Doug Davisson v. Lewis County Board of Education

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
DOUG DAVISSON,
July 1, 2024
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Grievant Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-344 (Grievance Bd. Case No. 2021-2488-LewED)

LEWIS COUNTY BOARD OF EDUCATION,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Doug Davisson appeals the June 13, 2023, Decision of the West Virginia
Public Employees Grievance Board (“Board”), which denied his grievance against
Respondent Lewis County Board of Education (“Lewis BOE”). Lewis BOE filed a
response.1 Mr. Davisson filed a reply. The issue on appeal is whether the Board erred by
finding that the Lewis BOE did not violate its own policy by reassigning Mr. Davisson’s
temporary extracurricular bus route to another bus driver.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Mr. Davisson is employed by Lewis BOE as a full-time school bus operator. On
May 18, 2021, Mr. Davisson was approved as a step-up driver for the daily extracurricular
bus route of another bus driver who was temporarily off work. Pursuant to Lewis BOE
policy, Mr. Davisson was to remain in this assignment for the duration of the regular bus
driver’s absence, which according to the record, was approximately six school days.
However, on May 19, 2021, Mr. Davisson opted to take a one-day, extra-duty assignment,2

1
Mr. Davisson is represented by Andrew J. Katz, Esq., and Lewis BOE is
represented by Denise M. Spatafore, Esq.
2
Pursuant to West Virginia Code § 18A-4-8b(f)(1) (2016), an extra-duty assignment
refers to “an irregular job that occurs periodically or occasionally such as, but not limited
to, field trips, athletic events, proms, banquets[,] and band festival trips.”
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driving students on a field trip instead of fulfilling his temporary extracurricular assignment
for that day.3

Because Mr. Davisson took the field trip assignment in lieu of his extracurricular
bus route, Lewis BOE determined that in accordance with its county policy, Mr. Davisson
had left the step-up position and the step-up job was given to another bus driver. This
policy, identified as Clause 15 of the Lewis County Transportation Department Practices
and Procedures (“Transportation Policy”), was approved in December of 2010, and
provides:

When a regular bus operator is absent the step-up provision will be initiated
immediately. Two (2) step-up lists will be maintained: one for regular runs
and one for extracurricular runs. If the absent driver is contracted for more
than one extracurricular run, the step-up driver must take all extracurricular
runs held by the absent driver. If accepted, the step-up driver must remain in
the step-up absence for the duration of the absence.

Thereafter Mr. Davisson filed his underlying grievance, which alleged that Lewis
BOE violated one of the enumerated grounds for a grievance under West Virginia Code §
6C-2-2(i)(1) (2008) and West Virginia Code § 18A-4-15(a)(4) (2007) when it prohibited
him from returning to his step-up assignment. West Virginia Code § 6C-2-2(i)(1) sets forth:

(i)(1) “Grievance” means a claim by an employee alleging a violation, a
misapplication or a misinterpretation of the statutes, policies, rules, or written
agreements applicable to the employee including:
(i) Any violation, misapplication or misinterpretation regarding
compensation, hours, terms and conditions of employment, employment
status or discrimination;
(ii) Any discriminatory or otherwise aggrieved application of unwritten
policies or practices of his or her employer;
(iii) Any specifically identified incident of harassment;
(iv) Any specifically identified incident of favoritism; or
(v) Any action, policy or practice constituting a substantial detriment to or
interference with the effective job performance of the employee or the health
and safety of the employee.

West Virginia Code § 18A-4-15(a)(4) states:

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According to Mr. Davisson, the field trip paid a higher rate than the daily rate he
was receiving for the step-up assignment. Mr. Davisson’s grievance sought payment for
the six days of the step-up assignment, which was $180.00 or thirty dollars per day.
2
The county board shall employ and the county superintendent, subject to the
approval of the county board, shall assign substitute service personnel on the
basis of seniority to perform any of the following duties . . . [to] temporarily
fill a vacancy in a permanent position caused by severance of employment
by the resignation, transfer, retirement, permanent disability, dismissal
pursuant to section eight, article two of this chapter, or death of the regular
service person who had been assigned to the position. Within twenty working
days from the commencement of the vacancy, the county board shall fill the
vacancy under the procedures set forth in section eight-b of this article and
section five, article two of this chapter. The person hired to fill the vacancy
shall have and be accorded all rights, privileges and benefits pertaining to the
position[.]

A level three grievance hearing was held before the Board’s administrative law
judge on August 24, 2022, and March 23, 2023. On June 13, 2023, the Board entered its
Decision, denying the grievance. The Decision found the testimony of Ms. Butcher, the
executive secretary of Lewis BOE’s transportation department at the time of these events,
as well as the testimony of Lewis BOE’s Director of Personnel, Ms. Mace, established that
Mr. Davisson was advised that, pursuant to the Transportation Policy, if he left his step-up
assignment, it would be reassigned to another bus driver for the duration of the assignment.
The Board determined that Lewis BOE’s application of the Transportation Policy was
dispositive of the grievance. In this case, it was determined that Mr. Davisson did not
perform his duties for the step-up assignment as required by the Policy and, thus, when Mr.
Davisson took the field trip, his step-up assignment was properly given to another bus
driver.

The Decision further found that Mr. Davisson’s reliance upon West Virginia Code
§ 18A-4-15(a)(4) was misplaced because that statute was inapplicable to the issue at hand.
Specifically, the Board found that Mr. Davisson was employed as a full-time bus driver,
not a substitute service personnel as contemplated by the statute. Likewise, Mr. Davisson
had not been hired to fill the temporary extracurricular vacancy, nor was he filling a
vacancy for any of the reasons listed under the statute. W. Va. Code § 18A-4-15(a)(4)
(providing for the temporary fulfilment in a permanent position caused by “the resignation,
transfer, retirement, permanent disability, dismissal . . . or death of the regular service
person who had been assigned to the position.”). Instead, the Board determined that Mr.
Davisson had been assigned pursuant to the Transportation Policy to temporarily provide
coverage for the regular bus driver who was temporarily off work, but whose employment
remained in effect.

Mr. Davisson also contended that, in the past, Lewis BOE regularly deviated from
the Transportation Policy by permitting a bus driver to accept a higher paying assignment
and then return to their original or step-up assignment. The Board found that consistent
with its prior decisions, it did not have the authority to require an agency (or board) to

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adopt a policy or make specific changes to existing policy, absent some law, rule, or
regulation which mandated such action. See Skaff v. Pridemore, 200 W. Va. 700, 490
S.E.2d 787 (1997). The Decision also noted that while the parties offered conflicting
testimony on this issue, a credibility determination was not necessary because the
testimony of Mr. Davisson’s witnesses was insufficient to prove an action of discrimination
as defined by West Virginia Code § 6C-2-2(d) (2008) by comparing Mr. Davisson to a
similarly situated bus driver.4

As a final matter, the Decision noted that county boards of education have
substantial discretion in personnel matters and such discretion will not be disturbed unless
the board’s action was arbitrary and capricious. See Syl. Pt. 3, Dillon v. Bd. of Educ., 177
W. Va. 145, 351 S.E.2d 58 (1986). Therefore, Lewis BOE had the discretion and authority
to place conditions on extracurricular postings, and Mr. Davisson had failed to show that
the Transportation Policy violated any existing law or policy. As adopted, the
Transportation Policy ensures consistency with extracurricular runs and promotes student
safety by precluding drivers in step-up assignments from resuming those assignments if
they leave before finishing the duration of the assignment. Therefore, Lewis BOE’s
reassignment of the step-up assignment was not found to be clearly wrong or arbitrary and
capricious. This appeal followed.

In this appeal, our governing standard of review for a contested case from the West
Virginia Public Employees Grievance Board is as follows:

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.

4
This statute defines discrimination as “any differences 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).

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W. Va. Code § 6C-2-5(b) (2007);5 accord W. Va. Code § 29A-5-4(g) (2021) (specifying
the standard for appellate review of administrative appeal). Likewise, “[t]he ‘clearly
wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which
presume an agency’s actions are valid as long as the decision is supported by substantial
evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483
(1996). See also, Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177
(1996) (on appeal, a court may not overturn a finding simply because it would have decided
case differently); Syl. Pt. 1, Francis O. Day Co., Inc., v. Dir., Div. of Env’t Prot., 191 W.
Va. 134, 443 S.E.2d 602 (1994) (evidentiary findings should not be reversed unless clearly
wrong).

On appeal, Mr. Davisson raises four assignments of error. First, he argues that the
Transportation Policy does not apply to his case because the isolated Policy language, “If
the absent driver is contracted for more than one extracurricular run, the step-up driver
must take all extracurricular runs held by the absent driver. If accepted, the step-up driver
must remain in the step-up absence for the duration of the absence,” must be interpreted to
only apply when a step-up driver leaves one extracurricular bus route for another. Mr.
Davisson argues that because his other assignment was classified as extra-duty and not
extracurricular, he was entitled to return to the step-up assignment. We are not persuaded
by this argument; instead, we find no error in Lewis BOE’s and the Board’s interpretation
and application of the Transportation Policy.

On this issue, Mr. Davisson offers no authority to support his alternative
interpretation of the Transportation Policy. “[A]n agency’s determination of matters within
its area of expertise is entitled to substantial weight.” Princeton Cmty. Hosp. v. State Health
Plan., 174 W. Va. 558, 564, 328 S.E.2d 164, 171 (1985); Anderson v. Bd. of Educ. of Cnty.
of Gilmer, No. 11-1235, 2012 WL 5834898, at * 3 (W. Va. Nov. 16, 2012) (memorandum
decision) (“As a reviewing court, we defer to a board of education’s expertise and
discretion in the interpretation of its policies.”); Williamson v. W. Va. Bd. of Registered
Nurses, No. 23-ICA-172, 2024 WL 1729976, at * 6 (W. Va. Ct. App. April 22, 2024)
(memorandum decision) (affording deference to the West Virginia Board of Registered
Nurses’ interpretation and application of a hospital policy). Upon review of the record, we
find Lewis BOE’s and the Board’s interpretation and application of the Transportation
Policy to be reasonable and supported by the facts of the case and, thus, are entitled to
deference. As such, we decline to disturb their Policy determinations on appeal.

Second, Mr. Davisson contends the Board erred when it found the Lewis BOE
complied with the Transportation Policy when it reassigned his step-up bus route after he
accepted the field trip assignment. We find this argument unconvincing. Mr. Davisson’s

5
We acknowledge that West Virginia Code § 6C-2-5 was recently amended,
effective March 1, 2024. However, the former version of the statute was in effect at the
time the Board’s decision was entered and applies to this case.
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argument on this issue is premised upon the Board’s finding that the reassignment of step-
up bus routes under the Transportation Policy as a consistent past practice of the Lewis
BOE. However, nothing in the Decision makes a past practice finding. Rather, the Decision
determined that Mr. Davisson’s evidence was insufficient to prove an act of discrimination.
Critically, Mr. Davisson offers no argument as to that finding on appeal. Therefore, we
find no error in the Board’s ruling in that regard.

Next, Mr. Davisson assigns error to the Board’s finding that West Virginia Code §
18A-4-15 did not apply to the case. Mr. Davisson argues the last sentence of subsection
(a)(4), “[t]he person hired to fill the vacancy shall have and be accorded all rights,
privileges and benefits pertaining to the position,” gave him the right to accept both the
step-up and extra-duty assignments without consequence. According to Mr. Davisson, this
rationale is similar to an employee who takes a day of annual or sick leave but then returns
to work the next day and, thus, we should find the Board’s basis for not applying the statute
to be arbitrary and capricious. We find no merit in this argument and also note that Mr.
Davisson offers no authority to support his position. Instead, we find the facts of this case,
combined with the deference we owe to Board’s expertise in these matters, leads us to
conclude that the Board’s interpretation of the statute was reasonable; and therefore, we
decline to find that the Board’s ruling on this issue was clearly wrong or arbitrary and
capricious.

As his final assignment of error, Mr. Davisson argues the Board erred by not finding
the Lewis BOE was the one responsible for Mr. Davisson’s noncompliance with the
Transportation Policy because it was solely responsible for offering him the extra-duty
assignment, knowing he would not be able to comply with the requirements of the
Transportation Policy for the step-up assignment. However, we find Mr. Davisson has
waived this issue on appeal. Aside from Mr. Davisson citing no authority to support his
position, the Board’s Decision does not address this argument and Mr. Davisson fails to
cite to any portion of the record to establish this argument was made below to preserve it
for appeal. See Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d
650, 653 (2009) (“Our general rule is that nonjurisdictional questions ... raised for the first
time on appeal, will not be considered.”). See also Syl., Smith v. Holloway Const. Co., 169
W. Va. 722, 289 S.E.2d 230 (1982) (citations omitted) (“Where objections were not shown
to have been made in the [family] court, and the matters concerned were not jurisdictional
in character, such objections will not be considered upon appeal.”). Thus, we find no merit
in this assignment of error.

Accordingly, we find no error and affirm the Board’s Decision.

Affirmed.

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ISSUED: July 1, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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