Vance v. West Virginia Bureau of Employment Programs/Elkins Job Service

619 S.E.2d 133, 217 W. Va. 620, 23 I.E.R. Cas. (BNA) 58, 2005 W. Va. LEXIS 62
CourtWest Virginia Supreme Court
DecidedJune 17, 2005
DocketNo. 32162
StatusPublished
Cited by5 cases

This text of 619 S.E.2d 133 (Vance v. West Virginia Bureau of Employment Programs/Elkins Job Service) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vance v. West Virginia Bureau of Employment Programs/Elkins Job Service, 619 S.E.2d 133, 217 W. Va. 620, 23 I.E.R. Cas. (BNA) 58, 2005 W. Va. LEXIS 62 (W. Va. 2005).

Opinion

PER CURIAM.

This is an appeal by Vickie L. Vance, appellanVpetitioner below (hereinafter Ms. Vance), from an order of the Circuit Court of Kanawha County that affirmed an administrative decision of the West Virginia Education and State Employees Grievance Board (hereinafter Grievance Board). The circuit court’s order found that the Grievance Board was correct in finding that Ms. Vance’s employer, the West Virginia Bureau of Employment Programs, Elkins Job Service, appel-lee/respondent below (hereinafter Bureau), did not violate any regulations or rules when it transferred her to a new job position. Here, Ms. Vance contends that her involuntary transfer was done in violation of rules promulgated by the Bureau. After a careful review of the briefs and the record on appeal, and with consideration of the arguments of the parties, we affirm the circuit court’s order.

I.

FACTUAL AND PROCEDURAL HISTORY

Ms. Vance has been employed by the Bureau for over twenty-five years. From 1989 to 2001, Ms. Vance held the position of Office Manager for the Bureau’s Elkins Job Service [622]*622program. As an Office Manager, Ms. Vance supervised a staff of eleven people. At some point in 2000, six of Ms. Vance’s staff members filed grievances against her and sought to have her removed as Office Manager. It appears that the grievances were ultimately determined to be meritless. However, as a result of those grievances and other staff problems,1 the Bureau approached Ms. Vance in April of 2001, and inquired as to her interest in taking a position as Systems Coordinator for the Elkins office. Ms. Vance declined the offer.2 On June 5, 2001, the Bureau advised Ms. Vance that she was being involuntarily transferred to the position of Systems Coordinator. The sole reason for the transfer given in the letter was that, it “is necessary in order to maintain the high quality of service to our customers.”3

On June 18, 2001, Ms. Vance filed an administrative grievance objecting to the transfer of her job position. One of the arguments Ms. Vance advanced for her objection to the transfer was that it was not done in accordance with the Bureau’s Administrative Directives 6000.11, 6000.40 and 6500.40 (discussed in Part III of this opinion). At each level of the grievance proceedings, Ms. Vance’s objection to the transfer was denied. On May 28, 2002, Ms. Vance filed with the circuit court an appeal from the final decision of the Grievance Board. By order entered March 30, 2004, the circuit court affirmed the decision of the Grievance Board. From this ruling, Ms. Vance now appeals to this Court.

II.

STANDARD OF REVIEW

In reviewing a decision of the Grievance Board, both this Court and the circuit court employ the same standard of review. We have held that “[a] final order of the hearing examiner for the [West Virginia Education and State Employees Grievance Board], made pursuant to W. Va.Code, 18-29-1, et seq. (1999), and based upon findings of fact, should not be reversed unless clearly wrong.” Syl. pt. 1, Randolph County Bd. of Educ. v. Scalia, 182 W.Va. 289, 387 S.E.2d 524 (1989). Accord Syl. pt. 1, Keatley v. Mercer County Bd. of Educ., 200 W.Va. 487, 490 S.E.2d 306 (1997). This Court elaborated more fully on. the standard of review of Grievance Board determinations in Syllabus point 1 of Cahill v. Mercer County Board of Education, 208 W.Va. 177, 539 S.E.2d 437 (2000), as follows:

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 healing 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.

With this standard in place, we now analyze the issues raised by Ms. Vance.

III.

DISCUSSION

Ms. Vance contends that her transfer was invalid because the Bureau failed to comply with the requirements of Administrative Directive 6000.40.4 The relevant part of the Directive states as follows:

[623]*623In the event an involuntary transfer becomes necessary, the affected employee will be consulted prior to the fact, given written reasons why the need exists, and given at least a two week (14 calendar day) notice of the impending transfer, when possible.

Administrative Directive 6000.40.5 This Court has long held that “[a]n administrative body must abide by the remedies and procedures it properly establishes to conduct its affairs.” Syl. pt. 1, Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977). Accord Syl. pt. 2, In re Tax Assessment Against Am. Bituminous Power Partners, L.P., 208 W.Va. 250, 539 S.E.2d 757 (2000); Black v. State Consol. Pub. Ret. Bd., 202 W.Va. 511, 519, 505 S.E.2d 430, 438 (1998). From our review, we find complete compliance with only one of the three prerequisites for an involuntary transfer.

The record is clear. Ms. Vance was not consulted about the involuntary transfer pri- or to the transfer occurring. Additionally, she was not given at least a two week notice of the impending involuntary transfer. Although Ms. Vance contends that she was not given a written reason for the involuntary transfer, the record indicates differently. The letter notifying Ms. Vance of the transfer stated that the transfer “is necessary in order to maintain the high quality of service to our customers.” While Ms. Vance may not like the reason given, the letter nevertheless provided justification for the involuntary transfer. The Bureau offers two arguments as to why its failure to fully comply with the remaining requirements of Administrative Directive 6000.40 should not afford relief to Ms. Vance.

1. Section 11.6(a) of the Administrative Rules. The Bureau cites to language in Section 11.6(a) of the Administrative Rules of the West Virginia Division of Personnel as grounds for upholding the manner in which Ms. Vance was transferred. The relevant language of this section states:

Except as otherwise provided in subsection 10.4 of this rule, appointing authorities may transfer a permanent employee from a position in one organizational subdivision of an agency to a position in another organizational subdivision of the same or another agency at any time.

143 C.S.R. 1, § 11.6(a).

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619 S.E.2d 133, 217 W. Va. 620, 23 I.E.R. Cas. (BNA) 58, 2005 W. Va. LEXIS 62, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vance-v-west-virginia-bureau-of-employment-programselkins-job-service-wva-2005.