West Virginia Division of Highways v. Powell, 032020 WVSC, 18-0929

Docket Nº:18-0929, 18-0932
Opinion Judge:JUSTICE HUTCHISON
Party Name:WEST VIRGINIA DIVISION OF HIGHWAYS and TERRA GOINS, Petitioners v. MICHAEL POWELL, Respondent
Attorney:Patrick Morrisey, Esq. Attorney General William C. Ballard, Esq. Assistant Attorney General Charleston, West Virginia Attorneys for Division of Highways Brian J. Headley, Esq. Jonathan K. Matthews, Esq. Headley Ballard, LLC Mount Pleasant, South Carolina Attorneys for Terra Goins Paul M. Stroebel...
Judge Panel:JUSTICE WORKMAN, deeming herself disqualified, did not participate in the decision of this opinion. JUDGE NINES, sitting by temporary assignment.
Case Date:March 20, 2020
Court:Supreme Court of Appeals of West Virginia

WEST VIRGINIA DIVISION OF HIGHWAYS and TERRA GOINS, Petitioners

v.

MICHAEL POWELL, Respondent

Nos. 18-0929, 18-0932

Supreme Court of Appeals of West Virginia

March 20, 2020

Submitted: March 4, 2020

Appeal from the Circuit Court of Kanawha County Honorable Joanna I. Tabit, Judge Civil Action No. 17-AA-15

Patrick Morrisey, Esq. Attorney General William C. Ballard, Esq. Assistant Attorney General Charleston, West Virginia Attorneys for Division of Highways

Brian J. Headley, Esq. Jonathan K. Matthews, Esq. Headley Ballard, LLC Mount Pleasant, South Carolina Attorneys for Terra Goins

Paul M. Stroebel, Esq. Stroebel & Johnson, PLLC Charleston, West Virginia Attorney for Respondent

JUSTICE WORKMAN, deeming herself disqualified, did not participate in the decision of this opinion. JUDGE NINES, sitting by temporary assignment.

SYLLABUS BY THE COURT

1. For the purpose of timely filing a grievance under W.Va. Code § 6C-2-4(a)(1) (2008), the applicable time period is ordinarily deemed to begin to run when the employer unequivocally notifies the employee of the grievable decision.

2. "[West Virginia Code § 6C-2-4(a)(1) [2008]], contains a discovery rule exception to the time limits for instituting a grievance. Under this exception, the time in which to invoke the grievance procedure does not begin to run until the grievant knows of the facts giving rise to a grievance." Syllabus, Barthelemy v. W. Virginia Div. of Corr., Pruntytown Corr. Ctr., 207 W.Va. 601, 535 S.E.2d 200 (2000).

3. The time period for filing an employment selection grievance under W.Va. Code § 6C-2-4(a)(1) (2008) begins when the grievant is unequivocally notified of the selection decision by the employer, not when the grievant discovers facts about the person selected for the position.

OPINION

JUSTICE HUTCHISON

This matter was brought as separate appeals by the West Virginia Division of Highways and Terra Goins (hereinafter collectively "Petitioners" or individually "DOH" and "Ms. Goins") from a September 19, 2018, order of the Circuit Court of Kanawha County.1 The circuit court's order reversed a decision of the West Virginia Public Employees Grievance Board (hereinafter "Grievance Board") that had dismissed, as untimely filed, a grievance filed by Michael A. Powell (hereinafter "Respondent"). In this appeal, the Petitioners argue that the circuit court improperly applied the discovery rule to Respondent's grievance or, alternatively, the circuit court improperly awarded Respondent relief on the merits of his grievance. Upon careful review of the briefs, the appendix records, the arguments of the parties, and the applicable legal authority, we reverse.

I.

FACTUAL AND PROCEDURAL HISTORY

The record in this case indicates that on February 23, 2015, DOH posted a vacancy in the Highway Engineer classification. On April 14, 2015, Ms. Goins, Respondent and three other applicants were interviewed for the position. Subsequent to the interview process, DOH determined that the top two candidates for the position were Ms. Goins and an applicant named Josh Anderson. Ultimately DOH selected Ms. Goins for the position. On June 29, 2015, DOH informed Respondent in writing that he was not selected for the position. The Respondent learned "shortly thereafter" that Ms. Goins was given the position.

It is alleged that on November 4, 2015, Ms. Goins visited the office where the Respondent worked. While at the office, it appears that they had a conversation in which Respondent questioned Ms. Goins about her work experience. Based upon that conversation, Respondent formed the opinion that Ms. Goins was not qualified for the Highway Engineer position. As a result of this belief, Respondent filed a grievance on November 20, 2015. In that grievance, Respondent alleged Ms. Goins did not meet the requirements for the position and should not have been appointed to the position. The Respondent requested that he be awarded the position, with backpay for the salary increase the position offered.

A Level One grievance proceeding was held on December 10, 2015.2Subsequent to the proceeding, on December 15, 2015, the Level One Grievance Evaluator issued a decision denying relief to the Respondent. The Grievance Evaluator denied relief on the grounds that Respondent's grievance was not timely filed as required by law. The grievance then went to Level Two for mediation. The mediation was ultimately unsuccessful. The Respondent thereafter appealed to Level Three. A Level Three hearing was conducted before a Grievance Board administrative law judge (hereinafter "ALJ") on October 14, 2016. The ALJ issued an order on February 8, 2017, that granted DOH's motion to dismiss the grievance as untimely filed.3

The Respondent filed an appeal to the circuit court. After reviewing the record in the case and listening to oral arguments, the circuit court issued an order on September 19, 2018, reversing the ALJ's decision. The circuit court's order found that the grievance was timely filed under the discovery rule. The order also determined that the Respondent was qualified for the Highway Engineer position, but that Ms. Goins was not qualified. The order awarded the position to Respondent with backpay. The Petitioners thereafter filed their respective appeals to this Court.

II.

STANDARD OF REVIEW

This case comes to this Court from an order by the circuit court that reversed a decision of a Grievance Board ALJ. "This Court reviews decisions of the circuit court under the same standard as that by which the circuit court reviews the decision of the ALJ." Martin v. Randolph County Bd. of Educ., 195 W.Va. 297, 304, 465 S.E.2d 399, 406 (1995) (internal quotation marks and citation omitted). We have succinctly articulated this standard as follows: Grievance 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.

Syl. pt. 1, Cahill v. Mercer Cty. Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000). See W.Va. Code § 6C-2-5(b) (2007). Finally, we have indicated 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. [2008], and based upon findings of fact, should not be reversed unless clearly wrong." Syl. pt. 1, Randolph County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). With the foregoing in mind, we turn to the parties' arguments.

III. DISCUSSION

The first issue raised by the Petitioners is their contention that the circuit court erred in reversing the ALJ's determination that the Respondent's grievance was untimely filed. The Respondent argues that the circuit court properly found that his grievance was timely filed under the discovery rule.

The time periods for a public employee to file a grievance are set out under W.Va. Code § 6C-2-4(a)(1) (2008), in part, as follows: 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[.]4

We have previously made the following observations regarding the first two provisions of this statute.5 With respect to the first provision, we have said that under this provision "[t]he running of the relevant time period is ordinarily deemed to begin to run when the employee is unequivocally notified of the decision." Lewis Cty. Bd. of Educ. v. Holden, 234 W.Va. 666, 673, 769 S.E.2d 282, 289 (2015), quoting, Rose v. Raleigh Cnty. Bd. of

Educ., 199 W.Va. 220, 222, 483 S.E.2d 566, 568 (1997). See Gullet v. Department of Health and Human Resources, Docket No. 2019-1781-DHHR, 2020 WL 757790, at *2 (January 23, 2020) ("The time period for filing a grievance ordinarily begins to run when the employee is 'unequivocally notified of the decision being challenged.'"). In light of our previous ruling on the issue, we now hold that for the purpose of timely filing a grievance under W.Va. Code § 6C-2-4(a)(1) (2008), the applicable time period is ordinarily deemed to begin to run when the employer unequivocally notifies the employee of the grievable decision. With regards to the second provision of the statute, we have definitively held that "[West Virginia Code § 6C-2-4(a)(1) [2008]], contains a discovery rule exception to the time limits for instituting a grievance. Under this exception, the time in which to invoke the grievance procedure does not begin to run until the grievant knows of the facts giving rise to a grievance." Syllabus, Barthelemy v. W. Virginia Div. of Corr., Pruntytown Corr. Ctr., 207 W.Va. 601, 535 S.E.2d 200 (2000). See Syl. pt. 1, Spahr v. Preston Cty. Bd. of Educ., 182 W.Va. 726, 391 S.E.2d 739 (1990) ("W.Va. Code, 18-29-4(a)(1) (1985) [repealed], contains a discovery rule exception to the time limits for instituting a grievance. Under this exception, the time in which to invoke the grievance procedure does not begin to run until the grievant knows of the facts giving rise to a grievance.").6

In the instant proceeding, DOH informed the Respondent on June 29, 2015, that he was not selected for the Highway Engineer position. Insofar as the Respondent's grievance was based upon his non-selection for that position,...

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