STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Daphne Lemasters, 

Respondent Below, Petitioner FILED 

May 23, 2016 

vs) No. 15-0339 (Kanawha County 14-AA-106) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Jackson County Board of Education, 

Petitioner Below, Respondent 

MEMORANDUM DECISION 

Petitioner Daphne Lemasters, by counsel Andrew J. Katz, appeals the Circuit Court of 

Kanawha County’s March 16, 2015, order reversing the West Virginia Public Employees 

Grievance Board’s (“WVPEGB”) decision that granted her grievance. Respondent Jackson 

County Board of Education (“JCBE”), by counsel Howard Seufer, filed a response in support of 

the circuit court’s order and a supplemental appendix. Petitioner filed a reply. On appeal, 

petitioner argues that the circuit court erred in reversing the administrative law judge’s (“ALJ”) 

decision and in relying on Weimer-Godwin v. the Board of Education of Upshur County, 179 

W.Va. 423, 369 S.E.2d 726 (1988) to support its contention that a school board can assign 

teachers work beyond their regular work day, without compensation or an agreement. 

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. 

In November of 2012, an employee filed a prior, separate grievance that did not involve 

petitioner, concerning an alleged imbalance in the assignment of supervising and monitoring 

students as they embarked and disembarked buses, commonly referred to as “bus duty.” In 

response to the grievance, the JCBE developed a revised bus duty schedule which went into 

effect in November of 2012. During the 2013-2014 school year, petitioner was employed by 

respondent as a kindergarten teacher at Gilmore Elementary School (“Gilmore”). Generally, 

teachers at Gilmore reported to work at 7:45 a.m. and remained until 3:45 p.m. All teachers at 

Gilmore shared morning and evening bus duty assignments on a rotating basis. Morning bus duty 

consisted of supervising and monitoring students as they disembarked from buses at Gilmore and 

evening bus duty consisted of supervising and monitoring students as they boarded buses to 

return home. Gilmore teachers assigned to morning bus duty reported for duty at 7:15 a.m. and 

teachers assigned to afternoon bus duty were required to remain on duty until 3:55 p.m. 

Petitioner completed an employee time report for each day she performed morning or afternoon 

bus duty during the 2013-2014 school year at Gilmore. 

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In October of 2013, petitioner filed a Level One Grievance against respondent contesting 

the bus duty requirement and requesting overtime, in the form of back pay with interest, for each 

of the days she performed bus duty. She also requested that she not be required to perform bus 

duty unless she voluntarily elects to do so by extracurricular contract. The JCBE superintendent 

denied the grievance by written decision dated September 30, 2013. In December of 2013, 

petitioner filed a Level Two Grievance and requested mediation. The parties’ mediation was 

unsuccessful. In March of 2014, petitioner filed a Level Three Grievance and requested a hearing 

contesting the JCBE superintendent’s decision that bus duty is a part of a JCBE teacher’s regular 

work day. Ultimately, the ALJ decided in favor of petitioner, determining that teachers were not 

required to perform bus duty unless they agreed to do so voluntarily and were compensated with 

overtime payments. 

In March of 2015, respondent appealed the ALJ’s decision to the Circuit Court of 

Kanawha County. Following a review of the petition, briefs, and the entire record, the circuit 

court reversed the ALJ’s decision by order entered on March 16, 2015. The circuit court ruled 

that, pursuant to this Court’s prior holdings and West Virginia Code § 18A-4-16(1), petitioner’s 

bus duty did not qualify as an “extracurricular activity.” It is from this order that petitioner now 

appeals. 

We have 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). Upon 

review of the record submitted on appeal, we find no error in the circuit court’s decision below. 

On appeal, petitioner argues, as she did below, that performing bus duty during the 2013­

2014 school year constituted forced extracurricular work, for which the requirements of West 

Virginia Code § 18A-4-16(1) were not met and she was not compensated. Petitioner contends 

that the ALJ correctly determined that “bus duty” meets the statutory definition of extracurricular 

duties and awarded her back pay and interest for the performance of said duties. Petitioner also 

argues that the circuit court misconstrued this Court’s prior holding in Weimer-Godwin v. Bd. of 

Educ. of Upshur Cty., 179 W.Va. 423, 369 S.E.2d 726 (1988) and essentially “amended” West 

Virginia Code § 18A-4-16 by limiting its reach. Upon our review and consideration of the circuit 

court’s order, the parties’ arguments, and the record submitted on appeal, we find that the circuit 

court did not abuse its discretion in reversing the ALJ’s ruling below. 

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Petitioner argues that the circuit court wrongly relied on Weimer-Godwin to support its 

contention that respondent can assign teachers work beyond their regular work day. We disagree. 

Petitioner attempts to dismiss Weimer-Godwin’s applicability by arguing that the issue in 

Weimer-Godwin was whether the grievant was unlawfully discriminated against and incorrectly 

reclassify her bus duty as an extracurricular activity, thereby triggering the requirements of West 

Virginia Code § 18A-4-16(1). However, unlawful discrimination was just one consideration in 

the decision and this Court also determined that a board of education must only pay additional 

compensation for non-instructional duties performed outside of the normal school day. The 

thrust of our analysis in Weimer-Godwin, as the circuit court correctly held, is its application of 

West Virginia Code § 18A-4-5a. As we held in Weimer-Godwin, if respondent finds that 

petitioner’s bus duty assignment falls outside of the regular school day, it may pay additional 

compensation (emphasis added). This holding directly applies to petitioner’s case. It is clear 

from the record that respondent established that it would not provide extra compensation for the 

performance of bus duty. As such, we find that the circuit court did not abuse its discretion in 

reversing the ALJ’s ruling below. 

Our review of the record supports the circuit court’s decision to reverse the ALJ’s ruling 

based upon the specific findings, its reliance on Weimer-Godwin, petitioner’s arguments, and 

respondent’s arguments which were also argued below. Indeed, the circuit court’s order includes 

well-reasoned findings and conclusions as to the assignments of error raised by petitioner on 

appeal. Given our conclusion that the circuit court’s order and the record before us reflect no 

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 March 16, 2015, “Final Order” to this memorandum decision. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: May 23, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISQUALIFIED: 

Justice Margaret L. Workman 

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