Frymier v. Higher Educ. Policy Com'n

• Decision Date: 12 October 2007
• Docket Number: No. 33296.,No. 32163.,32163.,33296.
• Citation: 655 S.E.2d 52
• Parties: Amanda A. FRYMIER, Petitioner Below, Appellant, v. HIGHER EDUCATION POLICY COMMISSION and Glenville State College, Respondents Below, Appellees.
• Court: West Virginia Supreme Court

655 S.E.2d 52

Amanda A. FRYMIER, Petitioner Below, Appellant, v. HIGHER EDUCATION POLICY COMMISSION and Glenville State College, Respondents Below, Appellees.

No. 32163.

No. 33296.

Supreme Court of Appeals of West Virginia.

Submitted September 12, 2007.

Decided October 12, 2007.

Kathleen Abate Cohen, Abate & Cohen, L.C., Morgantown, WV, for the Appellant.

Darrell V. McGraw, Jr., Attorney General, Elaine L. Skorich, Assistant Attorney General, Charleston, WV, for the Appellees.

PER CURIAM.

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)¹ and, further, that the appellee,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.

I. 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 37½ 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 positions.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 considered.

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),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)].[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 responsibilities.

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.

II. STANDARD OF 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)⁶ provide that an appeal may be taken to a circuit court where the final grievance decision:

(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 facts.

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,[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 novo.

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.

III. DISCUSSION

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...