                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Heather Stewart,
                                                                                 FILED
Petitioner Below, Petitioner
                                                                            February 21, 2017
vs.) No. 16-0123 (Kanawha County 14-AA-116)                                    RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Lincoln County Board of Education,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner Heather Stewart, by counsel John Everett Roush, appeals the Circuit Court of
Kanawha County’s January 13, 2016, order affirming the decision of the West Virginia Public
Employees Grievance Board (“the Board”). Respondent Lincoln County Board of Education, by
counsel Rebecca M. Tinder, filed a response in support of the circuit court’s order. On appeal,
petitioner argues that the circuit court erred in affirming the decision of the Board because the
Administrative Law Judge (“ALJ”) erroneously found that she was correctly classified as a Clerk
II/Accountant II.

        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.

        In 2007, petitioner began working for respondent as a substitute secretary. After passing
her competency test, petitioner began work as a Secretary II in 2008. In 2013, petitioner accepted
a position under the multi-classification titles of Clerk II/Accountant II. This posting and job
description were specifically created for the unique position petitioner accepted. In November of
2013, petitioner filed a Level One grievance that sought reclassification to include Secretary III
or Executive Secretary. According to petitioner, roughly forty percent of her daily job duties in
her new position were more properly classified as Secretary III or Executive Secretary, as
opposed to Clerk II. Following the Level One hearing in December of 2013, petitioner’s
grievance was denied.

       In January of 2014, petitioner appealed the denial to Level Two of the grievance
procedure. Following unsuccessful mediation, petitioner appealed to Level Three in April of
2014. Following a hearing, the ALJ issued a decision in October of 2014. In the decision, the
ALJ found that petitioner’s duties fit both the statutory definition and respondent’s job
description for Clerk II/Accountant II and again denied her grievance. In November of 2014,


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petitioner appealed the denial to the circuit court. By order entered on January 13, 2016, the
circuit court affirmed the Board’s decision. It is from this order that petitioner appeals.

       The Court has 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 Cty. Bd. of Educ., 227 W.Va. 525, 711 S.E.2d 595 (2011). Further,
we have held 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. [ ],
       and based upon findings of fact, should not be reversed unless clearly wrong.”
       Syl. pt. 1, Randolph Cnty. Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524
       (1989).

Syl. Pt. 3, Armstrong v. W.Va. Div. of Culture and History, 229 W.Va. 538, 729 S.E.2d 860
(2012). Upon our review, the Court finds no error in the circuit court affirming the Board’s
decision below.

        On appeal to this Court, petitioner argues that the ALJ erroneously found that she was not
entitled to a classification of Secretary III or Executive Secretary, instead of her current
classification as Clerk II.1 The Court, however, does not agree. Upon our review and
consideration of the circuit court’s order, the parties’ arguments, and the record submitted on
appeal, we find no error by the circuit court. Our review of the record supports the circuit court’s
decision to affirm the Board’s ruling based on this alleged error, which was also argued below.
Indeed, the circuit court’s order includes well-reasoned findings and conclusions as to the
assignment of error raised on appeal.2 Given our conclusion that the circuit court’s order and the

       1
       In the grievance process below, petitioner did not contest her classification as an
Accountant II. Accordingly, that classification is not at issue on appeal.
       2
         On appeal to this Court, petitioner presents only one allegation of error by the circuit
court. According to petitioner, the circuit court erred in finding that petitioner “did not receive
callers, make transcriptions or perform routine correspondence and therefore did not perform
duties that distinguish a Secretary from a Clerk.” However, the record shows that the ALJ
similarly found that “[t]he functions that distinguish secretaries by definition, receiving callers,
                                                                                    (continued . . . )
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record before us reflect no clear 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 January 13, 2016, “Order” to this
memorandum decision.

       For the foregoing reasons, the circuit court’s January 13, 2016, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: February 21, 2017


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




transcriptions, and handling routine correspondence, [petitioner] does not do.” As such, this
argument does not amount to a new allegation regarding the circuit court’s ruling on appeal to
this Court. Accordingly, adoption of the circuit court’s order is appropriate, as it addresses all of
the arguments petitioner raises on appeal to this Court, as they are the same issues raised in the
circuit court.



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