                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Brett Cabell, Randall Blevins,
Harold Facemyer, Donald Underwood,                                               FILED
and Larry Vasarhelyi,                                                        October 20, 2017
Petitioners Below, Petitioners                                                 RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 16-0527 (Kanawha County 11-AA-128)

West Virginia Division of Highways
and West Virginia Division of Personnel,
Respondents Below, Respondents


                              MEMORANDUM DECISION
       Petitioners Brett Cabell, Randall Blevins, Harold Facemyer, Donald Underwood, and
Larry Vasarhelyi, by counsel Richard A. Monahan, appeal the order of the Circuit Court of
Kanawha County, entered on May 3, 2016, denying their “Petition for Rehearing and
Reconsideration” of the circuit court’s final order that was entered on July 23, 2014. Respondent
West Virginia Division of Highways appears by counsel Chad M. Cardinal. Respondent West
Virginia Division of Personnel appears by counsel Karen O’Sullivan Thornton.

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

        Petitioners are former investigators for the West Virginia Division of Highways (“DOH”)
Legal Division who filed grievances with the West Virginia Public Employees Grievance Board
(“the grievance board”) in 2006, asserting that they were misclassified under the designation
“Investigator 2” when each should have been classified as “Investigator 3,” and that they were
paid less than several “Investigator 1” employees were paid. Petitioners proceeded through the
grievance process to a hearing before the grievance board’s administrative law judge (“ALJ”),
who denied their grievances. They appealed the denial to the Circuit Court of Kanawha County.

        The circuit court entered a “final order” on July 23, 2014, affirming the grievance board
decision. Relevant to arguments later made by petitioners and set forth below, the circuit court
noted that the West Virginia Division of Personnel (“DOP”) considers the “predominant duties”
of an employee when classifying positions, and that this “‘predominant duty rule’ is a
professional standard utilized in the personnel industry, when classifying positions.” It explained
that the “predominant duties are deemed to be ‘class-controlling’” by the DOP, and it further

                                                1

noted that the DOH director of human resources, as well as the former manager and current
assistant director of the DOP classification and compensation section, all considered petitioners’
predominant duties and found that they were appropriately classified. The circuit court also
explained that “[c]lassification determinations are not made based upon comparison of the duties
of a grievant to those of other employees in the classification sought. . . .”

        Petitioners subsequently filed their “Petition for Rehearing and Reconsideration,” without
citing the particular Rule of Civil Procedure under which they sought relief, on August 14, 2014.
They argued that the circuit court had failed to address three issues that petitioners raised in their
administrative appeal; specifically, whether the ALJ appropriately quashed petitioners’ subpoena
of an investigator who worked for an agency other than theirs; whether the ALJ and the
grievance board appropriately applied the predominant duty rule in analyzing petitioners’
employment classifications; and whether the administrative law judge correctly weighed the
evidence presented at petitioners’ hearing. The circuit court denied petitioners’ motion by order
entered on May 3, 2016. Petitioners filed a notice of appeal with this Court the following month,
and the Clerk of the Court entered a scheduling order confirming that the notice of appeal was
presented from the May 3, 2016, order.

        On appeal, petitioners assert six assignments of error related to the July 23, 2014, final
order of the circuit court, which we summarize as follows: (1) the circuit court erred in affirming
the grievance board decision insofar as it quashed the subpoena of a non-DOH investigator; (2)
the circuit court erred in affirming the grievance board’s use of the predominant duty rule; (3) the
circuit court erred in affirming the grievance board’s weighing of evidence and credibility
determinations; (4) the circuit court erred in affirming the grievance board’s finding that
petitioners are properly classified because that evidence is not supported by the record; (5) the
circuit court erred in affirming the grievance board’s decision that petitioners were not entitled to
a reallocation to the Investigator 3 classification; and (6) the circuit court erred in affirming the
grievance board decision insofar as it found that petitioners suffered no discrimination.
Petitioners cite the ALJ’s “inappropriate degree of deference” to their witnesses as problematic
relative to the final four of these assignments of error.

        Petitioners offer a multitude of potential standards of review of the circuit court order, but
essentially suggest that we apply the same standard that the circuit court applied in its July 23,
2014, order. See Syl. Pt. 2, Martin v. Barbour Cty. Bd. of Educ., 228 W. Va. 238, 239, 719
S.E.2d 406, 407 (2011)(“‘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 Cnty. Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).”)

        In this matter, however, we will not disturb the circuit court’s ruling unless petitioners
demonstrate an abuse of discretion. Syl. Pt. 4, Rose v. Thomas Mem’l Hosp. Found., Inc., 208 W.
Va. 406, 408, 541 S.E.2d 1, 3 (2000). This is because we are limited to consideration of the
circuit court’s denial of petitioners’ “motion for rehearing and reconsideration,” which was filed

                                                  2

on August 14, 2014, more than ten days after entry of the circuit court’s final order on July 23,
2014. We have explained:

                  “When a party filing a motion for reconsideration does not indicate under
          which West Virginia Rule of Civil Procedure it is filing the motion, the motion
          will be considered to be either a Rule 59(e) motion to alter or amend a judgment
          or a Rule 60(b) motion for relief from a judgment order. If the motion is filed
          within ten days of the circuit court’s entry of judgment, the motion is treated as a
          motion to alter or amend under Rule 59(e). If the motion is filed outside the ten-
          day limit, it can only be addressed under Rule 60(b).” Syl. Pt. 2, Powderidge Unit
          Owners Association v. Highland Properties, Ltd., 196 W.Va. 692, 474 S.E.2d 872
          (1996).

Syl. Pt. 4, Burton v. Burton, 223 W. Va. 191, 192, 672 S.E.2d 327, 328 (2008). That explanation
continued:

                  “A motion which would otherwise qualify as a Rule 59(e) motion that is
          not filed and served within ten days of the entry of judgment is a Rule 60(b)
          motion regardless of how styled and does not toll the four month appeal period for
          appeal to this court.” Syl. Pt. 3, Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d
          600 (1992).

Syl. Pt. 5, Burton v. Burton, 223 W. Va. 191, 192, 672 S.E.2d 327, 328 (2008).

        Important to our review, “‘[a]n appeal of the denial of a Rule 60(b) motion brings to
consideration for review only the order of denial itself and not the substance supporting the
underlying judgment nor the final judgment order.’ Syl. Pt. 3, Toler v. Shelton, 157 W.Va. 778,
204 S.E.2d 85 (1974).” Syl. Pt. 2, Rose, 208 W.Va. at 407, 541 S.E.2d at 2. Petitioners’
assignments of error all address the substance supporting the circuit court’s final order, and they
raise no particular issue concerning the denial of the motion for relief from judgment. Moreover,
we discern no apparent defect in the circuit court’s denial of the motion for relief from judgment
that suggests the court misapplied Rule 60(b) of the West Virginia Rules of Civil Procedure.1
Petitioners have thus failed to show that the circuit court abused its discretion.

1
    That rule provides in part:

       On motion and upon such terms as are just, the court may relieve a party or a
       party’s legal representative from a final judgment, order, or proceeding for the
       following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or
       unavoidable cause; (2) newly discovered evidence which by due diligence could
       not have been discovered in time to move for a new trial under Rule 59(b); (3)
       fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation,
       or other misconduct of an adverse party; (4) the judgment is void; (5) the
       judgment has been satisfied, released, or discharged, or a prior judgment upon
       which it is based has been reversed or otherwise vacated, or it is no longer
(continued . . .)
                                                   3

       For the foregoing reasons, we affirm.

                                                                                     Affirmed.

ISSUED: October 20, 2017

CONCURRED IN BY:

Chief Allen H. Loughry II
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

DISQUALIFIED:

Justice Margaret L. Workman




       equitable that the judgment should have prospective application; or (6) any other
       reason justifying relief from the operation of the judgment. . . .


                                               4
