          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2020 Term
                                                                          FILED
                                     _____________                    March 20, 2020
                                                                          released at 3:00 p.m.
                                                                      EDYTHE NASH GAISER, CLERK
                             Nos. 18-0929 and 18-0932                 SUPREME COURT OF APPEALS
                                                                           OF WEST VIRGINIA
                                  _____________

         WEST VIRGINIA DIVISION OF HIGHWAYS and TERRA GOINS,
                               Petitioners

                                          v.

                           MICHAEL POWELL,
                               Respondent
  ____________________________________________________________________

                  Appeal from the Circuit Court of Kanawha County
                          Honorable Joanna I. Tabit, Judge
                            Civil Action No. 17-AA-15

             REVERSED AND REMANDED WITH DIRECTIONS
  ____________________________________________________________________

                             Submitted: March 4, 2020
                              Filed: March 20, 2020

Patrick Morrisey, Esq.                               Paul M. Stroebel, Esq.
Attorney General                                     Stroebel & Johnson, PLLC
William C. Ballard, Esq.                             Charleston, West Virginia
Assistant Attorney General                           Attorney for Respondent
Charleston, West Virginia
Attorneys for Division of Highways

Brian J. Headley, Esq.
Jonathan K. Matthews, Esq.
Headley Ballard, LLC
Mount Pleasant, South Carolina
Attorneys for Terra Goins


JUSTICE HUTCHISON delivered the Opinion of the Court.
JUSTICE WORKMAN, deeming herself disqualified, did not participate in the decision of
this opinion.

JUDGE NINES, sitting by temporary assignment.
                              SYLLABUS BY THE COURT



              1.     For the purpose of timely filing a grievance under W. Va. Code § 6C-

2-4(a)(1) (2008), the applicable time period is ordinarily deemed to begin to run when the

employer unequivocally notifies the employee of the grievable decision.



              2.     “[West Virginia Code § 6C-2-4(a)(1) [2008]], contains a discovery

rule exception to the time limits for instituting a grievance. Under this exception, the time

in which to invoke the grievance procedure does not begin to run until the grievant knows

of the facts giving rise to a grievance.” Syllabus, Barthelemy v. W. Virginia Div. of Corr.,

Pruntytown Corr. Ctr., 207 W. Va. 601, 535 S.E.2d 200 (2000).



              3.     The time period for filing an employment selection grievance under

W.Va. Code § 6C-2-4(a)(1) (2008) begins when the grievant is unequivocally notified of

the selection decision by the employer, not when the grievant discovers facts about the

person selected for the position.




                                              i
Hutchison, Justice:

                This matter was brought as separate appeals by the West Virginia Division

of Highways and Terra Goins (hereinafter collectively “Petitioners” or individually “DOH”

and “Ms. Goins”) from a September 19, 2018, order of the Circuit Court of Kanawha

County.1 The circuit court’s order reversed a decision of the West Virginia Public

Employees Grievance Board (hereinafter “Grievance Board”) that had dismissed, as

untimely filed, a grievance filed by Michael A. Powell (hereinafter “Respondent”). In this

appeal, the Petitioners argue that the circuit court improperly applied the discovery rule to

Respondent’s grievance or, alternatively, the circuit court improperly awarded Respondent

relief on the merits of his grievance. Upon careful review of the briefs, the appendix

records, the arguments of the parties, and the applicable legal authority, we reverse.



                                               I.

                       FACTUAL AND PROCEDURAL HISTORY

                The record in this case indicates that on February 23, 2015, DOH posted a

vacancy in the Highway Engineer classification.           On April 14, 2015, Ms. Goins,

Respondent and three other applicants were interviewed for the position. Subsequent to

the interview process, DOH determined that the top two candidates for the position were

Ms. Goins and an applicant named Josh Anderson. Ultimately DOH selected Ms. Goins



       1
           This Court consolidated the separately filed appeals.
                                               1
for the position. On June 29, 2015, DOH informed Respondent in writing that he was not

selected for the position. The Respondent learned “shortly thereafter” that Ms. Goins was

given the position.



              It is alleged that on November 4, 2015, Ms. Goins visited the office where

the Respondent worked. While at the office, it appears that they had a conversation in

which Respondent questioned Ms. Goins about her work experience. Based upon that

conversation, Respondent formed the opinion that Ms. Goins was not qualified for the

Highway Engineer position. As a result of this belief, Respondent filed a grievance on

November 20, 2015. In that grievance, Respondent alleged Ms. Goins did not meet the

requirements for the position and should not have been appointed to the position. The

Respondent requested that he be awarded the position, with backpay for the salary increase

the position offered.



              A Level One grievance proceeding was held on December 10, 2015.2

Subsequent to the proceeding, on December 15, 2015, the Level One Grievance Evaluator

issued a decision denying relief to the Respondent. The Grievance Evaluator denied relief



       2
         Ms. Goins was permitted to intervene in the grievance. See W.Va. Code § 6C-2-
3(f) (2008) (“Upon a timely request, any [public] employee may intervene and become a
party to a grievance at any level when the employee demonstrates that the disposition of
the action may substantially and adversely affect his or her rights or property and that his
or her interest is not adequately represented by the existing parties.”).
                                             2
on the grounds that Respondent’s grievance was not timely filed as required by law. The

grievance then went to Level Two for mediation.             The mediation was ultimately

unsuccessful. The Respondent thereafter appealed to Level Three. A Level Three hearing

was conducted before a Grievance Board administrative law judge (hereinafter “ALJ”) on

October 14, 2016. The ALJ issued an order on February 8, 2017, that granted DOH’s

motion to dismiss the grievance as untimely filed.3



                The Respondent filed an appeal to the circuit court. After reviewing the

record in the case and listening to oral arguments, the circuit court issued an order on

September 19, 2018, reversing the ALJ’s decision. The circuit court’s order found that the

grievance was timely filed under the discovery rule. The order also determined that the

Respondent was qualified for the Highway Engineer position, but that Ms. Goins was not

qualified. The order awarded the position to Respondent with backpay. The Petitioners

thereafter filed their respective appeals to this Court.



                                              II.

                                 STANDARD OF REVIEW

                This case comes to this Court from an order by the circuit court that reversed

a decision of a Grievance Board ALJ. “This Court reviews decisions of the circuit court



       3
           The order did not address the merits of Respondent’s grievance.
                                               3
under the same standard as that by which the circuit court reviews the decision of the ALJ.”

Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 304, 465 S.E.2d 399, 406 (1995)

(internal quotation marks and citation omitted). We have succinctly articulated this

standard as follows:

              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.

Syl. pt. 1, Cahill v. Mercer Cty. Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000). See

W. Va. Code § 6C-2-5(b) (2007). Finally, we have indicated that “[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. [2008], and based upon findings of fact, should

not be reversed unless clearly wrong.” Syl. pt. 1, Randolph County Bd. of Educ. v. Scalia,

182 W.Va. 289, 387 S.E.2d 524 (1989). With the foregoing in mind, we turn to the parties’

arguments.



                                             III.

                                      DISCUSSION

              The first issue raised by the Petitioners is their contention that the circuit

court erred in reversing the ALJ’s determination that the Respondent’s grievance was

                                              4
untimely filed. The Respondent argues that the circuit court properly found that his

grievance was timely filed under the discovery rule.



              The time periods for a public employee to file a grievance are set out under

W. Va. Code § 6C-2-4(a)(1) (2008), in part, as follows:

              Within fifteen days following the occurrence of the event upon
              which the grievance is based, or within fifteen days of the date
              upon which the event became known to the employee, or
              within fifteen days of the most recent occurrence of a
              continuing practice giving rise to a grievance[.]4

We have previously made the following observations regarding the first two provisions of

this statute.5 With respect to the first provision, we have said that under this provision

“[t]he running of the relevant time period is ordinarily deemed to begin to run when the

employee is unequivocally notified of the decision.” Lewis Cty. Bd. of Educ. v. Holden,

234 W. Va. 666, 673, 769 S.E.2d 282, 289 (2015), quoting, Rose v. Raleigh Cnty. Bd. of



       4
         West Virginia Code § 6C–2–2(c) (2008) defines “days” as “working days
exclusive of Saturday, Sunday, official holidays and any day in which the employee’s
workplace is legally closed under the authority of the chief administrator due to weather or
other cause provided for by statute, rule, policy or practice.”
       5
         The Respondent has argued that the third provision of the statute, the “continuing
practice” exception, also applies. Neither the ALJ nor the circuit court addressed this
exception in their orders. We decline to address the matter for the first time on appeal. See
Whitlow v. Bd. of Educ. of Kanawha Cty., 190 W. Va. 223, 226, 438 S.E.2d 15, 18 (1993)
(“Our general rule ... is that, when nonjurisdictional questions have not been decided at the
trial court level and are then first raised before this Court, they will not be considered on
appeal. ... The rationale behind this rule is that when an issue has not been raised below,
the facts underlying that issue will not have been developed in such a way so that a
disposition can be made on appeal.”).
                                             5
Educ., 199 W. Va. 220, 222, 483 S.E.2d 566, 568 (1997). See Gullet v. Department of

Health and Human Resources, Docket No. 2019-1781-DHHR, 2020 WL 757790, at *2

(January 23, 2020) (“The time period for filing a grievance ordinarily begins to run when

the employee is ‘unequivocally notified of the decision being challenged.’”). In light of

our previous ruling on the issue, we now hold that for the purpose of timely filing a

grievance under W. Va. Code § 6C-2-4(a)(1) (2008), the applicable time period is

ordinarily deemed to begin to run when the employer unequivocally notifies the employee

of the grievable decision. With regards to the second provision of the statute, we have

definitively held that “[West Virginia Code § 6C-2-4(a)(1) [2008]], contains a discovery

rule exception to the time limits for instituting a grievance. Under this exception, the time

in which to invoke the grievance procedure does not begin to run until the grievant knows

of the facts giving rise to a grievance.” Syllabus, Barthelemy v. W. Virginia Div. of Corr.,

Pruntytown Corr. Ctr., 207 W. Va. 601, 535 S.E.2d 200 (2000). See Syl. pt. 1, Spahr v.

Preston Cty. Bd. of Educ., 182 W. Va. 726, 391 S.E.2d 739 (1990) (“W.Va. Code, 18-29-

4(a)(1) (1985) [repealed], contains a discovery rule exception to the time limits for

instituting a grievance. Under this exception, the time in which to invoke the grievance

procedure does not begin to run until the grievant knows of the facts giving rise to a

grievance.”).6


       6
        The decision in Barthelemy was construing a discovery rule provision that was
contained in W. Va. Code § 29-6A-4(a), concerning State employees, and the decision in
Spahr was examining an identical discovery rule provision contained in W.Va. Code § 18-
29-4(a)(1), concerning education employees. Those two discovery rule provisions were
                                           6
              In the instant proceeding, DOH informed the Respondent on June 29, 2015,

that he was not selected for the Highway Engineer position. Insofar as the Respondent’s

grievance was based upon his non-selection for that position, under W. Va. Code § 6C-2-

4(a)(1) he had fifteen working days to file his grievance, from the date he received notice

from DOH of his non-selection. The parties do not dispute the fact that the Respondent

failed to file his grievance within fifteen working days after he was “unequivocally”

informed of his non-selection for the position by DOH on June 29, 2015. Consequently,

the only relevant issue is whether the discovery rule applied to the facts of this case.



              The ALJ rejected application of the discovery rule based upon the following

reasoning:

              In applying the discovery rule the Grievance Board has held
              that a grievant has a responsibility to act reasonably to discover
              the facts underlying the basis of his grievance.

              ***

              [A] grievant may not fail to reasonably investigate a grievable
              event and then, at a later time, claim that he or she did not know
              the underlying circumstances of the grievable event.
              Specifically, in non-selection cases the Grievance Board has
              routinely held an employee is obligated to file his or her claim


repealed in 2007, and reenacted in W. Va. Code § 6C-2-4(a)(1). Either case may be cited
as setting out the statutory grievance discovery rule. See Smith v. Hancock County BOE,
Docket No. 07-15-329, 2007 WL 4157180, at *3 n.1 (October 22, 2007) (“In 2007 the
Legislature abolished the West Virginia Education and State Employees Grievance Board,
replacing it with the Public Employees Grievance Board. W. Va. Code §§ 18-29-1 to 18-
29-11 and W.Va. Code §§ 29-6A-1 to 29-6A-12 were repealed and replaced by W. Va.
Code §§ 6C-2-1 to 6C-2-7 and W. Va. Code §§ 6C-3-1 to 6C-3-6 (2007).”).
                                              7
              within the applicable time period after being informed that
              he/she has not been selected for the position. Otherwise, there
              would be virtually no finality to hiring decisions leaving
              employees and agencies in limbo unnecessarily.

              Grievant was unequivocally notified that he was not selected
              for the position on June 29, 2015. He was required to file his
              grievance within fifteen working days of that date. Had he
              done that he would have been entitled, through discovery, to
              learn the reasons for the selection of the successful candidate.
              (Internal quotation marks and citations omitted.)

The circuit court rejected the reasoning of the ALJ and found that the discovery rule was

satisfied based upon the following:

              Appellant, Michael Powell, testified that he filed his grievance
              promptly upon learning of Terra Goins’, the successful
              applicant, failure to meet the minimum qualifications for the
              position of Highway Engineer. This was learned through a
              discussion with Intervenor/Appellee Goins.

              ***

              [T]his Court concludes that Appellant was justified in filing his
              grievance within fifteen days of learning from the
              Intervenor/Appellee herself that she did not meet the minimum
              qualifications.



              Upon review, we find that the circuit court misapplied the discovery rule.

The decisions in Spahr and Barthelemy illustrate a proper application of the discovery rule.

In Spahr, the Preston County Board of Education and the West Virginia Education

Association (WVEA) had entered into an agreement in 1982, that provided for a salary

supplement for vocational education teachers and teachers who taught business courses.

As a result of an administrative oversight, the names of three business course teachers

                                             8
(grievants) were not included on the list to receive the supplemental pay. In 1986, the

grievants heard rumors that other business course teachers received the pay supplement.

Upon hearing the rumors, the grievants wrote to the county school superintendent in March

and May of 1986, in an effort to determine the truth of the rumors, but never received a

response. The grievants subsequently arranged to meet with their WVEA representative

to inquire about their entitlement to the salary supplement. The WVEA representative

informed the grievants that he believed they were entitled to the supplement. The grievants

thereafter filed their pay grievance within fifteen days of meeting with the WVEA

representative. The lower tribunals found that the grievances were timely filed. On appeal,

this Court upheld the decision that the grievances were timely filed under the discovery

rule:

              [The statute] contains a discovery rule exception to the time
              limits for instituting a grievance. Under this exception, the time
              in which to invoke the grievance procedure does not begin to
              run until the grievant knows of the facts giving rise to a
              grievance.

              ***

              In this case, the teachers’ initial letters to the superintendent
              cannot be characterized as demonstrating actual knowledge of
              the facts constituting their grievance. The teachers did not
              know of their entitlement to the supplement until they met with
              the WVEA representative. Consequently, we find that the
              grievance was timely filed.

Spahr, 182 W. Va. at 729, 391 S.E.2d at 742.




                                              9
              In Barthelemy two State employee grievants completed a training program.

At the completion of the training program the grievants were told that if they were going

to receive a raise for completing the program, it would take effect 30 to 60 days after they

completed the program. None of the paychecks the two grievants received during the 60

day period contained an increase in wages. Subsequent to the expiration of the 60 days, the

two grievants filed grievances alleging that they were wrongfully denied a wage increase.

The lower tribunals dismissed the grievances as untimely filed. On appeal to this Court,

we found that the two grievants timely filed their grievances under the discovery rule that

was applicable to State employees:

              W. Va. Code, 29-6A-4(a)[1998] governs the time limits for
              most state and county employees (specifically excluding
              employees of county school boards and other educational
              institutions) for instituting a grievance, providing that:

                     Within ten days following the occurrence of the
                     event upon which the grievance is based, or
                     within ten days of the date on which the event
                     became known to the grievant, or within ten days
                     of the most recent occurrence of a continuing
                     practice giving rise to a grievance, the grievant
                     or the designated representative, or both, may
                     file a written grievance with the immediate
                     supervisor of the grievant.

              A statute nearly identical to W. Va. Code, 29-6A-4(a) is the
              statute governing grievance procedures for employees of our
              educational systems. Grievances filed by employees of the
              various county boards of education and other educational
              institutions are governed by W. Va. Code, 18-29-1 et seq., with
              time limits for the filing of grievances provided for in W.Va.
              Code, 18-29-4(a)(1)[1995]. In applying the time requirements
              of this statute with respect to educational employees, we have
              stated:
                                              10
                    W.Va. Code, 18-29-4(a)(1)(1985), contains a
                    discovery rule exception to the time limits for
                    instituting a grievance. Under this exception, the
                    time in which to invoke the grievance procedure
                    does not begin to run until the grievant knows the
                    facts giving rise to a grievance.

             Syllabus Point 1, Spahr v. Preston County Board of Education,
             182 W.Va. 726, 391 S.E.2d 739 (1990).

             ***

             The DOC argues that the 60 days referenced in their
             memoranda began running on July 10, 1998, and expired on
             September 10, 1998.        The DOC further argues that the
             appellants should have known from their September 15, 1998
             paychecks that their salary had not been increased. Using either
             date, the grievances were not filed within the required 10
             working days.

             We are not persuaded by the appellee’s argument. No evidence
             was presented indicating that the appellants knew they had
             been denied the 5 percent raise until after their September 30,
             1998 paychecks; the evidence is to the contrary.

             Therefore, as we have for educational employees under W.Va.
             Code, 18-29-4(a)(1)[1995], we find that W.Va. Code, 29-6A-
             4(a)[1998] contains a discovery rule exception to the time
             limits for instituting a grievance. Under this exception, the
             time in which to invoke the grievance procedure does not begin
             to run until the grievant knows of the facts giving rise to a
             grievance.

             Applying this holding to the facts of this case, the appellants
             did file their grievance within 10 business days after receipt of
             their September 30, 1998 paychecks, the time that the
             appellants first knew of the facts giving rise to a grievance.

Barthelemy, 207 W. Va. at 604-605, 535 S.E.2d at 203-204.




                                            11
              The discovery rule standard applied by the circuit court in the instant case is

inconsistent with the standard applied in Spahr and Barthelemy. In Spahr, the grievants

did not know that they were supposed to be included in the list of employees entitled to

receive the supplement until they met with the WVEA representative. In Barthelemy, the

grievants did not know they were denied a wage increase until after they received their

final paychecks at the end of the 60 day period. Unlike the grievants in Spahr and

Barthelemy, who did not receive actual notice of the grievable event from their employers,

the Respondent actually received unequivocal notification from DOH about the grievable

event, i.e., Respondent’s non-selection for the position of Highway Engineer. DOH

unequivocally informed him of this grievable event on June 29, 2015. However, under the

circuit court’s order the Respondent had unlimited time to learn of facts regarding Ms.

Goins’ qualifications before filing his grievance. The circuit court’s order relieved the

Respondent of his obligation to perform a reasonable investigation into the circumstances

of his non-selection for the position, either during the fifteen day period before the

grievance had to be filed, or after a grievance was timely filed. The circuit court’s order

does not cite to any legal authority for this new discovery rule standard.7 Moreover, the




       7
         We note that under our general discovery rule a plaintiff has a duty to make a
reasonable effort at ascertaining the basis of his/her cause of action. See Syl. pt. 4, in part,
Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009) (“The plaintiff is charged with
knowledge of the factual, rather than the legal, basis for the action. This objective test
focuses upon whether a reasonable prudent person would have known, or by the exercise
of reasonable diligence should have known, of the elements of a possible cause of action.”).
                                              12
circuit court’s new discovery rule standard is inconsistent with precedent of the Grievance

Board on this precise issue, as illustrated by the following:

              “[A] grievant may not fail to reasonably investigate a grievable
              event and then, at a later time, claim that he or she did not know
              the underlying circumstances of the grievable event.” Bailey
              v. McDowell Cnty. Bd. of Educ., Docket No. 07-33-399 (Nov.
              24, 2008). See also Goodwin v. Monongalia County Bd. of
              Educ., Docket No. 00-30-163 (Sept. 25, 2000), aff’d, Kanawha
              Cnty. Cir. Ct. Civil Action No. 00-AA-168 (Aug. 12, 2003),
              appeal refused, W.Va. Sup. Ct. App. Docket No. 032841 (Apr.
              1, 2004)…. Further, “[t]he Grievance Board has consistently
              held that, in a selection grievance, the time period to file the
              grievance begins when the grievant learns of the selection
              decision, not when the grievant discovers facts about the
              person selected. Lynch v. W. Va. Dep’t of Transp., Docket No.
              97-DOH-060 (July 16, 1997) aff’d, Kan. Co. Cir Ct. Docket
              No. 97-AA-110 (Jan. 21, 1999); Shay v. Monongalia County
              Board of Education, Docket No. 01-30-024 (July 23, 2001);
              Tuttle v. Dep’t of Transp./Div. of Highways, Docket No. 05-
              DOH-298 (Feb. 1, 2006); Goodwin v. Dep’t of Transp./Div. of
              Highways, Docket No. 2011-0604-DOT (Mar. 4, 2011).” Guy
              v. Kanawha Cnty. Bd. of Educ., Docket No. 2016-1700-KanED
              (Apr. 24, 2017).

Wolford v. Hampshire County BOE, Docket No. 2018-0549-HamED, 2019 WL 1324903,

at *5 (March 1, 2019) (emphasis added).



              We agree with the long line of Grievance Board decisions and now hold that,

the time period for filing an employment selection grievance under W. Va. Code § 6C-2-

4(a)(1) (2008) begins when the grievant is unequivocally notified of the selection decision

by the employer, not when the grievant discovers facts about the person selected for the

position. In the instant case, the record indicates that Respondent learned that Ms. Goins

                                             13
was awarded the position “shortly” after he received unequivocal notice from DOH on

June 29, 2015, that he was not chosen. Ms. Goins asserted that she and the Respondent

knew each other for more than a decade. In spite of these facts, the record does not disclose

that Respondent made any effort to ascertain Ms. Goins’ qualifications for the position,

until she made a chance visit to his work site almost five months after she obtained the

position. It was only after Ms. Goins’ fortuitous visit to Respondent’s work site that he

filed his grievance challenging her qualifications, several months after the time period for

doing so expired. Under these facts, the discovery rule cannot save the Respondent’s

untimely filed grievance. In the final analysis, the discovery rule standard adopted by the

circuit court is rejected because, as found by the ALJ, under such a standard there would

be no ascertainable date of finality to government hiring decisions. See Clark v. W. Virginia

Div. of Nat. Res., No. 14-0626, 2015 WL 2364563, at *3 (W. Va. May 15, 2015)

(Memorandum Decision) (“Importantly, petitioners cite to no legal authority in support of

their claim that the discovery of a legal theory which supports a grievance is an ‘event’ that

gives rise to the filing of a grievance.”); Kendrick v. Marshall University, Docket No. 2009-

0042-MU, 2009 WL 1268198, at *3 (April 28, 2009) (internal quotation marks and

citations omitted) (“The Grievance Board has repeatedly held that it is not the discovery of

a legal theory, but the event or practice which is the basis of the grievance, that triggers the

statutory time lines.”).




                                              14
              The Respondent argues that he had a reasonable expectation that he could

“rely on the DOH to properly vet and review the potential applicants to determine they met

the minimum qualifications.” As a result of his so-called reasonable expectation, the

Respondent contends “the DOH should be estopped from arguing that his grievance is

untimely because it is clear DOH failed to perform its basic responsibility of determining

who met or did not meet the minimum qualifications.” The Respondent did not cite to any

legal authority that supports his “reasonable expectation” argument as an exception for

timely filing his grievance. Obviously, whether or not DOH fulfilled its duty to select the

most qualified applicant for a vacant position is a potential issue in every appointment it

makes. Therefore, this is not a justifiable reason for failing to timely file a grievance.

Consequently, we reject Respondent’s reasonable expectation argument. Moreover, the

Grievance Board has recognized that “[w]hile equitable estoppel is available if the

employee’s otherwise untimely filing was the result of either a deliberate design by the

employer or of actions that the employer should unmistakably have understood would

cause the employee to delay filing his charge, a grievant has some obligation to pursue his

rights under the grievance statute.” Mitias v. W. Va. Public Serv. Com’n, Docket No. 95-

PSC-029, 1995 WL 917663, at *11 (December 14, 1995). The Respondent did not cite to

any conduct by DOH designed to impede his efforts to timely file his grievance.




                                            15
              In sum, there was no basis in the record for the circuit court to find that the

ALJ improperly dismissed the Respondent’s grievance as untimely filed. 8



                                             IV.

                                     CONCLUSION

              In view of the foregoing we reverse the circuit court’s order of September

19, 2018, and remand this case for entry of an order affirming the February 8, 2017,

dismissal decision of the Grievance Board.



                            REVERSED AND REMANDED WITH DIRECTIONS.




       8
         Because we find the circuit court committed error in determining that the discovery
rule was satisfied in this case, we need not address the Petitioners’ second assignment of
error, i.e., the circuit court improperly awarded Respondent relief on the merits of his
grievance. We wish to point out, however, that there was no legal basis for the circuit court
to address the merits of the grievance. Under the standard of review, the circuit court was
limited to addressing the timeliness issue only.
                                             16
