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655 S.E.2d 52
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term
Nos. 32163 and 33296
AMANDA A. FRYMIER,
Petitioner Below, Appellant,
HIGHER EDUCATION POLICY COMMISSION
and GLENVILLE STATE COLLEGE,
Respondents Below, Appellees.
Appeal from the Circuit Court of Gilmer County
Honorable Richard A. Facemire, Judge
Civil Action Nos. 03-P-14 and 04-P-17
Submitted: September 12, 2007
Filed: October 12, 2007
Darrell V. McGraw, Jr.
Cohen, Abate & Cohen, L.C. Attorney General
Morgantown, West Virginia Elaine L. Skorich
Attorney for the Appellant
Assistant Attorney General
Attorneys for the Appellees
The Opinion of the Court was delivered PER CURIAM.
JUSTICES STARCHER AND ALBRIGHT dissent and reserve the right to file
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. A final order of the hearing examiner for the West Virginia Education
and State Employees Grievance Board, made pursuant to W. Va. Code, 29-6A-1, et seq.
[(1988) (Repl. Vol. 2004)], and based upon findings of fact, should not be reversed unless
clearly wrong. Syllabus, Quinn v. West Virginia Northern Community College, 197 W. Va.
313, 475 S.E.2d 405 (1996).
2. 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. Syllabus point 1, Cahill v. Mercer County Board of
Education, 208 W. Va. 177, 539 S.E.2d 437 (2000).
3. Where the language of a statute is clear and without ambiguity the plain
meaning is to be accepted without resorting to the rules of interpretation. Syllabus point 2,
State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).
4. In the absence of any definition of the intended meaning of words or
terms used in a legislative enactment, they will, in the interpretation of the act, be given their
common, ordinary and accepted meaning in the connection in which they are used. Syllabus
point 1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled
on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
5. A discrimination claim under W. Va. Code § 18-29-2(m) (1992), 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. To the extent our prior cases are inconsistent with this holding, they are expressly
overruled. Syllabus point 5, Board of Education of the County of Tyler v. White, 216
W. Va. 242, 605 S.E.2d 814 (2004).
The appellant, Amanda Frymier (hereinafter Ms. Frymier), appeals from two
orders entered by the Circuit Court of Gilmer County. The first was entered April 13, 2004,
and was timely appealed to this Court. The issue was stayed and held in abeyance until later
consolidated with Ms. Frymier's appeal of a second circuit court order entered June 4, 2006.
By those orders, the circuit court found that Ms. Frymier was not entitled to bumping rights
under W. Va. Code § 18B-7-1 (2004) (Repl. Vol. 2007)
(See footnote 1)
and, further, that the appellee,
(See footnote 2)
Glenville State College (hereinafter GSC) did not make its job retention decision based on
favoritism. On appeal, Ms. Frymier argues that she was entitled to bump a less senior
employee, and that GSC committed favoritism in the treatment of its employees and the
decisions made regarding their respective status. Based upon the parties' arguments, the
record designated for our consideration, and the pertinent authorities, we affirm the decisions
of the circuit court.
FACTUAL AND PROCEDURAL HISTORY
Ms. Frymier is currently an employee at GSC, and has been an employee since
May 19, 1980. Ms. Frymier's tenure at GSC has encompassed different job positions with
varying job duties. Since July 2000, she has been classified as an Accounting Assistant I.
Prior to July 2003, she was a full-time equivalent employee (FTE), working 37 ½ hours
per week. In July 2003, in response to state-mandated budget cuts, GSC reduced working
hours for thirty-six jobs, including Ms. Frymier and two other Accounting Assistant I
(See footnote 3)
Ms. Frymier went from a 1.0 FTE, to a 0.87 FTE. While she was still considered
full time, her hours were reduced about an hour per day and her salary and benefits were
prorated accordingly. Ms. Frymier's salary dropped from approximately $30,000 per year
to about $26,000 per year.
Ms. Frymier filed a grievance. The basis of Ms. Frymier's complaint was that
an Accounting Assistant I position held by a co-worker with only eight years of seniority was
left as a 1.0 FTE. Ms. Frymier argued that, with her seniority based on her total of twenty-
three years of employment, she should be allowed to bump into the 1.0 FTE job. GSC
responded that it made decisions on reduction in hours based upon the job duties that were
most essential to its operations, and that neither seniority nor job performance were
Ms. Frymier's grievance sought to use the reduction in force statute
(hereinafter RIF), W. Va. Code § 18B-7-1(b) (2004) (Repl. Vol. 2007),
(See footnote 4)
to bump the less
senior employee. Her grievance was denied at all levels, and she appealed to the Circuit
Court of Gilmer County. The circuit court affirmed all of the findings by the West Virginia
Education and State Employees Grievance Board (hereinafter grievance board), finding
that the bump provision of section (b) [of W. Va. Code § 18B-7-1] clearly is applicable only
in layoff situations, and would not authorize the Court to grant [Ms. Frymier] the relief she
seeks, even had the Court accepted her interpretation of the rest of the section. Further, Ms.
Frymier raised the issue of favoritism for the first time on appeal to the circuit court.
Because Ms. Frymier had not exhausted her administrative remedies on the issue of
favoritism, the circuit court remanded the issue for consideration before the grievance board.
On remand, Ms. Frymier asserted that the retention of a similarly-situated, but
less-senior, employee in a 1.0 FTE position constituted favoritism. GSC responded that the
difference in job duties was the reason that another less-senior employee was allowed to
remain in the 1.0 FTE position. Ms. Frymier's grievance was denied at all levels, and she
appealed to the Circuit Court of Gilmer County, which also refused the relief she sought.
The circuit court found as follows:
[Ms. Frymier] and [the less-senior co-worker] were
similarly situated, and [the less-senior co-worker], and [Ms.
Frymier] were treated differently. However, the facts are
undisputed that the difference in treatment was related to the
actual job responsibilities, as is required under Tyler [Board
of Educ. of the County of Tyler v. White, 216 W. Va. 242, 605
S.E.2d 814 (2004)].[
(See footnote 5)
] [The less-senior co-worker] had to be on
the job during specific hours so that the cashier's window would
be open to the students, therefore it was not possible to reduce
her hours, whereas [Ms. Frymier] did not have to perform her
job during specific hours, therefore making it possible to reduce
her hours. . . . Part of [the less-senior co-worker's] job
responsibilities are to be available to students during regular
hours, the decision to keep her as a full-time employee was
based on the desire of the College to provide services to the
students, and was not an arbitrary or capricious decision.
(Footnote added). While finding that the two employees were similarly situated but treated
differently, the circuit court held that the disparate treatment was related to the actual job
Following the circuit court's first order denying Ms. Frymier the application
of the RIF statute, Ms. Frymier appealed to this Court. The appeal was accepted, but was
held in abeyance at the request of Ms. Frymier until the issue of favoritism had also been
decided. Ms. Frymier's grievance on the issue of favoritism was denied at all levels below,
and her appeal to this Court on that matter was also accepted and consolidated with her
appeal on bumping rights. All matters are now properly before this Court for review.
This case comes before this Court as an appeal from the Circuit Court of
Gilmer County, which affirmed the decisions made by the West Virginia Education and State
Employees Grievance Board. The appeal provisions of W. Va. Code § 29-6A-7 (1998)
(Repl. Vol. 2004)
(See footnote 6)
provide that an appeal may be taken to a circuit court where the final
(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.
W. Va. Code § 29-6A-7. More specifically articulated by this Court is the directive that [a]
final order of the hearing examiner for the West Virginia Education and State Employees
Grievance Board, made pursuant to W. Va. Code, 29-6A-1, et seq. [(1988) (Repl. Vol.
2004)], and based upon findings of fact, should not be reversed unless clearly wrong. Syl.,
Quinn v. West Virginia N. Comty. Coll., 197 W. Va. 313, 475 S.E.2d 405 (1996). Further
explaining this Court's role in the review process, we have previously stated:
in reviewing an ALJ's [Administrative Law Judge's] decision
that was affirmed by the circuit court, this Court accords
deference to the findings of fact made below. This Court
reviews decisions of the circuit [court] under the same standard
as that by which the circuit [court] reviews the decision of the
ALJ. We must uphold any of the ALJ's factual findings that are
supported by substantial evidence, and we owe substantial
deference to inferences drawn from these facts. . . . We review
de novo the conclusions of law and application of law to the
Martin v. Randolph County Bd. of Educ., 195 W. Va. 297, 304, 465 S.E.2d 399, 406 (1995).
This instruction is consistent with our observation that rulings upon questions
of law are reviewed de novo. Quinn, 197 W. Va. at 316, 475 S.E.2d at 408 (citing Bolyard
v. Kanawha County Bd. of Educ., 194 W. Va. 134, 136, 459 S.E.2d 411, 413 (1995) (per
curiam)). Specifically, [a]lthough we accord great deference to the findings of fact of the
West Virginia Educational Employees Grievance Board,[
(See footnote 7)
] we review, de novo, questions of
law. Syl. pt. 2, Maikotter v. University of W. Va. Bd. of Trs., 206 W. Va. 691, 527 S.E.2d
802 (1999) (footnote added). Because this Court reviews decisions of the circuit court under
the same standard used by the circuit court in reviewing the decisions of an ALJ, it is clear
that this Court employs a combination of deferential and plenary review. More particularly,
[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
Syl. pt. 1, Cahill v. Mercer County Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000).
Mindful of these applicable standards, we now consider the substantive issues raised herein.
To resolve this case, this Court must address two issues. First, resolution
requires an examination of W. Va. Code § 18B-7-1 (2004) (Repl. Vol. 2007) to determine
its application, if any, to the present case. Second, this Court will analyze Ms. Frymier's
claims that she was a victim of favoritism. Ms. Frymier argues that the circuit court erred
in its interpretation of W. Va. Code § 18B-7-1, and that, based on that section, she was
subjected to a reduction in work force and should be allowed to bump a less senior
accounting assistant out of the 1.0 FTE position.
(See footnote 8)
She further argues that the employee who
was allowed to retain the 1.0 FTE position was shown favoritism to the detriment of Ms.
GSC argues that Ms. Frymier misreads the relevant statute, and that the circuit
court correctly held that the statute does not apply to a reduction in work hours. GSC avers
that an employee whose work hours have been reduced, but whose job position still exists
and who is still currently employed, has not been temporarily furloughed, permanently
terminated, or laid off as required for application of the RIF statute. Thus, GSC argues that
the bumping rights statute does not apply. On the issue of favoritism, GSC argues that the
employment decisions were based on actual job duties, and that there was a valid reason that
another employee was maintained in her 1.0 FTE position as opposed to Ms. Frymier. This
Opinion will first address the question of statutory interpretation, then will turn to the issue
A. Application of W. Va. Code § 18B-7-1 (2004) (Repl. Vol. 2007)
Ms. Frymier argues that she is entitled to bump a less-senior employee out of
her 1.0 FTE position under W. Va. Code § 18B-7-1. The circuit court disagreed, finding that
the statute does not apply to Ms. Frymier. The relevant portion of W. Va. Code § 18B-7-1,
as relied on by Ms. Frymier, states as follows:
(b) All decisions by the appropriate governing board, the
council or Commission or its agents at state institutions of
higher education concerning reductions in work force of full-
time classified personnel, whether by temporary furlough or
permanent termination, shall be made in accordance with this
section. For layoffs by classification for reason of lack of funds
or work, or abolition of position or material changes in duties or
organization and for recall of employees laid off, consideration
shall be given to an employee's seniority as measured by
permanent employment in the service of the state system of
higher education. In the event that the institution desires to lay
off a more senior employee, the institution shall demonstrate
that the senior employee cannot perform any other job duties
held by less senior employees of that institution in the same job
class or any other equivalent or lower job class for which the
senior employee is qualified. If an employee refuses to accept a
position in a lower job class, the employee retains all rights of
recall provided in this section. If two or more employees
accumulate identical seniority, the priority is determined by a
random selection system established by the employees and
approved by the institution.
To interpret this statutory code section, we must first establish the intent of the
Legislature in promulgating the statute. The primary object in construing a statute is to
ascertain and give effect to the intent of the Legislature. Syl. pt. 1, Smith v. State
Workmen's Comp. Comm'r
, 159 W. Va. 108, 219 S.E.2d 361 (1975). Then we must examine
the language used by the Legislature in promulgating its intent. Where the language of a
statute is clear and without ambiguity the plain meaning is to be accepted without resorting
to the rules of interpretation. Syl. pt. 2, State v. Elder
, 152 W. Va. 571, 165 S.E.2d 108
Syl. pt. 2, Crockett v. Andrews
, 153 W. Va. 714, 172 S.E.2d 384 (1970)
(Where the language of a statute is free from ambiguity, its plain meaning is to be accepted
and applied without resort to interpretation.); Syl. pt. 5, State v. General Daniel Morgan
Post No. 548, Veterans of Foreign Wars
, 144 W. Va. 137, 107 S.E.2d 353 (1959) (When
a statute is clear and unambiguous and the legislative intent is plain, the statute should not
be interpreted by the courts, and in such case it is the duty of the courts not to construe but
to apply the statute.); Syl. pt. 2, State v. Epperly
, 135 W. Va. 877, 65 S.E.2d 488 (1951) (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.). Even if
a statutory section is plainly written, it is still possible for it to contain one or more undefined
words. In such a situation, this Court has directed that, [i]n the absence of any definition
of the intended meaning of words or terms used in a legislative enactment, they will, in the
interpretation of the act, be given their common, ordinary and accepted meaning in the
connection in which they are used. Syl. pt. 1, Miners in Gen. Group v. Hix
, 123 W. Va. 637,
17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge
, 170 W. Va.
162, 291 S.E.2d 477 (1982).
The relevant statute in this case, W. Va. Code § 18B-7-1, makes clear that it
governs reductions in work force of full-time classified personnel, whether by temporary
furlough or permanent termination[.] Ms. Frymier argues that reducing the number of work
hours per week is a reduction in work force sufficient to afford her protection under the
statute. This argument might have some merit if the statute merely said reduction in work;
however, the clear language of the statute refers to a reduction in work force. The statute
does not define the phrase reduction in work force; however, resorting to the common,
everyday meaning of these words, Ms. Frymier's argument fails.
The phrase reduction in work force refers to an elimination of personnel,
whereby the number of employees is diminished. Looking for a definition of reduction in
[work] force, one is instructed to [s]ee LAYOFF. Black's Law Dictionary 1305 (8th ed.
2004). Following this directive, the term layoff is then defined as [t]he termination of
employment at the employer's instigation; esp. the termination _ either temporary or
permanent _ of many employees in a short time. _ Also termed reduction in force
Law Dictionary 906 (8th ed. 2004). These definitions help explain the statute's use of the
phrase reductions in work force of full-time classified personnel, whether by temporary
furlough or permanent termination. The language of the Legislature makes clear that a
reduction in work force is a reduction in the number of employees that is effected by either
a layoff or a permanent termination. Neither a layoff nor a permanent termination applies
in this case, which deals only with a reduction in hours. The statute does not deal with a
reduction in the number of hours worked, but rather, deals with a reduction in the number of
persons employed. Because Ms. Frymier's position was not terminated nor was she laid off,
the statute does not apply.
(See footnote 9)
Thus, the circuit court's decision that Ms. Frymier is not afforded
bumping rights under W. Va. Code § 18B-7-1 is affirmed.
B. Issue of Favoritism
Ms. Frymier's second argument is that she was the victim of favoritism.
(See footnote 10)
circuit court disagreed. The circuit court found that Ms. Frymier and the less-senior co-
worker who was maintained at a 1.0 FTE position were similarly situated and were treated
differently. However, the circuit court went on to find that this difference in treatment was
related to their actual job responsibilities, and therefore, was not illegal.
In analyzing Ms. Frymier's argument, we must once again look to the plain
wording of the statute. The term favoritism is defined as unfair treatment of an employee
as demonstrated by preferential, exceptional or advantageous treatment of another or other
employees. W. Va. Code § 29-6A-2 (h) (1988) (Repl. Vol. 2004).
(See footnote 11)
While our case law is
replete with examples of discrimination cases, the issue of favoritism is not well
distinguished. The analysis for the two types of cases has been commingled in many
circumstances. Thus, we find it appropriate to look to the analysis available in discrimination
cases for guidance on the favoritism issue that is now before us.
In the recent case of Board of Education of the County of Tyler v. White
W. Va. 242, 605 S.E.2d 814 (2004), this Court examined a favoritism case and a
discrimination case brought under W. Va. Code §§ 18-29-2(m) and (o) (1992) (Repl. Vol.
(See footnote 12)
While this Court's Tyler
decision was couched in terms of a discrimination claim,
because the case also properly included a favoritism allegation, it follows that the
discrimination analysis was meant to encompass the favoritism review.
, we held that
[a] discrimination claim under W. Va. Code § 18-29-2(m)
(1992), 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. To the
extent our prior cases are inconsistent with this holding, they are
Syl. pt. 5, Tyler, 216 W. Va. 242, 605 S.E.2d 814. Applying the above-cited principle to the
present case, there is no contention that Ms. Frymier agreed to the reduction in hours. Thus,
our analysis focuses on whether the adverse employment action was job related.
(See footnote 13)
The record reveals that, while Ms. Frymier and the less-senior 1.0 FTE were
similarly situated, their job duties were different. The less-senior employee served as a
school cashier, which required her to be present during specific hours. Ms. Frymier did not
perform cashier functions at the public window and was not required to be on the job during
specific hours. Thus, it was possible to reduce her employment status without affecting her
own job duties or those of other employees. GSC stated that its employment decision was
not based on seniority or job performance, but rather, was based on job duties. This assertion
is further bolstered by Ms. Frymier's own testimony during the proceedings before the
grievance board. During questioning by counsel, in discussing the position that was
maintained as a 1.0 FTE job, Ms. Frymier answered as follows:
Q Had you at one point been offered that persons [sic]
. . . .
Q What had happened?
A She had walked off and they had asked me to take the
position, it was a lateral move, and I agreed to, and when I
agreed to, they let me know that she had wanted to come back
and I assumed - - they asked me if I still wanted that position
and I decided that instead of retraining each of us, because I
would of needed some retraining on the new stuff, and she
definitely had never done my position, that she would of needed
a lot [of] training. It would just be smoother to stay in the
positions we were in and benefit the college more that way.
Q And then about two months later you found out she
was retained at 100% and you were reduced?
Any difference in treatment was purely related to actual job responsibilities and the desire
of the GSC to maintain its current hours of operation at the public cashier's window. Thus,
Ms. Frymier's favoritism claim fails and the circuit court's decision is affirmed.
For the foregoing reasons, we affirm the circuit court's decision that W. Va.
Code § 18B-7-1 does not apply to Ms. Frymier because there was no reduction in work force
through either termination or temporary furlough. Moreover, we affirm the circuit court's
decision that Ms. Frymier was not the victim of favoritism. Thus, the April 13, 2004, and
June 4, 2006, orders of the Circuit Court of Gilmer County are affirmed.
See Discussion, Section III, A., infra
, for the relevant language of W. Va.
Code § 18B-7-1 (2004) (Repl. Vol. 2007).
The style of this case also lists the Higher Education Policy Commission
(HEPC) as a party. The creation of the HEPC by W. Va. Code § 18B-1B-1, et seq.
to develop, gain consensus around and oversee the public policy agenda for higher
education[.] W. Va. Code § 18B-1B-1 (2004) (Repl. Vol. 2007). However, it appears that,
throughout this case, the HEPC was a party in name only. GSC provides the explanation that
the HEPC was included in the caption of the case by the West Virginia Education and State
Employees Grievance Board under the erroneous belief that the HEPC governs GSC. The
propriety of including the HEPC as a party is not an issue before this Court, and the inclusion
or exclusion of the HEPC does not affect the outcome of this case.
One of the other Accounting Assistants whose position was reduced from 1.0
to 0.87 FTE had less seniority than Ms. Frymier. The other Accounting Assistant whose
hours were reduced had more years of seniority than Ms. Frymier.
The circuit court's order recognizes that the claim before it is one of favoritism
and states that it is unclear whether the discrimination theories espoused in Board of
Education of the County of Tyler v. White
, 216 W. Va. 242, 605 S.E.2d 814 (2004), apply to
favoritism cases. However, the circuit court went on to conclude that under the old
standard, and under the standard in Tyler
, that [Ms. Frymier] fails to establish her favoritism
claim. See Discussion, Section III, B., infra.
, for further discussion of the Tyler
Effective March 7, 2007, the provisions of Chapter 29, Article 6A were
repealed. The provisions were recodified, without substantial changes relevant to this case,
in Chapter 6C, Article 2. This Opinion will refer to the statute as it existed at the time of the
The West Virginia Educational Employees Grievance Board is, for the
purposes of this appeal, now the West Virginia Education and State Employees Grievance
Board. See Harrison County Bd. of Educ. v. Carson-Leggett
, 195 W. Va. 596, 598 n.1, 466
S.E.2d 447, 449 n.1 (1995) (per curiam). But cf.
W. Va. Code § 6C-3-1 (2007) (Supp. 2007)
(explaining that the West Virginia Education and State Employees Grievance Board is
terminated, and the West Virginia Public Employees Grievance Board is created, effective
July 1, 2007). We will refer to the governing board by the name that was applicable at the
time of the underlying controversy, namely the West Virginia Education and State Employees
Connected with this argument is Ms. Frymier's claim that the circuit court
erred in its application of Lucion v. McDowell County Board of Education
, 191 W. Va. 399,
446 S.E.2d 487 (1994) (per curiam). However, a review of both circuit court orders reveals
that neither order discussed this case. The grievance board's orders discussed the Lucion
case, but the circuit court declined to do so. Our own review of the case deems it irrelevant
to the present situation insofar as it relied on a different set of statutes. The Lucion
examined W. Va. Code § 18A-1-1, et seq.
, which applies to county boards of education and
has specific provisions encompassing reduction in force (RIF) for county employees.
dealt with statutory schemes involving continuing contracts and non-
relegation clauses, which are not applicable in the current situation. The present case before
this Court deals with employees of a higher education facility, with a different statutory
scheme involved in the attendant RIF statute. W. Va. Code § 18B-7-1, which is contained
in the body of law governing the higher education system, does not contain similarly-worded
provisions as those that were at issue in Lucion
. Significantly, it appears that Ms. Frymier
appreciated the differences in the applications of these statutes when she chose to file her
case under the RIF statute contained in W. Va. Code § 18B-1-1, et seq.
, as opposed to the
RIF statute contained in W. Va. Code § 18A-1-1, et seq
To the extent that the reasoning in the Lucion
case can be applied to the present
facts, it supports the ultimate decision made by the circuit court that the reduction in the
employment terms of Ms. Frymier and the thirty-six other employees was better than
eliminating those jobs. See Lucion
, 191 W. Va. at 402, 446 S.E.2d 490 (Although we
acknowledge that the legislature has given substantial protection to service personnel, this
protection does not require the Board to eliminate jobs rather than modifying the employment
terms of the existing jobs.).
Ms. Frymier also argues that the statute applies due to a material change in
duties. This argument also fails as the provision she seeks to invoke only applies to layoff
The issue of favoritism was first argued on appeal from the grievance board
to the circuit court. Because the issue had not been raised before the grievance board, the
circuit court remanded the issue. On remand, the grievance board ruled that no favoritism
had occurred. On appeal of that issue to the circuit court, Ms. Frymier also argued that she
was the subject of discrimination. The circuit court refused to hear the discrimination
argument because Ms. Frymier failed to raise it on remand to the grievance board. Thus,
only the issue of favoritism is properly before this Court.
This code section was repealed and recodified in Chapter 6C, Article 2,
effective March 7, 2007. The definition of favoritism is now found at W. Va. Code § 6C-
2-2 (g)(1)(iii) (2007) (Supp. 2007).
While the Tyler
case discussed discrimination and favoritism under Chapter
18, Article 29 of the West Virginia Code, the definitions examined are identical to the
definitions of discrimination and favoritism as outlined by Chapter 29, Article 6A, that is the
subject of the present appeal. Both chapters involve grievance procedures of educational
employees. Further noted by this Court is the fact that W. Va. Code § 18-29-2 was repealed
effective March 7, 2007, and claimants are hereafter referred to W. Va. Code § 6C-2-1, et
. This Opinion will refer to the state of the law as it existed when decided by the circuit
As was recognized in the Tyler opinion, this analysis would not apply if the
case before us was a discrimination case brought pursuant to the body of law governing the
West Virginia Human Rights Commission. See Tyler, 216 W. Va. at 246, 605 S.E.2d at 818
(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.).