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No. 22-0234 – The Board of Education of the County of Wyoming v. Dawson

WOOTON, J., concurring:

I concur in the majority’s determination that the circuit court erred in finding 

that the grievance board properly granted respondent Dawson’s (“Ms. Dawson”) grievance

and its reversal with directions to deny the grievance. However, I write separately to draw 

focus to what I believe is a dispositive factor given little examination by the majority or 

the parties. 

Ms. Dawson grieves the petitioner Wyoming County Board of Education’s

(“BOE”) refusal to award her a new posting for an extracurricular, vocational bus route—

which she had previously run for decades—in addition to her regular bus route. The BOE 

contends that Ms. Dawson did not qualify for the vocational route because it conflicts with 

her regular route, and she was only previously able to hold both contracts because her 

regular route was improperly modified by reassigning a portion of it to another driver. Ms.

Dawson contends, generally, that the BOE is not permitted to alter these aggregated duties

without her consent,

1 notwithstanding any such “mistake” in modifying her regular run by 

1 Ms. Dawson views her work duties—both the regular and vocational runs—in the 

aggregate for purposes of claiming her duties and her compensation were altered without 

her consent. In support, she cites West Virginia Code § 18A-4-8(m) (2023) and § 18A-4-

8a(j) (2023) which prohibit reductions in compensation during a fiscal year and nonconsensual alterations in daily work hours during the school year, respectively. 

However, the record is clear that Ms. Dawson’s regular bus route and the grieved 

vocational route are separately awarded contracts, each with its own terms and conditions. 

(continued . . .)

FILED

November 8, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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reassigning a portion of it and the BOE was therefore required to re-award her the 

vocational route—even after it was terminated and reposted. The majority tracks this 

characterization of the issue maintaining that Ms. Dawson’s “entire case hinges on whether 

or not [her] regular run was legally modified in 1987 or 1988.” The majority agrees that 

the reassignment of the morning elementary portion of her regular route was an ultra vires 

act, i.e., the elementary run was not properly posted, nor was modification of the route 

approved by the BOE. Accordingly, the majority declares that Ms. Dawson failed to 

adduce evidence that she held a valid contract entitling her to the “as modified” regular bus 

route, and therefore the grievance should have been denied. 

However, the scope of Ms. Dawson’s grievance is critical, along with precise 

identification of the “legal mistake” and the route affected thereby. The appendix record 

reveals that Ms. Dawson grieved only the failure to be awarded the extracurricular 

assignment, i.e. the vocational route.2

 She did not grieve any aspect of her regular bus 

route, including any “modification” or refusal to continue to modify it. Therefore, whether 

she proved that she was contractually entitled to a modified regular route and any 

longstanding “legal mistake” relative to reassigning the morning elementary portion of her 

A failure to award a bid upon a new job posting is plainly not what is contemplated by the 

statutes’ prohibition on changing a service person’s daily work schedule or reducing his or 

her pay during the school or fiscal year. 

2 Her complaint states that “when I was RIFed from my run on September 11, 2017, 

it was reposted and I should’ve been put back in the same position.” The relief she 

requested was to be “put back on my run[.]” 
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regular run is fairly immaterial to her grievance of the BOE’s refusal to award her the 

additional vocational route—an entirely new and separate contract.

In my view, the most important fact—given short shrift by the BOE and 

majority—is that at the end of the 2016-17 school year the BOE terminated all vocational 

bus routes and reposted them to alter the term from 200 days to 180 days. This had nothing 

to do with Ms. Dawson’s situation—which was discovered somewhat contemporaneously. 

However, the termination of the vocational route had the unintended effect of resolving 

Ms. Dawson’s scheduling conflict with her regular bus route. Once the vocational route 

was ended, Ms. Dawson no longer had a conflict with the morning elementary portion of 

her regular route and could run it without requiring the morning elementary portion to be 

reassigned.

When the vocational routes were reposted with new terms the next school 

year, Ms. Dawson simply was not awarded the route because of the now-recognized 

conflict with her standing, regular route—which was no longer being modified to 

accommodate the scheduling conflict by reassigning the morning elementary run. 

Although the BOE did permit Ms. Dawson to cover the vocational route for nineteen days 

at the beginning of the 2017-18 school year because the route had not yet been awarded, 

she certainly was not re-awarded the route. The BOE’s failure to award her the new 

vocational route is precisely—and exclusively—what she grieved. 
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While the reassignment of the morning elementary portion of her regular 

route—which was the exclusive focus of the grievance board, the BOE, and the majority—

may well have been a mistake, the BOE’s “mistake” relevant to Ms. Dawson’s grievance 

was previously awarding Ms. Dawson the additional, vocational route despite the conflict

with her regular route. That conflict, and therefore “mistake,” resolved itself when the 

vocational runs were terminated. And when the vocational route was properly reposted, 

Ms. Dawson simply did not qualify for it because of the conflict with her regular route

which was no longer being modified to resolve the scheduling conflict.

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 In effect, the 

proper termination of all of the vocational routes—not just Ms. Dawson’s—had the 

unintended effect of allowing the BOE to resolve the “mistake” of allowing Ms. Dawson 

to hold conflicting routes and award the vocational route anew to the employee who 

properly qualified. The BOE did not “take” the vocational route from her, it did not alter 

her duties or compensation, it simply did not award her an extracurricular assignment for 

which she no longer qualified because of a conflict with her contractual regular route. 

Ms. Dawson’s position is that the BOE was obligated to once again create a 

scheduling conflict by awarding her the new vocational route which conflicted with her 

3 Ms. Dawson relies heavily on West Virginia Code § 18A-4-16(6) (2021) which 

provides that “[i]f an extracurricular contract has been terminated and is reestablished in 

any succeeding school year, it shall be offered to the employee who held the assignment at 

the time of its termination.” However, this provision obviously presumes that the employee 

who held the assignment previously was and remains otherwise qualified to hold the 

position. To construe it otherwise would result in potential absurdities where individuals 

who no longer meet even basic prerequisites required by law for employment and/or award 

of a contract are nonetheless entitled to a position.
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regular route. However, Ms. Dawson points to no authority requiring the BOE to commit 

the same “mistake” it had perpetuated for thirty years by awarding a new contract that 

conflicted with her regular route. For this reason, I respectfully concur.