Dean A. Furner
Spilman, Thomas & Battle WV School Service Personnel Association
Parkersburg, West Virginia Charleston, West Virginia
Attorney for the Appellee Attorney for the Appellants
JUSTICE ALBRIGHT delivered the Opinion of the Court.
JUSTICE McGRAW concurs in part and dissents in part and reserves the right to file a separate opinion.
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
County Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000).
2. 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. Syl. Pt. 1,
Randolph County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524
3. School personnel regulations and laws are
to be strictly construed in favor of the employee. Syl. Pt. 1, Morgan
v. Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979).
4. County boards of education have substantial
discretion in matters relating to the hiring, assignment, transfer, and promotion
of school personnel. Nevertheless, this discretion must be exercised reasonably,
in the best interests of the schools, and in a manner which is not arbitrary
and capricious. Syl. Pt. 3, Dillon v. Board of Educ. of County of Wyoming,
177 W.Va. 145, 351 S.E.2d 58 (1986).
5. Where county board of education employees perform substantially similar work under 261-day and 240-day contracts, and vacation days provided to 261-day employees reduce their annual number of work days to level at or near the 240-day employees, principles of uniformity demand that the similarly situated employees receive similar benefits.
This is an appeal by individuals (hereinafter Appellants)
(See footnote 1)
employed by the Wood County Board of Education (hereinafter BOE)
from a March 1, 2001, final order of the Circuit Court of Wood County. The
Appellants initiated a grievance procedure with the West Virginia Education
and State Employees Grievance Board (hereinafter Board), seeking
to add twenty-one days to their employment term, thereby increasing their
annual employment term to 261 days and entitling them to certain benefits
provided to similarly situated 261-day employees.
The administrative law judge at the Level IV grievance
hearing granted the grievance, holding that the Appellants, as individuals
employed under 240-day annual contracts, were entitled to compensation and
benefits under 261-day annual contract terms, in order to satisfy the requirements
of West Virginia Code § 18A-4-5b (1990) (Repl. Vol. 2001).
(See footnote 2)
The lower court thereafter reversed the Level IV determination by order
entered on March 1, 2001. Upon our review of this matter, we reverse the order of the
Circuit Court of Wood County and conclude that the 240-day contract employees
are entitled to compensation and benefits under 261-day contract terms. The
Appellants are not, however, entitled to back pay or retroactive application
of this Court's decision.
The Appellants presented extensive testimony regarding
their performance of the same duties and responsibilities as various BOE employees
working under 261-day annual contracts.
(See footnote 3) According to the Appellants, the primary
difference between the 240-day employees and the 261-day employees is that
the 261-day employees receive certain paid vacation based upon the length
(See footnote 4) The BOE did not directly contradict this
evidence, relying instead upon the assertion that the 240-day contract employees
waived any right to seek 260-day contracts by accepting the 240-day contracts
under the known circumstances regarding the provision of benefits.
The BOE also asserted that the difference in vacation
benefits is appropriate since it is premised upon the difference in actual
number of days worked. The Appellants, however, explained that once the number
of paid vacation days is subtracted from the 261- day contract, there is only
a minor, inconsequential difference in days worked. For example, based upon
the number of vacation days provided to 261-day employees, such employee works
only 255 days during the first year; 249 days after the first year; 243 days
after working five years; 237 days after working ten years. The Appellants
consequently contend that the differences in actual number of days worked is inconsequential
and does not serve as a proper basis for providing enhanced benefits to employees
serving under a 261-day contract.
The Level IV administrative law judge granted the Appellants' grievance, based upon the factual finding that the Appellants had demonstrated that their duties were substantially similar to the duties of the 261-day contract holders and that the BOE did not provide uniformity in benefits to the two groups. Specifically, the administrative law judge explained in the May 19, 2000, decision, that [g]rievants have demonstrated they are similarly situated to other WCBOE [Wood County Board of Education] employees, and they are receiving disparate, less favorable, treatment because they have a shorter employment term, and no vacation benefits as do 261-day employees within their classifications. Further, the administrative law judge held that the Appellants had proven by a preponderance of the evidence that they are similarly situated to 261 day employees, as they perform like assignments and duties, have the same classifications, and work almost the same, or more, days. Thus, they are entitled to the same employment term as the 261 day employees. The administrative law judge ordered the BOE to instate Grievants to a 261 day employment contract, and to make Grievants whole; to include, but not limited to, paying back pay, with interest, for any 'non-calendar' days they have taken during the pendency of this grievance and for one year prior to the filing of this grievance.
The Circuit Court of Wood County reversed the decision of the administrative law judge, reasoning that the administrative law judge did not properly analyze the evidence that each Appellant voluntarily engaged in the bidding process for their 240-day positions and accepted those positions with the understanding that such acceptance entailed a loss of an extended employment term. . . . The lower court also reasoned that requiring the BOE to transform 240-day contracts into 261-day contracts would cause a deleterious economic impact. Further, the lower court opined that the Appellants had failed to prove that they worked the same number of days annually as the 261-day employees.
On appeal to this Court, the Appellants have asserted
that the lower court erred in finding that they failed to prove that they
were similarly situated to the 261-day employees; the lower court erred in
holding that the Appellants had waived a 261-day employment term by accepting
positions under the 240-day employment structure; and the lower court erred
in holding that the requirement of uniformity does not apply to protect the
Appellants under the circumstances of this case.
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.
See also Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995) (explaining that [w]e 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). In syllabus point one of Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989), this Court also explained: 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.
Flint v. Board of Educ. of County of Harrison, 207 W.Va. 251, 256, 531
S.E.2d 76, 81 (1999).
This Court thoroughly evaluated these statutes and
their applicability to 240- day/261-day contract disparities in Flint
and explained as follows:
Although the BOE acknowledges that plaintiffs Flint and Anderson are similarly situated to Mr. Dawson and Mr. Richards, it claims that it is not required to afford these plaintiffs the same contract terms because W.Va.Code § 18A-4-8 only entitles service personnel to an employment term of 200 days. The BOE argues that because the statute empowers, but does not require, the BOE to contract with all or part of these personnel for a longer term, it does not require uniformity in the length of service employees' contracts. We disagree.
Id. at 257, 531 S.E.2d at 82. As this Court has consistently held, [c]ounty boards of education have substantial discretion in matters relating to the hiring, assignment, transfer, and promotion of school personnel. Nevertheless, this discretion must be exercised reasonably, in the best interests of the schools, and in a manner which is not arbitrary and capricious. Syl. Pt. 3, Dillon v. Board of Educ. of County of Wyoming, 177 W.Va. 145, 351 S.E.2d 58 (1986). Under the circumstances of Flint, we found that such discretion must be exercised in a manner which conformed with the statutory requirements of uniformity. We explained that while it is clear that the BOE had the authority in the early 1980s to replace vacant 261-day positions with 240-day contracts, it could not disregard the uniformity requirement of W.Va.Code § 18A-4-5b. 207 W. Va. at 257, 531 S.E.2d at 82. The Court consequently held that the 240-day contract employees were entitled to compensation under 261-day contracts. Id.
In comparing various job responsibilities in Weimer-Godwin
v. Board of Educ. of Upshur County, 179 W.Va. 423, 369 S.E.2d 726 (1988),
this Court examined the extent to which jobs duties must resemble one another
in order to necessitate identical benefits or treatment under the uniformity
statute. Id. at 427, 369 S.E.2d at 730. This Court reasoned that once
a county board of education pays additional compensation to certain teachers,
it must pay the same amount of additional compensation to other teachers performing
'like assignments and duties[.]' Id. Duties of the compared personnel
do not have to be identical. This is not the test. Id.
The Court found that substantial similarity was sufficient to invoke the statutory
protections of uniformity. Id. at 428, 369 S.E.2d at 731.
Justice McGraw's dissent in Flint also emphasized
the importance of adopting a liberal measure of comparison to determine
whether employees are similarly situated for purposes of § 18A-4-5b,
noting that the Flint decision could permit the uniformity statute
to become a nullity if school boards attempt to evade this uniformity
policy by expanding the number of employees subject to multiclassification.
207 W. Va. at 258, 531 S.E.2d at 83.
The Appellants in the case sub judice presented extensive
evidence concerning the identical duties, and the administrative law judge's
conclusion that the similarity of duties justified application of the uniformity
statute was not clearly wrong. Based upon this Court's review of the evidence
presented, we find that the lower court erred in reversing the administrative
law judge's factual findings regarding the sufficiency of the Appellant's proof
that they performed duties substantially similar or essentially identical to
the duties performed by the 261-day employees. We agree with that component
of the administrative law judge's conclusion, holding specifically that where
county board of education employees perform substantially similar work under
261-day and 240-day contracts, and vacation days provided to 261-day employees
reduce their annual number of work days to level at or near the 240-day employees,
principles of uniformity demand that the similarly situated employees receive
similar benefits. We therefore reinstate the administrative law judge's conclusion
that the Appellants should receive 261-day contracts to satisfy the requirement
The concept of an actual waiver of one's established
rights implies a voluntary act. Smith v. Bell, 129 W. Va. 749, 760, 41
S.E.2d 695, 700 (1947) (explaining that [a] waiver is a voluntary act,
and implies an election by the party to give up something of value, or to forego
some advantage which he might, at his option, have insisted on and demanded).
This Court examined the issue of implied waiver in Potesta v. U.S. Fidelity
& Guar. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998), and explained:
However, where the alleged waiver is implied, there must be clear and convincing evidence of the party's intent to relinquish the known right. Hoffman v. Wheeling Sav. & Loan Ass'n, 133 W.Va. 694, 713, 57 S.E.2d 725, 735 (1950) ('A waiver of legal rights will not be implied except upon clear and unmistakable proof of an intention to waive such rights.' (Citation omitted)). Furthermore, [t]he burden of proof to establish waiver is on the party claiming the benefit of such waiver, and is never presumed. Id. (citing Hamilton v. Republic Cas. Co., 102 W.Va. 32, 135 S.E. 259 [ (1926) ] ). See also Mundy v. Arcuri, 165 W.Va. 128, 131, 267 S.E.2d 454, 457 (1980) (One who asserts waiver . . . has the burden of proving it. (Citations omitted)).
Id. at 315, 504 S.E.2d at 142. (See footnote 7)
In Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d
114 (1978), this Court addressed the argument that certain implied habitability
rights can be waived and concluded that since '[i]t is fair to presume
that no individual would voluntarily choose to live in a dwelling that had become
unsafe for human habitation' Bowles v. Mahoney, 91 U.S.App.D.C. 155,
161, 202 F.2d 320, 326 (1952) (Bazelon, J. dissenting) we hold that waivers
of the implied warranty of habitability are against public policy. Id.
at 395, 253 S.E.2d at 130-31. Just as tenants should not be compelled
to waive their rights and accept uninhabitable dwellings, thereby rendering
the established legal protections meaningless, individuals seeking
employment with the BOE should not be presumed to have waived their rights under
the uniformity statute when they accept positions with inferior benefits. Id.
at 395, 253 S.E.2d at 131. The fact that the Appellants accepted the 240-day
position does not in any manner alleviate the uniformity dilemma; nor does it
constitute a waiver of the Appellants' rights to file a grievance on this issue
and seek redress.
(1) Before a grievance is
filed and 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, the grievant or the designated
representative shall schedule a conference with the immediate supervisor to
discuss the nature of the grievance and the action, redress or other remedy
In Flint, this argument was also forwarded in the same 261-day versus 240-day contract context through the argument that some of the Appellants had known of the contract disparities for more than a decade. 207 W. Va. at 80, 531 S.E.2d at 255. This Court promptly disposed of such argument by holding that the uniformity violations were a continuing practice under the statute. Id. at 81, 531 S.E.2d at 256. Thus, this Court has reasoned that it was not the single event of offering, accepting, or working under a contract which is the grievable event. The uniformity violations are a continuing practice, and the filing of a grievance concerning these alleged violations will not be dismissed as untimely filed simply because the individual had accepted the contract and had begun working under the contract. See also syl. pt. 3, Spahr v. Preston County Bd. of Educ. 182 W.Va. 726, 391 S.E.2d 739 (1990) (The legislative intent expressed in W.Va.Code, 18-29-1 (1985), is to provide a simple, expeditious and fair process for resolving problems); syl. pt. 2, Duruttya v. Board of Educ. of Cty. of Mingo, 180 W.Va. 203, 382 S.E.2d 40 (1989) (In the absence of any evidence of bad faith, a grievant who demonstrates substantial compliance with the filing provisions contained in W.Va.Code §§ 18A-2-8 and 18-29-1, et seq. (1988) is entitled to the requested hearing).