Mia Brown v. West Virginia University

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
MIA BROWN, July 30, 2024
Grievant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 23-ICA-328 (Grievance Bd. Case No. 2023-0386-WVU)

WEST VIRGINIA UNIVERSITY,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Mia Brown appeals the June 26, 2023, Dismissal Order from the West
Virginia Public Employees Grievance Board (“Board”). Respondent West Virginia
University (“WVU”) filed a response.1 Ms. Brown filed a reply. The issue on appeal is
whether the Board erred by granting WVU’s motion to dismiss Ms. Brown’s grievance as
untimely filed.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the Board’s order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

Ms. Brown was previously employed by WVU as a Program Evaluation Specialist
in the Office of Health Affairs. She was offered this position for the 2021-2022 academic
year by letter dated July 20, 2021. In this letter, Ms. Brown was informed that her
employment was at-will, it would be renewed annually, and that unless extended by mutual
agreement, her employment would end on June 20, 2022. On June 2, 2022, WVU provided
Ms. Brown with written notice that her employment was not being renewed for the 2022-
2023 academic year. However, WVU offered to temporarily extend Ms. Brown’s position
from July 1, 2022, through September 30, 2022, which she accepted.

On November 28, 2022, Ms. Brown filed a level one grievance, alleging
discrimination and retaliation. She sought reinstatement and back pay. A level one

1
Ms. Brown is represented by Erika Klie Kolenich, Esq., Jeffrey A. Foster, Esq.,
and Steven R. Bratke, Esq. WVU is represented by Patrick Morrisey, Esq., and Samuel R.
Spatafore, Esq.

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grievance conference was held on January 25, 2023. At that time, WVU’s counsel moved
to dismiss the grievance because it was not filed within the timeframe set forth by West
Virginia Code § 6C-2-4(a)(1) (2008)2, which states that a level one grievance is to be filed:

Within fifteen days following the occurrence of the event upon which the
grievance is based, or within fifteen days of the date upon which the event
became known to the employee, or within fifteen days of the most recent
occurrence of a continuing practice giving rise to a grievance, an employee
may file a written grievance with the chief administrator stating the nature of
the grievance and the relief requested and request either a conference or a
hearing. The employee shall also file a copy of the grievance with the board.
State government employees shall further file a copy of the grievance with
the Director of the Division of Personnel.

By order dated February 3, 2023, the chief grievance administrator granted WVU’s
motion and dismissed the level one grievance as untimely. This order found that Ms.
Brown’s grievance was time barred because she was aware on June 2, 2022, that her annual
employment would not be renewed, but only extended until September 30, 2022. This order
also found that Ms. Brown lacked standing to pursue her grievance because it was filed
after her WVU employment ended.

Ms. Brown appealed the dismissal of her grievance to level three. WVU renewed
its motion to dismiss the appeal as untimely and Ms. Brown filed a written response
opposing the motion. Ms. Brown argued that the fifteen-day deadline had been tolled
because prior to filing her grievance, she had filed an internal complaint with WVU,
alleging workplace discrimination and harassment, and that it was still pending when she
left WVU’s employ in September of 2022. She argued that the pending internal complaint
constituted a “continuing practice giving rise to a grievance” under West Virginia Code §
6C-2-4(a)(1).

On June 26, 2023, the Board granted the motion to dismiss without a hearing.3 In
its Dismissal Order, the Board found that the language of West Virginia Code § 6C-2-
4(a)(1) clearly established that an employee only had fifteen days to file a grievance, and
that the time period for filing a grievance started to run when an employee is

2
Although this statute was recently amended, effective June 9, 2023, Ms. Brown’s
grievance was filed prior to the current statute taking effect. Therefore, the former version
of the statute applies.
3
West Virginia Code of State Rules §§ 156-1-6.6 and 156-1-6.6.1 provide that a
motion may be made in writing or orally at a hearing, and that the Board may, in its
discretion, rule with or without a hearing.

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“unequivocally notified of the decision” being challenged. See Rose v. Raleigh Cnty. Bd.
of Educ., 199 W. Va. 220, 222, 483 S.E.2d 566, 568 (1997); Naylor v. W. Va. Hum. Rts.
Comm’n, 180 W. Va. 634, 637, 378 S.E.2d 843, 846 (1989).

The Board determined that Ms. Brown was put on notice on June 2, 2022, that her
employment would not be renewed, but only extended until September 30, 2022. It was
determined that pursuant to statute this notice was “the occurrence of the event upon which
the grievance [was] based.” W. Va. Code § 6C-2-4(a)(1). As a result, the Board concluded
that her November 28, 2023, grievance was beyond the statutory timeframe. The Board
also rejected Ms. Brown’s argument that her grievance was timely filed because it was part
of a continuing practice. On this issue, the Board found that its prior decisions have
recognized that a timeline may be determined to begin to run with each new occurrence;
however, in this case, there was no continuing practice because the June 2, 2022, notice of
nonrenewal was a singular event which placed Ms. Brown on unequivocal notice of the
event giving rise to her grievance. This appeal followed.

In this appeal, our governing standard of review for a contested case from the West
Virginia Public Employees Grievance Board is as follows:

A party may appeal the decision of the administrative law judge on the
grounds that the decision:
(1) Is contrary to law or a lawfully adopted rule or written policy of the
employer;
(2) Exceeds the administrative law judge’s statutory authority;
(3) Is the result of fraud or deceit;
(4) Is clearly wrong in view of the reliable, probative, and substantial
evidence on the whole record; or
(5) Is arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 6C-2-5(b) (2007);4 accord W. Va. Code § 29A-5-4(g) (2021) (specifying
the standard for appellate review of administrative appeal). Likewise, “[t]he ‘clearly
wrong’ and the ‘arbitrary and capricious’ standards of review are deferential ones which
presume the agency’s actions are valid as long as the decision is supported by substantial
evidence or by a rational basis.” Syl. Pt. 3, In re Queen, 196 W. Va. 442, 473 S.E.2d 483
(1996); see also, Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177
(1996) (on appeal, a court may not overturn a finding simply because it would have decided
case differently); Syl. Pt. 1, Francis O. Day Co., Inc., v. Dir. Div. of Env’t Prot., 191 W.

4
West Virginia Code § 6C-2-5 was recently amended, effective March 1, 2024.
However, the former version of the statute was in effect at the time the Board’s decision
was entered and applies to this case.

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Va. 134, 443 S.E.2d 602 (1994) (evidentiary findings should not be reversed unless clearly
wrong); Princeton Cmty. Hosp. v. State Health Plan., 174 W. Va. 558, 564, 328 S.E.2d
164, 171 (1985) (“an agency’s determination of matters within its area of expertise is
entitled to substantial weight.”).

On appeal, Ms. Brown raises two arguments.5 Ms. Brown argues that pursuant to
West Virginia Code § 6C-2-3(c)(1) (2008), “[a]ny assertion that the filing of the grievance
at level one was untimely shall be made at or before level two.” She maintains that WVU’s
motion to dismiss was improper because it was not made until the level three proceedings.
We find that this assertion is inconsistent with the record on appeal. As evidenced by the
February 3, 2023, order, WVU moved to dismiss the grievance as untimely during the level
one hearing and that request was granted. As such, WVU appropriately raised the issue of
timeliness, and the Board did not err by considering the same during the level three
grievance proceedings.

Next, Ms. Brown argues that the Board erred by finding that her internal complaint
did not toll the fifteen-day filing period for her grievance under West Virginia Code § 6C-
2-4(a)(1). She maintains that because the internal procedure was ongoing, she could not
have been unequivocally notified of the adverse decision. See Rose, at 222, 483 S.E.2d at
568; Naylor, at 637, 378 S.E.2d at 846. She contends this meets the continuing practice
exception under West Virginia Code § 6C-2-4(a)(1). We are not persuaded by this
argument and note that Ms. Brown offers no controlling statutes, regulations, or case law
to support her position that the existence of an internal institutional complaint tolls or stays
an administrative grievance procedure before the Board. Here, we find no error in the
Board’s determination that Ms. Brown’s fifteen-day deadline to file her grievance began
running on June 2, 2022. The Board found that this was the date upon which she was
unequivocally notified that her employment was not being renewed, and that the
nonrenewal of her employment was the event that gave rise to her grievance. This
determination was within the Board’s area of expertise and based upon our review of the
record, we find there is a rational basis to support the Board’s dismissal of Ms. Brown’s
grievance.

Accordingly, we find no error and affirm the Board’s Dismissal Order.

5
While Ms. Brown’s brief lists four assignments of error, its argument section only
contains two argument headings, addressing only two of the four listed errors. We deem
the two omitted assignments of error to be waived on appeal. See Syl. Pt. 6, Addair v.
Bryant, 168 W. Va. 306, 307, 284 S.E.2d 374, 376 (1981) (“Assignments of error that are
not argued in the briefs on appeal may be deemed by this Court to be waived.”); W. Va. R.
App. P. 10(c) (stating this Court may disregard errors not adequately supported by specific
references to the appellate record).

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Affirmed.

ISSUED: July 30, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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