| Randy C. Kniha, Esq.
Manchin & Aloi
Fairmont, West Virginia
Attorney for Appellant
Frances C. Whiteman, Esq.
| Darrell V. McGraw, Jr.
Donald L. Darling
Senior Deputy Attorney General
Charleston, West Virginia
Attorneys for Division of Personnel
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. (1995), 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).
This is appeal by Lillian
Wilson from an order of the Circuit Court of Marion County which affirmed a
decision of the West Virginia Education and State Employees Grievance Board
holding that the Marion County Health Department properly terminated Ms. Wilson's
employment during a reduction in force. In rendering the decision, the circuit
court, in effect, ruled that Ms. Wilson was not entitled to tenure credit for
certain days while she was off work due to a work-related injury. On appeal,
Ms. Wilson claims that the court should have remanded her case for an additional
administrative hearing to afford her an opportunity to present newly discovered
evidence that would have established her entitlement to the additional tenure
While employed with the Marion
County Health Department, the appellant Lillian Wilson suffered an on-the-job
injury covered by West Virginia's Workers' Compensation Act, and she was awarded
temporary total disability benefits under the Act. Under regulations covering
Ms. Wilson's employment, she was entitled to tenure credit while she was away
from work and was receiving temporary total disability benefits. At a certain
point, the Workers' Compensation Division terminated the payment of Ms. Wilson's
temporary total disability benefits. Ms. Wilson protested the termination, and
commenced workers' compensation litigation to reverse the termination.
On December 9, 1998, while
the litigation over the termination of Ms. Wilson's temporary total disability
benefits was still pending, the Marion County Health Department, as a part of
its reduction-in-force, terminated Ms. Wilson's employment. This decision was
predicated on its conclusion that she was the Department's least senior employee.
Following her layoff, Ms. Wilson filed a grievance pursuant to the provisions
of W. Va. Code 29-6A-1, et seq.
While Ms. Wilson prosecuted her
grievance, her workers' compensation claim for additional temporary total disability
benefits remained in litigation, and it was still unresolved on April 7, 1999,
when the West Virginia Education and State Employees Grievance Board rendered
its final decision.
On April 16, 1999, nine days
after the Grievance Board decision, the Workers' Compensation Division granted
Ms. Wilson temporary total disability benefits for the period December 13, 1994,
through May 12, 1995. As a consequence, she claims in the present proceeding
that she was entitled to an additional 152 tenure credit days and that if this
credit had existed at the time of her layoff, she would have been more senior
than an employee retained by the Marion County Health Department.
Ms. Wilson petitioned the
Circuit Court of Marion County to review the administrative law judge's decision
and, in the course of the review, she requested a remand of the case for an
additional administrative hearing so that newly discovered evidence, that she
was entitled to the days of temporary total disability which had been in litigation,
could be considered.
The circuit court refused to remand
the action for taking of newly discovered evidence and affirmed the decision upholding
Ms. Wilson's layoff. It is from the circuit court's action that Ms. Wilson now
West Virginia Code 18-29-7 provides that a circuit court may set aside a decision of a hearing examiner in a case such as the one presently before the Court if a decision is arbitrary, capricious, an abuse of discretion, or contrary to the law. Martin v. Randolph County Board of Education, id., and Board of Education of the County of Mercer v. Wirt, 192 W. Va. 568, 453 S.E.2d 402 (1994). Further, the Court has indicated that: 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. (1995), 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).
In the present case, the West Virginia Education and State Employees Grievance Board rendered a decision on April 7, 1999. At that time, Ms. Wilson had not been granted credit for the 152 days of temporary total disability benefits to which she claimed that she was entitled under the Workers' Compensation law although her claim for such benefits was in litigation. Under the state of the facts as they existed at that time, she was the employee subject to dismissal under the reduction-in-force plan adopted by the Marion County Health Department. The same situation prevailed at the time the West Virginia Education and State Employees Grievance Board rendered its decision.
In view of the fact that the decision rendered by the West Virginia Education State Employees Grievance Board was supported by the facts as they existed at the time of the ruling, this Court cannot conclude that that ruling was clearly wrong or that the circuit court erred in affirming the decision of the Board, notwithstanding the fact that later factual developments might have supported a different decision by the Board.
The Court notes that Ms. Wilson
also argues that the circuit court should have remanded the case for the development
of the new evidence that she was entitled to temporary total disability benefits,
and derivatively to tenure credit for the time she was off work and not receiving
temporary total disability benefits. In asserting this point, she claims that
Rule 60(b) of the West Virginia Rules of Civil Procedure authorizes such a remand.
The grievance which Ms. Wilson
brought, and which forms the basis of this proceeding, was an administrative
grievance, and the Circuit Court of Marion County reviewed that decision under
authority granted by W. Va. Code 29-6A-7. That statutory section limits
what a reviewing court may consider, and do, during the review process. The
statutory section states, in relevant part:
(b) Either party or the director of the division of personnel may appeal to the circuit court of Kanawha County or to the circuit court of the county in which the grievance occurred on the grounds that the hearing examiner's decision:
(1) Is contrary to law or a lawfully adopted rule or written policy of the employer;
(2) Exceeds the hearing examiner'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.
The section does not grant the circuit court jurisdiction to take evidence to supplement the record.
Rule 81(a) of the West Virginia
Rules of Civil Procedure states that the Rules of Civil Procedure apply only
in limited circumstances during a circuit court's review of an administrative
decision. The relevant portion of Rule 81(a) states: [T]hese rules . .
. apply in a trial court of record when any testimony is taken before the court
in the judicial review of an order or decision rendered by an administrative
agency.See footnote 1 1
Since W. Va. Code 29-6A-7
does not authorize a reviewing court to take new testimony in the appeal of a
case such as the one presently before the Court, and since Rule 81(a) of the Rules
of Civil Procedure provides that the Rules apply only when evidence is taken before
a reviewing court in an administrative proceeding, the Court concludes that the
circuit court had no authority under Rule 60(b) of the Rules of Civil Procedure
to make a remand of Ms. Wilson's case.
In view of all this, the Court
does not believe that the circuit court erred in refusing to remand Ms. Wilson's
case under Rule 60(b) for the taking of newly discovered evidence.
The judgment of the Circuit
Court of Marion County is, for the reasons stated, affirmed.
(a) To what proceedings applicable. _ (1) Review of decisions of magistrates and administrative agencies. _ When the appeal of a case has been granted or perfected, these rules apply, except that, in a case on appeal from a magistrate court, Rules 26 through 37 may not be used and no pleadings other than those used in the case in the magistrate court may be used except by order of the appellate court in the proceeding after the appeal has been granted or perfected. Likewise, these rules, where applicable, apply in a trial court of record when any testimony is taken before the court in the judicial review of an order or decision rendered by an administrative agency.