these proceedings requires an employee to first file a
grievance. W.Va. Code § 6C-2-4(a)(1). Following the filing of the grievance, a Level One
hearing is held. Id. at § 6C-2-4(a)(3). An adverse decision at Level One may be appealed to
Level Two, which requires a grievant to “file a written request for mediation, private mediation
or private arbitration.” Id. at § 6C-2-4(b)(1). Finally, after receiving “a written report stating that
[L]evel [T]wo was unsuccessful,” a grievant may request a Level Three hearing. Id. at § 6C-2­
4(c)(1).


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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 relates to the promotion
       or vacancy, as defined in section eight of this article.

Id. at § 18A-4-8b(b). Classification titles are listed and defined in West Virginia Code § 18A-4­
8. There are four classifications for aides: Aide I, Aide II, Aide III, and Aide IV. The numeral
distinctions denote different levels of education or training received. ECCAT positions are also
divided into separate categories based upon education and training obtained: “‘[ECCAT] I’
means a person who does not possess minimum requirements for the permanent authorization
requirements, but is enrolled in and pursuing requirements[.]” Id. at § 18A-4-8(i)(36).
“‘[ECCAT] II’ means a person who has completed the minimum requirements for a state-
awarded certificate for [ECCAT] as determined by the State Board[.]” Id. at § 18A-4-8(i)(37).
Finally, “‘[ECCAT] III’ means a person who has completed permanent authorization
requirements, as well as additional requirements comparable to current paraprofessional
certificate[.]” Id. at § 18A-4-8(i)(38). In short, West Virginia Code § 18A-4-8 defines “aides”
and “ECCATs” differently and establishes separate qualifications for the positions. Petitioner
concedes that she did not have ECCAT certification or meet the definition of an ECCAT at the
time the vacancy was posted. Accordingly, because petitioner did not hold an ECCAT
classification title, we find that the circuit court was not clearly wrong in determining that
petitioner was simply not qualified for the posted position.



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         We also find that the circuit court was not clearly wrong in concluding that ECCAT
seniority accrues independently of aide seniority. West Virginia Code § 18A-4-8g, titled
“[d]etermination of seniority for service personnel,” sets forth that “[f]or all purposes including
the filling of vacancies and reduction in force, seniority shall be accumulated within particular
classification categories of employment as those classification categories are referred to in [West
Virginia Code § 18A-4-8e].” West Virginia Code § 18A-4-8e does not place aides and ECCATs
into the same classification category.2 To the contrary, the statute provides that “[e]ach
classification title defined and listed is considered a separate classification category of
employment[.]” As set forth above, aides and ECCATs are defined separately. Accordingly, we
find that the circuit court’s conclusion that “the Board was not permitted to count [p]etitioner’s
[a]ide seniority as ECCAT seniority” was not clearly wrong.

        Finally, because the conclusions that petitioner was not qualified for the position and did
not hold seniority over Ms. Jones in the ECCAT classification title were not clearly wrong, we
similarly find no error in the conclusion that respondent “committed harmless error in not
notifying . . . [p]etitioner of the vacancy.” See Miller v. Bd. of Educ. of Boone Cty., 190 W.Va.
153, 159, 437 S.E.2d 591, 597 (1993) (“[A]n error which is not prejudicial to the complaining
party is harmless and does not require reversal of the final judgment.”)(internal quotations and
citation omitted).

        For the foregoing reasons, we affirm the circuit court’s January 31, 2017, order denying
her grievance.

                                                                                            Affirmed.


2
    West Virginia Code § 18A-4-8e provides that

          [t]he state board shall develop and make available competency tests for all of the
          classification titles defined in section eight of this article and listed in section
          eight-a of this article for service personnel. The board shall review and, if needed,
          update the competency tests at least every five years. Each classification title
          defined and listed is considered a separate classification category of employment
          for service personnel and has a separate competency test, except for those class
          titles having Roman numeral designations, which are considered a single
          classification of employment and have a single competency test.

                 (1) The cafeteria manager class title is included in the same classification
                     category as cooks and has the same competency test.

                 (2) The executive secretary class title is included in the same classification
                     category as secretaries and has the same competency test.

                 (3) The	 classification titles of chief mechanic, mechanic and assistant
                     mechanic are included in one classification title and have the same
                     competency test.

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ISSUED: January 8, 2018

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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