### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Tina Grace, Petitioner Below, 

### FILED Petitioner 

### March 7, 2016 vs) No. 15-0525 (Kanawha County 15-AA-11) RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA Mingo County Board of Education, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Tina Grace, by counsel Richard A. Robb, appeals the Circuit Court of Kanawha County’s May 8, 2015, order affirming the West Virginia Public Employee Grievance Board’s (“Grievance Board”) January 9, 2015, order denying her motion to reinstate her grievance. Respondent Mingo County Board of Education, by counsel Rebecca M. Tinder, filed a response and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner alleges that the circuit court erred in finding that she was not entitled to reinstate her grievance. 1

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.

Beginning in September of 1998, petitioner was employed by the Mingo County Board of Education (“MCBE”) as a full-time special education teacher. By letter dated September 26, 2011, Randy Keathley, Superintendent of Mingo County Schools, notified petitioner that respondents received reports that petitioner slapped a mentally and physically handicapped

1 We note that petitioner initially lists six assignments of error in her brief to this Court each related to the circuit court’s denial of her grievance: (1) the ALJ’s decision violated the fundamental purpose of the West Virginia Public Employees Grievance Board; (2) the ALJ’s decision violated the fundamental principle of adjudicating matters on the merits; (3) the ALJ’s decision was arbitrary because it was based upon findings from another forum; (4) the ALJ’s decision failed to strictly construe the laws in favor of petitioner; (5) the ALJ’s decision ignored the “endemic corruption affliction Mingo County;” and (6) the ALJ’s decision was clearly wrong. To better address those issues, we summarize petitioner’s assignments of error into a single assignment of error.

1student and withheld food as a form of punishment. Petitioner was immediately suspended with pay, pending an investigation into the allegations. Additionally, the West Virginia Department of Health and Human Resources (“DHHR”) conducted its own investigation.

By letter dated December 21, 2011, the Superintendent notified petitioner that she was immediately suspended without pay. Further, the Superintendent recommended the termination of petitioner’s employment upon a finding that child abuse occurred and that petitioner used hot sauce as a form of disciple in violation of the Employee Code of Conduct. Thereafter, petitioner filed a grievance against respondent contesting her termination. Subsequently, a hearing was held in January of 2012, before the Assistant Superintendent of the West Virginia Department of Education during which testimony was presented. On March 19, 2012, petitioner was terminated from her employment.

On March 26, 2012, petitioner filed a Level Three Grievance and requested a hearing contesting her termination on the basis that she received insufficient notice of the charges against her and that she was denied the opportunity to confront her accusers when she appeared before a State hearing officer. Subsequently, petitioner was indicted on multiple criminal charges related to her conduct. Prior to a hearing on her grievance, petitioner notified the Grievance Board requesting to withdraw the grievance. By order entered on January 10, 2013, the Grievance Board dismissed petitioner’s grievance. On the same day, petitioner entered into a pretrial disposition agreement with the State of West Virginia whereby she agreed to voluntarily dismiss her grievance and remain “permanently terminated from employment with Mingo County Schools.” In exchange, the State dismissed the indictment against petitioner.

However, in November of 2014, petitioner filed a “Motion to Rescind Withdrawal and Set Aside Order of Dismissal.” Petitioner argued that her motion to withdraw her grievance was “induced by gross unethical, if not illegal, conduct by former Mingo County Prosecutor, C. Michael Sparks.” Specifically, Mr. Sparks’ conduct was “beneficial to himself and his family personally [and] was detrimental and prejudicial to the grievant in this matter.” By order entered January 9, 2015, the Grievance Board denied petitioner’s motion finding that it was within the administrative law judge’s (“ALJ”) discretion to reinstate petitioner’s grievance. In denying petitioner’s motion, the ALJ found that petitioner voluntarily withdrew her grievance in accordance with her pretrial disposition agreement and that there was no allegation that petitioner’s criminal counsel did not act in her best interest when the pretrial agreement was

made. 2 Thereafter, petitioner appealed this decision to the circuit court.

On appeal to the circuit court, petitioner argued that 1) the ALJ exceeded his/her statutory authority in denying her request to reinstate her grievance according to West Virginia Code § 6C-2-3(d) 3 ; 2) the ALJ frustrated the purpose of the grievance procedure; 3) the original ALJ

2 Petitioner was represented by different counsel during the grievance and criminal proceedings.

3 West Virginia Code § 6C-2-3(d), in part, provides that “ [t]he grievance may not be reinstated by the grievant unless reinstatement is granted by the chief administrator or the administrative law judge.”

2dismissing her grievance was required to rule on her motion to reinstate her grievance; 4) the ALJ’s decision was arbitrary; 5) she was denied an adjudication on the merits of her grievance; 6) the ALJ’s decision ignores the public corruption present in this matter; and 7) the ALJ failed to strictly construe school regulations and laws in favor of the employee. Ultimately, the circuit court affirmed the Grievance Board’s decision. It is from that order that petitioner 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 County 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. Petitioner’s arguments on appeal mirror those raised before the circuit court.

Upon our review and consideration of the circuit court’s order, the parties’ arguments, and the record submitted on appeal, the circuit court did not abuse its discretion in affirming the ALJ’s ruling below. Our review of the record supports the circuit court’s decision to affirm the ALJ’s ruling based upon the specific findings and petitioner’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 May 8, 2015, “Final Order” to

this memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED : March 7, 2016

CONCURRED IN BY :

Chief Justice Menis E. Ketchum

Justice Robin Jean Davis Justice Brent D. Benjamin Justice Allen H. Loughry II

3DISQUALIFIED:

Justice Margaret L. Workman

4