Lipscomb v. Tucker County Com'n, 23122

• Decision Date: 11 July 1996
• Docket Number: No. 23122,23122
• Court: West Virginia Supreme Court
• Parties: Joan S. LIPSCOMB, Plaintiff Below, Appellant, v. The TUCKER COUNTY COMMISSION, Defendant Below, Appellee.

Page 84

475 S.E.2d 84

197 W.Va. 84

Joan S. LIPSCOMB, Plaintiff Below, Appellant, v. The TUCKER COUNTY COMMISSION, Defendant Below, Appellee.

No. 23122.

Supreme Court of Appeals of West Virginia.

Submitted May 2, 1996.

Decided July 11, 1996.

[197 W.Va. 85] Syllabus by the Court

1. Appellate review of a circuit court's order granting a motion to dismiss an appeal from a decision of a county commission is de novo.

2. "An 'agency' within the meaning of the State Administrative Procedures Act, W.Va.Code, 29A-1 et seq., refers to state, not local agencies...." Syllabus point 1, in part, Southwestern Community Action Council, Inc. v. Huntington Human Relations Commission, 179 W.Va. 573, 371 S.E.2d 70 (1988).

3. Ordinarily, in the absence of a statute providing a period of limitations for applying for a writ of certiorari, this Court has utilized the doctrine of laches; however, in determining the time for the application of the doctrine of laches, this Court has applied by way of analogy the statutory period for filing an appeal, absent some showing of hardship or other good cause to warrant an extension.

4. A claim for unpaid wages under the West Virginia Wage and Payment Collection Act is a continuing claim, and, therefore, a separate cause of action accrues each payday

[197 W.Va. 86] that the employer refuses to pay the wages claimed

Lori M. Hood, Cooper & Preston, Parsons, for Appellant.

William M. Miller, Parsons, for Appellee.

ALBRIGHT, Justice:

Appellant, Joan Lipscomb, appeals an order of the Circuit Court of Tucker County dismissing two circuit court actions that apparently were consolidated below, based upon the court's finding that both actions were barred by statutes of limitations. Both actions sought to recover county years-of-service salary benefits that had been denied appellant. One action was an appeal from an adverse decision of the Tucker County Commission that resulted from Ms. Lipscomb's employee grievance. The other was a civil action based upon the West Virginia Wage and Payment Collection Act. The circuit court dismissed the appeal from the order of the County Commission of the County of Tucker (County Commission) because it was filed after the thirty-day limit set forth in W.Va.Code § 29A-5-4(b) (1993) for the appeal of contested cases under the Administrative Procedures Act. The circuit court also dismissed the action brought by appellant under the Wage and Payment Collection Act, W.Va. § 21-5-1, et seq. (1996), after holding that the applicable five-year statute of limitations provided in W.Va.Code § 55-2-6 (1994) barred her action, presumably because the action was brought more than five years after the first pay period for which appellant claims she was underpaid. We disagree and reverse and remand this consolidated action for further proceedings consistent with this opinion.

Appellant, Ms. Lipscomb, asserts that she was a full-time employee of the County Commission from 1976 until 1987, and again from 1989 until the present, and that between 1987 and 1989 she was a part-time employee. The record indicates that from 1976 until 1983 appellant worked for Tucker County Emergency Medical Services (EMS). It appears that in 1983 the Tucker County EMS was replaced by the Tucker County Ambulance Authority, and appellant continued her employment with the new authority until at least 1987.

On the record, we cannot ascertain with certainty what legal entity employed appellant during her service with the Tucker County EMS. With respect to her employment with the ambulance authority, we note that the Tucker County Commission was required by the provisions of W.Va.Code § 7-15-1, et seq. (1975) to provide ambulance service in Tucker County, either directly or by creating an ambulance authority and that any such an authority, if created, was designated a public corporation. However, we do find in the record copies of five separate documents entitled "Request For Verification of Employment", dated August 3, 1982, September 2, 1983, December 4, 1984, October 8, 1985, and October 6, 1986, issued by the federal Farmers Home Administration. Each such document is addressed to the "Tucker County Commission" and states that it is signed by the county clerk of the county. Each document reports that appellant, Joan S. Lipscomb, is a current employee, although we make no effort to discern the meaning of the various notations and comments found on the documents. The reports describe the beginning date of employment as December 13, 1976, December 1, 1976, December 1, 1984, and December 1, 1976.

The record also discloses that under the authority of W.Va.Code § 7-1-3dd (1987), the County Commission has created the Tucker County Wage and Hour Review Board (Review Board), which, pursuant to its statutory powers, has established a county grievance policy as part of the county personnel policy. The Tucker County Personnel Policy begins by naming the members of the "Tucker County Wage and Hour Review Board." Later in the policy, however, it states that the policy was created and established by the "Tucker County Wage and Benefits Review Board." Because the members listed appear to be the same for both boards, it is not clear whether there are two separate boards or whether one board has been referred to by two different names. Also, on February 28, 1990, the County Commission adopted a monthly wage scale for its Although Ms. Lipscomb has received the years-of-service longevity adjustment for her service since 1989, she has not received any such adjustment for her employment between 1976 and 1987. In an effort to obtain the longevity pay adjustment for her earlier years of employment, appellant filed an employee grievance under the county grievance policy. Appellant submits that she followed the grievance policy of the County Commission by first discussing her complaint with her department head. She then submitted her grievance to the Review Board, although it is not clear from the record that such a step was required. Apparently, the Review Board consulted the Attorney General and decided that the years appellant worked for the Tucker County EMS were not to be counted as years of service, because the EMS was not considered an entity of the Tucker County Commission. It appears that the same rationale was applied with regard to the years appellant worked for the ambulance authority which had replaced the EMS entity, and the Review Board likewise decided that issue against appellant.

[197 W.Va. 87] employees, apparently at the behest of the Review Board, that provided a longevity allowance of ten dollars per month for each year of service.

After receiving notification of the Review Board's decision, appellant submitted a letter to the County Commission, in essence appealing the denial of her grievance under the grievance policy. The County Commission conducted a hearing on October 12, 1994, and voted to uphold the decision of the Review Board. Then, on February 10, 1995, appellant undertook to appeal the County Commission's decision to the circuit court, under the asserted authority of W.Va.Code § 58-3-1(g) (1995 Cum.Sup.). ¹ On the same day, appellant also filed a civil suit under the Wage and Payment Collection Act, W.Va.Code § 21-5-1, et seq. On April 24, 1995, the circuit court conducted a hearing on the County Commission's motion to dismiss both cases. By order dated May 30, 1995, the court concluded that appellant's administrative appeal was untimely, since it was not filed within the thirty-day limit established by the Administrative Procedures Act in W.Va.Code § 29A-5-4. In addition, the court, in apparent agreement with appellee's argument that her suit was filed six years after her cause of action accrued, found that appellant's civil action was barred by the statute of limitations. ² Finally, the court stated that it believed the administrative action and the civil suit were mutually exclusive. It is from the court's order of May 30, 1995, that appellant now appeals.

Appellant first argues that the circuit court erred in finding that her appeal from the decision of the Tucker County Commission was not timely. Appellant asserts that her appeal was brought pursuant to W.Va.Code § 58-3-1(g), under which an appeal is timely if filed within four months of the order from which an appeal is taken. Appellant also contends that the circuit court erred in finding that her action under the West Virginia Wage and Payment Collection Act was barred by the five-year statute of limitations. Appellant asserts that the statute of limitations did not begin to run until her administrative remedies had been exhausted. Finally, appellant asserts that, even if the statute of limitations on her civil action was not tolled by the administrative proceedings, the suit was still filed within the five-year limit provided for in the Wage and Payment Collection Act. We find that appellant's grievance appeal should not have been dismissed, that she was both required to and entitled to exhaust her administrative remedies, and that she is entitled to maintain an action under the Wage and Payment Collection Act for unpaid wages, if any. Accordingly, we reverse and remand this case for further proceedings.

STANDARD FOR REVIEW

As noted, this appeal arose from the circuit court's order granting the County Commission's motion to dismiss a civil action based upon the West Virginia Wage and Payment Collection Act, and an appeal from an adverse decision of the County Commission. This Court has previously held that "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). Today, we similarly hold that appellate review of a circuit court's order granting a motion to dismiss an appeal from a decision of a county commission is de novo.

ADMINISTRATIVE APPEAL

As noted, appellant...