          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  January 2013 Term
                                  _______________                        FILED
                                                                          May 17, 2013
                                                                      released at 3:00 p.m.
                                    No. 11-1531                     RORY L. PERRY II, CLERK
                                                                  SUPREME COURT OF APPEALS
                                  _______________                      OF WEST VIRGINIA


                                LARRY PATTERSON,

                                    Petitioner


                                          v.

                      THE BOARD OF EDUCATION OF THE

                            COUNTY OF RALEIGH,

                                Respondent


       ____________________________________________________________

                  Appeal from the Circuit Court of Kanawha County

                       The Honorable Paul Zakaib, Jr., Judge

                            Civil Action No. 09-AA-23


                                     AFFIRMED


       ____________________________________________________________

                               Submitted: April 10, 2013

                                 Filed: May 17, 2013


John Everett Roush, Esq.                       Gregory W. Bailey, Esq.
Legal Services                                 Howard E. Seufer, Jr., Esq.
West Virginia School Service                   Bowles Rice McDavid Graff & Love LLP
Personnel Association                          Morgantown, West Virginia
Charleston, West Virginia                      Counsel for the Respondent
Counsel for the Petitioner


CHIEF JUSTICE BENJAMIN delivered the Opinion of the Court.

JUSTICE WORKMAN, deeming herself disqualified, did not participate in the decision
in this case.
                              SYLLABUS BY THE COURT




              1.     “The presumption is that a statute is intended to operate

prospectively, and not retrospectively, unless it appears by clear, strong and imperative

words or by necessary implication, that the Legislature intended to give the statute

retroactive force and effect.” Syllabus Point 4, Taylor v. State Compensation

Commissioner, 140 W. Va. 572, 86 S.E.2d 114 (1955).



              2.     West Virginia Code § 18A-4-5b (1990), regarding uniformity of

salaries, rates of pay, benefits, increments or compensation for all county school service

personnel regularly employed and performing like assignments and duties within the

county, operates prospectively so that uniformity is not required between a county school

service employee who was already employed on the effective date of West Virginia Code

§ 18A-4-5b in 1984 and an employee who performs like assignments and duties who was

employed after the effective date of the statute.



              3.     A county school service employee who holds a 210-day regular

contract and a 30-day contract to perform related duties during a summer school term

does not perform like assignments and duties with a school service employee who holds a

261-day regular contract for the purpose of the uniformity provisions found in W. Va.

Code § 18A-4-5b (1990).
Benjamin, Chief Justice:



               Petitioner Larry Patterson appeals the October 5, 2011, order of the Circuit

Court of Kanawha County that affirmed the decision of the West Virginia Public

Employees Grievance Board that denied relief sought by the petitioner in his grievance

against Respondent Raleigh County Board of Education.1 For the reasons that follow, we

affirm the circuit court’s order.



                 I. FACTUAL AND PROCEDURAL BACKGROUND



               During the time period in question, Larry Patterson, the petitioner, was

employed as a Custodian III by Respondent Board of Education of the County of

Raleigh.2 Specifically, the petitioner was employed under a 210-day regular contract of

employment and a 30-day summer contract of employment.3 The petitioner did not




1
  The petitioner was one of a group of similarly situated employees who initiated a
grievance. This appeal concerns only the petitioner.
2
 The Grievance Board found in its December 31, 2008, decision that the petitioner had
been employed by the respondent for 29 years.

3
    According to the Grievance Board decision,

                                                                           (continued . . .)

                                             1

receive paid vacation days, but took unpaid days off throughout the year, determined by

arrangements made with his supervisors according to the needs of the facility. The

petitioner retired from his employment in the summer of 2008.



               In July 2007, the petitioner filed a grievance asserting that the respondent

violated the uniformity provisions in W. Va. Code § 18A-4-5b4 and the discrimination




                      Respondent employs most custodians under 210-day
               contracts, but provides longer terms for those assigned to
               buildings which are open during the summer months and for
               specific programs which provide extra funding for custodial
               services; it also provides optional, separate summer contracts
               for some. Summer work for custodians varies, depending on
               needs. However, all custodians perform similar duties at their
               assigned locations, which include normal cleaning during the
               school year, and more extensive work during unoccupied
               periods (such as summer) like stripping and waxing floors,
               mowing grass, and painting.
4
    W. Va. Code § 18A-4-5b (1990) provides,

                      The county board of education may establish salary
               schedules which shall be in excess of the state minimums
               fixed by this article.
                      These county 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:
                                                                              (continued . . .)

                                               2

prohibition of W. Va. Code § 6C-2-2(d) (2008)5 by employing a similarly situated

Custodian III, Harold French, with a 261-day contract that included paid vacation days.

Mr. French began working for the respondent in January 1969 and retired effective June

30, 2008. Mr. French was the only custodian employed by the respondent who held a

261-day contract. The Grievance Board found that no current employees of the

respondent hold such a contract.




              Provided, That in establishing such local salary schedules, no
              county shall reduce local funds allocated for salaries in effect
              on the first day of January, one thousand nine hundred ninety,
              and used in supplementing the state minimum salaries as
              provided for in this article, unless forced to do so by defeat of
              a special levy, or a loss in assessed values or events over
              which it has no control and for which the county board has
              received approval from the State Board prior to making such
              reduction.
                      Counties may provide, in a uniform manner, benefits
              for service personnel which require an appropriation from
              local funds including, but not limited to, dental, optical,
              health and income protection insurance, vacation time and
              retirement plans excluding the State Teachers’ Retirement
              System. Nothing herein shall prohibit the maintenance nor
              result in the reduction of any benefits in effect on the first day
              of January, one thousand nine hundred eighty-four, by any
              county board of education.
5
  According to W. Va. Code § 6C-2-2(d), “‘Discrimination’ means any differences in the
treatment of similarly situated employees, unless the differences are related to the actual
job responsibilities of the employees or are agreed to in writing by the employees.”


                                              3

              The Level I hearing examiner determined that Mr. French could not be

considered when applying the uniformity requirements because he was hired before the

effective date of W. Va. Code § 18A-4-5b, which was July 1, 1984. The examiner

concluded therefore that there was no basis for a claim of discrimination or favoritism

resulting from the lack of uniformity.



              A Level II mediation session was unsuccessful. At Level III, after a

hearing, the West Virginia Public Employees Grievance Board found that the petitioner

established by a preponderance of the evidence that he performed like assignments and

duties as compared to Mr. French, but was given a shorter contract term with no vacation,

resulting in violations of W. Va. Code § 18A-4-5b and W. Va. Code § 6C-2-2(d).

However, the Board denied both back pay and prospective relief to the petitioner. The

Board found that because the petitioner accepted his contract for numerous years, back

pay was not appropriate in this case. In addition, the Board found that the petitioner was

not entitled to a 261-day contract because the discrimination and uniformity violations

ceased with Mr. French’s retirement on June 30, 2008.



              In its order reviewing the Grievance Board’s decision, the circuit court

affirmed the denial of relief but for different reasons. Specifically, the circuit court found

that the petitioner’s lack of uniformity claim failed for two reasons. First, the court found

that Mr. French is not subject to comparison under the uniformity requirements of W. Va.

                                              4

Code § 18A-4-5b because he was hired before the effective date of that statute. Second,

the circuit court found that an award of back pay based upon a lack of uniformity claim

does not arise from a comparison of an employee holding a 261-day regular contract with

a 210-day regular contract.



             The petitioner now appeals the circuit court’s order to this Court. On

appeal, the petitioner seeks only lost wages and benefits for the 2007 – 2008 school year

which is the school year after which the petitioner initiated his grievance and the last

school year before which Mr. French retired.



                              II. STANDARD OF REVIEW



             With regard to this Court’s review of cases like the instant one, we

previously have explained,

                    The standard of review for Grievance Board
             determinations has been 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):

                           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

                                           5
                     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.”


Durig v. Board of Educ. of County of Wetzel, 215 W. Va. 244, 247, 599 S.E.2d 667, 670

(2004). In the case before us, we are asked to review the circuit court’s application of the

law to the facts. Therefore, our standard of review is de novo.



                                   III. DISCUSSION

                A. Prospective Operation of W. Va. Code § 18A-4-5B



              The dispositive issue in this case is whether the circuit court erred in

holding that the petitioner failed to establish a right of uniformity with Mr. French. The

first basis for the circuit court’s ruling was its determination that the uniformity

requirements of W. Va. Code § 18A-4-5b apply in a prospective manner only. In making



                                             6

this determination, the circuit court relied on this Court’s opinion in Crock v. Harrison

County Bd. of Educ., 211 W. Va. 40, 560 S.E.2d 515 (2002).



              In Crock, Appellant Shirley Crock, who was employed in 1998 as an Aide

II by the Harrison County School Board, filed a grievance against the school board

pursuant to W. Va. Code § 18A-4-5b alleging a uniformity violation. Ms. Crock asserted

that the board of education violated the uniformity provision by employing Grace

Washington as an Aide II and granting her an experience credit while denying Ms. Crock

such a credit. Ms. Washington had been employed by the board of education as an Aide

II since 1979. The ALJ ruled that the uniformity provision required granting an

experience credit to Ms. Crock, and the Grievance Board and the circuit court affirmed

the ruling.



              In response to the decision regarding Ms. Crock, the board of education

terminated the employment contracts of both Ms. Washington and Ms. Crock and issued

new contracts that excluded their respective experience credits. Ms. Washington and Ms.

Crock were advised that the purpose of this change was to maintain uniformity in salary

schedules paid to aides. Ms. Washington and Ms. Crock initiated a joint grievance

contesting the termination of their employment contracts and the issuance of new

contracts. The ALJ, Grievance Board, and the circuit court all ruled against Ms.

Washington and Ms. Crock, and they appealed to this Court.

                                           7

              This Court reversed the decision of the circuit court on the basis of

language in W. Va. Code § 18A-4-5b which provides that “[n]othing herein shall prohibit

the maintenance nor result in the reduction of any benefits in effect on the first day of

January, one thousand nine hundred eighty-four, by any county board of education.” In

doing so, this Court explained:

              Clearly, this provision resolves the issue of whether Mrs.
              Washington’s experience credit could have been eliminated in
              the manner undertaken by the Board. Since Mrs. Washington
              was granted the benefit of the experience credit in 1979, six
              years before the enactment of West Virginia Code § 18A-4­
              5b, there is no question that she is subject to the grandfather
              clause of that provision. The intent of the Legislature to
              implement the uniformity provisions in a prospective fashion
              is clear. Accordingly, the uniformity provisions enacted in
              1984, that apply to the paying of salary and benefits to
              personnel who are employed in similar position within the
              county, do not affect Mrs. Washington. Thus, the Board was
              without authority to remove the experience credit from Ms.
              Washington’s contract under the guise of the uniformity
              provision of West Virginia Code § 18A-4-5b.

Crock, 211 W. Va. at 45, 560 S.E.2d at 520.



              The petitioner in the instant case asserts that the circuit court’s reliance on

Crock is misplaced. According to the petitioner, the significance of Crock is the fact that

the Court permitted the employee hired after the enactment of W. Va. Code § 18B-4-5b

to keep the same benefits as the employee hired before the enactment of the statute. The

petitioner opines that the language of W. Va. Code §18A-4-5b does not provide that

uniformity need not be maintained between employees hired prior to the enactment of the

                                              8

statute and those hired after. The petitioner contends that the purpose of the statute is to

guarantee uniformity in the treatment of county school board employees, and to read the

language of the statute to create two unequal classes of employees would be “perverse.”



              We reject the petitioner’s position. This Court’s language in Crock is

consistent with our law regarding whether a statute operates prospectively or

retroactively. Under our law, “[t]he presumption is that a statute is intended to operate

prospectively, and not retrospectively, unless it appears, by clear, strong and imperative

words or by necessary implication, that the Legislature intended to give the statute

retroactive force and effect.” Syllabus Point 4, Taylor v. State Compensation

Commissioner, 140 W. Va. 572, 86 S.E.2d 114 (1955).



              When we apply this rule to the statute at issue, we are compelled to

conclude that the statute operates prospectively. The statute does not contain clear,

strong, and imperative words that rebut the presumption that it operates prospectively. In

addition, nothing in the statute necessarily implies that the Legislature intended the

statute to operate retroactively. To the contrary, the fact that the statute provides that any

benefits of those persons employed on the effective date of the statute are not to be

reduced to achieve uniformity indicates the Legislature’s intent that the statute apply

prospectively. Further, there is nothing “perverse” about the statute’s prospective

application. It is within the Legislature’s authority to enact a statute that alters the

                                              9

benefits, working conditions, or salaries of government employees who are employed

after the statute’s effective date. Consequently, it is not uncommon for otherwise

similarly situated government employees to be governed by different statutes and

therefore subject to different benefits, working conditions, and salaries.6



               Therefore, based on this Court’s reasoning in Crock and the application of

our law on the prospective and retroactive operation of statutes, we now hold that West

Virginia § 18A-4-5b (1990), regarding uniformity of salaries, rates of pay, benefits,

increments or compensation for all county school service personnel regularly employed

and performing like assignments and duties within the county, operates prospectively so

that uniformity is not required between a county school service employee who was

already employed on the effective date of West Virginia Code § 18A-4-5b in 1984 and an

employee who performs like assignments and duties who was employed after the

effective date of the statute.




6
  In support of his argument, the petitioner cites this Court’s memorandum decision in
Dillard v. Board of Education of the County of Raleigh, No. 101221, wherein this Court
granted back pay to a grievant for the 2007 – 2008 school year who was similarly situated
to the petitioner and who also initiated a uniformity claim based on Mr. French’s 261-day
contract. However, in Dillard this Court did not consider the issue which is present in the
instant case. Therefore, this Court does not find Dillard instructive to our decision in the
instant case.


                                             10

           B. Uniformity between 210-Day Contract and 261-Day Contract



              The second reason for the circuit court’s denial of the relief sought by the

petitioner was the court’s conclusion that a uniformity claim cannot be based on a

comparison of an employee holding a 261-day regular contract with an employee holding

a 210-day regular contract. The circuit court explained its reasoning as follows:

              It is only when the sole distinction between 240-day contract
              and 261-day contract employees involves paid vacation that
              the [Supreme] Court has afforded relief. Syllabus Point 5 of
              [Board of Educ. of County of Wood v.] Airhart[, 212 W. Va.
              175, 569 S.E.2d 422 (2002)] provides:

                     Where county board of education employees
                     perform substantially similar work under 261­
                     day and 240-day contracts, and vacation days
                     provided to 261-day employees reduce their
                     annual number of work days to [a] level at or
                     near the 240-day employees, principles of
                     uniformity demand that the similarly situated
                     employees receive similar benefits.

                     The Petitioner’s 210-day contract does not establish
              the profile required to establish a uniformity claim. . . .
              Assignments that are unlike [sic], by virtue of materially
              different amounts of work to be performed under the regular
              employment contracts (210 contract days compared with 240
              contract days), are not subject to uniformity requirements.
                     Petitioner held summer employment. Summer
              employment is separate and distinct from regular employment
              and is governed by West Virginia Code § 18-5-39 that
              provides, in part:



                                            11

                     (a) Inasmuch as the present county school
                     facilities for the most part lie dormant and
                     unused during the summer months, and
                     inasmuch as there are many students who are in
                     need of remedial instruction and others who
                     desire accelerated instruction, it is the purpose
                     of this section to provide for the establishment
                     of a summer school program, which is to be
                     separate and apart from the full school term as
                     established by each county. (emphasis
                     supplied).

                     There is no legal basis to combine the number of days
              with a school service employee’s regular contract and the
              period of summer employment to achieve a comparison with
              another school service employee holding a regular contract
              term in excess of 200 days. . . . The summer employment of
              school service personnel is related to support for summer
              programs and are, therefore, different than regular
              employment.



              This Court finds that the circuit court conducted the proper analysis of this

issue and reached the correct conclusion. The basis of this Court’s holding in Airhart was

that the only difference between the school service employee holding a 261-day contract

and the employee holding a 240-day contract was the number of paid vacation days

provided to the employee with the 261-day contract. In contrast, the petitioner held a 210­

day regular contract while Mr. French held a 261-day regular contract. When Mr.

French’s vacation days were deducted from the 261 days, he worked approximately 240

days during the regular school session which is approximately 30 more days than the

petitioner worked during the regular school session. As a result, this Court cannot


                                            12

conclude that the petitioner and Mr. French performed like assignments and duties during

the regular school year.



              Further, there is a difference between a county school service employee’s

contract for the regular school year and a contract to work during a summer term.

Specifically, a contract for the regular school year continues from year to year whereas a

contract to work during the summer term may not. West Virginia Code § 18-5-39(f)

(2000) provides, in part, that “[a]n 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.” (Emphasis added).

Considering the differences between a contract for a regular school year and contract for

summer school, this Court cannot conclude that the petitioner was “regularly employed

and perform[ed] like assignments and duties” as Mr. French pursuant to West Virginia

Code § 18A-4-5b.



              Therefore, based on the above, we now hold that a county school service

employee who holds a 210-day regular contract and a 30-day contract to perform related

duties during a summer school term does not perform like assignments and duties with a




                                           13

school service employee who holds a 261-day regular contract for the purpose of the

uniformity provisions found in W. Va. Code § 18A-4-5b (1990).7

                                  IV. CONCLUSION



              Accordingly, this Court affirms the October 5, 2011, order of the Circuit

Court of Kanawha County that denied relief to the petitioner based on the uniformity

provisions in West Virginia Code § 18A-4-5b.

                                                                                 Affirmed.




7
  The petitioner also argues that he is entitled to compensation for lost wages and benefits
for the 2007 – 2008 school year. Having determined that the petitioner failed to state a
cognizable uniformity claim pursuant to West Virginia Code § 18A-4-5b, we find it
unnecessary to address this assignment of error.


                                            14

