Lewis Cnty. Bd. of Educ. v. Holden
| Decision Date | 05 February 2015 |
| Docket Number | No. 14–0045.,14–0045. |
| Citation | 769 S.E.2d 282,234 W.Va. 666 |
| Court | West Virginia Supreme Court |
| Parties | LEWIS COUNTY BOARD OF EDUCATION, Petitioner Below, Petitioner v. Michael HOLDEN, Respondent Below, Respondent. |
Jason S. Long, Esq., Denise M. Spatafore, Esq., Dinsmore & Shohl, LLP, Morgantown, West Virginia, for the Petitioner.
Andrew J. Katz, Esq., The Katz Working Families' Law Firm, LC, Charleston, West Virginia, for the Respondent.
The Lewis County Board of Education (the Board) appeals an order entered in the Circuit Court of Kanawha County which reversed a decision by the West Virginia Public Employees Grievance Board. In its order, the circuit court held that: (1) the Board improperly terminated Michael Holden (Holden) from his job as a school bus driver; and (2) Holden timely filed a grievance of the Board's denial of his request for a leave of absence.
The Board argues on appeal that there was sufficient evidence to terminate Holden based on his physical incompetency to safely do his job. It contends that the test it used to assess Holden's abilities was fair, effective, and allowed by state law, and is routinely used by county school boards to test all newly-hired bus drivers and some existing bus drivers. The Board also asserts that Holden's grievance on the denial of his request for another leave of absence was untimely because it was filed outside the statutory filing period.
Upon review of the record, we reverse the circuit court's order and reinstate the grievance board's decision that Holden was properly terminated and that his grievance on the leave of absence issue was not timely filed.
This dispute has its origin in October 2010, when a non-work-related injury forced Holden to take an unpaid leave of absence from his job as a school bus driver for the remainder of the 2010–2011 school-year.1 At that time, Holden weighed approximately 495 pounds. His recovery was slow, which prompted him to take a leave of absence for the 2011–2012 school year as well. Holden gained almost 100 pounds during his two years away from work, bringing his weight up to 580 pounds as of August 2012, when he returned to his work for the Board.2
When Holden returned to work, Board officials (and some members of the community) were worried about his ability to safely drive a school bus, given his physical condition and the amount of time he spent away from work. The Board further doubted Holden's ability to respond to emergency situations, such as a bus fire or a wreck.
The Board contacted the Executive Director for the West Virginia Office of School Transportation regarding its concern about Holden. The Executive Director recommended that Holden be administered a physical performance test (PPT test) to gauge his ability to perform his duties. The PPT test was adopted by the State Board of Education in 2006 as a representation of the minimum standards required of bus drivers, and it is mandatory for all new candidates applying for a job as school bus driver.3 Some county school boards have also administered this test to existing bus drivers, although the Board had not done so until the facts giving rise to this case.
Upon the Board's request, an official from the West Virginia Office of School Transportation (state official) traveled to Lewis County on August 24, 2012, to administer the PPT test on Holden. As part of the PPT test, Holden was required to demonstrate his ability to perform a variety of job-related tasks, which included making “three trips up and down the bus stairwell within thirty seconds.” Holden took forty-eight seconds to complete this task. Consequently, he failed the PPT test.
The state official recommended that Holden “not be permitted to drive a school bus unless or until his physical condition would enable him to successfully complete the test.” The Board immediately informed Holden that it would not permit him to continue operating a school bus for the Board. Holden replied by requesting another leave of absence for the 2012–2013 school-year.
At an executive meeting held on September 10, 2012, the Board denied Holden's request for a third (year-long) leave of absence. The Board's superintendent formally notified Holden in a letter dated September 11, 2012, that the Board denied his request for another leave of absence. The letter also told Holden that the superintendent would recommend that his employment be terminated at a later board meeting.
On October 8, 2012, the Board afforded Holden a full evidentiary hearing solely on the issue of whether to terminate his employment. At the hearing, evidence was presented on Holden's failure to pass the PPT test. Holden suggested that the Board grant him another leave of absence, even though the Board had already denied this request during the previous month. The Board did not give any consideration to Holden's suggestion. At the close of the hearing, the Board decided to terminate Holden's employment due to his physical inability to safely perform his job duties. In a letter dated October 10, 2012, the Board's superintendent informed Holden that the Board terminated his employment as a school bus driver, retroactive to August 25, 2012.
State law requires a school employee to file a grievance within fifteen days of learning of an adverse employment decision. On October 26, 2012, Holden filed a grievance with the West Virginia Public Employees Grievance Board alleging: (1) the Board's October 10th termination of his employment was improper; (2) the Board discriminated against him in singling him out to take the PPT test; and (3) the Board's September 11th denial of his request for another one-year leave of absence was improper. After a hearing, the administrative law judge upheld the Board's decision on all issues on the following grounds: (1) the PPT test was a proper way to gauge Holden's competency to drive a school bus; (2) Holden did not establish that he was discriminated against; and (3) Holden's grievance on the leave of absence was not timely filed within fifteen days.
The Circuit Court of Kanawha County reversed the administrative law judge's decision. It held that the Board's termination of Holden was improper and the wrong date was used to determine whether Holden timely filed his grievance as to the leave of absence issue. Accordingly, the circuit court ordered that the Board's decision to terminate Holden be set aside and that the Board “either grant [Holden's] request for medical leave or hold a hearing on [Holden's] grievance pertaining to the same.” The circuit court did not address whether the Board discriminated against Holden.
In reviewing a circuit court's decision following a grievance ruling, we have held:
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 Cnty. Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).
Furthermore, “[A] final order of the hearing examiner for the West Virginia Educational Employees Grievance Board ... should not be reversed unless clearly wrong.” Syl. Pt. 1, in part, Randolph Cnty. Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).
Both Holden and the Board contend the circuit court erred in its decision. The Board asserts the circuit court erred when it: (1) held that Holden's termination was improper; and (2) determined that Holden's grievance as to the denial of his leave of absence was timely filed. By contrast, Holden argues on cross-appeal that the circuit court was only partly right, and should have gone farther by: (1) finding the Board discriminated against him; and (2) reinstating him to his position and awarding him back-pay.
After careful consideration of the record, we find the circuit court erred when it reversed the grievance board's decision. We find that the Board properly assessed Holden's ability to perform his job and did not discriminate against him in terminating his employment. We also find that Holden did not timely contest the September 11th denial of his request for a leave of absence.
In October 2012, the Board terminated Holden for being physically incompetent to safely perform his duties as a school bus driver. Incompetency is a ground for terminating a school employee under W.Va.Code § 18A–2–8(a) [2007].4
The Board argues that its method of finding Holden incompetent (the PPT test) was effective, fair, and allowed by state law. The Board further contends that this test was specifically designed for the purpose of measuring the capabilities of bus drivers, so its determination of Holden's incompetency based on his failing the test was proper. Holden responds that using the PPT test to gauge incompetency was improper as against him, an existing school bus driver. He asserts that the Board was bound by the single method provided in the West Virginia School Bus Transportation Policy and Procedures Manual: a medical examination by a health care provider. See W.Va.C.S.R. § 126–92–3.18.2 [2013].5
The West Virginia Board of Education adopted the School Bus Transportation Policy and Procedures Manual as “guidelines to county school bus transportation systems to insure safe, high quality programs for the students transported to the public schools in West Virginia.” W.Va.C.S.R. § 126–92–3.1.3. Pursuant to that objective, every candidate for a position as school bus driver must pass a test on ...
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