January 2003 Term
Plaintiff Below, Appellant
THE BOARD OF EDUCATION OF
THE COUNTY OF NICHOLAS,
Defendant Below, Appellee
Appeal from the Circuit Court of Kanawha County
Honorable Irene C. Berger, Judge
Civil Action No. 00-AA-07
REVERSED AND REMANDED WITH DIRECTIONS
Submitted: May 20, 2003
Filed: July 3, 2003
John Everett Roush, Esq.|
West Virginia School Service
Charleston, West Virginia
Attorney for Appellant
Erwin L. Conrad, Esq.|
Fayetteville, West Virginia
Attorney for Appellee
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. , and based upon findings of fact, should not be reversed unless clearly wrong. Syllabus, Quinn v. W.Va. Northern Community College, 197 W.Va. 313, 475 S.E.2d 405 (1996).
2. 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. Syl. pt. 2, Maikotter v. Univ. of W.Va. Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999).
This is an appeal from a final order of the Circuit Court of Kanawha County,
West Virginia, entered December 18, 2001. In this case, Appellant Robert McClung
(Appellant), a regular, full-time school bus operator employed by the appellee, The Board
of Education of the County of Nicholas (School Board), contends he was entitled to a
school bus operator position for the summer of 1999, but that the position was improperly
awarded to a substitute school bus operator. The circuit court affirmed the Decision of the
West Virginia Education and State Employees Grievance Board (Grievance Board), which
concluded the substitute school bus operator was properly awarded the summer position
under W.Va. Code §18-5-39, because he had held the same position during the previous
This Court has before it the petition for appeal, all matters of record, and the
briefs and arguments of counsel. For the reasons discussed herein, the order of the circuit
court is hereby reversed and this case is remanded, with directions.
When four school bus operator positions became available for the summer of
1999, the positions were posted and Appellant and Mr. O'Dell, both of whom were qualified,
applied. The School Board awarded one of the positions to Mr. O'Dell,
(See footnote 1)
pursuant to W.Va.
Code §18-5-39, because he was employed in the position during the previous summer.
(See footnote 2)
W.Va. Code §18-5-39 affords [a]n employee who was employed in any service personnel
job or position during the previous summer shall have the option of retaining the job or
position if the job or position exists during any succeeding summer. Id., in pertinent part.
On the other hand, the parties agree that if the School Board had awarded the position on the
basis of seniority, under W.Va. Code §18A-4-8b
(See footnote 3)
, it would have been awarded to Appellant,
a regular full-time employee, rather than to Mr. O'Dell, a substitute employee.
Appellant filed the instant grievance on June 25, 1999, which was denied at
Level I on or about June 30, 1999. A Level II hearing was conducted on July 23, 1999, and
thereafter, by Decision entered September 3, 1999, Appellant's grievance was again denied.
The School Board waived participation in the grievance at Level III, and the appeal
proceeded directly to Level IV. See W.Va. Code §18-29-4. A Level IV hearing was held on
October 27, 1999, before the Grievance Board. In a Decision entered December 17, 1999,
the Grievance Board concluded that, under W.Va. Code §18-5-39, Mr. O'Dell was entitled
to the school bus driver position for the summer of 1999 based upon his employment in that
position during the previous summer. By Order entered December 18, 2001, the Circuit
Court of Kanawha County affirmed the Grievance Board's Decision. It is from this Order
that Appellant now appeals.
It is well settled 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. , and based upon findings of fact, should not be reversed unless clearly
wrong. Syllabus, Quinn v. W.Va. Northern Community College, 197 W.Va. 313, 475 S.E.2d
405 (1996). Furthermore, [a]lthough we accord great deference to the findings of fact of
the West Virginia Educational Employees Grievance Board,
(See footnote 4)
we review, de novo, questions
of law. Syl. pt. 2, Maikotter v. Univ. of W.Va. Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d
802 (1999) (footnote added). It is with these legal principles in mind that we consider the
In Hazelwood v. Mercer County Bd. of Educ., 200 W.Va. 205, 488 S.E.2d 480
(1997), this Court determined that a school service employee who voluntarily resigns his or
her employment does not retain any of the seniority rights accumulated during his or her
(See footnote 5)
See W.Va. Code §18A-4-8g(a) (Seniority accumulation for a regular
school service employee . . . continues until the employee's employment as a regular
employee is severed with the county board. . . .). Consequently, the former service
employee's subsequent re-employment by a county board does not operate to resurrect or
revive the seniority credit accumulated during the service employee's previous period of
employment. Hazelwood, supra.
In the instant case, when
Mr. O'Dell retired from employment as a regular, full- time school bus operator,
he did not retain any of the seniority rights he accumulated in that position. Furthermore,
upon his re-employment by the School Board as a substitute school bus operator,
the seniority rights he accumulated before his retirement were not resurrected, id.,
but began accumulating anew for purposes of his substitute employment. See W.Va.
§18A-4-8g(h) (Seniority acquired as a substitute and as a regular employee shall be
calculated separately and shall not be combined for any purpose. . . .)
We emphasize that the facts before us are unique; our determination that Mr.
O'Dell is not entitled to the summer position in this case is driven by the nature of the change
in his employment status _ from regular employee, to retiree, to substitute. Mr. O'Dell's
previous summer employment as a school bus operator, for purposes of awarding the summer
position at issue, was a seniority credit, which was lost upon his retirement from the School
Board in August 1998, and which was not resurrected when he became re-employed by the
School Board on a substitute basis. It was, therefore, improper for the School Board to apply
that seniority credit towards the 1999 summer school bus operator position and, thus, to
award him the position.
Under these unique set of facts, the school bus operator position for the
summer of 1999 should have been awarded to Appellant, rather than to Mr. O'Dell, on the
basis of seniority. See W.Va. Code §18A-4-8b. Accordingly, we reverse the December 18,
2001 order of the Circuit Court of Kanawha County, and remand this case to the circuit court
for the purpose of awarding the Appellant back pay and other relevant benefits.