The Board of Education of the County of Wyoming v. Mary Dawson

• Court: West Virginia Supreme Court
• Decided: November 8, 2023
• Docket: 22-0234
• Status: Separate

Opinion

FILED November 8, 2023 released at 3:00 p.m.

No. 22-0234 – The Board of Education of the County of Wyoming v. Dawson EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA 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 non- consensual 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 . . .) 1 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[.]” 2 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.

3 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. 3 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. 4 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.