       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                             January 2015 Term
                              _______________                      FILED
                                                             February 5, 2015
                                                                released at 3:00 p.m.
                                No. 14-0045                   RORY L. PERRY II, CLERK
                                                            SUPREME COURT OF APPEALS
                              _______________                    OF WEST VIRGINIA




                 LEWIS COUNTY BOARD OF EDUCATION,

                        Petitioner Below, Petitioner


                                     v.

                            MICHAEL HOLDEN,

                        Respondent Below, Respondent


      ____________________________________________________________

               Appeal from the Circuit Court of Kanawha County

                    The Honorable Louis H. Bloom, Judge

                          Civil Action No. 13-AA-85


                               REVERSED

      ____________________________________________________________

                         Submitted: January 14, 2015

                           Filed: February 5, 2015



Jason S. Long, Esq.                       Andrew J. Katz, Esq.
Denise M. Spatafore, Esq.                 The Katz Working Families’ Law Firm,
Dinsmore & Shohl, LLP                     LC
Morgantown, West Virginia                 Charleston, West Virginia
Counsel for the Petitioner                Counsel for the Respondent


JUSTICE KETCHUM delivered the Opinion of the Court.

CHIEF JUSTICE WORKMAN, deeming herself disqualified, did not participate in
the decision of the Court.
                             SYLLABUS BY THE COURT



              1.     “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).

              2.     “[T]he time in which to invoke the grievance procedure does not

begin to run until the grievant knows of the facts giving rise to a grievance.” Syl. Pt. 1, in

part, Spahr v. Preston Cnty. Bd. of Educ., 182 W.Va. 726, 391 S.E.2d 739 (1990).

              3.     “The primary rule of statutory construction is to ascertain and give

effect to the intention of the Legislature.” Syl. Pt. 8, Vest v. Cobb, 138 W.Va. 660, 76

S.E.2d 885 (1953).

              4.     “It is the duty of a court to construe a statute according to its true

intent, and give to it such construction as will uphold the law and further justice. It is as

well the duty of a court to disregard a construction, though apparently warranted by the

literal sense of the words in a statute, when such construction would lead to injustice and

absurdity.” Syl. Pt 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).




                                              i
              5.     “That which is necessarily implied in a statute, or must be included

in it in order to make the terms actually used have effect, according to their nature and

ordinary meaning, is as much a part of it as if it had been declared in express terms.” Syl.

Pt. 14, State v. Harden, 62 W.Va. 313, 58 S.E.715 (1907).




                                             ii
Justice Ketchum:


              The Lewis County Board of Education (the Board) appeals an order entered

in the Circuit Court of Kanawha County which reversed a decision by the West Virginia

Public Employees Grievance Board. In its order, the circuit court held that: (1) the Board

improperly terminated Michael Holden (Holden) from his job as a school bus driver; and

(2) Holden timely filed a grievance of the Board’s denial of his request for a leave of

absence.

              The Board argues on appeal that there was sufficient evidence to terminate

Holden based on his physical incompetency to safely do his job. It contends that the test

it used to assess Holden’s abilities was fair, effective, and allowed by state law, and is

routinely used by county school boards to test all newly-hired bus drivers and some

existing bus drivers. The Board also asserts that Holden’s grievance on the denial of his

request for another leave of absence was untimely because it was filed outside the

statutory filing period.

              Upon review of the record, we reverse the circuit court’s order and reinstate

the grievance board’s decision that Holden was properly terminated and that his

grievance on the leave of absence issue was not timely filed.


                                   I.

                  FACTUAL AND PROCEDURAL BACKGROUND



              This dispute has its origin in October 2010, when a non-work-related injury

forced Holden to take an unpaid leave of absence from his job as a school bus driver for

                                            1

the remainder of the 2010-2011 school-year.1           At that time, Holden weighed

approximately 495 pounds. His recovery was slow, which prompted him to take a leave

of absence for the 2011-2012 school year as well. Holden gained almost 100 pounds

during his two years away from work, bringing his weight up to 580 pounds as of August

2012, when he returned to his work for the Board.2

             When Holden returned to work, Board officials (and some members of the

community) were worried about his ability to safely drive a school bus, given his

physical condition and the amount of time he spent away from work. The Board further

doubted Holden’s ability to respond to emergency situations, such as a bus fire or a

wreck.

             The Board contacted the Executive Director for the West Virginia Office of

School Transportation regarding its concern about Holden.        The Executive Director

recommended that Holden be administered a physical performance test (PPT test) to

gauge his ability to perform his duties. The PPT test was adopted by the State Board of

Education in 2006 as a representation of the minimum standards required of bus drivers,




             1
                 Holden injured his back at home while he was brush-hogging.
             2
                 No other school bus driver in Lewis County has been granted leave of
absence for as long as Holden (two years). Pursuant to his desire to return to his post as
school bus driver, Holden underwent a mandatory medical examination, which checks for
symptoms such as convulsive seizures, certain heart problems, loss of vision, etc.
However, this examination did not assess Holden’s ability to respond to an emergency
situation, and it did not provide an accurate reading of his weight.


                                            2

and it is mandatory for all new candidates applying for a job as school bus driver.3 Some

county school boards have also administered this test to existing bus drivers, although the

Board had not done so until the facts giving rise to this case.

              Upon the Board’s request, an official from the West Virginia Office of

School Transportation (state official) traveled to Lewis County on August 24, 2012, to

administer the PPT test on Holden. As part of the PPT test, Holden was required to

demonstrate his ability to perform a variety of job-related tasks, which included making

“three trips up and down the bus stairwell within thirty seconds.” Holden took forty-

eight seconds to complete this task. Consequently, he failed the PPT test.

              The state official recommended that Holden “not be permitted to drive a

school bus unless or until his physical condition would enable him to successfully

complete the test.” The Board immediately informed Holden that it would not permit

him to continue operating a school bus for the Board. Holden replied by requesting

another leave of absence for the 2012-2013 school-year.

              At an executive meeting held on September 10, 2012, the Board denied

Holden’s request for a third (year-long) leave of absence. The Board’s superintendent

formally notified Holden in a letter dated September 11, 2012, that the Board denied his




              3
                 The Executive Director of the State Office of School Transportation
testified that the PPT test was derived from a similar test administered to school bus
drivers in New York. He stated that the test’s purpose was to “assure that the new drivers
that we were testing . . . could meet those [minimum] standards.”


                                              3

request for another leave of absence. The letter also told Holden that the superintendent

would recommend that his employment be terminated at a later board meeting.

             On October 8, 2012, the Board afforded Holden a full evidentiary hearing

solely on the issue of whether to terminate his employment. At the hearing, evidence was

presented on Holden’s failure to pass the PPT test. Holden suggested that the Board

grant him another leave of absence, even though the Board had already denied this

request during the previous month.      The Board did not give any consideration to

Holden’s suggestion.    At the close of the hearing, the Board decided to terminate

Holden’s employment due to his physical inability to safely perform his job duties. In a

letter dated October 10, 2012, the Board’s superintendent informed Holden that the Board

terminated his employment as a school bus driver, retroactive to August 25, 2012.

             State law requires a school employee to file a grievance within fifteen days

of learning of an adverse employment decision. On October 26, 2012, Holden filed a

grievance with the West Virginia Public Employees Grievance Board alleging: (1) the

Board’s October 10th termination of his employment was improper; (2) the Board

discriminated against him in singling him out to take the PPT test; and (3) the Board’s

September 11th denial of his request for another one-year leave of absence was improper.

After a hearing, the administrative law judge upheld the Board’s decision on all issues on

the following grounds: (1) the PPT test was a proper way to gauge Holden’s competency

to drive a school bus; (2) Holden did not establish that he was discriminated against; and

(3) Holden’s grievance on the leave of absence was not timely filed within fifteen days.



                                            4

              The Circuit Court of Kanawha County reversed the administrative law

judge’s decision. It held that the Board’s termination of Holden was improper and the

wrong date was used to determine whether Holden timely filed his grievance as to the

leave of absence issue. Accordingly, the circuit court ordered that the Board’s decision to

terminate Holden be set aside and that the Board “either grant [Holden’s] request for

medical leave or hold a hearing on [Holden’s] grievance pertaining to the same.” The

circuit court did not address whether the Board discriminated against Holden.


                                      II.

                              STANDARD OF REVIEW



              In reviewing a circuit court’s decision following a grievance ruling, we

have held:

              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).

              Furthermore, “[A] final order of the hearing examiner for the West Virginia

Educational Employees Grievance Board . . . should not be reversed unless clearly

wrong.” Syl. Pt. 1, in part, Randolph Cnty. Bd. of Educ. v. Scalia, 182 W.Va. 289, 387

S.E.2d 524 (1989).

                                            5

                                         III.

                                      ANALYSIS


             Both Holden and the Board contend the circuit court erred in its decision.

The Board asserts the circuit court erred when it: (1) held that Holden’s termination was

improper; and (2) determined that Holden’s grievance as to the denial of his leave of

absence was timely filed. By contrast, Holden argues on cross-appeal that the circuit

court was only partly right, and should have gone farther by: (1) finding the Board

discriminated against him; and (2) reinstating him to his position and awarding him back-

pay.

             After careful consideration of the record, we find the circuit court erred

when it reversed the grievance board’s decision.       We find that the Board properly

assessed Holden’s ability to perform his job and did not discriminate against him in

terminating his employment.     We also find that Holden did not timely contest the

September 11th denial of his request for a leave of absence.

             A. Termination of Holden’s employment as school bus driver

             In October 2012, the Board terminated Holden for being physically

incompetent to safely perform his duties as a school bus driver. Incompetency is a

ground for terminating a school employee under W.VA. CODE § 18A-2-8(a) [2007].4


             4
               W.VA. CODE § 18A-2-8(a) [2007] states: “a board may suspend or dismiss
any person in its employment at any time for: Immorality, incompetency, cruelty,
insubordination, intemperance, willful neglect of duty, unsatisfactory performance, the
conviction of a felony or a guilty plea or a plea of nolo contendere to a felony charge.”
(Emphasis added).


                                            6

              The Board argues that its method of finding Holden incompetent (the PPT

test) was effective, fair, and allowed by state law. The Board further contends that this

test was specifically designed for the purpose of measuring the capabilities of bus drivers,

so its determination of Holden’s incompetency based on his failing the test was proper.

Holden responds that using the PPT test to gauge incompetency was improper as against

him, an existing school bus driver. He asserts that the Board was bound by the single

method provided in the West Virginia School Bus Transportation Policy and Procedures

Manual: a medical examination by a health care provider. See W.VA. C.S.R. § 126-92­

3.18.2 [2013].5

              The West Virginia Board of Education adopted the School Bus

Transportation Policy and Procedures Manual as “guidelines to county school bus

transportation systems to insure safe, high quality programs for the students transported

to the public schools in West Virginia.” W.VA. C.S.R. § 126-92-3.1.3. Pursuant to that

objective, every candidate for a position as school bus driver must pass a test on “skills

and performance.”      W.VA. C.S.R. § 126-92-3.15.2.14.6        This test on “skills and

performance” is the PPT test.


              5
                 Holden’s argument primarily relies on W.VA. C.S.R. § 126-92-3.18.2,
which states: “The County Superintendent has the right to require a physical and/or
psychological examination from a designated health care provider when he or she has
any reasonable questions regarding the ability of a school bus operator and the safety of
students or the sufficiency of an annual physical examination.” (Emphasis added).

              6
              W.VA. C.S.R. § 126-92-3.15.2.14, provides: “Upon successful completion
of the online examination, the candidate shall pass additional tests on skills and
                                                                      (continued . . .)
                                             7

              The West Virginia Board of Education developed the PPT test in 2006 to

represent the minimum standards required of school bus drivers. Passing the PPT test

requires the examinee to demonstrate his/her ability to complete a variety of skill-related

tasks, such as operating the bus’s door, moving from the driver’s seat to the emergency

exit, and the task Holden failed to complete: making three trips up and down the bus

stairs within thirty seconds. Each component of the PPT test assesses a specific skill-set.

For example, making the examinee take three trips up and down the bus stairs assures

“that the bus operator can, in case of an emergency, be able to get in and out of the bus to

help evacuate the students[.]”

              Likewise, several county school boards in West Virginia have required

existing bus drivers to pass the PPT test. The Board argues that it, like these other county

school boards, should be allowed to administer the PPT test on Holden to gauge his

competency to safely operate a school bus. It further contends that the PPT test is more

accurate in gauging competency than a medical examination because it assures that the

driver can perform job-related skills and tasks. The Board also argues that the School

Bus Transportation Policy and Procedures Manual contains no limiting language that

would foreclose methods other than a medical examination for determining a driver’s

competency.




performance administered at the request of the county or institution seeking to employ
the candidate by a qualified bus inspector employed by the State Department using
vehicles owned or leased by the county.”


                                             8
              Holden’s argument that the Board was exclusively bound to the method

provided in the School Bus Transportation Policy and Procedures Manual is

encapsulated in the maxim, expressio unius est exclusio alterius: “the express mention of

one thing implies the exclusion of another.” See Phillips v. Larry’s Drive-in Pharm.,

Inc., 220 W.Va. 484, 492, 647 S.E.2d 920, 928 (2007). Courts widely recognize that

“blind adherence to [this maxim] has never been the rule[.]” Degollado v. Gallegos, 260

Kan. 169, 172, 917 P.2d 823, 826 (1996). See also Goldberg v. Miller, 371 Md. 591, 810

A.2d 947 (2002) (stating the maxim of statutory construction, expressio unius est exclusio

alterius, “should be used with caution and not as a rule of law.”).

              Even though this case involves the interpretation of regulations, not

statutes, the ordinary canons of statutory interpretation apply. Feathers v. W.Va. Bd. of

Med., 211 W.Va. 96, 103, 562 S.E.2d 488, 496 (2001) (“[W]hen regulations enacted by

an agency have been legislatively approved, they have the force of statutes and are

interpreted according to ordinary canons of statutory interpretation.”). We have held:

“[t]he primary rule of statutory construction is to ascertain and give effect to the intention

of the Legislature.” Syl. Pt. 8, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953). We

have also said:

              It is the duty of a court to construe a statute according to its
              true intent, and give to it such construction as will uphold the
              law and further justice. It is as well the duty of a court to
              disregard a construction, though apparently warranted by the
              literal sense of the words in a statute, when such construction
              would lead to injustice and absurdity.




                                              9

Syl. Pt. 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925). Furthermore, “[t]hat which

is necessarily implied in a statute, or must be included in it in order to make the terms

actually used have effect, according to their nature and ordinary meaning, is as much a

part of it as if it had been declared in express terms.” Syl. Pt. 14, State v. Harden, 62

W.Va. 313, 58 S.E.715 (1907), disapproved of on other grounds by Wiseman v. Calvert,

134 W.Va. 303, 59 S.E.2d 445 (1950). See also Mitchell v. Broadnax, 208 W.Va. 36, 46,

537 S.E.2d 882, 892 (2000) (“Although a provision’s language may be plain, there

nevertheless may arise circumstances in which the plain language does not speak

completely on the subject to which it is addressed.”).

              The stated intent behind the School Bus Transportation Policy and

Procedures Manual is “to provide guidelines to county school bus transportation systems

to insure safe, high quality programs for the students transported to the public schools in

West Virginia.”    W.VA. C.S.R. § 126-92-3.1.3 (emphasis added).            Furthermore, in

describing the physical qualifications for being a school bus driver, the School Bus

Transportation Policy and Procedures Manual provides: “The school bus operator shall

have no mental, nervous, organic or functional disease or psychiatric disorder and take no

medication likely to interfere with his or her ability to operate the bus safely.” W.VA.

C.S.R. § 126-92-3.16.1 (emphasis added). Clearly, the safety of the student passengers is

a primary intent behind the regulations pertaining to school bus drivers.

              The PPT test is one of the guidelines adopted by the State Board of

Education to ensure new bus drivers have the ability to operate the bus safely. W.VA.

C.S.R. § 126-92-3.15.2.14.     It represents the minimum standard required of all bus

                                            10

drivers. The PPT test measures whether a school bus driver can physically perform basic,

safety-related tasks, particularly in an emergency, which is essential to a safe, high

quality school transportation program. Regardless of when Holden was initially certified

to drive a school bus, it is implicit that he, as a school bus driver, be physically capable of

completing fundamental tasks necessary to operate a bus safely and to meet the needs of

his student passengers in the event of an emergency. The PPT test is a neutral means of

measuring Holden’s ability to do so.

              By failing the PPT test, Holden demonstrated an inability to meet the

minimum standard required of school bus drivers. Therefore, the Board did not err in

terminating Holden based on incompetency as determined by his failing the PPT test, and

the circuit court erred by setting aside the administrative law judge’s decision.7 W.VA.

CODE § 18A-2-8(a).

                                     B. Discrimination

              Holden argues on cross-appeal that the circuit court erred in failing to

discuss whether the Board discriminated against him by singling him out to take the PPT

test. Holden notes that no other existing school bus driver in Lewis County has been

required to take the PPT test. The Board replies that the PPT test has been administered

on existing bus drivers in other counties. Because the PPT test is a neutral measure of a




              7
                Because the Board’s termination of Holden was proper, we reject his
argument that the Board is required to reinstate him and give him back-pay.


                                              11

bus driver’s ability to perform actual job responsibilities, the Board asserts there was no

discrimination as defined by state law.

              “‘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.” W.VA. CODE § 6C-2-2(d)

[2008]. The test for determining whether an employee of a board of education has

suffered discrimination is as follows: “A discrimination claim . . . need only establish

that the adverse employment action was neither job related nor agreed to by the employee

who brings the claim. Once a claim is established, an employer cannot escape liability by

asserting a justification, such as financial necessity, for the discriminatory treatment[.]”

Syl. Pt. 5, Bd. of Educ. of Tyler v. White, 216 W.Va. 242, 605 S.E.2d 814 (2004).8

              Holden argues that his two-year absence from work does not justify the

Board treating him differently from the other bus drivers (i.e., singling him out to take the

PPT test). However, his past physical injuries and his current physical condition gave the

Board articulable reason to doubt Holden’s ability to render aid to his student passengers

in an emergency situation, which is clearly related to his actual job responsibilities. See

Frymier v. Higher Educ. Policy Comm’n, 221 W.Va. 306, 314, 655 S.E.2d 52, 60 (2007)


              8
                 Discrimination in education employment is different than employment
discrimination in the general context. We have held: “There are critical differences
between discrimination claims under the education statutes and discrimination claims
brought under the Human Rights Act which preclude the application of the same legal
analysis to both types of claims.” Bd. of Educ. of Tyler, 216 W.Va. at 246, 605 S.E.2d at
818.


                                             12

(finding school employee’s claim of discrimination failed on the ground that “[a]ny

difference in treatment was purely related to actual job responsibilities[.]”). Had the

Board not required Holden to take the PPT test, the safety of his student passengers

would have been compromised, given his inability to meet the minimum standards

required of a school bus driver, as reflected in the PPT test.

              Holden took a two-year leave of absence, which is the longest period of

time ever granted to a school bus driver in Lewis County. Furthermore, his physical

condition when he returned from his leave of absence compromised his actual job

responsibilities: which include his ability to aid his student passengers in an emergency

situation. The Board’s concern about Holden was shared by some members of the

community as well as state officials from the West Virginia Office of School

Transportation. We cannot say the Board’s superintendent abused his discretion and

engaged in discrimination in requiring Holden to take the PPT test. Therefore, we find

no error in the circuit court’s failure to discuss the administrative law judge’s finding that

there was no discrimination.

               C. Denial of Holden’s request for a third leave of absence

              On September 10, 2012, the Board denied Holden’s request for a third

leave of absence. It sent a letter the following day, September 11, informing Holden of

this decision. State law required Holden to contest the Board’s denial of his request for a

leave of absence within fifteen business days of being “unequivocally notified of the




                                             13

decision.” W.VA. CODE § 6C-2-4(a)(1) [2008];9 Rose v. Raleigh Cnty. Bd. of Educ., 199

W.Va. 220, 222, 483 S.E.2d 566, 568 (1997) (“[T]he running of the relevant time period

is ordinarily deemed to begin to run when the employee is unequivocally notified of the

decision.”) (emphasis added).

              Giving Holden two business days to receive the September 11 letter, the

administrative law judge found that Holden should have been notified of the Board’s

decision by September 13, 2012. Holden does not dispute his receipt of the letter by that

time.   The administrative law judge further found that fifteen business days after

September 13th was October 4, 2012. Holden did not file his grievance until October 26,

2012, twenty-two calendar days too late. Accordingly, the administrative law judge held,

and the Board contends before this Court, that Holden was untimely in filing his

grievance as to the denial of his request for a third leave of absence.

              Holden argues that September 13 is not the correct date for measuring the

timeliness of his grievance. He contends that the fifteen-business-day window began to

run at his October 8 termination hearing. At this hearing, Holden unilaterally raised the

issue of another leave of absence even though the Board had already informed him of its

final decision to deny the request. Further, the Board never considered or discussed the

              9
                W.VA. CODE § 6C-2-4(a)(1) [2008] requires a grievance to be filed within:
“fifteen days following the occurrence of the event upon which the grievance is based, or
within fifteen days of the date on which the event became known to the employee or
within fifteen days of the most recent occurrence of a continuing practice giving rise to a
grievance[.]” See also W.VA. CODE § 6C-2-2 [2008] (“‘Days’ means working days
exclusive of Saturday, Sunday, official holidays and any day in which the employee’s
workplace is legally closed[.]”).


                                             14

leave of absence issue at this hearing. Using October 8, 2012, as the starting point for the

fifteen-business-day window, Holden argues that October 29, 2012, was the last day in

which he could have timely filed his grievance on the leave of absence issue. Because

Holden filed his grievance on October 26, 2012, Holden contends that his grievance on

this issue is timely.

               Holden’s argument implies that the Board’s denial of his request for a leave

of absence was neither final nor unequivocal until the Board decided to terminate his

employment in early October. We disagree. The Board’s letter (dated September 11,

2012) clearly states: “[The Board] denied your request for a leave of absence for the

2012-2013 school-year.”      (Emphasis added).      This letter created no ambiguity or

equivocation as to whether its decision on the leave of absence was final.

               Furthermore, the Board was not required to afford Holden a hearing on its

decision to deny him another leave of absence.10 The mere fact that Holden unilaterally

raised the leave of absence issue at the October 8 termination hearing is inconsequential.

Holden’s position would allow a grievant to prolong the grievance process at his/her will



               10
                  See Syl. Pt 2, in part, Cowen v. Harrison Cnty. Bd. of Educ., 195 W.Va.
377, 465 S.E.2d 648 (1995) (“County boards of education have substantial discretion in
matters relating to hiring, assignment, transfer, and promotion of school personnel[.]”).
See also Ewing v. Bd. of Educ. of Summers, 202 W.Va. 228, 503 S.E.2d 541 (1998)
(applying rule to employee’s grievance regarding Board’s denial of employee’s request
for leave of absence). But see Bd. of Educ. of Mercer v. Wirt, 192 W.Va. 568, 453 S.E.2d
402 (1994) (quoting W.VA. CODE § 18A-2-8(c) [2007] (“The [terminated] employee shall
be given an opportunity, within five days of receiving the written notice, to request, in
writing, a level three hearing and appeals[.]”).


                                            15

by requesting reconsideration of already-decided issues. This result would render the

fifteen-day deadline for filing a grievance meaningless.

              Holden’s fifteen-business-day window began when he learned of the

Board’s final decision on the leave of absence issue (September 11, 2012). See W.VA.

CODE § 6C-2-4 [2008] (employee must file grievance within “fifteen days following the

occurrence of the event upon which the grievance is based, or within fifteen days of the

date on which the event became known to the grievant or within fifteen days of the most

recent occurrence of a continuing practice giving rise to a grievance[.]”) (emphasis

added). See also Syl. Pt. 1, in part, Spahr v. Preston Cnty. Bd. of Educ., 182 W.Va. 726,

391 S.E.2d 739 (1990) (“[T]he time in which to invoke the grievance procedure does not

begin to run until the grievant knows of the facts giving rise to a grievance.”); Rose v.

Raleigh Cnty. Bd. of Educ., 199 W.Va. 220, 222, 483 S.E.2d 566, 568 (1997) (“[T]he

running of the relevant time period is ordinarily deemed to begin to run when the

employee is unequivocally notified of the decision.”).

              The parties agree that Holden was unequivocally notified of the Board’s

denial of his request for a third leave of absence by September 13, 2012. That is when

the fifteen-business-day window to file a grievance began. Fifteen business days after

September 13, 2012, was October 4, 2012. Neither party disputes that Holden filed his

grievance on October 26, 2012, well after the October 4th deadline to do so.

              Accordingly, the administrative law judge correctly found that Holden did

not timely file his grievance as to the leave of absence issue, and the circuit court erred in

finding otherwise.

                                             16

                                         IV.

                                     CONCLUSION



              For the reasons set forth herein, the circuit court erred in reversing the West

Virginia Public Employees Grievance Board. Accordingly, we reverse the decision of

the circuit court and reinstate the grievance board’s decision that Holden was properly

terminated and that his grievance on the leave of absence issue was not timely filed.

                                                                                  Reversed.




                                             17

