                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Tina Grace, Petitioner Below,
Petitioner                                                                             FILED
                                                                                    March 7, 2016
vs) No. 15-0525 (Kanawha County 15-AA-11)                                          RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Mingo County Board of Education,
Respondent Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Tina Grace, by counsel Richard A. Robb, appeals the Circuit Court of
Kanawha County’s May 8, 2015, order affirming the West Virginia Public Employee Grievance
Board’s (“Grievance Board”) January 9, 2015, order denying her motion to reinstate her
grievance. Respondent Mingo County Board of Education, by counsel Rebecca M. Tinder, filed
a response and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner alleges
that the circuit court erred in finding that she was not entitled to reinstate her grievance.1

        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.

       Beginning in September of 1998, petitioner was employed by the Mingo County Board of
Education (“MCBE”) as a full-time special education teacher. By letter dated September 26,
2011, Randy Keathley, Superintendent of Mingo County Schools, notified petitioner that
respondents received reports that petitioner slapped a mentally and physically handicapped

       1
         We note that petitioner initially lists six assignments of error in her brief to this Court
each related to the circuit court’s denial of her grievance: (1) the ALJ’s decision violated the
fundamental purpose of the West Virginia Public Employees Grievance Board; (2) the ALJ’s
decision violated the fundamental principle of adjudicating matters on the merits; (3) the ALJ’s
decision was arbitrary because it was based upon findings from another forum; (4) the ALJ’s
decision failed to strictly construe the laws in favor of petitioner; (5) the ALJ’s decision ignored
the “endemic corruption affliction Mingo County;” and (6) the ALJ’s decision was clearly
wrong. To better address those issues, we summarize petitioner’s assignments of error into a
single assignment of error.




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student and withheld food as a form of punishment. Petitioner was immediately suspended with
pay, pending an investigation into the allegations. Additionally, the West Virginia Department of
Health and Human Resources (“DHHR”) conducted its own investigation.

        By letter dated December 21, 2011, the Superintendent notified petitioner that she was
immediately suspended without pay. Further, the Superintendent recommended the termination
of petitioner’s employment upon a finding that child abuse occurred and that petitioner used hot
sauce as a form of disciple in violation of the Employee Code of Conduct. Thereafter, petitioner
filed a grievance against respondent contesting her termination. Subsequently, a hearing was held
in January of 2012, before the Assistant Superintendent of the West Virginia Department of
Education during which testimony was presented. On March 19, 2012, petitioner was terminated
from her employment.

        On March 26, 2012, petitioner filed a Level Three Grievance and requested a hearing
contesting her termination on the basis that she received insufficient notice of the charges against
her and that she was denied the opportunity to confront her accusers when she appeared before a
State hearing officer. Subsequently, petitioner was indicted on multiple criminal charges related
to her conduct. Prior to a hearing on her grievance, petitioner notified the Grievance Board
requesting to withdraw the grievance. By order entered on January 10, 2013, the Grievance
Board dismissed petitioner’s grievance. On the same day, petitioner entered into a pretrial
disposition agreement with the State of West Virginia whereby she agreed to voluntarily dismiss
her grievance and remain “permanently terminated from employment with Mingo County
Schools.” In exchange, the State dismissed the indictment against petitioner.

        However, in November of 2014, petitioner filed a “Motion to Rescind Withdrawal and
Set Aside Order of Dismissal.” Petitioner argued that her motion to withdraw her grievance was
“induced by gross unethical, if not illegal, conduct by former Mingo County Prosecutor, C.
Michael Sparks.” Specifically, Mr. Sparks’ conduct was “beneficial to himself and his family
personally [and] was detrimental and prejudicial to the grievant in this matter.” By order entered
January 9, 2015, the Grievance Board denied petitioner’s motion finding that it was within the
administrative law judge’s (“ALJ”) discretion to reinstate petitioner’s grievance. In denying
petitioner’s motion, the ALJ found that petitioner voluntarily withdrew her grievance in
accordance with her pretrial disposition agreement and that there was no allegation that
petitioner’s criminal counsel did not act in her best interest when the pretrial agreement was
made.2 Thereafter, petitioner appealed this decision to the circuit court.

        On appeal to the circuit court, petitioner argued that 1) the ALJ exceeded his/her statutory
authority in denying her request to reinstate her grievance according to West Virginia Code §
6C-2-3(d)3; 2) the ALJ frustrated the purpose of the grievance procedure; 3) the original ALJ
       2
        Petitioner was represented by different counsel during the grievance and criminal
proceedings.
       3
         West Virginia Code § 6C-2-3(d), in part, provides that “[t]he grievance may not be
reinstated by the grievant unless reinstatement is granted by the chief administrator or the
administrative law judge.”

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dismissing her grievance was required to rule on her motion to reinstate her grievance; 4) the
ALJ’s decision was arbitrary; 5) she was denied an adjudication on the merits of her grievance;
6) the ALJ’s decision ignores the public corruption present in this matter; and 7) the ALJ failed
to strictly construe school regulations and laws in favor of the employee. Ultimately, the circuit
court affirmed the Grievance Board’s decision. It is from that order that petitioner appeals.

       We have previously established the following 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 County Bd. of Educ., 227 W.Va. 525, 711 S.E.2d 595 (2011). Upon
review of the record submitted on appeal, we find no error in the circuit court’s decision below.
Petitioner’s arguments on appeal mirror those raised before the circuit court.

        Upon our review and consideration of the circuit court’s order, the parties’ arguments,
and the record submitted on appeal, the circuit court did not abuse its discretion in affirming the
ALJ’s ruling below. Our review of the record supports the circuit court’s decision to affirm the
ALJ’s ruling based upon the specific findings and petitioner’s arguments, which were also
argued below. Indeed, the circuit court’s order includes well-reasoned findings and conclusions
as to the assignments of error raised by petitioner on appeal. Given our conclusion that the circuit
court’s order and the record before us reflect no error, we hereby adopt and incorporate the
circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised
herein and direct the Clerk to attach a copy of the circuit court’s May 8, 2015, “Final Order” to
this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: March 7, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II



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DISQUALIFIED:

Justice Margaret L. Workman




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