                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Wei-ping Zeng,
Petitioner Below, Petitioner
                                                                                       FILED
vs.) No. 18-1035 (Kanawha County 17-AA-72)                                          April 20, 2020
                                                                                  EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
Marshall University,                                                                  OF WEST VIRGINIA

Respondent Below, Respondent


                               MEMORANDUM DECISION


        Petitioner Wei-ping Zeng, previously a tenure-track associate professor at Respondent
Marshall University, appeals the November 1, 2018, order of the Circuit Court of Kanawha County
that affirmed the August 18, 2017, decision of the West Virginia Public Employees Grievance
Board denying petitioner’s grievance. Below, petitioner claimed respondent discriminated against
him on the basis of race when it denied his application for tenure and retaliated against him for
filing a grievance by terminating his employment in violation of the terms of his contract.
Respondent’s counsel, Anna L Faulkner and Kristi McWhirter, filed a response. Petitioner, who is
self-represented, filed a reply.

        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 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.

        Marshall University (“Marshall”) hired petitioner on September 1, 2009, as a tenure-track
associate professor in the Department of Biochemistry and Microbiology at the Joan C. Edwards
School of Medicine. 1 Petitioner’s offer letter included the requirement that he obtain external grant
funding. However, petitioner’s “Notice of Faculty Appointment,” the document by which
petitioner accepted Marshall’s offer of employment, did not include the external research funding
requirement.




       1
         The Marshall University School of Medicine Faculty Promotion and Tenure Regulations
require tenure-track faculty to apply for and achieve tenure prior to the end of the sixth academic
year of employment or else be issued a one-year terminal contract of employment.
                                                  1
         In October of 2012, the Promotion and Tenure Committee (“the Committee”) for the
Department of Biochemistry and Microbiology conducted petitioner’s mid-tenure review. 2 The
Committee informed petitioner that he would have to substantially improve his teaching and
research skills because, to obtain tenure, he was required to have obtained “excellence” in either
teaching or research/scholarly activities. By letter dated October 12, 2012, the Committee
suggested petitioner attend workshops and lectures to help with his teaching skills and named two
people who could assist him in that regard. It also emphasized the need for scholarly publications
and collaborations with other researchers. The Committee also informed petitioner that “it is
mandatory for you to get external independent funding as stated in your contract.” Petitioner claims
this is the first time he learned that obtaining such funding was required for tenure. Petitioner
responded in writing, stating that, “I will continue to seek external funding.” He avers that this was
his polite way of saying that he did not agree that he had to obtain external research funding to be
tenured.

        The Promotion and Tenure Committee conducted petitioner’s pre-tenure review in 2014.
The Committee again informed petitioner that he needed to substantially improve in several areas,
including in his teaching and research/scholarly activities. The Committee also told petitioner that
it did not believe Marshall would grant him tenure based upon the data available as of March of
2014.

        Prior to petitioner’s application for tenure, Dr. Donald Primerano, then the interim
departmental chair of petitioner’s department, notified the Committee and the School of
Medicine’s Personnel Advisory Committee that he would not be recommending petitioner for
tenure. The timing of this notice did not fall within the standard tenure application protocol.

        By letter dated March 24, 2015, Dr. Primerano informed petitioner that he was required to
apply for tenure by October 1, 2015. Dr. Primerano also stated that if petitioner’s tenure application
was denied, his “contract would expire on June 30, 2016.”




       2
         Marshall’s tenure process is multi-leveled. The first proceeding, the “mid-tenure” review,
occurs halfway between the applicant’s hire date and his or her tenure application date to provide
feedback to improve the applicant’s chances of receiving tenure. The second proceeding, the “pre-
tenure” review, occurs a year before the tenure application for the purpose of providing additional
feedback. The third proceeding is the actual tenure application. The Promotion and Tenure
Committee reviews the application and makes a recommendation to the departmental chair. The
departmental chair then reviews the application and makes his or her own recommendation to the
reviewing committee, here, the School of Medicine’s Personnel Advisory Committee, which
reviews the application and makes a recommendation to the Dean of the School of Medicine. The
dean then makes a final recommendation to Marshall’s president, who makes the ultimate decision
whether to grant or deny tenure.
                                                  2
        Petitioner applied for tenure in October of 2015. 3 Petitioner included in his application a
summary of his research history. 4 To obtain tenure, petitioner was required to have obtained a
rating of “excellence” in teaching or in research/scholarly activities. Marshall reviews a tenure
application solely on the applicant’s achievements at Marshall and up to the point of the
submission of the tenure application. Petitioner’s application was reviewed under the criteria and
guidelines set forth in the Marshall’s School of Medicine Faculty Promotion and Tenure
Regulations (the “SOM Regs”); Marshall University Policy AA-28; Higher Education Policy
Commission, Series 9; and The Greenbook, Marshall’s faculty handbook.

        In reviewing petitioner’s application, the Promotion and Tenure Committee applied the
tenure criteria in place when petitioner was hired. The Promotion and Tenure Committee found as
follows: petitioner’s teaching load was minimal; he did not develop a new course, however, he did
develop active learning exercises; he sat on a graduate committee and had graduate students rotate
through his lab, but he was not a primary mentor to a graduate student; his teaching improved after
he participated in two skills building training sessions; he did not obtain external grant funding; he
had two original research publications and two national meeting presentations; and he did not
demonstrate excellence in either teaching or research. The Promotion and Tenure Committee
recommended that Marshall’s president deny petitioner’s tenure application. The Promotion and
Tenure Committee forwarded its report to Dr. Donald Primerano.

        Dr. Primerano concurred with the Promotion and Tenure Committee’s recommendation
that tenure be denied. Dr. Primerano found that petitioner’s number of publications was too few


       3
          As noted above, tenure-track faculty are required to apply for tenure before the end of
their sixth academic year of employment. Petitioner’s sixth year was the 2014-2015 academic year.
However, because petitioner did not have a laboratory for the first six months of his employment,
Marshall, by letter dated March 24, 2015, granted petitioner’s request to postpone his tenure
application until the fall of 2015.
       4
          Petitioner asserts the following: He studies CD4 T cells that are a part of the immune
system that is destroyed by HIV. In the past, he discovered the master regulator, GATA-3, that
controls the functions and identity of a special type of CD4 T cells known as Type 2 T helper cells.
Petitioner states that Th2 cells can be beneficial (they provide immunity against worm infections)
or detrimental (they cause allergic diseases such as asthma). Petitioner asserts that new asthma
drugs targeting GATA 3 hold great promise. Petitioner claims he continued this line of research at
Marshall and that he published three articles and two review articles in prestigious scientific
journals on that topic. He avers that he mapped the “hot spots” on the DNA of five types of CD4
T cells. (Petitioner notes that project was significantly delayed due to Marshall’s failure to timely
provide technical support in bioinformatics.) Petitioner states that this mapping will yield new
research projects and funding with an eye toward developing new treatments for a variety of
diseases. He claims that he also studied how bacterial toxins in the air contribute to the
development of asthma, and that the results of this study were published in the best journal in his
field. Petitioner avers that this asthma study will put him in a good position to seek funding to
develop vaccines for the prevention of asthma, and that he was awarded a provisional patent to
develop such vaccines.


                                                  3
for petitioner’s research to be rated “excellent.” Dr. Primerano rated petitioner’s teaching as
“satisfactory” based upon petitioner’s course evaluations, teaching load, and mentorship. By letter
dated October 30, 2015, Dr. Primerano notified the Dean of the School of Medicine, Dr. Joseph
Shapiro, of the Promotion and Tenure Committee’s recommendation, and his recommendation, to
deny tenure.

       The School of Medicine’s Personnel Advisory Committee reviewed petitioner’s tenure
application and then voted unanimously to deny tenure on the ground that petitioner lacked funded
research productivity and had not achieved “effective performance in all major areas of
responsibility and ‘excellence’ in either teaching or research scholarly activities.” The Promotion
and Tenure Committee notified Dean Shapiro of its recommendation.

       Dean Shapiro reviewed petitioner’s tenure application and each of the previous
recommendations. Dean Shapiro found (1) petitioner’s teaching reviews were satisfactory; (2) his
mentorships did not result in abstracts or publications for the students involved; (3) his research
ranking was not excellent; and (4) he had obtained no external research funding. Dean Shapiro
then forwarded petitioner’s application and the following comments to Marshall’s President, Dr.
Jerome Gilbert:

       I do not recommend tenure for [petitioner]. [He] was employed in 2009 primarily
       to do research. Since then he has only published four research articles and two
       reviews. This is a very poor record based on the 60% time he has for research.
       Further he does minimal service and limited teaching. His references do not give
       compelling argument for his tenure and I was unable to find any support from his
       chair.

        On February 8, 2016, Dean Shapiro notified petitioner that he would not recommend
tenure. On March 16, 2016, petitioner met with Dr. Primerano who restated the Dean’s decision.
Thereafter, petitioner asked Marshall’s president to intervene, without success.

     Petitioner filed a questionnaire with the Equal Employment Opportunity Commission (the
“EEOC”) on March 21, 2016.

        On April 30, 2016, Marshall’s president formally denied petitioner’s application for tenure.
On May 5, 2016, Marshall’s associate general counsel sent petitioner an e-mail stating that if
petitioner withdrew his EEOC charges, waived his right to a grievance, and brought no further
claims against Marshall, he would remain employed until February of 2017. On May 17, 2016,
petitioner filed a grievance with the West Virginia Public Employees Grievance Board (the
“Grievance Board”) alleging discrimination in Marshall’s denial of tenure and retaliation for
opposing Marshall’s discriminatory denial of tenure.

        At petitioner’s June 20, 2016, Level I grievance, he argued that Marshall discriminated
against him in denying tenure where his job performance was comparable to or better than
similarly situated employees, “Dr. K.” and “Dr. D.,” 5 who also worked in petitioner’s department


       5   Petitioner compares himself to two other professors in Marshall’s Department of
                                                 4
and who were awarded tenure, and (2) that he was the victim of unlawful discrimination due to
his country of birth and ethnic identification and that faculty members of the “majority race” were
awarded tenure. Marshall’s defense was based, in part, on the “duties and responsibilities section”
of petitioner’s letter of appointment that required him to “[e]stablish . . . an independent and
externally funded research program in cellular immunology.” In denying petitioner’s grievance,
the hearing examiner found that (1) despite his many attempts to obtain external grant funding,
petitioner failed to obtain such funding; and (2) the only evidence petitioner presented to support
his charge of discrimination was that other applicants were granted tenure. The hearing examiner
recommended that petitioner’s grievance be denied.

       Petitioner’s employment with Marshall ended on June 30, 2016. Thereafter, petitioner’s
Level II mediation was unsuccessful.

        Following petitioner’s Level III grievance hearing, an Administrative Law Judge (the
“ALJ”), entered a sixty-nine-page order on August 18, 2017, that denied petitioner’s grievance.
The ALJ first addressed petitioner’s discrimination claim, i.e., that Asian members of Marshall’s
Medical School are held to a higher standard than non-Asian members. The ALJ noted that
petitioner primarily focused on the differences and similarities between himself, Dr. K. and Dr. D.
The ALJ found that (1) Dr. K. was treated differently than petitioner due to the differences in Dr.
K.’s employment contract; (2) Dr. D. was not similarly situated to petitioner; and (3) none of



Biochemistry and Microbiology, Dr. “K.” and Dr. “D.” In that regard, petitioner claims the
following: In 2011, Marshall hired Dr. K. as an associate professor, and Dr. D. as an assistant
professor. Dr. K.’s and Dr. D.’s offer letters contained a list of “job responsibilities.” Dr. K.’s letter
required that he establish externally funded research; however, that requirement was not listed in
his tenure requirements. Dr. D.’s job responsibilities required him to establish an original research
program, but that was not listed in his tenure requirements. Dr. D. was also required to establish
external funding; however, that requirement was automatically satisfied because he worked under
a federal grant that provided external funding. Marshall asked Dr. K. to apply for tenure in 2013;
he did and was awarded tenure in 2014. Marshall asked Dr. D. to apply for tenure in 2014; he did
and was granted tenure and promoted to an associate professor in 2015. Petitioner avers that he,
Dr. K., and Dr. D. had the same responsibilities: teaching, research, and service with similar
allocations of effort. According to petitioner, he published more scholarly articles than did Dr. K.
and Dr. D. and published those articles in more prestigious journals. Petitioner also claims he had
a heavier medical teaching load, better teaching performance reviews, more graduate mentorships,
served on more committees, and reviewed more national and international scientific reviews than
either Dr. K. or Dr. D. However, petitioner admits that he had lower research scores than either
Dr. K. or Dr. D. Petitioner also claims that both Dr. K.’s and Dr. D.’s offer letters contained a
section that described their tenure requirements, but there were no specific tenure requirements in
petitioner’s offer letter. Thus, petitioner avers that his tenure requirements were the standard
requirements found in the School of Medicine’s Faculty Promotion and Tenure Regulations.
Petitioner maintains those regulations do not require a professor to obtain external research
funding. Finally, petitioner claims he has a lower salary than did Dr. K. and Dr. D.



                                                    5
petitioner’s other claims supported bias or interference with regard to petitioner’s tenure
application.

         The ALJ also addressed petitioner’s claims that (1) any failure to obtain external grant
funding should not have been a consideration regarding his tenure application, and (2) his tenure
application was rejected, in part, because he did not obtain such funding. The ALJ noted that
petitioner’s offer letter included the requirement that he obtain external grants to fund research.
However, petitioner’s signed acceptance of the offer, the “Notice of Faculty Appointment,” did
not include the external research-funding requirement. The ALJ found that reading the offer and
acceptance together, it was clear that petitioner’s contract terms included both documents. Thus,
by signing the acceptance, petitioner accepted the offer that required he obtain external research
funding. However, because the ALJ also found that the newly formed contract did not make
obtaining such funding a requirement for tenure, the ALJ also concluded that Marshall improperly
considered petitioner’s failure to obtain funding in its tenure decision. Therefore, the ALJ reviewed
petitioner’s grievance by looking only at the other factors employed in denying petitioner’s tenure
application. Specifically, the ALJ noted that petitioner was required to demonstrate “effective
performance in all major areas of responsibility and excellence in teaching or research/scholarly
activities.” The ALJ then found evidence supporting the university’s conclusion that, at each level
of review, petitioner had not obtained excellence in teaching or research.

        The ALJ also found that Dr. Primerano should not have notified the Personnel Advisory
Committee and the Promotion and Tenure Committee before petitioner filed his application for
tenure that he would not recommend tenure. However, the ALJ concluded that Dr. Primerano’s
wrongful act did not affect the outcome of petitioner’s tenure application given that petitioner had
previously been told that he was not on track to receive tenure.

        The ALJ then reviewed the other factors relevant to the tenure decision, including: (1) the
number and quality of petitioner’s publications, (2) his class load and student reviews, (3) the
number of courses he developed, (4) the number of times he spoke at local, national, and
international research symposia, and (5) the number of medical, graduate, and undergraduate
students he mentored. Having reviewed this evidence, the ALJ found that there were “rational,
relevant reasons” supporting the denial of tenure.

        Finally, the ALJ addressed petitioner’s claim that, even if Marshall’s denial of tenure was
proper, Marshall wrongfully retaliated against him by failing to thereafter grant him a one-year
terminal contract. Marshall responded that petitioner’s grievance was untimely and that he was not
entitled to a terminal contract because non-tenured faculty can only be employed for seven years,
and petitioner was already in his seventh year of employment when his tenure application was
denied. The ALJ found that (1) Marshall orally raised the timeliness issue at the Level I grievance
and, therefore, the burden shifted to petitioner to show he had a proper basis for his untimely filing;
(2) Dean Shapiro and Dr. Primerano notified petitioner by letter dated March 24, 2015, that he
could apply for tenure in the fall of 2015, but if tenure was denied, his contract would expire on
June 30, 2016; and (3) by e-mail dated May 7, 2015, petitioner first challenged Dean Shapiro and
Dr. Primerano’s March 24, 2015, letter stating petitioner’s contract would expire on June 30, 2016.
Thus, the ALJ determined that because petitioner waited more than fifteen days to challenge the
March 24, 2015, letter, his challenge was untimely filed. W. Va. Code § 6C-2-4(a)(1) (2008)

                                                  6
(“Within fifteen days following the occurrence of the event upon which the grievance is based, . .
. an employee may file a written grievance[.]”).

       Petitioner appealed the Grievance Board’s August 18, 2017, decision to the circuit court.
On November 1, 2018, the Circuit Court of Kanawha County upheld the ALJ’s decision and
dismissed petitioner’s appeal with prejudice. The circuit court found that (1) the ALJ’s decision
was not arbitrary, capricious, or contrary to law; (2) the ALJ properly determined that petitioner
was not subjected to discrimination; (3) there was no interference in petitioner’s tenure evaluation
process, and (4) the portion of the grievance related to petitioner’s challenge to his employment
end date was untimely filed.

       On appeal to this Court, petitioner raises twelve assignments of error; 6 however, he does


       6
           Petitioner’s twelve assignments of error are as follows:

                 1. The circuit court erred in finding that Dr. D., Dr. K., and petitioner were
                    not similarly situated employees, where all three were hired in the same
                    year, had the same job responsibilities, and the same job classification:
                    tenure track faculty.

                 2. The circuit court erred in finding that the differences in tenure
                    requirements, particularly the requirement of external research funding,
                    were agreed in writing, although the petitioner was not a signatory to
                    the offer letters describing Dr. K.’s and Dr. D.’s tenure requirements.

                 3.    The circuit court erred in finding that adding external research funding
                      to petitioner’s tenure requirement violated Marshall University’s policy,
                      but that the violation was not harmful, even though overwhelming
                      evidence shows that those who reviewed petitioner’s tenure application
                      considered establishing externally funded research “mandatory” for
                      petitioner, but not for Dr. K. or Dr. D.

                 4.    The circuit court erred in finding that the evaluation of research
                      productivity does not need to focus on Marshall-affiliated
                      corresponding-author research publications and the importance of the
                      publications, and in failing to consider evidence for the continuation of
                      petitioner’s research programs.

                 5. The circuit court erred in finding that although the petitioner’s teaching
                    quality was not an issue, that petitioner improperly presented teaching
                    scores, and petitioner had low teaching loads and mentoring activities.

                 6. The circuit court failed to find Marshall’s “interferences with and/or the
                    negative impacts thereof on the review of the petitioner’s tenure
                    application, in face of the admission of improper interferences and
                    evidence of the negative impacts.”
                                                    7
not argue each of those assignments of error in turn. Instead, his argument is contained under the
following five headings:

        ISSUE ONE: Similarly Situated Employees: Petitioner argues that he, Dr. K., and Dr. D.
were similarly situated employees because they were hired in the same department, under the same
classification as tenure track employees, and they all had the same responsibilities. He argues the
circuit court was clearly wrong in finding otherwise.

        ISSUE TWO: Capricious and harmful addition of tenure requirement: Petitioner argues
that the addition of external funding to his tenure requirements violated Marshall’s policy because
obtaining external funding was not included in his offer letter. Petitioner was denied tenure based
on the “absence of external funding.” Thus, he asserts the circuit court was clearly wrong in finding
that the external funding requirement was not harmful.

       ISSUE THREE: Arbitrary and capricious evaluation of research: Petitioner argues that the
evaluation of his productivity should have focused on all of his Marshall-affiliated
publications/research articles; however, Marshall believed, and the circuit court endorsed, that


               7. The circuit court erred in failing to find that Marshall distorted evidence
                  to downgrade petitioner’s qualifications.

               8. The circuit court erred in finding that the reviewers’ evaluations of
                  petitioner’s job performance were not arbitrary and capricious, even
                  though the reviewers failed to compare petitioner with similarly situated
                  employees, ignored and distorted factual evidence, and did not follow
                  established policies and customs.

               9. The circuit court erred in failing to find that (a) petitioner was entitled
                  to a one-year terminal contract following the “tenure-clock year” in
                  which tenure was denied; (b) Marshall retaliated against petitioner for
                  opposing unlawful discrimination by premature termination of
                  employment; and (c) Marshall failed to adhere to proper procedure for
                  faculty non-retention.

               10. The circuit court erred in finding that petitioner was legally notified of
                   the end-date of his employment as early as March 24, 2015, and that
                   petitioner’s grievance was not timely filed.

               11. The circuit court erred in failing to find that Marshall discriminated
                   against petitioner regarding his salary, which was lower than Dr. K.’s
                   and Dr. D.’s salaries.

               12. The circuit court erred in failing to find that Marshall denied petitioner
                   employment privilege by not letting the petitioner take over another
                   professor’s immunology teaching duties after that other professor’s
                   retirement.
                                                 8
only petitioner’s first author articles should be considered. In so doing, he contends Marshall
disregarded its own policies on corresponding authorship publications. He maintains his
publications compared favorably with those of his peers, and a colleague in petitioner’s department
found petitioner’s publications to be highly impactful.

        ISSUE FOUR: Arbitrary and capricious evaluation of teaching: A. Medical Teaching
Score: Petitioner claims that although his teaching scores were initially low, they improved each
year and were not lower than departmental averages. Petitioner points out that for the 2015-16
academic year, he had an overall adjusted average score of 4.5 for the three courses in which he
taught, and that achieving a score of 4 is considered excellent in medical teaching.

       B. Teaching Loads: Petitioner argues that Dean Shapiro erroneously stated that he taught
eleven hours per semester. In fact, petitioner’s medical school teaching load was fifteen to
seventeen hours per semester, i.e., higher than the average teaching loads, and higher than Dr. K.’s
and Dr. D.’s teaching load. Petitioner claims his graduate school teaching load was also higher
than Dr. K.’s and Dr. D.’s graduate school teaching loads.

         C. Arbitrary evaluation of teaching: Petitioner contends that the circuit court erred in
endorsing Marshall’s rating of petitioner’s teaching as only “satisfactory.” Petitioner avers
Marshall also wrongfully argued that petitioner (1) manipulated his teaching scores by using the
wrong years and adjusted overall averages; (2) had low teaching loads; (3) developed only two
active learning sessions, when he developed four such sessions; (4) did not develop a new course,
when he helped his colleagues do just that; (5) did not act as a course director when he was “in
effect” the course director for “Current Topics of Molecular Biology”; and (6) had the unique
ability to teach diverse subjects.

        ISSUE FIVE: Premature termination and retaliation: A. Entitlement to terminal contract:
Petitioner’s implied contract guaranteed employment beyond June 30, 2016: Petitioner argues as
follows: His offer letter and the writing resetting his tenure application date created a meeting of
the minds and was evidence of an implied contract. The university’s Greenbook supports finding
an implied contract given that it includes Title 133-9 § 10.3 of the Higher Education Policy Series
9, which provides that a faculty member denied tenure should be offered a one-year terminal
contract. When petitioner was granted additional time to apply for tenure, he did not give up his
right to a one-year terminal contract. Marshall formally notified petitioner that his tenure
application was denied on April 30, 2016. “Due to the reset of [petitioner’s] tenure clock, the
tenure clock year of his tenure denial [ran] from Feb[ruary] 2016 to Jan[uary] 2017. As such, []
petitioner’s terminal contract should run from July 2016 to June 2017.” The maximum probation
period “normally shall not exceed seven years[,]” but this was not a normal situation.

       B. Marshall’s noncompliance with the law and the non-retention policy: Petitioner
contends that he was not timely provided notice of non-retention; thus, he was entitled to
appointment for another year. Petitioner highlights that notification of non-retention must be
unequivocal. Marshall claims that the interim chair and dean notified petitioner as early as March
24, 2015, that his employment would end on June 30, 2016. However, that letter was equivocal
because it was contingent on the outcome of petitioner’s tenure application.



                                                 9
         C. Retaliation: Marshall retaliated against petitioner by prematurely terminating his
employment after he filed an EEOC questionnaire and a grievance, both of which are protected
activities.

       D. Timely filing of grievance: West Virginia Code § 6C-2-4(a)(1) provides that an
employee must filed a grievance “within fifteen days following [the event] upon which the
grievance is based.” “Days” means working days. W.Va. Code § 6C-2-2(c). The time period begins
to run when the decision is unequivocally made known to the grievant. Here, petitioner was
unequivocally notified of tenure denial on April 30, 2016. Petitioner filed his grievance on May
17, 2016, or fifteen days after he received notice of the denial of tenure.

       This Court reviews petitioner’s arguments under the following standards of review: First,
West Virginia Code § 6C-2-5(b) (2007) defines enforcement and reviewability of decisions
conducted before the Grievance Board. Specifically, the decision of an administrative law judge
cannot be reversed on appeal unless the circuit court finds that the ALJ’s decision:

       (1) Is contrary to law or a lawfully adopted rule or written policy of the employer;
       (2) Exceeds that administrative law judge’s statutory authority;
       (3) Is the result of fraud or deceit;
       (4) Is clearly wrong in view of the reliable, probative and substantial evidence on the whole
           record; or
       (5) Is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted
           exercise of discretion.

Id. The circuit court’s scope of review of an ALJ’s decision under the grievance statute is limited
to the five grounds enumerated above. Parker v. Summers Cty. Bd. of Educ., 185 W. Va. 313, 316,
406 S.E.2d 744, 747 (1991). In reviewing a circuit court’s order regarding a Grievance Board
decision, we apply the same standard of review as did the circuit court. See Syl. Pt. 1, Martin v.
Barbour Cty. Bd. of Educ., 228 W. Va. 238, 719 S.E.2d 406 (2011).

       Moreover, this Court has repeatedly held that the scope of review of a Grievance Board
decision is quite narrow, and a court cannot substitute its judgment for that of the administrative
law judge.

               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). An appellate
court, be it the circuit court or the Supreme Court of Appeals, may not substitute its judgment for
that of the administrative law judge. See Keatley v. Mercer Cty. Bd. of Educ., 200 W. Va. 487,
490, 490 S.E.2d 306, 309 (1997). If the administrative law judge’s conclusion is plausible when

                                                 10
viewing the evidence in its entirety, the appellate court may not reverse even if it would have
weighed the evidence differently. See Hanlon v. Logan Cty. Bd. of Educ., 201 W. Va. 305, 311,
496 S.E.2d 447, 453 (1997) (citations omitted).

        Here, the circuit court, having clearly reviewed the evidence in its entirety and having given
deference to the facts as found by the ALJ, found that petitioner failed to identify any violation of
law, rule, or written policy, and, instead, submitted an exhaustive list of controverted factual
reasons why he believed the ALJ’s decision was incorrect. Having reviewed that exhaustive list,
the circuit court found no valid reason to overturn the ALJ’s decision because petitioner did not
meet his burden of proof. Applying the standard of review found in West Virginia Code § 6C-2-
5(b), the circuit court found that (1) the ALJ’s decision was not arbitrary, capricious, or contrary
to law; (2) the ALJ properly determined that petitioner was not subject to discrimination; (3) the
ALJ found no interference in petitioner’s tenure evaluation process; and (4) the ALJ correctly
determined that the portion of the grievance related to petitioner’s challenge to the end date of his
employment was untimely.

        This Court, having reviewed the circuit court’s order in light of the record on appeal and
the relevant law, finds no error. The ALJ’s and circuit court’s findings of fact are supported by the
evidence and are entitled to substantial deference. Hence, we adopt the circuit court’s “Final
Order” entered on November 1, 2018. We likewise adopt and incorporate the circuit court’s well-
reasoned findings and conclusions as to the assignments of error raised in this appeal.

     The Clerk is directed to attach a copy of the circuit court’s November 1, 2018, order to this
memorandum decision.

       For the foregoing reasons, we affirm.
                                                                                           Affirmed.

ISSUED: April 20, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

NOT PARTICIPATING:

Justice Margaret L. Workman




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