                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Daphne Lemasters,
Respondent Below, Petitioner                                                     FILED
                                                                               May 23, 2016
vs) No. 15-0339 (Kanawha County 14-AA-106)                                     RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Jackson County Board of Education,
Petitioner Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Daphne Lemasters, by counsel Andrew J. Katz, appeals the Circuit Court of
Kanawha County’s March 16, 2015, order reversing the West Virginia Public Employees
Grievance Board’s (“WVPEGB”) decision that granted her grievance. Respondent Jackson
County Board of Education (“JCBE”), by counsel Howard Seufer, filed a response in support of
the circuit court’s order and a supplemental appendix. Petitioner filed a reply. On appeal,
petitioner argues that the circuit court erred in reversing the administrative law judge’s (“ALJ”)
decision and in relying on Weimer-Godwin v. the Board of Education of Upshur County, 179
W.Va. 423, 369 S.E.2d 726 (1988) to support its contention that a school board can assign
teachers work beyond their regular work day, without compensation or an agreement.

        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 November of 2012, an employee filed a prior, separate grievance that did not involve
petitioner, concerning an alleged imbalance in the assignment of supervising and monitoring
students as they embarked and disembarked buses, commonly referred to as “bus duty.” In
response to the grievance, the JCBE developed a revised bus duty schedule which went into
effect in November of 2012. During the 2013-2014 school year, petitioner was employed by
respondent as a kindergarten teacher at Gilmore Elementary School (“Gilmore”). Generally,
teachers at Gilmore reported to work at 7:45 a.m. and remained until 3:45 p.m. All teachers at
Gilmore shared morning and evening bus duty assignments on a rotating basis. Morning bus duty
consisted of supervising and monitoring students as they disembarked from buses at Gilmore and
evening bus duty consisted of supervising and monitoring students as they boarded buses to
return home. Gilmore teachers assigned to morning bus duty reported for duty at 7:15 a.m. and
teachers assigned to afternoon bus duty were required to remain on duty until 3:55 p.m.
Petitioner completed an employee time report for each day she performed morning or afternoon
bus duty during the 2013-2014 school year at Gilmore.

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        In October of 2013, petitioner filed a Level One Grievance against respondent contesting
the bus duty requirement and requesting overtime, in the form of back pay with interest, for each
of the days she performed bus duty. She also requested that she not be required to perform bus
duty unless she voluntarily elects to do so by extracurricular contract. The JCBE superintendent
denied the grievance by written decision dated September 30, 2013. In December of 2013,
petitioner filed a Level Two Grievance and requested mediation. The parties’ mediation was
unsuccessful. In March of 2014, petitioner filed a Level Three Grievance and requested a hearing
contesting the JCBE superintendent’s decision that bus duty is a part of a JCBE teacher’s regular
work day. Ultimately, the ALJ decided in favor of petitioner, determining that teachers were not
required to perform bus duty unless they agreed to do so voluntarily and were compensated with
overtime payments.

        In March of 2015, respondent appealed the ALJ’s decision to the Circuit Court of
Kanawha County. Following a review of the petition, briefs, and the entire record, the circuit
court reversed the ALJ’s decision by order entered on March 16, 2015. The circuit court ruled
that, pursuant to this Court’s prior holdings and West Virginia Code § 18A-4-16(1), petitioner’s
bus duty did not qualify as an “extracurricular activity.” It is from this order that petitioner now
appeals.

       We have 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). Upon
review of the record submitted on appeal, we find no error in the circuit court’s decision below.

        On appeal, petitioner argues, as she did below, that performing bus duty during the 2013­
2014 school year constituted forced extracurricular work, for which the requirements of West
Virginia Code § 18A-4-16(1) were not met and she was not compensated. Petitioner contends
that the ALJ correctly determined that “bus duty” meets the statutory definition of extracurricular
duties and awarded her back pay and interest for the performance of said duties. Petitioner also
argues that the circuit court misconstrued this Court’s prior holding in Weimer-Godwin v. Bd. of
Educ. of Upshur Cty., 179 W.Va. 423, 369 S.E.2d 726 (1988) and essentially “amended” West
Virginia Code § 18A-4-16 by limiting its reach. Upon our review and consideration of the circuit
court’s order, the parties’ arguments, and the record submitted on appeal, we find that the circuit
court did not abuse its discretion in reversing the ALJ’s ruling below.



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        Petitioner argues that the circuit court wrongly relied on Weimer-Godwin to support its
contention that respondent can assign teachers work beyond their regular work day. We disagree.
Petitioner attempts to dismiss Weimer-Godwin’s applicability by arguing that the issue in
Weimer-Godwin was whether the grievant was unlawfully discriminated against and incorrectly
reclassify her bus duty as an extracurricular activity, thereby triggering the requirements of West
Virginia Code § 18A-4-16(1). However, unlawful discrimination was just one consideration in
the decision and this Court also determined that a board of education must only pay additional
compensation for non-instructional duties performed outside of the normal school day. The
thrust of our analysis in Weimer-Godwin, as the circuit court correctly held, is its application of
West Virginia Code § 18A-4-5a. As we held in Weimer-Godwin, if respondent finds that
petitioner’s bus duty assignment falls outside of the regular school day, it may pay additional
compensation (emphasis added). This holding directly applies to petitioner’s case. It is clear
from the record that respondent established that it would not provide extra compensation for the
performance of bus duty. As such, we find that the circuit court did not abuse its discretion in
reversing the ALJ’s ruling below.

        Our review of the record supports the circuit court’s decision to reverse the ALJ’s ruling
based upon the specific findings, its reliance on Weimer-Godwin, petitioner’s arguments, and
respondent’s arguments which were also argued below. Indeed, the circuit court’s order includes
well-reasoned findings and conclusions as to the assignments of error raised by petitioner on
appeal. Given our conclusion that the circuit court’s order and the record before us reflect no
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 March 16, 2015, “Final Order” to this memorandum decision.

       For the foregoing reasons, we affirm.


                                                                                        Affirmed.

ISSUED: May 23, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Allen H. Loughry II

DISQUALIFIED:

Justice Margaret L. Workman




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