Lisa Tenney v. W. Va. Dept. of Health and Human Resources, etc. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Lisa Tenney, FILED
Petitioner Below, Petitioner November 26, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-0091 (Kanawha County 12-AA-117) OF WEST VIRGINIA
West Virginia Division of Health and
Human Resources/William R. Sharpe Jr. Hospital,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Lisa Tenney’s appeal, filed by counsel Mark A. Barney, arises from the Circuit
Court of Kanawha County. By order entered on January 4, 2013, the circuit court affirmed the
West Virginia Public Employees Grievance Board’s decision that dismissed petitioner’s
grievance. Respondent Department of Health and Human Resource/William R. Sharpe Jr.
Hospital, by counsel Michael E. Bevers, filed a response in support of the circuit court’s order.
Petitioner argues that her grievance should have been heard on the merits at her level three
hearing.
This Court has considered the parties= briefs and the records 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 records
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In July of 2011, petitioner filed a grievance against respondent, alleging that it placed
unreasonable restrictions on leave use and that it denied her a reasonable accommodation by
requiring her to work overtime. Following a level one hearing, the West Virginia Public
Employees Grievance Board (“Grievance Board”) denied petitioner’s grievance in November of
2011. Thereafter, petitioner was absent from work due to a medical condition. On December 5,
2011, respondent informed petitioner that her accrued leave time would expire on December 12,
2011, and that, accordingly, petitioner would need to either return to work or provide a
physician’s statement verifying that she could not return to work. Petitioner responded that she
would provide a physician’s statement by the required date, but petitioner failed to do so. As a
result, in January of 2012, respondent dismissed petitioner from employment due to job
abandonment. Petitioner never filed a grievance over this employment termination.
Respondent dismissed petitioner from employment after she filed her initial grievance,
but before the grievance was fully decided at a level three Grievance Board hearing in September
of 2012. Following this level three hearing, the hearing examiner denied petitioner relief after
finding that petitioner’s dismissal from employment with respondent rendered her grievance
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moot. On appeal to the circuit court, the circuit court agreed with the Grievance Board that
petitioner’s grievance was moot, due to her unchallenged dismissal from employment. From this
order, petitioner now appeals.
We review petitioner’s appeal under the following standard of review:
On appeal of an administrative order from a circuit court, this Court is bound by
the statutory standards contained in W.Va.Code § 29A–5–4(a) and reviews
questions of law presented de novo; findings of fact by the administrative officer
are accorded deference unless the reviewing court believes the findings to be
clearly wrong.
Syl. Pt. 1, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996). With this standard in
mind, we turn to petitioner’s arguments on appeal.
Petitioner raises two assignments of error. First, petitioner argues that the circuit court
erred in affirming the Grievance Board’s decision because the grievance process was not
intended to be a procedural “quagmire” and petitioner’s grievance and dismissal are inextricably
intertwined. Petitioner asserts that her discharge from employment did not render her grievance
moot because her dismissal was not for good cause and because her discharge was based on the
same reason for which she filed her initial grievance. Second, petitioner argues that the circuit
court erred in affirming the Grievance Board because she substantially complied with the
procedure concerning grievance filings and her case should have been heard on the merits.
Upon our review of the parties’ arguments and the record presented on appeal, we affirm
the decision of the circuit court. The grievance system provides a procedure for public
employees to resolve grievances with regard to their employment. See W.Va. Code § 6C-2-1(a).
Any relief the Grievance Board might have accorded to petitioner had she not been discharged
from employment, and had she prevailed before the Grievance Board, is now purely speculative.
“‘Courts are not constituted for the purpose of making advisory decrees or resolving academic
disputes. . . .’ Syllabus point 2, in part, Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399
(1991).” Syl. Pt. 4, Huston v. Mercedes-Benz USA, LLC, 227 W.Va. 515, 711 S.E.2d 585 (2011).
“‘Courts will not ordinarily decide a moot question.’ Syl. pt. 1, Tynes v. Shore, 117 W.Va. 355,
185 S.E. 845 (1936).” Syl. Pt. 4, Bland v. State, 230 W.Va. 263, 737 S.E.2d 291 (2012). It is
undisputed that petitioner did not file a separate grievance that challenged her termination from
employment. The grievance she did file addressed allegations that she was denied reasonable
accommodations in her former employment. Upon petitioner’s discharge, this specific grievance
became moot.
For the foregoing reasons, we affirm.
Affirmed.
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ISSUED: November 26, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Justice Robin Jean Davis
DISQUALIFIED:
Justice Margaret L. Workman
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