Quinn v. West Virginia Northern Community College
| Citation | 475 S.E.2d 405,197 W.Va. 313 |
| Decision Date | 05 July 1996 |
| Docket Number | No. 23068,23068 |
| Court | Supreme Court of West Virginia |
| Parties | , 112 Ed. Law Rep. 516 Brenda QUINN, Plaintiff Below, Appellee, v. WEST VIRGINIA NORTHERN COMMUNITY COLLEGE, Defendant Below, Appellant. |
Syllabus by the Court
A final order of the hearing examiner for the West Virginia Education and State Employees Grievance Board, made pursuant to W. Va.Code, 29-6A-1, et seq. [1988], and based upon findings of fact, should not be reversed unless clearly wrong.
Darrell V. McGraw, Jr., Attorney General, Rosemary Humway, Assistant Attorney General, Charleston, for Appellant.
Joseph J. John, John Law Offices, Wheeling, for Appellee.
This case is before this Court upon an appeal from the final order of the Circuit Court of Ohio County, West Virginia, entered on February 28, 1995. Pursuant to that order, the circuit court directed the appellant, West Virginia Northern Community College, to instate the appellee, Brenda Quinn, as Director of Financial Aid at that institution, with back pay. In so holding, the circuit court reversed a level IV decision of the West Virginia Education and State Employees Grievance Board which determined that Ms. Quinn was not entitled to the position.
This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, the February 28, 1995, order is reversed, and the circuit court is directed to reinstate the level IV decision.
Ms. Quinn was employed by West Virginia Northern Community College in 1989 and worked in the financial aid office of the College. The duties of that office concerned the assistance of students seeking financial aid while attending the College and included the implementation of various scholarship programs and federal financial aid regulations. Over a period of time, Ms. Quinn was promoted to the position of Financial Aid Advisor II. The financial aid office and its Director were under the authority of the Dean of Students at West Virginia Northern Community College, Sharon Bungard. According to the petition for appeal, Ms. Bungard had nineteen years of service at the College and had once been Director of Financial Aid.
In July 1991, Jamie Scott resigned as Director of Financial Aid, creating a vacancy in that position which continued for approximately one year. Although the evidence is conflicting as to whether Ms. Quinn became the de facto Director of Financial Aid following Scott's departure, Ms. Quinn, without doubt, "single-handedly" kept the financial aid office going during that interim period. She received an additional $100 per month in compensation for the extra work. Nevertheless, according to the College, Ms. Bungard, rather than Ms. Quinn, was ultimately responsible for the financial aid office.
In early 1992, the College advertised for the position of Director of Financial Aid, and Ms. Quinn filed an application. A selection committee consisting of West Virginia Northern Community College personnel reviewed twenty-five such applications and recommended Ms. Quinn to Ron Hutkin, the College President. The record is clear, however, that the selection committee was of the opinion that none of the applicants, including Ms. Quinn, were completely satisfactory for the position. Consequently, Ms. Quinn was recommended by the selection committee "with reservations." 1
By letter dated August 3, 1992, Ms. Quinn was informed that she had not been selected for the position. Instead, President Hutkin assigned the duties of Director of Financial Aid to Dean of Students, Sharon Bungard, and Ms. Bungard's title became Dean of Student Development, Institutional Research, Financial Aid and Marketing. President Hutkin indicated below that he took that action because the pool of applicants for the position of Director of Financial Aid was not strong and he thought it to be in the best interests of the College and the students "to take a person internally, Ms. Bungard, who has financial aid experience," rather than to reopen the search for applicants. Soon after, however, the position of Assistant Director of Financial Aid was created and advertised by the College administration. Ms. Quinn applied for that position, was selected, and is currently the Assistant Director of Financial Aid at West Virginia Northern Community College.
Nevertheless, Ms. Quinn filed a grievance with the West Virginia Education and State Employees Grievance Board asserting that she should have been selected for the position of Director of Financial Aid. W.Va.Code, 29-6A-1 [1988], et. seq. 2 Following an evidentiary hearing conducted in September 1992, the level II hearing examiner determined, inter alia, that the selection committee "expressed concerns about the grievant's ability to perform in the position" and denied the grievance. Similarly, following an evidentiary hearing conducted in January 1993, the level IV administrative law judge denied the grievance. As the level IV decision, dated October 29, 1993, states:
Nor is there any evidence of record that Dr. Hutkin abused discretion or acted arbitrarily and capriciously by not offering Grievant the Director's position. Despite the fact that grievant happened to be the top applicant, she was merely the best from among others who were adjudged by a selection committee of six as having not entirely met the Director's qualifications.
Ms. Quinn appealed the level IV decision to the Circuit Court of Ohio County. W. Va.Code, 29-6A-7 [1988]. The circuit court, as reflected in its final order of February 28, 1995, reversed the level IV decision and directed West Virginia Northern Community College to instate Ms. Quinn as Director of Financial Aid, with back pay. The ruling of the circuit court was based, primarily, upon a determination that Ms. Quinn was qualified for the position. This appeal followed.
The appeal provisions of W. Va.Code, 29-6A-7 [1988], concerning the West Virginia Education and State Employees Grievance Board, and the appeal provisions of W. Va.Code, 18-29-7 [1985], concerning the former Educational Employees Grievance Board, are similar. See n. 2, supra. Under those statutes, an appeal may be taken to a circuit court where the final grievance decision:
(1) was contrary to law or a lawfully adopted rule, regulation or written policy of the employer, (2) exceeded the hearing examiner's statutory authority, (3) was the result of fraud or deceit, (4) was clearly wrong in view of the reliable, probative and substantial evidence on the whole record, or (5) was arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Referring to the latter chapter and article of the West Virginia Code, this Court, in syllabus point 1 of Randolph County Board of Education v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989), held as follows: "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." See also syl. pt. 1, Martin v. Randolph County Board of Education, 195 W.Va. 297, 465 S.E.2d 399 (1995); syl. pt. 1, Bolyard v. Kanawha County Board of Education, 194 W.Va. 134, 459 S.E.2d 411 (1995); syl. pt. 1, Ohio County Board of Education v. Hopkins, 193 W.Va. 600, 457 S.E.2d 537 (1995); syl. pt. 3, Lucion v. McDowell County Board of Education, 191 W.Va. 399, 446 S.E.2d 487 (1994); syl. pt. 1, Department of Natural Resources v. Myers, 191 W.Va. 72, 443 S.E.2d 229 (1994); syl. pt. 1, Department of Health v. Blankenship, 189 W.Va. 342, 431 S.E.2d 681 (1993); syl. pt. 3, Butcher v. Gilmer County Board of Education, 189 W.Va. 253, 429 S.E.2d 903 (1993). As we noted in Bolyard, supra, the above principle of Scalia is, of course, "consistent with our observation that rulings upon questions of law are reviewed de novo." 194 W.Va. at 136, 459 S.E.2d at 413.
Similarly, we also hold that a final order of the hearing examiner for the West Virginia Education and State Employees Grievance Board, made pursuant to W. Va.Code, 29-6A-1, et seq [1988], and based upon findings of fact, should not be reversed unless clearly wrong.
Here, West Virginia Northern Community College contends that President Hutkin had the discretion to act as he did in assigning the duties of the Director of Financial Aid to Dean of Students, Sharon Bungard, especially in view of the concerns of the selection committee with regard to the pool of applicants, including Ms. Quinn. See 10 W. Va.Code of State Rules, 131-59-3 (1993), concerning the duty of the president of each college in the State College System, including West Virginia Northern Community College, to develop a competent and equitable administrative and staff organization. Accordingly, the College asserts that the circuit court erroneously substituted its judgment for that of the level IV administrative law judge.
On the other hand, Ms. Quinn contends that, inasmuch as the parties agree that Ms. Quinn was a "nonexempt classified employee" working as a Financial Aid Advisor II when she applied for the position of Director of Financial Aid, Ms. Quinn was entitled to the position over a non-applicant, i.e., Ms. Bungard. In that regard, Ms. Quinn cites W. Va.Code, 18B-7-1(d) [1993], which states:
A nonexempt classified employee [in higher education] ... 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 such hiring is affected by mandates in affirmative action plans or the requirements of Public Law 101-336, the Americans with Disabilities Act.
In further support for her contention,...
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