Aaron D. Birtcher v. West Virginia Northern Community College

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
AARON D. BIRTCHER,
August 6, 2025
Grievant Below, Petitioner
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
v.) No. 24-ICA-470 (Grievance Bd. Case No. 2025-0077-NCC) OF WEST VIRGINIA

WEST VIRGINIA NORTHERN
COMMUNITY COLLEGE,
Employer Below, Respondent

MEMORANDUM DECISION

Petitioner Aaron D. Birtcher appeals the November 14, 2024, dismissal order from
the West Virginia Public Employees Grievance Board’s (“Grievance Board”)
administrative law judge (“ALJ”). Respondent West Virginia Northern Community
College (“Northern”) filed a response.1 Mr. Birtcher filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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 Grievance Board’s decision is
appropriate under Rule 21 of the Rules of Appellate Procedure.

Northern formerly contractually employed Mr. Birtcher to teach MIG Welding I and
MIG Welding II courses. Mr. Birtcher’s most recent term of employment was to teach
twenty hours of courses from December 5, 2022, to December 16, 2022, at Northern’s
Wheeling campus in exchange for $750.00 in pay.

On March 24, 2023, Northern sent an email to Mr. Birtcher that informed him that
Northern was “no longer in need of [his] instructional services.”

Some sixteen months later, on August 14, 2024, Mr. Birtcher filed his grievance,
which alleged that he was terminated from his position after reporting the sexual assault of
a student by a welding technician employed by Northern. Mr. Birtcher alleged that he was
terminated under the pretext that he had failed a required welding certification examination,
and all of the students failed their final examinations in one of the courses that he taught.
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Mr. Birtcher is represented by Erika Klie Kolenich, Esq. Northern is represented
by Attorney General John B. McCuskey, Esq., and Assistant Attorney General Kristi A.
McWhirter, Esq.
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However, Mr. Birtcher alleged these failing grades were fraudulently issued, and the
welding technician that Mr. Birtcher reported for sexual assault sabotaged the test welds
produced by Mr. Birtcher. He also alleged that his termination was in violation of policies
and procedures, was arbitrary, and was in violation of the law.

On August 29, 2024, Northern filed its motion to dismiss on the basis that Mr.
Birtcher did not timely file his grievance and the Grievance Board could not hear claims
regarding retaliation based upon a protected class. Mr. Birtcher opposed the motion and
argued that the deadline for filing his grievance should be tolled via equitable estoppel and
that the Grievance Board was permitted to hear such grievances.

On September 9, 2024, the ALJ set a hearing on the motion to dismiss for October
31, 2024. The notice of hearing specifically stated that the parties should be prepared to
present their evidence and warned that parties would not be permitted to present evidence
after the hearing concluded.

On October 31, 2024, the ALJ held a hearing on the motion to dismiss. Counsel for
both parties appeared at the hearing, but Mr. Birtcher did not. At the hearing, counsel for
Mr. Birtcher requested an evidentiary hearing and for the ALJ to wait to decide the
timeliness issue until after a level III hearing. Counsel for Northern responded that Mr.
Birtcher was required to present evidence related to the motion to dismiss at the current
hearing.

In its November 14, 2024, dismissal order, the ALJ concluded that Mr. Birtcher
failed to file his grievance within the statutory timeframe and therefore the grievance
should be dismissed. It is from this order that Mr. Birtcher appeals.

Our governing standard of review for a contested case from the Grievance Board is
as follows:

The court may affirm the order or decision of the agency or remand the case
for further proceedings. It shall reverse, vacate, or modify the order or
decision of the agency if the substantial rights of the petitioner or petitioners
have been prejudiced because the administrative findings, inferences,
conclusions, decision, or order are:

(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority or jurisdiction of the agency;
(3) Made upon unlawful procedures;
(4) Affected by other error of law;
(5) Clearly wrong in view of the reliable, probative, and substantial evidence
on the whole record; or

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(6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

W. Va. Code § 29A-5-4(g) (2021) (specifying the standard for appellate review of
administrative appeal).

On appeal, Mr. Birtcher asserts in his only assignment of error that “[t]he Grievance
Board erred in failing to find that the time period to file this matter was tolled by the
principles of equitable estoppel, and further that this matter involves such substantial public
policy that it must be heard by the Grievance Board.”

West Virginia Code § 6C-2-4(a)(1) (2023) provides, in pertinent part:

[w]ithin 15 days following the occurrence of the event upon which the
grievance is based, within 15 days of the date upon which the event became
known to the employee, or within 15 days of the most recent occurrence of a
continuing practice giving rise to a grievance, an employee may file a written
grievance. . . .

As noted previously, Mr. Birtcher waited approximately sixteen months to file his
grievance after the occurrence of the event upon which the grievance is based, i.e., his
termination from employment, well after the fifteen-day limit prescribed by statute. While
Mr. Birtcher argues that various doctrines should toll the time period prescribed in § 6C-
2-4(a)(1), Mr. Birtcher failed to put on any evidence demonstrating such doctrines applied
to the facts of his failure to timely file his grievance.2 Mr. Birtcher was specifically
informed in the notice of hearing for the October 31, 2024, hearing that he should be
prepared to put on evidence. He failed to do so. Accordingly, there is no basis in the record
to conclude that the Grievance Board’s decision to dismiss Mr. Birtcher’s grievance as
untimely was in violation of constitutional or statutory provisions; in excess of the statutory
authority or jurisdiction of the agency; made upon unlawful procedures; affected by other
error of law; clearly wrong in view of the reliable, probative, and substantial evidence on
the whole record; or arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion.

Based on the foregoing, we affirm the Grievance Board’s November 14, 2024,
dismissal order.

Affirmed.

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At the hearing, Mr. Birtcher’s counsel proffered that Northern provided Mr.
Birtcher with a pretextual reason for his termination. The Grievance Board found this
inadequate to toll the deadline to file a grievance under the principle of equitable estoppel.

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ISSUED: August 6, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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