                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS



James W. Eisentrout,
                                                                                   FILED
Petitioner Below, Petitioner                                                      June 28, 2013

                                                                             RORY L. PERRY II, CLERK

vs) No. 12-1464 (Kanawha County 10-AA-77)                                  SUPREME COURT OF APPEALS

                                                                               OF WEST VIRGINIA

Preston County Board of Education and
West Virginia Department of Education,
Respondent Below, Respondent


                                MEMORANDUM DECISION
       Petitioner James Eisentrout, by counsel John E. Roush, appeals the Circuit Court of
Kanawha County’s order entered on October 28, 2012, upholding the decision of the West
Virginia Grievance Board to deny the petitioner’s grievance. The respondents, the Preston
County Board of Education and the West Virginia Department of Education, by counsel Gregory
W. Bailey, Howard E. Seufer, Jr., and Katherine A. Campbell, have filed a response to the
present appeal.
        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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.
        This appeal arises out of a grievance filed by the petitioner in response to not being
selected for a summer bus driving position. The assignment in question was posted on May 11,
2009, and was identified as “1 Bus Operator for the PHS Summer/Athletic Band Program(s)
Shuttle Run on an as/if needed basis, at a daily rate of pay: Bruceton area.” The successful
applicant, Kevin Durr, performed a similar summer bus assignment in 2008 designated as “Bus
Operator for the PHS Summer/Athletic Band Program(s) Shuttle Run on an as/if needed basis, at
a daily rate of pay: Newburg/Masontown area.” The petitioner did not perform any bus operator
assignments in the summer of 2008, or in any other previous summer. The assignment in
question was performed by William Eye in 2008, who retired prior to the summer of 2009. Both
Mr. Durr and the petitioner applied for the 2009 position, and the petitioner had more overall
seniority. However, Mr. Durr was awarded the position based upon his prior summer service –
what the parties refer to as his “summer seniority credit.”
        The petitioner initiated a Level I grievance on July 8, 2009, arguing that he should have
been awarded the position based on his overall level of seniority, and that the respondents did not
follow the correct hiring process. After being unsuccessful at level I, the petitioner appealed to
level II, and then to an administrative law judge at level III, being unsuccessful at each level.
The administrative law judge noted that, although the exact location and exact nature of the work

                                                1

of the 2009 job was “somewhat different,” there was sufficient “consistency in the type of work
being performed” to honor Mr. Durr’s prior summer service over the petitioner’s regular
seniority. By decision entered on October 28, 2012, the Circuit Court of Kanawha County
affirmed the decision of the administrative law judge. From this order the petitioner brings the
current appeal.
              This Court has stated:
               “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 Board of Education, 208 W.Va.
       177, 539 S.E.2d 437 (2000).

Syllabus Point 1, Alderman v. Pocahontas Cnty. Bd. of Educ., 223 W. Va. 431, 675 S.E.2d 907
(2009). The present appeal offers no disputed facts. We therefore give plenary review to the
issue of law presented.

       The current appeal hinges on statutory interpretation. West Virginia Code § 18-5-39(f)
[2000] provides in part:
       . . . the county board may employ school service personnel to perform any related
       duties outside the regular school term. . . . An employee who was employed in
       any service personnel job or position during the previous summer shall have the
       option of retaining the job or position if the job or position exists during any
       succeeding summer. If the employee is unavailable or if the position is newly
       created, the position shall be filled pursuant to section eight-b, article four,
       chapter eighteen-a of this code [§ 18A-4-8b].
W.Va. Code § 18-5-39(f).
        The petitioner argues that the hiring process for the 2009 summer posting should have
been done pursuant to West Virginia Code § 18A-4-8b, and argues that if it had, then he would
have been awarded the job due to his overall level of seniority. The petitioner is asking this
court to interpret the phrase “employee is unavailable” to include a retired employee, so that
West Virginia Code § 18A-4-8b is triggered.
       We have stated:
              “A statutory provision which is clear and unambiguous and plainly
       expresses the legislative intent will not be interpreted by the courts but will be
       given full force and effect.” Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d
       488 (1951).



                                                2

Syllabus Point 2, University Commons Riverside Home Owners Ass'n, Inc. v. University
Commons, 741 S.E.2d 613 (W.Va. 2013).

        West Virginia Code § 18-5-39(f) unambiguously and plainly states that a school
employee who was employed in a position during the previous summer shall have the option of
retaining the job during any succeeding summer. This Court has previously interpreted West
Virginia Code § 18-5-39 to create a “summer seniority credit” for those school service personnel
who hold a summer position. See McClung v. The Bd. of Educ. of The County of Nicholas, 213
W.Va. 606, 610, 584 S.E.2d 240, 244 (2003) (interpreting W.Va. Code §§ 18-5-39 and saying,
“Mr. O’Dell’s previous summer employment [in 1998] as a school bus operator, for purposes of
awarding the summer position at issue, was a ‘seniority credit,’ . . . towards the 1999 summer
school bus operator position[.]”)

        It is not disputed in the present case that the successful candidate (Mr. Durr) had a
summer seniority credit for working the previous summer, while the petitioner had none.
Accordingly, if the position did not need to be filled pursuant to West Virginia Code §18A-4-8b,
the petitioner would not be entitled to the job as the successful candidate had summer seniority
from his work the prior summer.

        The petitioner’s argument, that West Virginia Code § 18-5-39 requires the respondent to
hire the summer driver pursuant to the requirements set forth in West Virginia Code §18A-4-8b,
does not persuade this Court. The petitioner may have been entitled to the position if it was
filled pursuant to West Virginia Code §18A-4-8b, however, filling the position in that manner is
only required if the position is newly created, or if the employee who held the position the
previous summer is an unavailable employee. Mr. Eye, who held the position in the Summer of
2008, was unavailable for employment during the Summer of 2009. However, the statute says,
“[i]f the employee is unavailable. . . .” W.Va. Code § 18-5-39 (emphasis added). Mr. Eye was
not an unavailable employee, he is a retiree of the respondent. Since the previous employee was
not an unavailable employee, and the position was not newly created, the respondent did not
need to fill the position in accordance with West Virginia Code § 18A-4-8b.
       For the foregoing reasons we affirm.
                                                                                      Affirmed
ISSUED: June 28, 2013

CONCURRED IN BY:

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

DISQUALIFIED:
Justice Margaret L. Workman



                                               3

