Hale v. Mingo County Bd. of Educ., 23748

• Decision Date: 21 March 1997
• Docket Number: No. 23748,23748
• Citation: 484 S.E.2d 640,199 W.Va. 387
• Court: West Virginia Supreme Court
• Parties: , 118 Ed. Law Rep. 510 Taunia HALE, Petitioner below, Appellant, v. MINGO COUNTY BOARD OF EDUCATION, Respondent below, Appellee.

Page 640

484 S.E.2d 640

199 W.Va. 387, 118 Ed. Law Rep. 510

Taunia HALE, Petitioner below, Appellant, v. MINGO COUNTY BOARD OF EDUCATION, Respondent below, Appellee.

No. 23748.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 1997.

Decided March 21, 1997.

Syllabus by the Court

1. "The legislative intent expressed in W.Va.Code, 18-29-1 (1985), is to provide a simple, expeditious and fair process for resolving problems." Syllabus Point 3, Spahr v. Preston County Bd. of Educ., 182 W.Va. 726, 391 S.E.2d 739 (1990).

2. "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." Syllabus Point 2, Duruttya v. Board of Educ., 181 W.Va. 203, 382 S.E.2d 40 (1989).

3. An intervenor in a grievance proceeding under W.Va.Code, 18-29-1 [1992] et seq. may make affirmative claims for relief as well as asserting defensive claims.

4. A hearing examiner in a grievance proceeding under W.Va.Code, 18-29-1 [1992] et seq. may for good cause and in the cautious exercise of the examiner's discretion limit the claims which an intervenor may make. However, such limitations must be imposed in a fashion that will not unfairly prejudice the rights of the intervenor to have a proper determination made on the merits of his or her claims.

Denise Smith-Kastick, Mike Kelly, Charleston, for Petitioner below, Appellant.

W. Graham Smith, Jr., Williamson, for Respondent below, Appellee.

STARCHER, Justice:

This is an appeal of a Kanawha County Circuit Court decision that upheld the ruling of an administrative law judge ("ALJ") of the West Virginia Education and State Employees Grievance Board ("the Grievance Board") in a level four school employee grievance proceeding.

The ALJ ruled as a matter of law that a school employee (the appellant Taunia Hale) who intervened in a grievance proceeding could not assert an affirmative claim of entitlement to one of the two jobs which were the subject of the grievance proceeding. Consequently the ALJ dismissed Ms. Hale as a party to the grievance proceeding. We hold that Ms. Hale should not have been dismissed, and she should have been permitted to assert her claim in the grievance proceeding. Therefore, we reverse the decision of the circuit court and remand the case for further proceedings by the Grievance Board to consider the merits of Ms. Hale's claim.

I. Facts and Background

Ms. Hale was employed as a full-time regular secretary for the appellee Mingo County Board of Education ("the Board of Education") until she was laid off due to a reduction in force at the end of the 1994-95 school year and placed on preferred recall status. Another secretary, Paula Taylor Hurley, was also laid off at the same time. In April or early May of 1995, Ms. Hurley filed a grievance ^{1 1} with the Board of Education asserting that she should not have been laid off because she had more seniority than the two secretaries who had been retained, Pamela Varney and Betty Sammons.

Appellant Taunia Hale intervened in Ms. Hurley's grievance proceeding. Ms. Hale asserted that she also had more seniority than the retained secretaries. The retained secretaries also intervened, seeking to defend their positions. Thus, all four parties with an asserted right to or interest in the two secretarial positions were parties to the grievance proceeding.

A level two hearing was held on May 3, 1995 before an assistant school superintendent. Ms. Hale was ill and did not attend the hearing, but a non-lawyer representative appeared on her behalf. The evidence included testimony that Ms. Hale had more seniority than the other three parties to the grievance proceeding. Ms. Hale's employment records were made a part of the record. On May 11, 1995, the assistant superintendent upheld the Board's decision to retain Ms. Varney and Ms. Sammons.

After all four parties waived a level three hearing, the grievance advanced to a level four hearing before a Grievance Board administrative law judge, held on July 20, 1995. Because the ALJ inadvertently failed to notify Ms. Hale or her representative of the hearing date, neither attended the hearing. Nevertheless, an evidentiary hearing was held and testimony was taken, with the proviso that Ms. Hale and her representative would be contacted by the ALJ and afforded the opportunity to reconvene the hearing if necessary to submit additional evidence.

At this level four hearing the employment records of the three other employees were admitted into the record, but because Ms. Hale and her representative were not present, her employment records were not placed into the administrative record. However, Ms. Hale's representative subsequently filed proposed findings of fact and conclusions of law to the effect that Ms. Hale had more seniority than the other three parties to the grievance proceeding.

For reasons which are not clear from the record, the hearing was never reconvened to take Ms. Hale's testimony or admit her records into evidence. Instead, on September 28, 1995 the ALJ issued an opinion which dismissed Ms. Hale from the case without reaching the merits of her seniority claim.

The ALJ's dismissal of Ms. Hale's claim was sua sponte and based on the reasoning that intervention may be used as a "shield" to defend against a claim, but not as a "sword" to achieve a remedy which could only result from the filing of a separate grievance. ² No party to the grievance process had raised an objection to Ms. Hale's seeking a determination that one of the jobs should have been awarded to her because of her greater seniority.

After dismissing Ms. Hale from the case, the ALJ's opinion went on to decide the merits of the grievance as to the remaining parties. The ALJ concluded that the Board had failed to follow seniority properly when reducing its secretarial staff. The ALJ determined that Ms. Hurley was more senior than Ms. Varney and Ms. Sammons and should be reinstated.

Ms. Hale appealed the ALJ's decision to the Circuit Court of Kanawha County. The circuit judge adopted the legal reasoning of the ALJ and affirmed the decision dismissing Ms. Hale as a party to the grievance. This appeal followed.

II. Standard of Review

The circuit court's decision affirming the ALJ's dismissal order was based solely on an issue of law and the interpretation of a statute. We therefore review the decision of the circuit court de novo. See Appalachian Power Co. v. State Tax Dep't of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

III. Discussion

A.

"Shield vs. Sword"

W.Va.Code, 18-29-1 [1992] states the Legislature's intent that the grievance procedure set out therein be a "simple, expeditious and fair process for resolving problems...." Vest v. Board of Educ. of County of Nicholas, 193 W.Va. 222, 224, 455 S.E.2d 781, 783 (1995); Spahr v. Preston County Board of Education, 182 W.Va. 726, 730, 391 S.E.2d 739, 743 (1990); Duruttya v. Mingo County Board of Education, 181 W.Va. 203, 205, 382 S.E.2d 40, 42 (1989). ³

In Spahr, this Court "stress[ed] again" that the grievance procedures under W.Va.Code, 18-29-1 [1992] et seq. must be "be given a flexible interpretation in order to carry out the legislative intent ... [that] the grievance process ... [not] be a procedural quagmire where the merits of the cases are forgotten." (emphasis added). We stated that the grievance process must remain "relatively simple" because "in many instances, the grievant will not have a lawyer...." Spahr, 182 W.Va. at 730, 391 S.E.2d at 743.

Having stated these fundamental principles which guide our approach to the grievance process set out in W.Va.Code, 18-29-1 [1992] et seq., we turn to the more specific issue of what claims may be made by an intervenor in a grievance proceeding.

W.Va.Code, 18-29-3(u) [1992] ⁴ provides that:

Upon a timely request, any employee shall be allowed to intervene and become a party to a grievance at any level when that employee claims that the disposition of the action may substantially and adversly [sic] affect his or her rights or property and that his or her interest is not adequately represented by the existing parties.

Although W.Va.Code, 18-29-3(u) [1992] states what an employee must assert to be entitled to intervene in a grievance proceeding, the statute is silent as to what relief the intervenor may seek or obtain in the proceeding once having intervened.

In dismissing Ms. Hale as a party to the grievance proceeding, the ALJ applied the following rule, which is quoted from the decision:

Intervention may be used as a "shield" to defend against a claim but not as a "sword" to achieve a remedy which could only result from the filing of a separate grievance.

(See supra, note 2 for the full text of the pertinent part of the ALJ's decision.)

We have not been cited to nor has our research located any West Virginia authority for this "shield-yes/sword-no" rule, or for the rule's application to an employee grievance proceeding. The ALJ cited as his sole authority for the rule the case of Brennan v. United Steelworkers of America, AFL-CIO-CLC, 501 F.Supp. 912 (W.D.Pa.1981), aff'd in part, rev'd in part on other grds., 666 F.2d 845 (3d Cir.1981), cert. denied, 459 U.S. 823, 103 S.Ct. 52, 74 L.Ed.2d 58 (1982). We find reliance on Brennan to be misplaced.

In Brennan, the attorneys for an intervenor in a case brought under Title IV of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. 481 et seq., sought an award of attorney fees. In denying the application, the district court noted that under Title IV of the LMRDA the intervenors were not able to add additional claims to the complaint filed by the U.S. Secretary of Labor and thus could not be awarded fees incurred in bringing those issues before the court. As authority for such restriction on the intervenors, the court in Brennan quoted Justice Marshall's...