IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2003 Term
October 10, 2003
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Petitioner Below, Appellee,
THE BOARD OF EDUCATION OF
THE COUNTY OF MINGO,
Respondent Below, Appellant.
Appeal from the Circuit Court of Kanawha County
Honorable Charles E. King, Jr., Judge
Civil Action No. 00-AA-133
Submitted: September 9, 2003
Filed: October 10, 2003
Harry M. Rubenstein, Esq.
Kelly J. Kimble, Esq.
Kay Casto & Chaney, PLLC
Morgantown, West Virginia
Attorneys for the Appellant
John Everett Roush, Esq.
West Virginia School Service
Charleston, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.
JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
“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
Board of Education, 208 W. Va. 177, 539 S.E.2d 437 (2000).
“‘A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).”
Syllabus point 1, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997).
“‘It is the duty of a court to construe a statute according to its true
intent, and give to it such construction as will uphold the law and further justice. It is as
well the duty of a court to disregard a construction, though apparently warranted by the
literal sense of the words in a statute, when such construction would lead to injustice and
absurdity.’ Syllabus Point 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925).”
Syllabus point 2, Conseco Finance Servicing Corp. v. Myers, 211 W. Va. 631, 567 S.E.2d
“‘That which is necessarily implied in a statute, or must be included
in it in order to make the terms actually used have effect, according to their nature and
ordinary meaning, is as much a part of it as if it had been declared in express terms.’
Syllabus point 14., State v. Harden, 62 W. Va. 313, 58 S.E. 715 (1907).” Syllabus point
4, Smith v. State Workmen’s Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361
The appellant herein and respondent below, the Board of Education of the
County of Mingo [hereinafter referred to as “the Board”], appeals from an order entered
May 31, 2002, by the Circuit Court of Kanawha County. By the terms of that order, the
circuit court reversed the July 13, 2000, decision of the West Virginia Education and State
Employees Grievance Board [hereinafter referred to as “the Grievance Board”] and found
that W. Va. Code § 18A-4-8a(7) (1999) (Supp. 1999) prohibited the Board from altering
the daily work schedule of its employee, the appellee herein and petitioner below, Violet
Napier [hereinafter referred to as “Ms. Napier”], without her written consent thereto.
Upon a review of the parties’ arguments, the record submitted for our consideration, and
the pertinent authorities, we reverse the decision of the Kanawha County Circuit Court.
FACTUAL AND PROCEDURAL HISTORY
During its consideration and review of this grievance, the circuit court
adopted the following facts found by the Grievance Board’s administrative law judge at
the Level IV hearing. Ms. Napier is employed by the Board as a special education aide.
As such, her duties include (1) the assignment to, and riding of, a specific Mingo County
school bus to assist special needs students traveling to and from school and (2) the
assignment to a particular school where she has various classroom responsibilities.1 At
the beginning of the 1999-2000 school year, Ms. Napier was assigned to Bus Number
9607, which transported students to and from Burch Middle School and Burch High
School. Her daily work schedule required her to meet and board the bus at Burch High
School at approximately 7:20 a.m. and to assist students on the five-minute ride to Burch
Middle School.2 Once at the middle school, to which school Ms. Napier was assigned, she
performed classroom duties until 2:45 p.m., at which time she boarded Bus Number 9607
for the return trip to Burch High School.
Upon arriving at the high school at
approximately 2:50 p.m., Ms. Napier disembarked from the bus, and her workday ended.3
Thereafter, in October, 1999, the Board learned that two additional special
needs students would be requiring school bus transportation to the middle and high
For a recitation of Ms. Napier’s specific job duties that are at issue in this
appeal, see infra Section III.
Ms. Napier was not required to earlier board the bus to assist students
traveling to Burch High School because another special education aide was assigned to
ride the bus to the high school. Because the other aide was assigned to the high school for
classroom duties, though, Ms. Napier was needed to assist the students on the bus who
attended the middle school.
According to the facts found by the Grievance Board, Bill Kirk [hereinafter
referred to as “Mr. Kirk”], the Transportation Director for Mingo County Schools,
originally had scheduled Ms. Napier to board the bus at Taylorville, ride it to Burch High
School, and continue on to Burch Middle School. Because another special education aide
would already be on the bus for the ride to the high school, however, Mr. Kirk determined
that Ms. Napier’s services were not needed until the bus reached Burch High School. Ms.
Napier disputes that her original daily schedule required her to board the bus at
schools. To accommodate these students, the three special education aides affected by this
situation cooperatively coordinated their bus-riding schedules.4 As a result of these
changes, the aide who earlier rode to the high school transferred to another bus, and Ms.
Napier boarded the bus at Taylorville at 7:10 a.m. to accompany students to Burch High
School. Upon arriving at the high school, Ms. Napier resumed her previous duties
assisting students traveling to the middle school and fulfilling her classroom obligations
at Burch Middle School. In the afternoon, Ms. Napier remained on the bus when it arrived
at the high school, and disembarked shortly thereafter when it reached Taylorville at 2:55
p.m. Thus, the October, 1999, student additions extended Ms. Napier’s workday by
approximately fifteen minutes. It does not appear from the record that Ms. Napier
objected to these schedule changes.
In December, 1999, yet another special needs student began riding Bus
Number 9607. Transportation Director Bill Kirk [hereinafter referred to as “Mr. Kirk”]
informed Ms. Napier that she would need to board the bus at Hannah Lumber at 6:40 a.m.
in order to assist said student, and would return to Hannah Lumber after the student had
been taken home at 3:10 p.m. This new arrangement caused Ms. Napier’s daily work
schedule to be lengthened by an additional forty-five minutes, or approximately one hour
In accordance with these increased duties, the Board offered overtime pay
to those aides who, as a result of the schedule change, would be required to work more
than eight hours per day.
over the daily schedule she followed at the beginning of the 1999-2000 school year. Ms.
Napier complained about these adjustments and met with various officials of Mingo
County Schools to resolve the matter, objecting to the extended work schedule and
refusing to accept overtime pay for her increased duties. Mr. Kirk was then instructed to
adjust Ms. Napier’s assignment so that her daily schedule would not necessitate overtime
As a result of Ms. Napier’s objections, her schedule was changed to allow
her to meet the new student at the student’s home at Musick at 7:05 a.m. and to disembark
the bus at the student’s home in the afternoon at 3:10 p.m. Thus, Ms. Napier’s workday
was lengthened, as compared to her original schedule at the start of the academic year, by
approximately thirty-five minutes. Despite these schedule modifications permitting her
to board the bus at the student’s home, Ms. Napier continued her objections to her altered
daily schedule. As a result, Ms. Napier filed a grievance against her employer, the Board,
on December 7, 1999, which was denied at Level I on December 14, 1999. In her
grievance, Ms. Napier alleged that her daily work schedule had been altered in violation
of W. Va. Code § 18A-4-8a(7) (1999) (Supp. 1999),5 which provides that “[n]o service
employee may have his or her daily work schedule changed during the school year without
Since the time of the events at issue in this appeal, the subject statutory
provision has been recodified; however, the pertinent language of this statute remains
unchanged from the prior version thereof. Compare W. Va. Code § 18A-4-8a(8) (2002)
(Supp. 2003) with W. Va. Code § 18A-4-8a(7) (1999) (Supp. 1999).
the employee’s written consent, and the employee’s required daily work hours may not
be changed to prevent the payment of time and one-half wages or the employment of
On February 22, 2000, following a Level II hearing, Ms. Napier’s grievance
was again denied. Ms. Napier then by-passed Level III and appealed directly to the
Grievance Board.7 By decision rendered July 13, 2000, at Level IV, the Grievance Board
found in favor of the Board, ruling that
[n]otwithstanding the language in W. Va. Code § 18A-48a, restricting changes in a service employee’s daily work
schedule, a county board of education must have freedom to
make reasonable changes to a service employee’s daily work
schedule, within the parameters of her contract, some of which
cannot reasonably be effected until shortly after school starts.
(Citations omitted). Following this adverse decision, Ms. Napier appealed to the Circuit
Court of Kanawha County. By order entered May 31, 2002, the circuit court reversed the
Grievance Board’s ruling. In its decision, the court observed that
Additionally, Ms. Napier claimed that she had been assigned to more than
one school in violation of W. Va. Code § 18-20-1c (1995) (Repl. Vol. 2003). See W. Va.
Code § 18-20-1c(5) (directing that “aides in the area of special education cannot be
reassigned to more than one school without the employee’s consent”). This argument has
been rejected at every grievance level and by the circuit court. As neither of the parties
assign error to these rulings, we will not further consider this issue.
Grieved employees are permitted to choose between an appeal from Level
II to Level III or an appeal from Level II directly to the Grievance Board. See W. Va.
Code § 18-29-4(c) (1995) (Repl. Vol. 2003).
the decision to alter the petitioner’s [Ms. Napier’s] work
schedule on two separate occasions is contrary to the express
language of § 18A-4-8a. Nothing in that section indicates that
the legislature contemplated any exception to this statutory
prohibition. The statutory prohibition against changing an
employee’s work schedule is expressed in absolute terms.
From this ruling, the Board appeals to this Court.
STANDARD OF REVIEW
On appeal to this Court, the Board requests us to determine whether the
circuit court properly reviewed the Grievance Board’s decision, which interpreted the
governing statutory law and applied it to the facts of the case sub judice. W. Va. Code
§ 18-29-7 (1985) (Repl. Vol. 2003) provides the grounds upon which a decision of the
Grievance Board may be reviewed for error:
The decision of the hearing examiner [of the West
Virginia Education and State Employees Grievance Board]
shall be final upon the parties and shall be enforceable in
circuit court: Provided, That either party may appeal to the
circuit court of the county in which the grievance occurred on
the grounds that the hearing examiner’s decision (1) was
contrary to law or lawfully adopted rule, regulation or written
policy of the chief administrator or governing board, (2)
exceeded the hearing examiner’s statutory authority, (3) was
the result of fraud or deceit, (4) was clearly wrong in view of
the reliable, probative and substantial evidence on the whole
record, or (5) was arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of
discretion. . . .
The court may reverse, vacate or modify the decision of the
hearing examiner or may remand the grievance to the chief
administrator of the institution for further proceedings.
Accordingly, we previously have held that
[g]rievance 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
Syl. pt. 1, Cahill v. Mercer County Bd. of Educ., 208 W. Va. 177, 539 S.E.2d 437 (2000)
(emphasis added). See also Syl. pt. 1, Cowen v. Harrison County Bd. of Educ., 195 W. Va.
377, 465 S.E.2d 648 (1995) (“No deference is given to conclusions of law of an
administrative law judge or a circuit court, so that the standard of judicial review by this
Court is de novo.”). Accord Syl. pt. 2, Maikotter v. University of West Virginia Bd. of
Trustees/West Virginia Univ., 206 W. Va. 691, 527 S.E.2d 802 (1999) (“Although we
accord great deference to the findings of fact of the West Virginia Educational Employees
Grievance Board, we review, de novo, questions of law.”). Because the sole issue
presented in the instant appeal involves a question of law, we will apply a de novo
standard of review. See Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459
S.E.2d 415 (1995) (“Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
The instant appeal requests this Court to determine whether W. Va. Code
§ 18A-4-8a(7) permits a county board of education to modify a service employee’s daily
work schedule without the employee’s consent. In support of its argument, the Board
contends that its alteration of Ms. Napier’s schedule was proper in light of the itinerant
nature of her position as a special education aide. Because such aides are assigned to a
particular school bus, rather than to a certain student or students, it is plausible that an
aide’s daily bus schedule could fluctuate if the students riding that particular bus change.
Ms. Napier disputes the Board’s interpretation of this statute, however, and asserts that the
circuit court correctly found that the language of W. Va. Code § 18A-4-8a(7) clearly states
that a service employee’s daily work schedule cannot be changed during the school year
without his/her written consent. In order to resolve this matter, then, it is necessary for us
to determine the meaning of the subject statutory provision and how it applies to the facts
at issue in the instant appeal.
When presented with a matter of statutory interpretation, this Court typically
first looks to the precise language employed by the Legislature in order to determine the
meaning of the controverted statute. “We look first to the statute’s language. If the text,
given its plain meaning, answers the interpretive question, the language must prevail and
further inquiry is foreclosed.” State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624, 630, 474
S.E.2d 554, 560 (1996) (internal quotations and citation omitted) (footnote omitted).
Thus, where the language is plain, we do not interpret the statute, but rather apply the
statute as written. “‘A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).”
Syl. pt. 1, State v. Jarvis, 199 W. Va. 635, 487 S.E.2d 293 (1997). Accord Syl. pt. 2, State
v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) (“Where the language of a statute is clear
and without ambiguity the plain meaning is to be accepted without resorting to the rules
Neither will we construe a statute to achieve an absurd result. Rather,
“[i]t is the duty of a court to construe a statute
according to its true intent, and give to it such construction as
will uphold the law and further justice. It is as well the duty
of a court to disregard a construction, though apparently
warranted by the literal sense of the words in a statute, when
such construction would lead to injustice and absurdity.”
Syllabus Point 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194
Syl. pt. 2, Conseco Fin. Serv’g Corp. v. Myers, 211 W. Va. 631, 567 S.E.2d 641 (2002).
Therefore, “[w]here a particular construction of a statute would result in an absurdity,
some other reasonable construction, which will not produce such absurdity, will be made.”
Syl. pt. 2, Newhart v. Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938).
Finally, although a statute’s language may be plain, there may arise
circumstances in which we must nevertheless take notice of the logical inferences that may
be gleaned from the statutory language at issue. Hence, “‘[t]hat which is necessarily
implied in a statute, or must be included in it in order to make the terms actually used have
effect, according to their nature and ordinary meaning, is as much a part of it as if it had
been declared in express terms.’ Syllabus point 14., State v. Harden, 62 W. Va. 313, 58
S.E. 715 (1907).” Syl. pt. 4, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108,
219 S.E.2d 361 (1975). See also Syl. pt. 5, Ex parte Watson, 82 W. Va. 201, 95 S.E. 648
(1918) (“In the interpretation of statutes, words and phrases therein are often limited in
meaning and effect, by necessary implications arising from other words or clauses
Applying these principles to the case sub judice requires us to examine the
statutory language at issue herein. W. Va. Code § 18A-4-8a(7) (1999) (Supp. 1999)
directs that “[n]o service employee may have his or her daily work schedule changed
during the school year without the employee’s written consent, and the employee’s
required daily work hours may not be changed to prevent the payment of time and onehalf wages or the employment of another employee.” Based upon our reading of this
statute, we find the language to be plain and free of ambiguity. Thus, we must then
consider how this statutory language applies to the facts of this proceeding.
Ms. Napier, the aggrieved school employee at the center of this case, is
employed by the Board as a special education aide. Among her specified job duties are
(1) the assignment to, and riding of, a specific Mingo County school bus to assist special
needs students traveling to and from school and (2) the assignment to a particular school
where she has various classroom responsibilities. Of particular relevance to the instant
appeal, Ms. Napier’s school bus duties, as defined in her special education aide job
description, require her to “[p]articipate in specialized transportation component of
I[ndividualized].E[ducation].P[lan].’s providing for the health, safety and physical needs
of students during transportation to/from schools.”
Such duties are defined more
specifically in a policy statement, which the Board adopted several years before hiring Ms.
Napier, which directs that a special education aide’s
[t]ransportation duties will include:
the loading and un-loading of students
assistance to and from the school building when
special needs in transit
discipline under the guidance of school administrators
[and] teacher(s) and in compliance with federal, state
and county policies
proper seating arrangements
above all CONFIDENTIALITY[.]
A subsequent amendment to this policy explains that
Special Education aides will be required to assist with
specialized transportation as a component of the job. All aides
will be assigned to a driver and bus at the beginning of [the]
school term and assist through the duration of a school year,
when the need arises. If enrollment changes and students are
identified, whose I.E.P. requires specialized transportation, the
aide assigned to the driver and bus will assist anytime during
Insofar as Ms. Napier’s position requires her to be assigned to a specific bus
to assist the special needs students riding said bus, it may be said that her daily schedule
corresponds to, or is commensurate with, the daily route of the bus to which she is
assigned. As such, the duration of Ms. Napier’s workday is defined by the daily schedule
of Bus Number 9607. Thus, the Board acted within its authority when it required Ms.
Napier to meet the bus at Musick, in order to attend to a student’s needs, instead of at
Burch High School, as it earlier had instructed her to do.8 Moreover, to the extent that Ms.
Napier’s job is solely to care for the special needs students to whom she is assigned, it is
entirely plausible that her daily schedule would not be static throughout the school year
but might be adjusted, within the confines of Bus Number 9607’s daily route, in order to
permit her to accommodate fewer or greater numbers of students as their needs dictate.
Therefore, because the Board did not change Ms. Napier’s work schedule in violation of
W. Va. Code § 18A-4-8a(7), we find that the circuit court committed reversible error by
rendering its contrary ruling.
If Ms. Napier’s extended commute necessitated by this additional student
causes the duration of her workday to exceed eight hours, she presumably would then be
entitled to overtime pay therefor. See generally W. Va. Code § 18A-4-8a.
For the foregoing reasons, the May 31, 2002, order of the Kanawha County
Circuit Court is hereby reversed.