Miller v. Marion Cnty. Bd. of Educ.

• Decision Date: 07 December 2020
• Docket Number: No. 19-1109,19-1109
• Court: West Virginia Supreme Court
• Parties: Mary Sue Miller, Petitioner Below, Petitioner v. Marion County Board of Education, Respondent Below, Respondent

Mary Sue Miller, Petitioner Below, Petitioner v. Marion County Board of Education, Respondent Below, Respondent

No. 19-1109

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

December 7, 2020

(Kanawha County 19-AA-64)

MEMORANDUM DECISION

Petitioner Mary Sue Miller, by counsel John Everett Roush, appeals the November 12, 2019, order of the Circuit Court of Kanawha County that granted Respondent Marion County Board of Education's appeal of the West Virginia Public Employees Grievance Board's May 24, 2019, decision. The circuit court found that the grievance board erred as matter of law in finding (1) that petitioner timely filed her grievance, and (2) that the Marion County Board of Education discriminated against petitioner. Respondent, by counsel Richard S. Boothby and Howard E. Seufer, Jr., filed a response in support of the circuit court's order. Petitioner filed a reply.

The 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.

Petitioner worked as an autism mentor/aide at East Fairmont High School during the 2017-2018 school year. She, along with other aides and a teacher, (1) assisted students with feeding and toileting, and (2) lifted students into and out of their wheelchairs.

On February 5, 2018, petitioner had surgery for a nonwork-related condition. On April 16, 2018, petitioner sought to return to work with the restriction from her doctor that she lift no more than thirty pounds. Thus, petitioner needed help lifting a student into and out of a wheelchair. Petitioner states that the task of getting a student into and out of a wheelchair was always a two-person job and, therefore, the accommodation she required was to have another employee lift the student's torso while she lifted only the student's legs.

Respondent refused to allow petitioner to return to work as long as she had any restrictions. Therefore, petitioner did not return to work until May 17, 2018, and, as a result, petitioner used an additional twenty-two "leave with cause" days.

Petitioner claims that on May 21, 2018, she learned that M.S., a sign support specialist who also worked at East Fairmont High School during the 2017-2018 school year, missed three days of work due to nonwork-related injuries. Petitioner states that when M.S. returned to work, she was wearing something like a cast on one arm. Petitioner contends that, due to the condition of M.S.'s arm, M.S. (1) could not help the student to whom she was assigned with toileting, and (2) needed help with putting the student into a wheelchair because M.S. could lift only the student's legs. Petitioner also claims that she saw the student's private nurse pushing the student's wheelchair, which was something M.S. normally did.

Later on May 21, 2018, petitioner spoke with the school's principal and vice-principal about the alleged difference in treatment between M.S. and herself. Petitioner also contacted Frank Caputo, her union representative from AFT West Virginia, who arranged for a May 25, 2018, meeting with Mason Neptune, then respondent's director of human services. Following that meeting, petitioner and Mr. Caputo met with Superintendent Gary Price on June 4, 2018, Petitioner states that Mr. Caputo, who had worked as a union representative for many years, told her that Mr. Price would give serious consideration to petitioner's problem. However, on June 18, 2018, Mr. Price informed Mr. Caputo that he would take no action on petitioner's complaint.

Petitioner initiated her grievance on June 22, 2018, within fifteen working days of June 18, 2018, the date she claims she was unequivocally notified that Mr. Price would take no action on her behalf. Petitioner argued that respondent violated West Virginia Code § 6C-2-2, regarding favoritism and discrimination, and § 18A-4-5B, regarding local policies and practices. Petitioner sought the following relief: "reinstatement of sick/personal [leave] utilized from April 11, 2018 through May 17, 2018 and[/]or compensation for all lost wages and all benefits, pecuniary and nonpecuniary, with interest for that time period."

Petitioner's level one grievance was denied with the finding that "[e]ven if her grievance had not been filed untimely, [petitioner] failed to prove that respondent treated [M.S.] or any other similarly-situated employee differently than [petitioner] was treated."

As for petitioner's level two mediation, the grievance board entered an "Order of Unsuccessful Mediation" on January 2, 2019,

At petitioner's level three hearing, petitioner's coworker, M.S., testified that she wore a brace to immobilize her thumb, and that the brace was covered with an Ace bandage. M.S. also testified that she had no restrictions and that it was up to her how much pushing and lifting she performed. Finally, M.S. testified that she did not seek any accommodation regarding her thumb.

By decision dated May 24, 2019, the grievance board granted petitioner's grievance finding that she timely filed her grievance and that respondent discriminated against her. Specifically, the grievance board found that,

[petitioner] and Mr. Caputo were following the method utilized in [their] county by following the chain of command to see if the problem could be resolved locally. Although Mr. Price did not give an iron-clad assurance that he would rectify the situation, his assurance that he would look into the matter was very close to such an assurance. In any event, if the date that started the fifteen-day clock running is designated as that date of the initial meeting with Mr. Price, the grievance [was] still timely filed.

Respondent appealed to the circuit court. In its "Final Order," the circuit court reversed the administrative law judge's order and found that petitioner did not timely file her appeal in light of West Virginia Code § 6C-2-4(a)(1), which provides, in relevant part:

Within fifteen days following the occurrence of the event upon which the grievance is based, or within fifteen days of the date upon which the event became known to the employee, or within fifteen days of the most recent occurrence of a continuing practice giving rise to a grievance, an employee may file a written grievance with the chief administrator stating the nature of the grievance and the relief requested and request either a conference or a hearing.

The circuit court rejected petitioner's claims (1) that her delay in filing a grievance against respondent was a mere technical error that did not invalidate the grievance, and (2) that she substantially complied with the appropriate procedure. The court found that petitioner did not merely commit a technical error, but instead filed her grievance outside the filing deadline found in West Virginia Code § 6C-2-4(a)(1). The court noted that petitioner learned about M.S.'s return to work on May 21, 2018, but that petitioner did not file her grievance until June 22, 2018, more than a month later and, well past the fifteen-day filing period. The court concluded that petitioner "was free to file her grievance and continue to discuss resolution of the matter with the appropriate individuals, but the grievance nonetheless needed to be filed within fifteen days of May 21, 2018." As for petitioner's claim that she was denied an accommodation while M.S. was granted one, the court found that petitioner presented no evidence that M.S. sought an accommodation or received one, while petitioner did seek an accommodation due to the medical limitations noted in her doctor's order. Thus, the court concluded that respondent did not treat petitioner differently than M.S., because petitioner and M.S. were not similarly situated.

Petitioner now appeals.

"[T]his Court reviews decisions of the circuit court under the same standard as that by which the circuit court reviews the decision of the ALJ." West Virginia Code § 6C-2-5(b) sets that standard and explains the elevated burden an appellant must meet:

A party may appeal the decision of the administrative law judge on the grounds that the decision:

(1) Is contrary to law or a lawfully adopted rule or written policy of the employer;(2) Exceeds the administrative law judge'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.

As we held in Syllabus Point 1 of Cahill v. Mercer County Board of Education, [208 W. Va. 177, 539 S.E.2d 437 (2000)] our review is part plenary and part deferential:

[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.

Finally, we have held that "[a] final order of the hearing examiner for the West Virginia [Public] Employees Grievance Board, made pursuant to W. Va. Code, [6C-2-1], et seq. [ ], and based upon findings of fact, should not be reversed unless clearly wrong." [Syl. Pt. 3, Armstrong v. West Virginia Division of Culture and History, 229 W. Va. 538, 729 S.E.2d 860 (2012) (citing Syl. Pt. 1, Randolph County Board of Education v. Sca

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