Maikotter v. Univ. of W. Va. Bd. of Trustees
| Decision Date | 14 December 1999 |
| Docket Number | No. 26110.,26110. |
| Citation | 527 S.E.2d 802,206 W.Va. 691 |
| Court | West Virginia Supreme Court |
| Parties | Eva Diane MAIKOTTER, Petitioner/Appellant Below, Appellant, v. UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES/WEST VIRGINIA UNIVERSITY, Respondent/Appellee Below, Appellee. |
Kathleen Abate, Esquire, Cohen, Abate & Cohen, Fairmont, West Virginia, Attorney for Appellant.
Darrell V. McGraw, Jr., Attorney General, Kristi A. Rogucki, Assistant Attorney General, Charleston, West Virginia, Attorneys for Appellee.
An employee appeals a lower court decision denying her grievance regarding a promotion. Appellant employee argues that W. Va.Code § 18B-7-1(d)(1995)1 required the employer to hire her before looking outside the institution for other applicants for a posted position. Appellee West Virginia University maintains that the statute's application is limited to certain types of job openings. The employee, Eva Diane Maikotter, appeals the decision of the Circuit Court of Kanawha County, in which the lower court upheld an administrative decision in favor of West Virginia University.
Appellant Eva Diane Maikotter worked as a cashier at the State 4-H conference center at Jackson's Mill ("Jackson's Mill"), located in Lewis County, West Virginia. Because appellant West Virginia University ("WVU") operates the Jackson's Mill facility, appellant Maikotter was an employee of West Virginia University. Ms. Maikotter was considered a "classified, nonexempt" employee.2
In May of 1996, Ms. Maikotter applied for the position of Building Services Supervisor for Jackson's Mill, which was considered a "classified, exempt" (essentially salaried) position. Those making the hiring decision rejected appellant in favor of an individual who was not an employee of WVU. Ms. Maikotter subsequently filed a grievance pursuant to 18-29-1 et seq. (1992). In her grievance, Ms. Maikotter alleged that W. Va.Code § 18B-7-1(d) obligated WVU to hire qualified, "classified, nonexempt" (essentially hourly) employees like Ms. Maikotter, if any applied, before looking outside the institution for new hires.
In the ensuing administrative proceeding, WVU argued that it was not obligated to hire Ms. Maikotter over the "outside" individual because Ms. Maikotter was a "nonexempt" (essentially, hourly) employee, and the position in question was a so-called "exempt" (essentially, salaried) position. WVU argued that, based upon its own Board of Trustees Procedural Rule,3 the statute in question is limited to "nonexempt" employees who apply for "nonexempt" positions. Because the supervisor's job was an "exempt" position, W. Va.Code § 18B-7-1(d) did not control, and WVU had no obligation to hire Ms. Maikotter before looking outside the institution for another applicant.
The Administrative Law Judge ("ALJ") assigned to the case agreed with WVU's position, and found in an order dated May 30, 1997, that Ms. Maikotter had not established that WVU's interpretation of W. Va.Code § 18B-7-1(d) "exceeded its constitutional or statutory authority, was arbitrary and capricious, or otherwise improper." In an order entered January 27, 1999, the Circuit Court of Kanawha County affirmed the ALJ. It is Ms. Maikotter's appeal of this order that is before us today, in which she requests placement in the contested position, back pay, and costs and attorney fees.
Ms. Maikotter argues that W. Va.Code § 18B-7-1(d) is plain and unambiguous, contains no language limiting its reach to "nonexempt" employees applying for "nonexempt" positions, and that the WVU Board of Trustees' rule is a misstatement of the law. Consequently, she argues, both the ALJ and the lower court erred by determining that the agency rule supersedes the statute. We agree with Appellant Maikotter, and for the reasons set forth, reverse.
We have held that we usually follow the guidance of the West Virginia Educational Grievance Board:
A final order of the hearing examiner for the West Virginia Educational Employees Grievance Board, made pursuant to W. Va.Code, 18-29-1, et seq. (1985), and based upon findings of fact, should not be reversed unless clearly wrong.
Syl. pt. 1, Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). However, every final order contains both findings of fact and conclusions of law.
In Scalia, we compared the standard of review for a hearing examiner's findings of fact under W. Va.Code § 18-29-7 (1985),4 with the standard of review of an administrative decision under the Administrative Procedure Act, W. Va.Code § 29A-5-4(g):
Both statutes contain virtually the same criteria for reversal of the factual findings made at the administrative level, i.e., that they are "clearly wrong in view of the reliable, probative and substantial evidence on the record as a whole." We have traditionally expressed this rule in an abbreviated fashion: Evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong.
Scalia, 182 W.Va. at 292, 387 S.E.2d at 527.
But as we have recognized in similar contexts, we draw a distinction between questions of fact and questions of law. We have addressed this distinction in the context of another administrative proceeding when we have examined decisions made by the Board of Review of the West Virginia Department of Employment Security. With regard to such cases we have held:
[T]his Court has observed that the findings of fact of the Board of Review of the West Virginia Department of Employment Security are entitled to substantial deference unless a reviewing court believes the findings are clearly wrong. If the question on review is one purely of law, no deference is given and the standard of judicial review by the courts is de novo.
Adkins v. Gatson, 192 W.Va. 561, 565, 453 S.E.2d 395, 399 (1994) (citations and internal quotations omitted).
The same logic applies to our review of the instant case.5 We must separate findings of fact from conclusions of law, and examine the latter in a different light. Although we accord great deference to the findings of fact of the West Virginia Educational Employees Grievance Board, we review, de novo, questions of law.
At issue in the case, sub judice, is whether the WVU Board of Trustees' rule, relied upon by the appellee, is a permissible interpretation of W. Va.Code § 18B-7-1(d). First we set forth the language of the statute:
(d) A nonexempt classified employee, including a nonexempt employee who has not accumulated a minimum total of one thousand forty hours during the calendar year or whose contract does not extend over at least nine months of a calendar year, who meets the minimum qualifications for a job opening at the institution where the employee is currently employed, whether the job be a lateral transfer or a promotion, and applies for same shall be transferred or promoted before a new person is hired unless the hiring is affected by mandates in affirmative action plans or the requirements of Public Law 101-336, The Americans With Disabilities Act. If more than one qualified, nonexempt classified employee applies, the best-qualified nonexempt classified employee shall be awarded the position. In instances where the classified employees are equally qualified, the nonexempt classified employee with the greatest amount of continuous seniority at that state institution of higher education shall be awarded the position. A nonexempt classified employee is one to whom the provisions of the federal fair labor standards act, as amended, apply.
W. Va.Code § 18B-7-1(d)(1995)(emphasis added). Essentially, appellant argues that she is a "nonexempt, classified employee," that she "meets the minimum qualifications for a job opening at the institution where [she] is currently employed," and that WVU was obligated to hire her "before a new person [was] hired." Id.
To counter this argument, WVU relies upon its own Board of Trustees' rule, as it appears in the Code of State Rules:
Pursuant to W. Va.Code § 18B-7-1(d), non-exempt classified employees who apply for and meet the minimum qualifications as determined by the institutional human resources director or other designee of the president for a posted non-exempt position within an institution and are currently employed at the institution shall be hired into the posted position prior to hiring someone from outside the institution
W. Va.C.S.R. tit. 128 § 31-5.1 (1996) (emphasis added). At base, this controversy concerns the difference between the Code language, "a job opening," and the C.S.R. language, "a posted non-exempt position."
Ms. Maikotter maintains that the phrase, "a job opening," requires no interpretation, and includes both exempt and nonexempt positions. WVU counters that the Legislature has not spoken to that issue, so the Board of Trustees' interpretation is permissible. WVU also argues that applying the statute as Ms. Maikotter suggests would do great violence to the hiring process of the university. It suggests that the university would find itself required to promote janitors to the ranks of the faculty if Ms. Maikotter were to prevail.
First we examine whether or not the Legislature has addressed the issue. WVU argues that, because there is no clear indication of legislative intent, the Board of Trustees' rule is not at odds with the statute. Furthermore, WVU contends that under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and our cases that follow it, and because the legislature has not spoken to the issue at hand, we must pay deference to the university's interpretation of the statute.
We explained the Chevron analysis in a case concerning the validity of a Department of Motor Vehicles regulation:
In deciding whether the DMV's position should be sustained, we apply the...
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