Graham v. Bd. of Educ. of Wetzel Cnty., 13-0975
| Decision Date | 28 April 2014 |
| Docket Number | No. 13-0975,13-0975 |
| Court | West Virginia Supreme Court |
| Parties | Wyatt L. Graham, Petitioner, Petitioner v. The Board of Education of Wetzel County, West Virginia, Respondent, Respondent |
Petitioner Wyatt L. Graham, by counsel Andrew J. Katz, appeals the August 1, 2013, order of the Circuit Court of Kanawha County that affirmed the decision of the West Virginia Public Employees Grievance Board ("Grievance Board") denying his grievance following his suspension without pay from his job as a bus operator. Respondent, by counsel Richard S. Boothby, filed a summary response. Petitioner filed a reply. Petitioner argues on appeal that the Grievance Board did not have adequate support for finding that he was insubordinate and that, even if he was insubordinate, he should have received a shorter suspension.
This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
The evidence at the level three hearing before the Administrative Law Judge ("ALJ") revealed that petitioner has been employed by respondent as a bus operator for fifteen years. During the 2011-12 school year, petitioner drove Bus 1 until it became inoperable due to mechanical issues in May of 2012, when he began driving Bus 21. On April 19, 2012, respondent, through its Director of Ancillary Services, Brian Jones, sent a memorandum to petitioner and other bus operators stating that they were required to check in their bus for a cleanliness inspection on the operator's last day of employment. On May 31 2012, petitioner avers that he cleaned out his bus, Bus 21. The next day, June 1, 2012, petitioner went to check in the bus, but, according to petitioner, respondent's employee, Brian Jones, refused to take the bus and asked for Bus 1. Petitioner then walked away from Mr. Jones out of frustration, with Mr. Jones following behind asking him questions, which were ignored. On June 8, 2012, respondent's School Superintendent, Diane Watt, called petitioner and discussed the option of coming into work that day in order to finish checking in Bus 21, but petitioner refused. Petitioner argues he believed he was beyond the end of his contractual employment period and would not be paid for that day, so he did not come to work.
On June 11, 2012, Ms. Watt wrote petitioner stating that she was seeking to suspend him for three days without pay for insubordination and not checking in a bus. In the letter, Ms. Watt stated that she reviewed petitioner's service record for the purpose of finding grounds to mitigate a disciplinary response, but instead found "[t]he opposite is in fact the case." Ms. Watt stated that she would raise the issue at an upcoming board meeting. At the board meeting, respondent voted to ratify petitioner's suspension and approved petitioner's suspension without pay for three days. On July 11, 2012, petitioner filed a grievance with the Grievance Board, arguing that he was not insubordinate and that, even if he was insubordinate, respondent was excessive in suspending him more than one day. By order entered February 14, 2013, the ALJ denied petitioner's grievance and upheld respondent's suspension. Petitioner appealed to the Circuit Court of Kanawha County, where the Grievance Board's order was affirmed by order entered August 1, 2013. It is from this order that petitioner appeals.
Petitioner raises the same assignments of error on appeal that he raised in the circuit court below. He argues that the ALJ and circuit court erred in holding that petitioner's conduct on June 1, 2012, constituted insubordination and that, even if he was insubordinate, he should not have been suspended without pay for more than one day. As support, petitioner argues that the circuit court and ALJ "ignored" several factual assertions. Petitioner did not, however, argue that the ALJ did not consider his arguments, only that the ALJ erroneously concluded that petitioner was insubordinate and that his insubordination was not mitigated by his work history. Additionally, petitioner argues that his three-day suspension was excessive and that it should have been reduced because he made "every effort to comply" with respondent's directives.
This Court will not reverse evidentiary findings made by the ALJ unless clearly wrong. Randolph Co. Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). Conclusions of law, and the application of law to the facts, are reviewed de novo. Martin v. Randolph Co. Bd. of Educ., 195 W.Va. 297, 465 S.E.2d 399 (1995); Syl. Pt. 2, Maikotter v. University of West Virginia Bd. of Trustees, 206 W.Va. 691, 527 S.E.2d 802 (1999). Having reviewed the circuit court's order denying petitioner's appeal, entered on August 1, 2013, we hereby adopt and incorporate the circuit court's well-reasoned findings and conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court's order to this memorandum decision.
For the foregoing reasons, we affirm.
v.
WETZEL COUNTY BOARD OF EDUCATION, Respondent.
Judge James C. Stucky
Pursuant to West Virginia Code § 6C-2-5, Petitioner Wyatt L. Graham (hereinafter "Petitioner") now appeals the level three decision of the West Virginia Public Employees Grievance Board (hereinafter "Board") denying Petitioner's grievance. Petitioner, an employee of Respondent Wetzel County Board of Education (hereinafter "Respondent"), grieved his three day suspension without pay. This Court, upon a review of the petition, the briefs of the parlies, the record, and the pertinent legal authorities, AFFIRMS the decision of the Board.
A circuit court may reverse, vacate or modify the administrative Jaw judge's decision if the circuit court determines the decision is any of the following:
(1) contrary to law or lawfully adopted rale or written policy of the employer;
(2) exceeds the administrative law judge's statutory authority;
(3) is the result of frand or deceit;
(4) is clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or
(5) is arbitrary or capricions or characterized by abuse of discretion of clearly unwarranted exercise of discretion.
W.Va. Code § 6C-2-5 (formerly W.Va. Code, § 18-29-7). The West Virginia Supreme Court Appeals held "that a final order of the hearing examiner for the "West Virginia EducationalEmployees Grievance Board, made pursuant to W.Va. Code, § 18-29-1, et seq. . . 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 (1989). The Court has stated the following:
Syllabus point I, Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E2d 437 (2000).
Syl. pt. 1, Alderman v. Pocahontas Cnty. Bd. of Educ., 223 W. Va. 431, 675 S.E.2d 907 (2009).
Petitioner is employed as a bus operator by Respondent. On April 19, 2012, Brian Jones. Petitioners supervisor (hereinafter "Mr. Jones"), issued a memo to all bus operators regarding the "End of Year Bus Check In" process. If bus operators neglected to turn in Their buses after cleaning, mechanics would be responsible for cleaning the buses during the summer.1 On May 2012, Petitioner's assigned bus, Bus #1, was taken out of service for multiple defects; Defects included repairs to the bus and the bus being presented for inspection without cleaning. Bos #1 was returned to service by Bus Inspector Dave Moore (hereinafter I "Bus Inspector") on the same day that all defect repairs were completed.
After May 1, 2012, Petitioner began driving Bus #21. Mr- Jones scheduled on appointment -with Petitioner on May 4, 2012, to review the Bus #1 inspection report and have Petitioner correct the cleanliness issue. However, Petitioner cancelled the appointment on themorning of the meeting. The meeting was not rescheduled, and Petitioner continued to operate Bus #21.
On June 1, 2012, Petitioner drove Bus #21 into the bus garage for the end of the year check in with Mr. Jones. Mr. Jonea asked Petitioner why he wis not operating Bus #1. Petition responded by saying "I'll see your later," and exited garage. Upon Bus #21's inspection, Mr. Jones identified a number of problems that Petitioner needed to correct before Bus #21 could be checked-in. Petitioner did not check-in any bus for the 2012-2013 school year.
After Mr. Jones reported Petitioner's conduct, Snperimtendent Diana Watt (hereinafter "Superintendent") contacted Petitioner to question why he had not followed die check-in procedure. Potitioner responded that Mr. Jones had refused -to accept Bus #21. Superintendent told Petitioner feat he would be permitted to check-in Bus #21, rather than Bus #1; however, he still...
To continue reading
Request your trial