Bonita Redd v. McDowell County Board of Education ( 2022 )

FILED
May 12, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Bonita Redd,
Petitioner Below, Petitioner
vs.) No. 21-0635 (Kanawha County 21-AA-7)
McDowell County Board of Education,
Respondent Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Bonita Redd appeals the July 9, 2021, order of the Circuit Court
of Kanawha County affirming the January 19, 2021, order of the West Virginia Public Employees
Grievance Board (“Grievance Board”) denying her grievance challenging the “below standard”
ratings she received for the categories of “policy and procedure” and “respect” during her 2019
year-end summative performance evaluation. Respondent McDowell County Board of Education,
by counsel Howard E. Seufer, Jr. and Joshua A. Cottle, filed a response in support of the circuit
court’s order. Petitioner filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
Petitioner works as a teacher at Welch Elementary School. On June 3, 2019, the elementary
school principal prepared petitioner’s 2019 year-end summative performance evaluation and
discussed the evaluation with petitioner. The principal gave petitioner a summative rating of
“emerging,” which is defined as “teaching that demonstrates knowledge and skills to implement
essential elements albeit not always successfully at times.”
Petitioner’s summative rating of “emerging” reflects the ratings the principal gave
petitioner in eighteen categories regarding petitioner’s teaching performance, which were:
“accomplished” in one category, “emerging” in fifteen categories, and “below standard” in two
1
categories. Accordingly, the principal provided petitioner a summative rating that represented the
rating petitioner received in a substantial majority of categories, unaffected by the two “below
standard” ratings she received in the categories of “policy and procedure” and “respect.”
The principal gave Petitioner “below standard” ratings in the categories of “policy and
procedure” and “respect” due to an incident that occurred at a May 30, 2019, awards assembly in
which petitioner participated with her third and fourth grade students in the presence of other
students, parents, and faculty. While presenting the students with awards, petitioner addressed four
of her highest achieving students regarding their difficult and talkative behavior throughout the
school year. Petitioner told the students that they always had to get the last word but that she would
get the last word that day. Petitioner also asked the mother of one of the students if the student was
equally difficult at home. Petitioner’s remarks embarrassed the students and offended at least one
of their parents, who complained about petitioner’s conduct.
Neither the principal nor respondent disciplined petitioner because of her comments at the
May, 30, 2019, awards assembly. Moreover, as indicated above, the two “below standard” ratings
petitioner received in “policy and procedure” and “respect” did not affect the summative
“emerging” rating the principal provided for petitioner’s 2019 year-end summative performance
evaluation.
Nevertheless, on June 24, 2019, petitioner filed a grievance with the Grievance Board,
challenging the “below standard” ratings she received for the categories of “policy and procedure”
and “respect.” Following a July 11, 2019, Level I grievance hearing, 1 the McDowell County
Superintendent of Education, by a decision entered on August 6, 2019, denied petitioner’s
grievance. The parties participated in mediation during the Level II grievance proceeding that was
not successful. Thereafter, the parties appeared at a Level III hearing before the Grievance Board
on November 5, 2020. The Grievance Board, by an order entered on January 19, 2021, denied
petitioner’s grievance.
On February 19, 2021, petitioner filed an appeal of the Grievance Board’s January 19,
2021, order in the Circuit Court of Kanawha County. 2 On April 19, 2021, petitioner filed a
memorandum of law in support of her appeal. Respondent filed a response on May 17, 2021, and
petitioner filed a reply on June 1, 2021. The circuit court, by an order entered on July 9, 2021,
affirmed the Grievance Board’s denial of petitioner’s grievance.
Petitioner now appeals the circuit court’s July 9, 2021, order affirming the Grievance
Board’s decision. “A final order of the [Grievance Board], made pursuant to W. Va. Code[ §§ 6C-
2-1 through 6C-2-8], and based upon findings of fact, should not be reversed unless clearly wrong.”
Syl. Pt. 3, Armstrong v. W. Va. Div. of Culture and History, 229 W. Va. 538, 729 S.E.2d 860(2012) (quoting Syl. Pt. 1, Randolph County Bd. of Educ. v. Scalia, 182 W. Va. 289, 387 S.E.2d
1The grievance process consists of three levels. See W. Va. Code § 6C-2-4.
2
West Virginia Code § 6C-2-5(c) provides that any appeals from orders of the Grievance
Board shall be filed in the Circuit Court of Kanawha County.
2
524 (1989)). In Syllabus Point 1 of Darby v. Kanawha County Board of Education, 227 W. Va.
525, 711 S.E.2d 595 (2011), we 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 novo.” Syllabus Point 1,
Cahill v. Mercer County Bd. of Educ., 208 W.Va. 177, 539 S.E.2d 437 (2000).
On appeal, petitioner argues that the circuit court erred in affirming the Grievance Board’s
denial of her grievance. Respondent counters that the circuit court properly upheld the Grievance
Board’s order. Respondent further argues that this Court should decline to review any issue that
petitioner has failed to adequately raise on appeal.
We find that petitioner’s arguments have never been well-organized or clearly stated at any
level of this case. In its January 19, 2021, order, the Grievance Board found that petitioner had
abandoned several issues by “not providing any evidence [to support those issues] or even
mentioning them during the [Level III] hearing or in her [proposed findings of fact and conclusions
of law].” The circuit court similarly declined to review the twenty-five issues raised in petitioner’s
petition for appeal, finding that the petition set forth bare assertions unsupported by pertinent
authorities or citations to the record. While the circuit court reviewed the issues raised in
petitioner’s memorandum of law, the circuit court liberally construed those arguments because,
although the memorandum of law set forth six “[q]uestions presented,” the circuit court addressed
eleven issues, including petitioner’s argument that it improperly cancelled a hearing set for June
9, 2021, hearing without written notice. See State ex rel. Dillon v. Egnor, 188 W. Va. 221, 227,
423 S.E.2d 624, 630 (1992) (“When a litigant chooses to represent [her]self, it is the duty of the
trial court [and this Court] to insure fairness, allowing reasonable accommodations for the pro se
litigant so long as no harm is done an adverse party[.]” (Internal quotations and citations omitted.).
In Franklin v. Pence, 128 W. Va. 353, 36 S.E.2d 505 (1945), we found that the assignments
of error in that case failed to clearly delineate “the exact points relied upon for reversal” and relied
upon “statements in the brief” that were “considered as indicating the main grounds of attack[.]”
Id. at 356, 36 S.E.2d at 508. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure
provides:
Argument: The brief must contain an argument exhibiting clearly the points of fact
and law presented, the standard of review applicable, and citing the authorities
relied on, under headings that correspond with the assignments of error. The
argument must contain appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of
error were presented to the lower tribunal. The Court may disregard errors that are
not adequately supported by specific references to the record on appeal.
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Therefore, pursuant to Rule 10(c)(7), we find that petitioner’s assignments of error, as best as this
Court can understand them, correspond to the eleven issues reviewed and rejected by the circuit
court. 3
Having reviewed the circuit court’s July 9, 2021, “Final Order,” we hereby adopt and
incorporate the circuit court’s well-reasoned findings and conclusions, which we find address
petitioner’s assignments of error. The Clerk is directed to attach a copy of the July 9, 2021, order
to this memorandum decision. Accordingly, we conclude that the circuit court did not err in
affirming the Grievance Board’s denial of petitioner’s grievance.
For the foregoing reasons, we affirm the circuit court’s July 9, 2021, order affirming the
Grievance Board’s January 19, 2021, order. 4
Affirmed.
ISSUED: May 12, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
3
While petitioner clearly argues on appeal that the circuit court judge who presided in this
case should have been disqualified due to an alleged conflict of interest, we decline to review that
issue, pursuant to Rule 10(c)(7), because petitioner never raised it with the circuit court. As we
have held, “[t]his Court will not pass on a non[-]jurisdictional question which has not been decided
by the trial court in the first instance.” Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W. Va. 522, 102
S.E.2d 733 (1958).
4
Petitioner argues that Justice Elizabeth D. Walker should be disqualified due to an alleged
conflict of interest. We find this argument should have been made not in petitioner’s appellate
brief, but in a motion for disqualification pursuant to Rule 33 of the West Virginia Rules of
Appellate Procedure. That rule provides, in pertinent part, that “[t]he motion shall be addressed to
the Justice whose disqualification is sought and shall state the facts and reasons for
disqualification[.]” W. Va. Rul. App. Proc. 33(d) (Footnote added.); Syl. Pt. 1, State ex rel. Cohen
v. Manchin, 175 W. Va. 525, 336 S.E.2d 171 (1984) (“Where a motion is made to disqualify or
recuse an individual justice of this Court, that question is to be decided by the challenged justice
and not by the other members of this Court.”). Accordingly, because petitioner failed to file a
motion pursuant to Rule 33, we find that she has waived this issue.
4