STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Robert A. Clark, Jr., Jerry Jenkins, Bradford C. FILED 

Debord, Roy E. Cool, Gary A. Johnson, Clyde D. May 15, 2015 

Shriner, Samuel A. Brick, Jr., Thomas R. Stuckey, RORY L. PERRY II, CLERK 

Greg M. Willenborg, William A. Persinger, Jr., SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Douglas A. Benson, John J. Lane, Curt H. Tonkin,
 

Woodrow Wilson Brogan, III, Barry A. Kaizer,
 

Jerry E. Payne, Terry A. Ballard, Harry E. Shaver,
 

James C. Armstead, Jr., Stanley K. Hickman,
 

Michael A. Waugh, Charles R. Johnson, Thomas D.
 

Tolley, and Joseph A. Ward,
 

Petitioners Below, Petitioners
 

vs) No. 14-0626 (Kanawha County 11-AA-75) 

West Virginia Division of Natural Resources, and 

West Virginia Division of Personnel, 

Respondents Below, Respondents 

MEMORANDUM DECISION 

Petitioners Robert A. Clark, Jr., Jerry Jenkins, Bradford C. Debord, Roy E. Cool, Gary A. 

Johnson, Clyde D. Shriner, Samuel A. Brick, Jr., Thomas R. Stuckey, Greg M. Willenborg, 

William A. Persinger, Jr., Douglas A. Benson, John J. Lane, Curt H. Tonkin, Woodrow Wilson 

Brogan, III, Barry A. Kaizer, Jerry E. Payne, Terry A. Ballard, Harry E. Shaver, James C. 

Armstead, Jr., Stanley K. Hickman, Michael A. Waugh, Charles R. Johnson, Thomas D. Tolley, 

and Joseph A. Ward, who are similarly-situated employees of Respondent West Virginia 

Division of Natural Resources (“WVDNR”), by counsel J. Michael Ranson and J. Patrick 

Jacobs, appeal the Circuit Court of Kanawha County’s order, entered June 4, 2014, that 

dismissed their grievance regarding a pay raise previously granted to other similarly-situated 

employees. Respondent WVDNR, by counsel William R. Valentino, and Respondent West 

Virginia Division of Personnel, by counsel Karen O’Sullivan Thornton, filed a response in 

support of the circuit court’s order. Petitioners filed a reply. 

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 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. 

On August 1, 2000, the WVDNR granted six employees (who are not among the 

petitioners herein) a $1,767.12 annual raise in salary (“the 2000 pay raise”). Each of the six 

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employees held the position of Conservation Officer II (“CO2”) (also known as “field sergeant”) 

and were also designated as Regional Training Officers (“CO2/RTOs”). In response, on February 

9, 2002, three CO2s who were not designated as RTOs timely filed a grievance action seeking 

pay parity. The grievance progressed through Levels I, II, III, and IV. On October 28, 2003, 

following the Level IV hearing, Grievance Board found that the three CO2s (hereinafter the 

“Antolini petitioners”) had met their burden of proof for establishing claims of discrimination 

and favoritism. The Grievance Board rescinded the raises given to the six CO2/RTOs, but did 

not grant any direct relief to the Antolini petitioners. See Antolini, et al. v. W.Va. Div. of Natural 

Res., No. 03-DNR-94 (October 29, 2003). 

Thereafter, three separate appeals were taken in two counties. First, the three Antolini 

petitioners appealed to the Circuit Court of Kanawha County. Second, one of the six CO2/RTOs 

who received the 2000 pay raise filed an action in Grant County seeking, inter alia, a temporary 

injunction and an appeal of the Level IV grievance decision. Third, four of the six CO2/RTOs 

who received a pay raise filed an action in Kanawha County which was essentially identical to 

the action filed in Grant County. 

On March 5, 2004, the Circuit Court of Grant County (1) vacated the Level IV decision, 

(2) found that the 2000 pay raise was legally granted and that the Grievance Board abused his 

discretion in finding discrimination or favoritism; and (3) ordered the WVDNR to continue to 

pay the CO2/RTOs the 2000 pay raise. On March 8, 2005, the Kanawha County Circuit Court 

granted summary judgment to the four CO2/RTOs who filed their appeal there on the ground 

that the Antolini petitioners’ appeal was barred by the doctrine of res judicata, i.e., the Grant 

County order. 

The Antolini petitioners appealed to this Court. In Antolini v. West Virginia Division of 

Natural Resources, 220 W.Va. 255, 647 S.E.2d 535 (2007), we found that the Circuit Court of 

Grant County lacked subject matter jurisdiction to hear the CO2/RTO’s appeal. Therefore, the 

Grant County order did not bar the Antolini petitioners’ appeal in Kanawha County. This Court 

then reversed and remanded the case to Kanawha County. 

On remand, the Circuit Court of Kanawha County found (1) that the three Antolini 

petitioners were similarly situated to the six CO2/RTOs who had received the pay raise because 

they were all classified as CO2s and ranked as sergeants; and (2) that the Antolini petitioners had 

met their burden of proof with regard to discrimination and favoritism. The circuit court then 

reversed the Grievance Board’s rescission of the six CO2s/RTOs 2000 pay raise; and further 

ordered that they, and the three Antolini petitioners, be paid the 2000 pay raise; and that the 

Antolini petitioners be given back pay and interest. 

On January 22, 2009, this Court denied the WVDNR’s petition for appeal of the circuit 

court’s order. Thereafter, in February of 2009, the twenty-four petitioners in this case 

(“petitioners” or the “Clark petitioners”), who are employed by the WVDNR, filed a grievance 

seeking the 2000 pay raise granted to the Antolini petitioners by the Circuit Court of Kanawha 

County. Six of the twenty-four Clark petitioners were CO2s, but not RTOs, when the original six 

CO2/RTOs got the pay raise at issue in Antolini on August 1, 2000. The remaining eighteen 

Clark petitioners became CO2s after August 1, 2000. 

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On May 6, 2011, the West Virginia Public Employee’s Grievance Board (the “Grievance 

Board”) dismissed the Clark petitioners’ action on the grounds that (1) their grievance was not 

timely filed, (2) they did not demonstrate an excuse for the untimely filing, and (3) neither the 

discovery rule nor the continuing practice exception applied in this case to excuse the untimely 

filing. 

Petitioners appealed the Grievance Board’s dismissal to the Circuit Court of Kanawha 

County. By order entered June 4, 2014, the circuit court denied relief based on its finding that the 

Grievance Board’s order was legally and factually correct 

The Clark petitioners now appeal. We review such appeals pursuant to Syllabus Point 1 

of Huffman v. Goals Coal Company, 223 W.Va. 724, 679 S.E.2d 323 (2009), in which we held, 

“On appeal of an administrative order from a circuit court, this Court is 

bound by the statutory standards contained in W.Va. Code § 29A–5–4(a) and 

reviews questions of law presented de novo; findings of fact by the administrative 

officer are accorded deference unless the reviewing court believes the findings to 

be clearly wrong.” Syllabus Point 1, Muscatell v. Cline, 196 W.Va. 588, 474 

S.E.2d 518 (1996). 

Huffman, 223 W.Va. at 725, 679 S.E.2d at 324. Mindful of these principles, we consider 

petitioners’ assignments of error. 

Petitioners first argue that the circuit court erred in adopting the Grievance Board’s 

finding that petitioners’ grievance was untimely filed and that the discovery rule and the 

continuing practice exceptions did not apply. Pursuant to West Virginia Code § 6C-2-3(a)(1), 

appeals to the West Virginia Public Employees Grievance Board must be filed within the time 

limits found in West Virginia Code § 6C-2-4(a)(1): 

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 employee shall also file a copy of the grievance with the board. State 

government employees shall further file a copy of the grievance with the Director 

of the Division of Personnel. 

In the instant case, the record on appeal clearly shows that petitioners did not file their 

grievance within fifteen days following the occurrence of the event upon which the grievance is 

based, i.e., the 2000 pay raise. In fact, petitioners did not file this action until eight years after the 

pay raise at issue in Antolini was initially awarded and seven years after the Antolini petitioners 

filed their grievance. 

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Petitioners argue that their grievance was timely filed under the discovery rule exception 

in West Virginia Code § 6C-2-4(a)(1), which, as noted above, provides that the a grievance must 

be filed “within fifteen days of the date upon which the event became known to the 

employee[s]”). With regard to when petitioner discovered the triggering “event” in this case, we 

first note that petitioners stipulated below that they “knew or had reason to know of the Antolini 

[] proceeding at the time it was filed, upon their accepting employment as conservation offices or 

promotion to the rank of sergeant, or at a time sufficient to have intervened in the grievance.” 

We also note that in their petition to this Court, petitioners admit that they purposely waited to 

file this action until this Court ruled on the WVDNR’s petition for appeal in Antolini. Petitioners 

claim they based this decision upon their belief that this Court’s ruling on that appeal was an 

“event” that would trigger the running of the fifteen day discovery rule. We disagree with this 

presumption. Clearly, the “event” at issue in this case was the granting of the 2000 pay raise to 

the six original CO2/RTOs. Importantly, petitioners cite to no legal authority in support of their 

claim that the discovery of a legal theory which supports a grievance is an “event” that gives rise 

to the filing of a grievance. If such were the case, a grievance could be filed anytime this Court 

renders an opinion that supports a public employee’s grievance, no matter how much time had 

passed between the triggering event and the issuance of the opinion. Accordingly, we cannot say 

that the circuit court erred in affirming the Grievance Board’s finding that the discovery 

exception does not apply in this case. 

Petitioners also claim that their grievance was timely filed pursuant to the “continuous 

practice” exception in West Virginia Code § 6C-2-4(a)(1)(a grievance must be filed “within 

fifteen days of the most recent occurrence of a continuing practice giving rise to a grievance”). 

Specifically, petitioners contend that each and every payday that they do not receive the 2000 

pay raise triggers their right to file a grievance, i.e., the failure to enhance their salary with the 

2000 pay raise is a “continuing practice.” In light of our decision in Spahr v. Preston County 

Board of Education, 182 W. Va. 726, 391 S.E.2d 739 (1990), we disagree. In Spahr, three 

teachers filed a grievance when they learned they had not received a pay supplement given to 

fellow employees. The grievance was found to be timely filed within the required timeframe. 

However, with regard to whether the salary differential in that case fell under the “continuing 

practice” exception found in West Virginia Code § 6C-2-4(1), we said in Spahr that, 

Apparently, the circuit judge also relied on the language . . permitting a grievance 

to be filed “within fifteen days of the most recent occurrence of a continuing 

practice” in order to grant the teachers back pay. We do not believe that the 

legislature intended this language to cover the present situation. Under the circuit 

court’s interpretation, each new pay check would constitute “the most recent 

occurrence of a continuing practice,” and would permit a grievant to obtain an 

indefinite accrual of back pay by delaying the filing. The current case, however, 

involves a single act—the inadvertent failure to include the teachers on a list— 

that caused continuing damage, i.e., the wage deficit. Continuing damage 

ordinarily does not convert an otherwise isolated act into a continuing practice. 

Once the teachers learned about the pay discrepancy, they had an obligation to 

initiate the grievance procedure. 

Id. at 729, 391 S.E.2d at 742. Therefore, like the pay raise at issue in Spahr, the WVDNR’s 

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decision not to award the 2000 pay raise to petitioners was a singular event, and not a continuing 

practice. Consequently, once petitioners learned of the pay discrepancy, they had an obligation to 

initiate their grievance procedure. Accordingly, we find that the Grievance Board and the circuit 

court correctly found the “continuing practice” exception does not apply in this case. As such, 

the circuit court did not err in dismissing petitioner’s action as untimely filed.1 

Finally, petitioners argue that the Grievance Board was collaterally estopped from 

denying their grievance given (1) that the Circuit Court of Kanawha County found the Antolini 

petitioners were entitled to relief, and (2) petitioners are similarly situated to the Antolini 

petitioners. However, petitioners are not similarly situated because, unlike the Antolini 

petitioners, they did not timely file their grievance. Therefore, we find no error. 

For the foregoing reasons, we affirm the circuit court’s June 4, 2014, order. 

Affirmed. 

ISSUED: May 15, 2015 

CONCURRED IN BY: 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

DISQUALIFIED: 

Chief Justice Margaret L. Workman 

1 We note that, pursuant to West Virginia Code § 6C-2-3(f), 

[u]pon a timely request, any [public] employee may intervene and become a party 

to a grievance at any level when the employee demonstrates that the disposition of 

the action may substantially and adversely affect his or her rights or property and 

that his or her interest is not adequately represented by the existing parties. 

Consequently, despite the fact that petitioners failed to timely file their grievance, they could 

have sought to intervene in Antolini during the pendency of that case, but failed to so. 

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