Harry M. Rubenstein, Esq. John Everett Roush, Esq.
Kelly J. Kimble, Esq. West Virginia School Service
Kay Casto & Chaney, PLLC Personnel Association
Morgantown, West Virginia Charleston, West Virginia
Attorneys for the Appellant Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
2. 'A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.' Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
Syllabus point 1, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997).
3. '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.' Syllabus Point 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925). Syllabus
point 2, Conseco Finance Servicing Corp. v. Myers, 211 W. Va. 631, 567 S.E.2d 641
4. '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.'
Syllabus point 14., State v. Harden, 62 W. Va. 313, 58 S.E. 715 (1907). Syllabus point 4,
Smith v. State Workmen's Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361
The appellant herein and respondent below, the Board of Education of the County of Mingo [hereinafter referred to as the Board], appeals from an order entered May 31, 2002, by the Circuit Court of Kanawha County. By the terms of that order, the circuit court reversed the July 13, 2000, decision of the West Virginia Education and State Employees Grievance Board [hereinafter referred to as the Grievance Board] and found that W. Va. Code § 18A-4-8a(7) (1999) (Supp. 1999) prohibited the Board from altering the daily work schedule of its employee, the appellee herein and petitioner below, Violet Napier [hereinafter referred to as Ms. Napier], without her written consent thereto. Upon a review of the parties' arguments, the record submitted for our consideration, and the pertinent authorities, we reverse the decision of the Kanawha County Circuit Court.
Thereafter, in October, 1999, the Board learned that two additional special needs students would be requiring school bus transportation to the middle and high schools.
To accommodate these students, the three special education aides affected by this situation
cooperatively coordinated their bus-riding schedules.
(See footnote 4)
As a result of these changes, the aide
who earlier rode to the high school transferred to another bus, and Ms. Napier boarded the
bus at Taylorville at 7:10 a.m. to accompany students to Burch High School. Upon arriving
at the high school, Ms. Napier resumed her previous duties assisting students traveling to
the middle school and fulfilling her classroom obligations at Burch Middle School. In the
afternoon, Ms. Napier remained on the bus when it arrived at the high school, and
disembarked shortly thereafter when it reached Taylorville at 2:55 p.m. Thus, the October,
1999, student additions extended Ms. Napier's workday by approximately fifteen minutes.
It does not appear from the record that Ms. Napier objected to these schedule changes.
In December, 1999, yet another special needs student began riding Bus
Number 9607. Transportation Director Bill Kirk [hereinafter referred to as Mr. Kirk]
informed Ms. Napier that she would need to board the bus at Hannah Lumber at 6:40 a.m.
in order to assist said student, and would return to Hannah Lumber after the student had
been taken home at 3:10 p.m. This new arrangement caused Ms. Napier's daily work
schedule to be lengthened by an additional forty-five minutes, or approximately one hour
over the daily schedule she followed at the beginning of the 1999-2000 school year. Ms.
Napier complained about these adjustments and met with various officials of Mingo County
Schools to resolve the matter, objecting to the extended work schedule and refusing to
accept overtime pay for her increased duties. Mr. Kirk was then instructed to adjust Ms.
Napier's assignment so that her daily schedule would not necessitate overtime pay.
As a result of Ms. Napier's objections, her schedule was changed to allow her
to meet the new student at the student's home at Musick at 7:05 a.m. and to disembark the
bus at the student's home in the afternoon at 3:10 p.m. Thus, Ms. Napier's workday was
lengthened, as compared to her original schedule at the start of the academic year, by
approximately thirty-five minutes. Despite these schedule modifications permitting her to
board the bus at the student's home, Ms. Napier continued her objections to her altered
daily schedule. As a result, Ms. Napier filed a grievance against her employer, the Board,
on December 7, 1999, which was denied at Level I on December 14, 1999. In her
grievance, Ms. Napier alleged that her daily work schedule had been altered in violation of
W. Va. Code § 18A-4-8a(7) (1999) (Supp. 1999),
(See footnote 5)
which provides that [n]o service
employee may have his or her daily work schedule changed during the school year without
the employee's written consent, and the employee's required daily work hours may not be
changed to prevent the payment of time and one-half wages or the employment of another
(See footnote 6)
On February 22, 2000, following a Level II hearing, Ms. Napier's grievance
was again denied. Ms. Napier then by-passed Level III and appealed directly to the
(See footnote 7)
By decision rendered July 13, 2000, at Level IV, the Grievance Board
found in favor of the Board, ruling that
[n]otwithstanding the language in W. Va. Code § 18A-4- 8a, restricting changes in a service employee's daily work schedule, a county board of education must have freedom to make reasonable changes to a service employee's daily work schedule, within the parameters of her contract, some of which cannot reasonably be effected until shortly after school starts.
(Citations omitted). Following this adverse decision, Ms. Napier appealed to the Circuit Court of Kanawha County. By order entered May 31, 2002, the circuit court reversed the Grievance Board's ruling. In its decision, the court observed that
the decision to alter the petitioner's [Ms. Napier's] work schedule on two separate occasions is contrary to the express language of § 18A-4-8a. Nothing in that section indicates that the legislature contemplated any exception to this statutory prohibition. The statutory prohibition against changing an employee's work schedule is expressed in absolute terms.
From this ruling, the Board appeals to this Court.
Accordingly, we previously have held that
[g]rievance 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 County Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000) (emphasis added). See also Syl. pt. 1, Cowen v. Harrison County Bd. of Educ., 195 W. Va. 377, 465 S.E.2d 648 (1995) (No deference is given to conclusions of law of an administrative law judge or a circuit court, so that the standard of judicial review by this Court is de novo.). Accord Syl. pt. 2, Maikotter v. University of West Virginia Bd. of Trustees/West Virginia Univ., 206 W. Va. 691, 527 S.E.2d 802 (1999) (Although we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board, we review, de novo, questions of law.). Because the sole issue presented in the instant appeal involves a question of law, we will apply a de novo standard of review. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.).
When presented with a matter of statutory interpretation, this Court typically
first looks to the precise language employed by the Legislature in order to determine the
meaning of the controverted statute. We look first to the statute's language. If the text,
given its plain meaning, answers the interpretive question, the language must prevail and
further inquiry is foreclosed. State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 630, 474
S.E.2d 554, 560 (1996) (internal quotations and citation omitted) (footnote omitted). Thus,
where the language is plain, we do not interpret the statute, but rather apply the statute as
written. 'A statutory provision which is clear and unambiguous and plainly expresses the
legislative intent will not be interpreted by the courts but will be given full force and effect.'
Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). Syl. pt. 1, State v.
Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997). Accord Syl. pt. 2, State v. Elder, 152
W. Va. 571, 165 S.E.2d 108 (1968) (Where the language of a statute is clear and without
ambiguity the plain meaning is to be accepted without resorting to the rules of
Neither will we construe a statute to achieve an absurd result. Rather,
[i]t 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. Syllabus Point 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925).
Syl. pt. 2, Conseco Fin. Serv'g Corp. v. Myers, 211 W. Va. 631, 567 S.E.2d 641 (2002). Therefore, [w]here a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made. Syl. pt. 2, Newhart v. Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938).
Finally, although a statute's language may be plain, there may arise circumstances in which we must nevertheless take notice of the logical inferences that may be gleaned from the statutory language at issue. Hence, '[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.' Syllabus point 14., State v. Harden, 62 W. Va. 313, 58 S.E. 715 (1907). Syl. pt. 4, Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). See also Syl. pt. 5, Ex parte Watson, 82 W. Va. 201, 95 S.E. 648 (1918) (In the interpretation of statutes, words and phrases therein are often limited in meaning and effect, by necessary implications arising from other words or clauses thereof.).
Applying these principles to the case sub judice requires us to examine the
statutory language at issue herein. W. Va. Code § 18A-4-8a(7) (1999) (Supp. 1999) directs
that [n]o service employee may have his or her daily work schedule changed during the
school year without the employee's written consent, and the employee's required daily
work hours may not be changed to prevent the payment of time and one-half wages or the
employment of another employee. Based upon our reading of this statute, we find the
language to be plain and free of ambiguity. Thus, we must then consider how this statutory
language applies to the facts of this proceeding.
Ms. Napier, the aggrieved school employee at the center of this case, is
employed by the Board as a special education aide. Among her specified job duties are (1)
the assignment to, and riding of, a specific Mingo County school bus to assist special needs
students traveling to and from school and (2) the assignment to a particular school where
she has various classroom responsibilities. Of particular relevance to the instant appeal,
Ms. Napier's school bus duties, as defined in her special education aide job description,
require her to [p]articipate in specialized transportation component of
I[ndividualized].E[ducation].P[lan].'s providing for the health, safety and physical needs
of students during transportation to/from schools. Such duties are defined more
specifically in a policy statement, which the Board adopted several years before hiring Ms.
Napier, which directs that a special education aide's
[t]ransportation duties will include:
1 . the loading and un-loading of students
2 . assistance to and from the school building when specified
3 . special needs in transit
4 . discipline under the guidance of school administrators [and] teacher(s) and in compliance with federal, state and county policies
5 . administering medication
6 . proper seating arrangements
7 . above all CONFIDENTIALITY[.]
A subsequent amendment to this policy explains that
Special Education aides will be required to assist with specialized transportation as a component of the job. All aides will be assigned to a driver and bus at the beginning of [the] school term and assist through the duration of a school year, when the need arises. If enrollment changes and students are identified, whose I.E.P. requires specialized transportation, the aide assigned to the driver and bus will assist anytime during the year.
Insofar as Ms. Napier's position requires her to be assigned to a specific bus
to assist the special needs students riding said bus, it may be said that her daily schedule
corresponds to, or is commensurate with, the daily route of the bus to which she is assigned.
As such, the duration of Ms. Napier's workday is defined by the daily schedule of Bus
Number 9607. Thus, the Board acted within its authority when it required Ms. Napier to
meet the bus at Musick, in order to attend to a student's needs, instead of at Burch High
School, as it earlier had instructed her to do.
(See footnote 8)
Moreover, to the extent that Ms. Napier's job
is solely to care for the special needs students to whom she is assigned, it is entirely
plausible that her daily schedule would not be static throughout the school year but might
be adjusted, within the confines of Bus Number 9607's daily route, in order to permit her
to accommodate fewer or greater numbers of students as their needs dictate. Therefore,
because the Board did not change Ms. Napier's work schedule in violation of W. Va. Code
§ 18A-4-8a(7), we find that the circuit court committed reversible error by rendering its