                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Raleigh County Board of Education, Petitioner Below,                              FILED
Petitioner                                                                      November 22, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-1539 (Kanawha County 11-AA-144)                                     OF WEST VIRGINIA



Sandra Dee Moye, Respondent Below,
Respondent


                              MEMORANDUM DECISION
       Petitioner Raleigh County Board of Education, by counsel Gregory W. Bailey, Howard
E. Seufer, Jr., and Michael M. Cary, appeals the order of the Circuit Court of Kanawha County,
entered November 30, 2012, affirming the decision of the West Virginia Public Employees
Grievance Board. Respondent Sandra Dee Moye appears by counsel John Everett Roush.

        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 order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Respondent filed a grievance against petitioner employer in May of 2010 seeking
reclassification to add “accounts payable supervisor” to her existing classification, Secretary
III/Accountant III/Switchboard Operator-Receptionist, and requesting a 261-day contract of
employment. Her Level I grievance was denied, and her Level 2 mediation was unsuccessful.
Respondent proceeded to a Level III hearing, at the conclusion of which the administrative law
judge granted the grievance and ordered petitioner to include the “accounts payable supervisor”
classification in respondent’s title and change her contract term from a 240-day contract to a
261-day contract.

       Petitioner then filed a petition for appeal with the Kanawha County Circuit Court in
December of 2011. The circuit court adopted all findings of fact and conclusions of law of the
administrative law judge. It is from that order that petitioner appeals.

       “When 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 County Bd. Of Educ.,
228 W.Va. 238, 239, 719 S.E.2d 406, 407 (2011). We recently reiterated:

               The standard of review for Grievance Board determinations has been

                                                1

       explained as follows in syllabus point one of Cahill v. Mercer County Board of
       Education, 208 W.Va. 177, 539 S.E.2d 437 (2000)[accord Syl. Pt. 2, Martin, 238
       W.Va. at 239, 719 S.E.2d at 407]:

                      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.

       See also Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465
       S.E.2d 399, 406 (1995) (holding that “[w]e must uphold any of the ALJ’s factual
       findings that are supported by substantial evidence, and we owe substantial
       deference to inferences drawn from these facts”). In syllabus point one of
       Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524
       (1989), this Court explained: “A final order of the hearing examiner for the West
       Virginia Educational Employees Grievance Board, made pursuant to W.Va. Code,
       18–29–1, et seq. (1985), and based upon findings of fact, should not be reversed
       unless clearly wrong.”

Patterson v. Board of Educ. of County of Raleigh, 231 W.Va. 129, _ _ _, 744 S.E.2d 239, 241-42
(2013) (quoting Durig v. Board of Educ. of County of Wetzel, 215 W.Va. 244, 247, 599 S.E.2d
667, 670 (2004)).

       Respondent applied for the position of Accountant III/Secretary III in August of 2008,
and was hired with a 240-day term contract of employment.1 She replaced Joey McDaniels who
had a multi-classification title that included “accounts payable supervisor”; Mr. McDaniels’
predecessor, Gloria Freeman, also had that classification.2 Immediately prior to respondent’s
taking the Accountant III/Secretary III position, Brenda Toney held an “accounts payable
supervisor” designation simultaneously with Mr. McDaniels.3 Prior to that, Ms. Toney had been

       1
       Employees working under 261-day contracts of employment receive paid vacation days
while employees under 240-day contracts do not receive the same paid leave. Employees under
261-day contracts do not work more days.
       2
         Ms. Freeman had a 261-day contract term. The term of Mr. McDaniels’ contract is not
clear from the record.
       3
        Ms. Toney had a 240-day contract term, but at the time of the hearing in this matter, had
a pending grievance to address her contract term. Ms. Toney has since moved on to another
position. It appears that Ms. Freeman may have retired the day before Ms. Toney filed her
grievance.
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simultaneously classified as “accounts payable supervisor” along with Ms. Freeman.

         The administrative law judge found that respondent performed essentially the same duties
as her predecessor, Mr. McDaniels, as well as his predecessor, Ms. Freeman.4 Respondent
testified that Larry Jessup, Director of Accounting, told her that after one year of service, she
would be given the title “accounts payable supervisor.” Respondent’s duties did not change
during her tenure. Mr. Jessup recommended in April of 2009 that respondent be given the
“accounts payable supervisor” title, but she was not reclassified.

        The administrative law judge found that respondent performed the same duties as Ms.
Freeman, who was working at the same time as Ms. Toney. He found that Ms. Toney was a valid
comparison employee, and that because petitioner had no viable justification for denying Ms.
Toney a 261-day contract, respondent should be placed on a 261-day contract term and given the
classification title “accounts payable supervisor.”

        On appeal, petitioner argues first that respondent was inappropriately compared to Ms.
Toney because, unlike respondent, Ms. Toney was classified as a computer operator.5 Under
separate heading, petitioner argues that the administrative law judge incorrectly determined that
respondent performed substantially the same duties as Ms. Toney. In an attempt to distinguish
the responsibilities of the two employees, petitioner argues that one of Ms. Toney’s supervisory
duties—the review of all check registers and invoices exceeding $10,000—was transferred to
Michael Click, who assumed the position of Director of Accounting in June of 2009, and that
Mr. Click had expressed his intent to post the position vacated by Ms. Toney without the
“accounts payable supervisor” classification. However, petitioner does not refute the specific
finding of the administrative law judge that Mr. Click did not change respondent’s position.
Petitioner has presented no evidence to show that respondent’s duties differed from Ms. Toney’s,
and we will not disturb the findings of the administrative law judge on either of these grounds.

        Next, petitioner argues that West Virginia Code § 18A-4-8(i)(7) does not contemplate
that multiple employees be given “primary” responsibility for its accounts payable function.
That statute provides:

       “Accounts payable supervisor” means a person employed in the county board
       office who has primary responsibility for the accounts payable function and who
       either has completed twelve college hours of accounting courses from an
       accredited institution of higher education or has at least eight years of experience
       performing progressively difficult accounting tasks. Responsibilities of this class
       title may include supervision of other personnel.



       4
         He also noted that there was no question, based on a prior Grievance Board decision and
its treatment on appeal by the Circuit Court of Raleigh County, that Ms. Toney and Ms. Freeman
performed “like assignments and duties.”
       5
        Petitioner did not identify particular assignments of error as required by Rule 10(c)(3) of
the Rules of Appellate Procedure.
                                                3

        Petitioner’s argument seems disingenuous in light of petitioner’s history of
simultaneously employing multiple people in the accounts payable classification, as the
administrative law judge determined at the Level Three hearing. In any event, the statutory
language does not convey the limitation that petitioner suggests. We agree with the
administrative law judge that “[r]ather . . . than assuming that it implies that one person is in
charge of these functions, it could as easily mean that the employee’s most important job
responsibilities relate to the accounts payable function.” Petitioner also argues that there was
insufficient evidence to support the administrative law judge’s finding that petitioner required
more than one accounts payable supervisor. However, inasmuch as the record shows that
respondent employed multiple individuals simultaneously holding that title designation, and
petitioner has not shown any evidence that contradicts the administrative law judge’s finding that
those individuals were performing the same job functions, we find no merit in this argument.

        Finally, petitioner argues that the administrative law judge’s determination that
respondent was entitled to a 261-day contract was “erroneously based upon a comparison to the
contract term of an employee who was employed prior to the effective date of the statutory
uniformity requirement.”6 We note that petitioner does not specify to which comparison
employee it refers, and offers no basis in the appendix record for this factual assertion. In fact,
respondent disputes that Ms. Toney was hired prior to 1984, and petitioner offers no evidence of
the date of hire of any other employee discussed herein. As petitioner has failed to provide a
basis, we reject this argument.

       For the foregoing reasons, we affirm.
                                                                                        Affirmed.

ISSUED: November 22, 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

       6
           West Virginia Code § 18A-4-5b states in pertinent part:

       [C]ounty [salary] schedules shall be uniform throughout the county with regard to
       any training classification, experience, years of employment, responsibility,
       duties, pupil participation, pupil enrollment, size of buildings, operation of
       equipment or other requirements. Further, uniformity shall apply to all salaries,
       rates of pay, benefits, increments or compensation for all persons regularly
       employed and performing like assignments and duties within the county. . . .
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