Webster Cnty. Bd. of Educ. v. Davis

• Decision Date: 26 March 2021
• Docket Number: No. 19-1028,19-1028
• Citation: 856 S.E.2d 661
• Parties: WEBSTER COUNTY BOARD OF EDUCATION, Respondent Below, Petitioner v. Donnis DAVIS, Karen Holcomb, Audrey Flanagan, and Samantha McCourt, Petitioners Below, Respondents
• Court: West Virginia Supreme Court

856 S.E.2d 661

WEBSTER COUNTY BOARD OF EDUCATION, Respondent Below, Petitioner

v.Donnis DAVIS, Karen Holcomb, Audrey Flanagan, and Samantha McCourt, Petitioners Below, Respondents

No. 19-1028

Supreme Court of Appeals of West Virginia.

Submitted: January 27, 2021

Filed: March 26, 2021

Richard S. Boothby, Bowles Rice LLP, Parkersburg, West Virginia, Joshua A. Cottle, Bowles Rice LLP, Charleston, West Virginia, Attorneys for the Petitioner.

Andrew J. Katz, The Katz Working Families’ Law, Firm, LC, Charleston, West Virginia, Attorney for the Respondents.

Jenkins, Chief Justice:

This appeal addresses the manner in which seniority is calculated for purposes of a reduction in force among school service personnel who were originally hired by a county board of education as an Aide and then subsequently obtained certification as an Early Childhood Classroom Assistant Teacher ("ECCAT"). Petitioner, the Webster County Board of Education ("Webster BOE"), argues that the circuit court erred in finding that seniority for purposes of a reduction in the number of service personnel who are certified as ECCATs is calculated by the subject employees’ accumulated seniority earned in the position of Aide. Instead, the Webster BOE contends that seniority for such purposes should be calculated solely based upon the accumulated amount of ECCAT seniority possessed by the subject employees. Respondents, four Webster BOE employees who were initially hired at different times as Aides and then subsequently obtained ECCAT certification and began accruing seniority as ECCATs as of the same date (collectively "Grievants"),¹ argue that the circuit court correctly calculated their ECCAT seniority based upon their accumulated seniority as Aides. Having considered the relevant statutes, we conclude that the Legislature plainly intended that the school service personnel classifications of Aide and ECCAT accrue seniority independently from each other for purposes of determining seniority in connection with a reduction in force. As such, only the seniority for the specific classification subject to a reduction in force shall be considered in ranking the seniority of the affected personnel. In addition, we conclude that school service personnel who have held or hold an Aide title and then become employed as an ECCAT hold a multiclassification status. Nevertheless, their Aide and ECCAT seniority also accrues independently from each other for purposes of a reduction in force. Based upon these conclusions, we find that the circuit court's decision that Aide seniority is used to determine the rank of service personnel subject to a reduction of force in the ECCAT class title is contrary to the law. Accordingly, we reverse the Circuit Court of Kanawha County's order of October 10, 2019, and we remand the case for entry of an order consistent with this opinion.

I.FACTUAL AND PROCEDURAL HISTORY

Each of the four Grievants commenced working for the Webster BOE under the service personnel class title² of Aide on a different date: Audrey Flanagan,³ February 28, 1985;⁴ Donnis Davis, December 15, 1992; Samantha McCourt, January 23, 2006; and Karen⁵ Holcomb, October 19, 2007. Thus, based upon their varying employment dates, they each acquired different amounts of seniority for the class title Aide.⁶ Each of the Grievants apparently was working in a Webster BOE kindergarten program prior to July 1, 2014.

Before completing our recitation of the factual and procedural course of the instant case, we pause to set out the history of the relevant statutory provision in order to place the remaining factual details in their proper context.

In 2013, the West Virginia Legislature created the position of ECCAT as a new service personnel class title, and, as demonstrated by the use of the term "shall," made that new class title a mandatory requirement to assist in a public-school kindergarten program:

Beginning July 1, 2014, any person previously employed as an aide in a kindergarten program and who is employed in the same capacity on and after that date and any new person employed in that capacity in a kindergarten program on and after that date shall hold the position of either Early Childhood Classroom Assistant Teacher [ECCAT] – Temporary Authorization, Early Childhood Classroom Assistant Teacher [ECCAT] – Permanent Authorization or Early Childhood Classroom Assistant Teacher [ECCAT] – Paraprofessional Certificate ....

W. Va. Code § 18-5-18(b) (eff. 2013) (emphasis added). To qualify for an ECCAT class title, a school service employee must meet certain requirements that are not necessary to hold the class title of Aide. However, the Legislature created a temporary ECCAT authorization for employees who do not meet the minimum requirements for a permanent ECCAT authorization, but who are pursuing those requirements.⁷ In addition, the Legislature provided that "[a]ny person employed as an aide in a kindergarten program that is eligible for full retirement benefits before July 1, 2020, may remain employed as an aide in that position and may not be required to acquire licensure pursuant to this section." W. Va. Code § 18-5-18(b).⁸

In 2015, West Virginia Code section 18-5-18(b) was amended and the ECCAT class title designations were changed from ECCAT–Temporary Authorization, ECCAT–Permanent Authorization, and ECCAT–Paraprofessional Certificate, to ECCAT I, ECCAT II, and ECCAT III. The remaining language of the section was largely unchanged:

Beginning July 1, 2014, any person previously employed as an aide in a kindergarten program and who is employed in the same capacity on and after that date and any new person employed in that capacity in a kindergarten program on and after that date shall hold the position of aide and either Early Childhood Classroom Assistant Teacher I, Early Childhood Classroom Assistant Teacher II or Early Childhood Classroom Assistant Teacher III. Any person employed as an aide in a kindergarten program that is eligible for full retirement benefits before July 1, 2020, may remain employed as an aide in that position and shall be granted an Early Childhood Classroom Assistant Teacher permanent authorization by the state superintendent pursuant to Section two-a [§ 18A-3-2a], article three, chapter eighteen-a of this code.

W. Va. Code § 18-5-18(b) (eff. 2015). In 2017 this provision was redesignated, and it is now found at West Virginia Code section 18-5-18(c) (eff. 2017). For ease of reference and consistency, we will refer to the different levels of ECCAT by their current designations of I, II, or III.

Turning back to the instant case, because each of the Grievants apparently was working in a Webster BOE kindergarten program prior to July 1, 2014, each of them obtained ECCAT authorization under West Virginia Code section 18-5-18(b), and each of them began their employment duties as an ECCAT on the same day, August 18, 2014. Neither the parties nor the appendix record submitted in connection with this case specify which level ECCAT class title each Grievant held upon becoming an ECCAT or what level ECCAT class title they hold today.⁹

In early 2018, the Webster BOE, anticipating that it may have to reduce the number of ECCATs it employed, decided to calculate the ECCAT employees’ seniority rankings. In doing so, the Webster BOE realized that the Grievants, who all began their ECCAT jobs on August 18, 2014, all had the same amount of ECCAT seniority. Accordingly, the Webster BOE applied West Virginia Code section 18A-4-8g(i) (eff. 2007),¹⁰ and, on February 21, 2018, conducted a random drawing to assign an ECCAT seniority ranking to each Grievant and to other ECCAT employees who are not parties to this appeal.¹¹ As a result of this random drawing, the ECCAT employee with the most seniority in the class title of Aide is not the employee with the most seniority in the class title of ECCAT. The Grievants’ respective seniority rankings for both the Aide class title and the ECCAT class title are reflected in the following table:

Name	Aide Rank	ECCAT Rank
Audrey Flanagan	1st	4th
Donnis Davis	2nd	6th
Samantha McCourt	7th	8th
Karen Holcomb	8th	5th

To date, no reduction in force has occurred, but the Grievants nevertheless each filed a Level One grievance on March 7, 2018, challenging the Webster BOE's use of West Virginia Code section 18A-4-8g(i) to randomly assign their ECCAT seniority ranking instead of relying on their Aide seniority ranking. The grievances were consolidated at Level One and, following a hearing, the grievances were denied. Grievants then filed Level Two appeals and mediation was conducted but failed. Thereafter, Grievants appealed to Level Three. Following a Level Three hearing before the West Virginia Public Employees Grievance Board ("Grievance Board"), the grievance was again denied. In its Level Three decision, the Grievance Board found that the Grievants failed to meet their burden of proof¹² to establish that the Webster BOE erred by failing to apply West Virginia Code section 18A-4-8b(d)(2)(C) (eff. 2016),¹³ to rank their ECCAT seniority based upon their Aide Seniority. The Grievance Board instead relied upon this Court's decision in Mayle v. Barbour County Board of Education , No. 17-0204, 2018 WL 317375 (W. Va. Jan. 8, 2018) (memorandum decision), to conclude that ECCAT seniority accrues independently from Aide seniority. The Grievants next filed a petition for appeal in the Circuit Court of Kanawha County where, by order entered on October 10, 2019, the circuit court reversed and vacated the Grievance Board's decision. The circuit court found the Mayle decision to be distinguishable and, further, determined that the issue was properly resolved in the Grievants’ favor by application of West Virginia Code section 18A-4-8b(d)(2)(C). This appeal by the Webster BOE followed.

II.STANDARD OF REVIEW

It is well established that, "[w]hen reviewing the appeal of a public employees’ grievance, this Court reviews decisions of the circuit court under the same standard as...