Steven Louk v. Board of Education of County of Braxton

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Steven Louk, FILED Respondent/Petitioner Below, Petitioner February 21, 2017 RORY L. PERRY II, CLERK vs.) No. 16-0321 (Kanawha County 15-AA-124) SUPREME COURT OF APPEALS OF WEST VIRGINIA The Board of Education of the County of Braxton, Petitioner/Respondent Below, Respondent

MEMORANDUM DECISION Petitioner Steven Louk, by counsel John Everett Roush, appeals the Circuit Court of Kanawha County’s February 29, 2016, order reversing the decision of the West Virginia Public Employees Grievance Board (“the Board”). Respondent Board of Education of the County of Braxton, by counsel Richard S. Boothby and Rebecca M. Tinder, filed a response in support of the circuit court’s order. Petitioner filed a reply. On appeal, petitioner argues that the circuit court erred in reversing the Board’s decision because he completed one year of acceptable employment and therefore was entitled to certain protections pursuant to West Virginia Code § 18A-2-6.

This 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.

From 1994 through the 2012-13 school year, petitioner was employed as a school bus driver for the Preston County Board of Education. Following the 2012-13 school year, petitioner moved to Braxton County and was hired by the Braxton County Board of Education as a school bus driver for the 2013-14 school year. In April of 2014, petitioner left his school bus unattended while the engine was running with students on board.

On May 5, 2014, the Braxton County Superintendent David Dilly notified petitioner that the April 28, 2014, incident had been reported. Mr. Dilly indicated that petitioner’s first year of employment was “unsatisfactory” and that his behavior was “totally unacceptable and dangerous to the students in Braxton County.” Furthermore, Mr. Dilly referred the incident to the State Superintendent of Schools for further investigation. Ultimately, petitioner was suspended without pay for the remainder of the 2013-14 school year and Mr. Dilly recommended to the Braxton County Board of Education (“the BOE”) that petitioner’s employment be terminated for gross

misconduct. Several days later, the BOE approved Mr. Dilly’s recommendation to suspend petitioner without pay for the remainder of the 2013-14 school year.1

Sometime in 2014, the BOE hired petitioner as a school bus operator for the 2014-15 school year.2 However, Mr. Dilly notified petitioner that he had not received petitioner’s bus operator certification for the 2014-15 school year. Mr. Dilly was later notified that petitioner’s certification to operate a school bus was pending because the Executive Director of Transportation received a report concerning petitioner’s conduct in May of 2014.3 Thereafter, petitioner was informed that he was certified to be a school bus operator for the remainder of the 2014-15 school year. During the BOE’s April 9, 2015, meeting, they chose not to renew petitioner’s contract for the 2015-16 school year. The following day, Mr. Dilly notified petitioner by letter that he was not included on the probationary employment list for the 2015-16 school year. Subsequently, petitioner requested a hearing on the nonrenewal of his contract.

In May of 2015, petitioner requested a Level 3 hearing alleging that the BOE failed to renew his employment contract in bad faith. Specifically, petitioner asserted that (1) he obtained continuing contract status and was not given the opportunity to be heard pursuant to West Virginia Code § 18A-2-6; (2) the nonrenewal was not based on upon an evaluation pursuant to West Virginia Code § 18A-2-12a; (3) it was arbitrary and capricious to be subjected to two disciplinary actions based upon the same incident; (4) he was not guilty of any conduct worthy of termination; and (5) the nonrenewal of his contract was in retaliation for his filing of a grievance during the 2013-14 school year.

In August of 2015, a Level 3 hearing was held at which the Administrative Law Judge (“ALJ”) granted in part, and denied in part, petitioner’s grievance. In reinstating petitioner as a bus operator, the ALJ held that petitioner’s employment for the 2013-14 school year was “acceptable” because (1) petitioner worked 145 days of the 2013-14 school year before being suspended; (2) the BOE rejected Mr. Dilly’s recommendation to terminate petitioner’s contract; (3) and despite his suspension, petitioner was employed as a bus operator for the 2014-15 school year. As a result, petitioner was entitled to continuing contract status for the 2014-15 school year and the BOE’s nonrenewal of his 2015-16 contract failed to comply with West Virginia Code § 18A-2-6. The ALJ also order respondent to pay petitioner back pay to be offset by $875.

The Board appealed the ALJ’s decision to the circuit court arguing that petitioner did not complete one year of acceptable employment and thus, was not entitled to the notice provisions 1 Thereafter, petitioner requested a Level 3 hearing. The parties successfully mediated this grievance on August 26, 2014, wherein the Board paid petitioner $1,750. 2 The parties dispute whether petitioner was employed under a continuing or probationary contract. 3 Petitioner filed a petition for writ of mandamus directing the West Virginia Board of Education to issue a decision on whether to issue or deny petitioner’s bus operator certification. The parties agreed to dismiss the petition for writ of mandamus because petitioner was granted his bus operator certification after completing eight hours of remedial training.

found in West Virginia Code § 18A-2-6. Petitioner also filed an appeal challenging the ALJ’s decision alleging that the ALJ erred in offsetting his back pay by $875.4 The parties agreed to consolidate the appeals. By order entered on February 29, 2016, the circuit court concluded that the Grievance Board’s decision was clearly wrong and accordingly reversed the Grievance Board’s decision. The circuit court found that petitioner was not entitled to the protections of West Virginia Code § 18A-2-6 because he did not complete one year of “acceptable” employment. The circuit court reasoned that the Grievance Board disregarded the BOE’s interpretation of “acceptable employment.” Furthermore, applying the ordinary meaning of “complete” and “acceptable,” petitioner’s suspension during the 2013-14 illustrated that he “did not ‘finish’ the 2013-14 school year, and his suspension illustrates that his performance was not ‘tolerated or allowed.’” This appeal followed.

The Court has previously established the following standard of review:

“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.” Syllabus Point 1, Cahill v. Mercer County Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).

Syl. Pt. 1, Darby v. Kanawha Cty. Bd. of Educ., 227 W.Va. 525, 711 S.E.2d 595 (2011). Further, 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. 1, Randolph Cnty. Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989).

Syl. Pt. 3, Armstrong v. W.Va. Div. of Culture and History, 229 W.Va. 538, 729 S.E.2d 860 (2012). Upon our review, the Court finds no error in the circuit court orders which reversed the BOE’s decision below.

On appeal to this Court, petitioner alleges that the circuit court erred in finding that he did not complete one year of acceptable service and that he was not reprimanded twice for the same conduct. The Court, however, does not agree. Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the record submitted on appeal, we find no error by the circuit court. Indeed, the circuit court’s order includes well-reasoned findings and conclusions as

4 Petitioner was employed as a truck driver at the rate of $12.50 per hour at 70 hours per week. Thus petitioner made $875 per week as a truck driver.

to the assignments of error raised on appeal. Given our conclusion that the circuit court’s order and the record before us reflect no clear error, we hereby adopt and incorporate the circuit court’s findings and conclusions as they relate to petitioner’s assignments of error raised herein and direct the Clerk to attach a copy of the circuit court’s February 29, 2016, “Final Order” to this memorandum decision.

For the foregoing reasons, the circuit court’s February 29, 2016, order is hereby affirmed.

Affirmed. ISSUED: February 21, 2017 CONCURRED IN BY:

Chief Justice Allen H. Loughry II Justice Robin Jean Davis Justice Menis E. Ketchum Justice Elizabeth D. Walker

DISQUALIFIED: Justice Margaret L. Workman