STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Mary Sue Miller,
Petitioner Below, Petitioner FILED
December 7, 2020
vs.) No. 19-1109 (Kanawha County 19-AA-64) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Marion County Board of Education,
Respondent Below, Respondent
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.
1
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,
2
[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;
3
(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. Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989)].
Wilfong v. Randolph Cty. Bd. of Educ., 243 W. Va. 25, --, 842 S.E.2d 229, 232-33 (2020)
(footnotes omitted).
Petitioner raises two assignments of error on appeal. Petitioner first argues that the circuit
court erred in concluding that the time limit for the initiation of her grievance was not tolled until
her informal efforts to obtain relief received a definite answer from the county superintendent.
On appeal, petitioner admits that West Virginia Code § 6C-2-4(a)(1) requires a grievant to
file his or her appeal “[w]ithin 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 . . . .” However, petitioner argues that the circuit court applied West Virginia Code §
6C-2-4(a)(1) in a manner that “flies in the face” of syllabus point 1 of Morgan v. Pizzino, 163 W.
Va. 454, 256 S.E.2d 592 (1979) (requiring that “[s]chool personnel regulations and laws are to be
strictly construed in favor of the employee.”). Petitioner further argues, without citation to any
authority, that the circuit court should have found that petitioner’s informal attempts to seek a
resolution tolled that deadline. Petitioner further contends that the circuit court erred in finding
that she was unequivocally notified of the action giving rise to the grievance. Petitioner avers that
the administrative law judge correctly found that date to be June 18, 2018, as opposed to May 21,
4
2018, the date when petitioner learned about M.S.’s medical condition. Petitioner claims that she
followed the chain of command in seeking redress, i.e., she spoke with her principal, then the
county human resources director, and, finally, the superintendent. Thus, she contends it was
reasonable for her to believe that she had fifteen days to file her grievance after Superintendent
Price unequivocally notified her that she would be granted no relief.
Lastly, petitioner argues that this case is comparable to Steele v. Wayne County Board of
Education, Docket, No. 50-87-062-1, West Virginia Education Employees Grievance Board (Sept.
29, 1987). In that case, Carl W. Steele, a school employee, asked the superintendent for relief
regarding prior work experience credit. Mr. Steele’s superintendent agreed to research the issue
and get back to Steele. Six months later the superintendent advised Mr. Steele that he would grant
no relief. Mr. Steele filed a grievance and an administrative law judge ruled that Mr. Steele’s
grievance was not barred on the basis of timelines. The administrative law judge held as follows:
An employee who makes a good faith, diligent effort to resolve a grievable
matter with school officials and relies in good faith upon representations of these
officials that the matter will be rectified will not be barred from pursuing the
grievance pursuant to W.Va. Code, 18-29-1, et seq. upon the denial thereof.
(Underlines in original.)
For the reasons stated below, we concur with the circuit court’s finding that petitioner filed
her grievance after the fifteen-day statutory deadline found in West Virginia Code § 6C-2-4(a)(1)
had passed. As noted above, § 6C-2-4(a)(1) clearly requires that a grievance be filed “[w]ithin
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 . . . .” That did not
happen here. Petitioner claims that on May 21, 2018, she learned about M.S.’s alleged
accommodation; however, she did not file her grievance until June 22, 2018, more that fifteen days
later. As for the administrative law judge’s reliance on Steele, we find it to be misplaced.
The grievance board’s 1987 decision in Steele was issued two decades before West
Virginia Code § 6C-2-4(a)(1) was enacted by the West Virginia Legislature in 2007. The statute
at issue in Steele, West Virginia Code §§ 18-29-1 to -11, adopted in 1985, is significantly different
than § 6C-2-4(a)(1). Of particular note, West Virginia Code §18-29-4(a)(1) included a mandatory
informal conference:
Before a grievance is filed and within fifteen days following the occurrence
of the event upon which the grievance is based, or within fifteen days of the date
on which the event became known to the grievant or within fifteen days of the most
recent occurrence of a continuing practice giving rise to a grievance, the grievant
or the designated representative shall schedule a conference with the immediate
supervisor to discuss the nature of the grievance and the action, redress or other
remedy sought. . . .
(Emphasis added.) Such an informal review has not been statutorily required since West Virginia
Code § 6C-2-4 was first enacted. We also note that the administrative law judge’s order did not
5
contain any analysis of §18-29-4(a)(1) or § 6C-2-4. Thus, we conclude that the administrative law
judge’s erroneous application of Steele in the instant case wrongfully granted petitioner the
unilateral authority to extend the statutory filing deadline for grievances for as long as he continued
to seek relief up a chain of command.
This Court’s decision in Wilfong is applicable here: Ms. Wilfong was employed with the
Randolph County Board of Education in a unique position, half-time teacher/half-time principal.
243 W. Va. at --, 842 S.E.2d at 231. However, her school was closing at the end of the 2016-2017
school year. Id. By letter dated April 20, 2017, the school board notified Ms. Wilfong that she had
been approved for a transfer, but she had not yet been assigned a position for the 2017-2018 school
year. Id. The school board’s personnel director told Ms. Wilfong that she would be an automatic
candidate for any job for which she applied, but she still needed to apply and be interviewed for
any job she wished to obtain. Id. Several administrative positions opened in the spring and early
summer of 2017; however, Ms. Wilfong did not apply for them. 243 W. Va. at --, 842 S.E.2d at
232. Mid-summer, Ms. Wilfong applied and interviewed for a full-time administrative position,
but she did not get that job. Id. Thereafter, in late July, Ms. Wilfong applied for a full-time teaching
position and was hired for that job on August 1, 2017. Id. That same day, Ms. Wilfong filed a
grievance claiming that the school board failed to place her in the full-time administrative position.
Id. At Ms. Wilfong’s level three hearing, the school board argued that her grievance was filed
outside the fifteen-day window found in West Virginia Code § 6C-2-4(a)(1). Id. Specifically, the
school board argued that Ms. Wilfong should have filed her grievance within fifteen days of
receiving the school board’s April 20, 2017 notice, informing her that she had been approved for
transfer but was not yet assigned a position. Id. Ms. Wilfong countered that she was not aggrieved
until she knew with finality that the school board would not place her in the administrative position
until she accepted the full-time teaching position on August 1, 2017. The grievance board found
Ms. Wilfong’s grievance to be untimely filed because the school board’s April 20, 2017,
notification triggered the running of the fifteen-workday deadline to grieve the schoolboard’s
decision. Id. The circuit court, by order entered August 3, 2018, affirmed the Board’s decision
finding that Ms. Wilfong’s grievance was untimely filed. Thereafter, this Court affirmed the circuit
court’s August 3, 2018, order.
Likewise, in the instant case, the administrative law judge confused the event upon which
petitioner’s grievance was based, that is, the allegedly discriminatory treatment on May 21, 2018,
with Mr. Price’s later decision not to provide petitioner the relief she sought, the return of twenty-
two paid leave days. Therefore, we find that the circuit court did not err in finding that petitioner’s
grievance was untimely filed.
In petitioner’s second and final assignment of error, she argues that the circuit court erred
in concluding that respondent did not treat her differently than it treated M.S. Petitioner claims
that she and M.S. were similarly situated because both she and M.S. needed another employee to
help them lift a student into and out of a wheelchair; yet, M.S. was allowed to return to work with
her disability, while petitioner was not allowed to return to work with her medical restrictions. 1
1
The grievance statute defines “discrimination” as “any difference in the treatment of
similarly situated employees, unless the differences are related to the actual job responsibilities of
the employees or are agreed to in writing by the employees.” W. Va. Code § 6C-2-2(d).
6
Because petitioner’s grievance was untimely filed, we need not review this second assignment of
error. However, we note that petitioner failed to prove that she and M.S. were similarly situated.
The record on appeal shows that one of petitioner’s essential job duties was to lift a nearly-adult
student into and out of a wheelchair several times a day. Conversely, M.S. served as a sign-
language interpreter for a single student who also had her own full-time private nurse. Further,
petitioner sought an accommodation for a medical restriction that impacted her job. Petitioner
admitted under oath that she had no evidence showing that M.S. asked for any such
accommodation. Moreover, M.S. testified that she had no medical restriction. Thus, petitioner and
M.S. were clearly not similarly situated. Because petitioner failed to meet her burden of proof that
she was similarly situated to another employee who received different treatment, she failed, as a
matter of law, to prove a discrimination/favoritism claim.
Accordingly, for the foregoing reasons, we affirm the circuit court’s November 12, 2019,
order.
Affirmed.
ISSUED: December 7, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
“Favoritism” is defined as the “unfair treatment of an employee as demonstrated by preferential,
exceptional, or advantageous treatment of a similarly situated employee” unless agreed to in
writing or related to actual job responsibilities. W. Va. Code § 6C-2-2(h), in part. Petitioner alleged
that respondent violated West Virginia Code § 6C-2-2. To establish discrimination or favoritism,
an employee must prove that s/he has been treated differently from one or more similarly situated
employees; that the different treatment is not related to the actual job responsibilities of the
employees; and that the difference in treatment was not agreed to in writing by the employee. See
Frymier v. Higher Educ. Policy Comm’n, 221 W. Va. 306, 655 S.E.2d 52 (2007).
7