                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Joanna L. Costello,                                                              FILED
Petitioner Below, Petitioner                                                   November 8, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 13-0039 (Kanawha County 12-AA-98)                                     OF WEST VIRGINIA



The Board of Education of the County
of Monongalia, Respondent Below,
Respondent


                               MEMORANDUM DECISION
       Petitioner Joanna L. Costello, by counsel John Everett Roush, appeals the December 27,
2012, order of the Circuit Court of Kanawha County. The circuit court affirmed the July 31,
2012, decision of the West Virginia Public Employees Grievance Board (Grievance Board),
denying petitioner’s grievance following her termination from employment. Respondent Board
of Education of the County of Monongalia, by counsel Denise M. Spatafore, filed a response.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Prior to her dismissal, petitioner was employed as an aide on a special education school
bus assigned to morning, midday, and afternoon runs. Petitioner’s position required her to
monitor and assist special education students. The midday school bus run was approximately
twenty minutes each way, transporting special education students from University High School
to the Monongalia County Technical Education Center (MTEC) and back for a work program.
Six students were assigned to ride the school bus on the midday MTEC run. On August 31 and
September 1, four students were on the school bus.

        A videotape from the school bus showed that on August 31 and September 1, 2011, two
male students on the midday run engaged in sexual acts on one another over a ten to fifteen
minute period. During both trips, petitioner talked with the school bus driver almost the entire
trip, and talked to a girl student across the aisle from her occasionally. In addition to the boys
who were engaging in sexual acts behind her, another disabled boy was sitting a few seats behind
petitioner, and she also completely ignored him during the entirety of the bus trips on those two
days. During the twenty minute bus trip, petitioner sat facing forward, turning around to observe
what the students behind her on the bus were doing only one time, on August 31. On the bus trip
on September 1, petitioner answered her cell phone and conducted personal business for about

                                                1

two minutes. On September 1, toward the end of the bus ride, the bus driver asked the boys what
they were doing. Only then did petitioner turn around to observe the activity behind her.
Petitioner went back to see what the boys were doing and separated them immediately.

       Petitioner was suspended, without pay, for this incident. Following a hearing before
respondent, petitioner was terminated from her employment on December 12, 2011, for willful
neglect of her duty in failing to monitor the students. Prior to the discharge, respondent had
administered other disciplinary actions to petitioner including two suspensions and a written
reprimand for misconduct.1

       Following her termination, petitioner filed a grievance pursuant to West Virginia Code §§
6C-2-4(a)(4) and 18A-2-8. On May 23, 2012, the Grievance Board held an evidentiary hearing
conducted by an administrative law judge. By decision dated July 31, 2012, the Grievance Board
found that petitioner willfully neglected her duty and denied her grievance. Specifically, the
administrative law judge held that

       [petitioner] had been employed by [respondent] since 1979. She knew how to
       perform her duties, and what was expected of her. However, she sat facing
       forward talking to the bus operator and on her cell phone for almost the entire bus
       trip for two days, looking back to check on the three boys on the bus only one
       time. Further, there were not two girls on the bus that [petitioner] needed to watch
       as she stated in her testimony, there was only one girl sitting across from
       [petitioner], and [petitioner] paid very little attention to her. The “boy crazy” girl2
       was not, in fact, sitting behind [petitioner] on these two days as [petitioner]
       testified. [Petitioner] basically spent the entire bus trip not working, but enjoying
       a conversation. This meets the definition of willful neglect of duty. [Petitioner]
       was not entitled to a performance improvement period.

(Emphasis supplied). The administrative law judge also found that petitioner failed to
demonstrate that the penalty imposed was excessive considering her prior disciplinary record.



       1
         On May 10, 2010, at the end of the morning bus run, petitioner left the school bus as it
arrived at the parking area because she was ill. She went straight to her car and left the parking
area. The school bus driver then pulled to the parking space and left the school bus, not noticing
that a student was still on the school bus. For this incident, respondent suspended petitioner
without pay for twenty days.
        On or about May 23, 2007, petitioner and the school bus driver took the school bus to a
local mall to shop between runs. There was a controversy with security personnel from the mall
over where the bus was parked. Thereafter, petitioner was accused of reporting a false incident to
the police. Respondent suspended petitioner without pay for fifteen days following this incident.
        On March 3, 2006, petitioner and the school bus driver went shopping between runs,
using the bus as transportation. Petitioner received a written reprimand for this offense.
       2
        A teacher from the school advised petitioner that one of the girls should be separated
from the boys because the girl was “boy crazy.”
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Finally, the administrative law judge held that petitioner failed to demonstrate disparate
treatment.

       Petitioner filed an appeal of the Grievance Board’s decision to the circuit court. By order
entered December 27, 2012, the circuit court affirmed.

        On appeal, petitioner raises three assignments of error. Petitioner contends that her
conduct amounted to unsatisfactory performance and not willful neglect of duties. Petitioner
argues that she should have been given notice of her deficiencies and an opportunity to improve
prior to termination. Petitioner also asserts that she received disparate treatment compared to
other transportation employees.

        In the instant proceeding, we are asked to review an appeal from a circuit court order
which upheld a decision of the Grievance Board. The standard of review applicable to a ruling of
the Grievance Board is set forth in West Virginia Code § 6C-2-5.3 In this regard, we have
articulated 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

       3
           West Virginia Code § 6C-2-5 (formerly West Virginia Code § 18-29-7) states:

       (a) The decision of the administrative law judge is final upon the parties and is
           enforceable in the circuit court of Kanawha County.
       (b) A party	 may appeal the decision of the administrative law judge on the
           grounds that the decision: (1) Is contrary to law or a lawfully adopted rule or
           written policy of the employer; (2) Exceeds the 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.
       (c) A party shall file the appeal in the circuit court of Kanawha County within
           thirty days of receipt of the administrative law judge’s decision. The decision
           of the administrative law judge is not automatically stayed upon the filing of
           an appeal, but a stay may be granted by the circuit court upon a separate
           motion for a stay.
       (d) The court shall review the entire record that was before the administrative law
           judge, and the court may hear oral arguments and require written briefs. The
           court may reverse, vacate or modify the decision of the administrative law
           judge, or may remand the grievance to the administrative law judge or the
           chief administrator for further proceedings.



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       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 Board of Education, 208 W.Va.
       177, 539 S.E.2d 437 (2000).

              “‘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.’ Syllabus Point 1, Randolph County Board of Education v. Scalia, 182
       W.Va. 289, 387 S.E.2d 524 (1989).” Syllabus point 1, Martin v. Randolph County
       Board of Education, 195 W.Va. 297, 465 S.E.2d 399 (1995).

Syl. Pts. 1 and 2, Kanawha Co. Bd. of Educ. v. Sloan, 219 W.Va. 213, 632 S.E.2d 899 (2006).

     This Court’s appellate review is set forth in Syllabus Point 1 of Huffman v. Goals Coal
Company, 223 W.Va. 724, 679 S.E.2d 323 (2009):

        “On appeal of an administrative order from a circuit court, this Court is bound by
       the statutory standards contained in W.Va. Code § 29A–5–4(a) and reviews
       questions of law presented de novo; findings of fact by the administrative officer
       are accorded deference unless the reviewing court believes the findings to be
       clearly wrong.” Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d
       518 (1996).

Mindful of these principles, we proceed to consider petitioner’s arguments.

        Petitioner first contends that the circuit court erred in holding that her conduct constituted
willful neglect of duty. This Court has held that willful neglect of duty constitutes a knowing and
intentional act, rather than a neglect act. Bd. of Educ. v. Chaddock, 183 W.Va. 638, 640, 398
S.E.2d 120, 122 (1990). Willful neglect of duty encompasses something more serious than
incompetence. Id. Furthermore, we noted in Fox v. Board of Education of Doddridge County,
160 W.Va. 668, 672, 236 S.E.2d 243, 246 (1977), that willful neglect of duty cannot be defined
comprehensively. In some cases, termination of employment may be supported by evidence of a
series of infractions, while in others “a single act of malfeasance, whereby severe consequences
are generated,” may warrant a dismissal.” Id.

        Based upon our review of the record, we conclude that the circuit court was not clearly
wrong in holding that petitioner’s conduct constituted willful neglect of duty. Petitioner was fully
aware that it was her sole responsibility to supervise and care for the special needs children on
the school bus. She abandoned that responsibility to enjoy a conversation with the school bus
driver. Petitioner’s decision to ignore the students entrusted to her care will undoubtedly result in
severe and lasting consequences.

       Petitioner next maintains that she should have been entitled to an evaluation and an
opportunity to improve. We agree with the circuit court that an improvement plan or evaluation
process was not appropriate in this case because petitioner was competent to perform her duties,

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knew what was expected of her, but chose to ignore those responsibilities. Petitioner had been a
school bus aide for over thirty years and was well aware of the need to visually supervise the
students.

        Finally, petitioner contends that termination of her employment was an inappropriate
sanction considering the disposition of similar cases. We begin by noting that none of the other
cases to which petitioner refers is, in fact, similar. None of the examples petitioner has cited
involve a situation wherein an employee with responsibility for student supervision willingly
ignored the students in his or her care for an extended period of time. With regard to petitioner’s
allegation that it was unfair for the school bus driver to receive a lesser punishment4 than her for
the incident, the circuit court correctly noted that the school bus driver’s primary responsibility
was to drive the bus. However, “the sole purpose for [petitioner’s] presence on the bus was to
monitor the children.” The record reflects that petitioner has not shown a disparity in treatment.
Therefore, we find this assignment of error to be without merit.

        For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: November 8, 2013

CONCURRED IN BY:

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

DISQUALIFIED:

Justice Margaret L. Workman




        4
            The circuit court noted that the school bus driver was suspended without pay for two
days.
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