Christina Adams v. Boone County Board of Education

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
May 23, 2024
CHRISTINA ADAMS, et al., ASHLEY N. DEEM, DEPUTY CLERK
Petitioners Below, Petitioners INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-277 (W. Va. Pub. Employees Grievance Bd. No. 2021-1037-CONS)

BOONE COUNTY BOARD OF EDUCATION,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioners1 appeal the May 31, 2023, decision of the West Virginia Public
Employees Grievance Board (“Grievance Board”). In that decision, the Grievance Board
denied the Petitioners’ grievance on the basis that under the controlling statutes and
precedent, the relief requested by the Petitioners was unavailable. Respondent Boone
County Board of Education (“Boone County”) filed a response.2 Petitioners filed a reply.

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 that there is no error in the Grievance Board’s decision and
no substantial question of law. For these reasons, a memorandum decision affirming the
Grievance Board’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

This appeal is rooted in a prior grievance, Rouse v. Boone County Bd. of Educ.,
Docket No. 2017-0308-CONS. In Rouse, 415 employees and former employees of Boone
County protested the elimination of county salary supplements and certain benefits. The
Petitioners herein were Grievants in the Rouse Grievance. There, the Grievance Board’s
Administrative Law Judge (“ALJ”) granted in part and denied in part the Grievants’ claims.
In particular, the ALJ ordered Boone County to calculate and pay to the Grievants any
county salary supplement owed to them pursuant to an approved excess levy. Both parties
appealed to the Circuit Court of Kanawha County in Rouse, et al. v. Boone County Bd. of
Educ., Civil Action No. 19-AA-26. On appeal to the circuit court, the parties entered into
a Settlement Agreement and Release of All Claims, in which Boone County agreed to pay
approximately 90% of the salary supplement amount owed to the Rouse Grievants in
consideration for a full release of all claims. The Rouse Grievants, including the Petitioners

1
There are 108 individually named Petitioners in the notice of appeal.
2
Petitioners are represented by Jeffrey G. Blaydes, Esq. Boone County is
represented by Joshua A. Cottle, Esq., and Howard Seufer, Esq.
1
herein, received their settlement payment approximately four years after their grievance
was filed.

After the Grievance Board entered its decision in the Rouse case, a second group of
approximately 100 Boone County employees, who were not parties to the Rouse
Grievance, filed a grievance of their own. In Banks v. Boone County Bd. of Educ., Docket
No. 2020-0920-CONS, this group of employees sought payment of the same salary
supplement that had been granted under the settlement with the Rouse Grievants. At the
level two grievance mediation, Boone County entered into a settlement agreement with the
Banks Grievants. In the agreement, Boone County agreed to make the same payments to
the Banks Grievants that it earlier agreed to pay the Rouse Grievants. Boone County also
offered the same terms to all remaining individuals who were employees of Boone County
schools when the local supplement was eliminated, but who never filed a grievance.

On September 28, 2020, and various dates thereafter, Petitioners filed the instant
grievance against Boone County generally alleging:

In August of 2016, members of the [American Federation of Teachers West
Virginia (“AFT-WV”)] who worked for Respondent Boone County Board of
Education filed grievances, by and through [AFT-WV] and its counsel,
contending in pertinent part that, Respondent had eliminated its salary
supplement by withholding levy funds that were required to be paid as salary
supplements. Rouse et al. v. Boone County Board of Education, Docket No.
2017-0308-CONS (“Rouse”). That matter was appealed to the Circuit Court
of Kanawha County in Rouse v. Boone County Board of Education, Civil
Action No. 19-AA-26. That matter was thereafter settled by the Grievants
and Respondents in a global resolution of those claims. Since the resolution
of that case, Respondent has unlawfully and arbitrarily and capriciously
supplemented and increased the income of employees of Respondent who
did not file a grievance in Rouse relating to the salary supplement. On behalf
of its members, [AFT WV] now timely appeals this unlawful act. The current
act of Respondent in paying those who did not grieve in Rouse is unlawful
in that it lacks a statutory or regulatory mechanism or requirement to make
such payment; is a breach of contract and good faith bargaining that occurred
during the prior case; is an abuse of power and discretion by Respondent;
and is a breach of Respondent’s fiduciary duty to maintain the Reserve Fund.
Moreover, the current act of Respondent in paying non grievants from Rouse
discriminates against the Rouse Grievants who have not or will not receive
payouts to be made starting on or about September 18, 2020; demonstrates
bias against the Rouse Grievants and favoritism for the non-Grievant
employees; may constitute nepotism in certain instances; and arises out of
unlawful anti-union animus. Finally, Respondent’s actions are barred by the

2
doctrine of laches and or statute of limitations and Respondent’s fiduciary
duty to the citizens of Boone County, West Virginia.

The Petitioners sought to “be made whole in every appropriate way including, but
not limited to, proper payment of wages owed, plus interest, concomitant benefits, and all
other appropriate relief.”

The parties agreed to waive the grievance process to level three. A level three
hearing was held on January 19, 2023. Following the hearing, the Grievance Board issued
its May 31, 2023, Level Three Decision. There, the Grievance Board denied the grievance,
holding that, under the controlling statutes and Grievance Board precedent, compensation
for time spent pursuing a previous grievance is relief that was unavailable to Petitioners. It
is from this order that Petitioners appeal.

Our standard of review in appeals from the 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.

W. Va. Code § 6C-2-5 (b) (2007); accord W. Va. Code § 29A-5-4(g) (2021) (specifying
the standard for appellate review of an administrative appeal).

Further, our Supreme Court of Appeals has established that “[a] final order of the
hearing examiner for the West Virginia [Public] Employees Grievance Board . . . should
not be reversed unless clearly wrong.” Syl. Pt. 3, Martin v. Barbour Cnty. Bd. of Educ.,
228 W. Va. 238, 719 S.E.2d 406 (2011) (citing Syl. Pt. 1, Randolph Cnty. Bd. of Educ. v.
Scalia, 182 W. Va. 289, 387 S.E.2d 524 (1989)). Further, “[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).

3
The single issue presented in this appeal is whether the Grievance Board erred by
determining that it could not award the relief sought by Petitioners.3 To be clear, Petitioners
seek $3,772.41, $4,328.62, and $3,308.98, respectively for each of the lead Petitioners and
$100 for every other Petitioner as compensation for the time, energy, and resources they
spent related to the Rouse grievance. In arguing that they should be entitled to additional
compensation for time and effort spent on their prior grievance, Petitioners assert that the
Grievance Board has awarded “fair and equitable” relief in past cases.

However, the prior Grievance Board decisions relied on by Petitioners are
predicated upon statutory language that no longer exists. “An administrative agency is but
a creature of statute, and has no greater authority than [that] conferred under the
governing statutes.” State ex rel. Hoover v. Berger, 199 W. Va. 12, 16, 483 S.E.2d 12, 16
(1996) (citations omitted). As the Grievance Board recognized below, although the
grievance procedure statutes at one time expressly empowered the Grievance Board to
provide “fair and equitable” relief, the applicable West Virginia Code section, West
Virginia Code § 18-29-5(b), was repealed by the Legislature, effective March 7, 2007.
Today, the grievance procedure statutes make no reference to “fair and equitable” relief.
Rather, the current grievance procedure provides that each party is responsible for their
own expenses related to the grievance procedure and grievants shall be granted four hours
of worktime to work on their grievance without having to utilize annual leave. See W. Va.
Code § 6C-2-6(a) (2023) and W. Va. Code § 6C-2-3(p)(2) (2023). Given that Petitioners
can point to no current authority that gives the Grievance Board the power to award the
relief they sought for the claim they assert, the Grievance Board did not err in denying
Petitioners’ grievance.

Accordingly, we affirm the Grievance Board’s May 31, 2023, decision.

Affirmed.

ISSUED: May 23, 2024

CONCURRED IN BY:

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

3
Although Petitioners assert five individual assignments of error, it appears from
the Petitioners’ brief that this appeal presents a single issue and therefore the assignments
of error have been consolidated. See generally Tudor's Biscuit World of Am. v.
Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237 (2012) (stating that “the assignments
of error will be consolidated and discussed accordingly.”).
4