CHARLESTON – The state Supreme Court has ruled that a Lewis County school bus driver was properly terminated from his employment.



The court reversed Kanawha Circuit Court's decision and reinstated the grievance board's decision that a school bus driver was properly terminated and that his grievance on a leave of absence issue was not timely filed, according to an opinion issued Feb. 5.


Justice Menis Ketchum authored the opinion. Chief Justice Margaret Workman deemed herself disqualified and did not participate in the decision.


The Lewis County Board of Education appealed an order entered in Kanawha Circuit Court which reversed a decision by the West Virginia Public Employees Grievance Board.


The circuit court held that Lewis County Board of Education improperly terminated Michael Holden from his job as a school bus driver and that Holden timely filed a grievance of the board's denial of his request for a leave of absence.


The board argued on appeal that there was sufficient evidence to terminate Holden based on his physical incompetency to safely do his job.


The board contended that the test it used to assess Holden’s abilities was fair, effective and allowed by state law, and is routinely used by county school boards to test all newly-hired bus drivers and some existing bus drivers.


The board also claimed that Holden's grievance on the denial of his request for another leave of absence was untimely because it was filed outside the statutory filing period.


"Upon review of the record, we reverse the circuit court's order and reinstate the grievance board's decision that Holden was properly terminated and that his grievance on the leave of absence issue was not timely filed," the opinion states.


In October 2010, Holden suffered a non-work-related injury that forced him to take an unpaid leave of absence from his job as a school bus driver for the remainder of the 2010-2011 school year.


At the time, Holden weighed approximately 495 pounds and his recovery was slow, which prompted him to take a leave of absence for the 2011-2012 school year as well. During his two years away from work, he gained nearly 100 pounds and in August 2012, when he returned to work, he weighed 580 pounds.


When he returned to work, board officials were worried about Holden's ability to safely drive a school bus due to his physical condition and his time spent away from work. They were also worried about his ability to respond in an emergency situation and the board contacted the executive director for the West Virginia Office of School Transportation regarding its concern.


The executive director recommended Holden be administered a physical performance test, which was administered by a state official on Aug. 24, 2012, and subsequently failed.


The state official recommended Holden not be permitted to drive a school bus until his physical condition was enable him to successfully complete the test and the board informed Holden that it would not permit him to continue operating the school bus.


Holden requested another leave of absence for the 2012-2013 school year, which the board denied and on Oct. 8, 2012, the board afforded Holden a full evidentiary hearing solely on the issue of whether to terminate his employment, which the board decided to do so.


On Oct. 26, 2012, Holden filed a grievance with the West Virginia Public Employees Grievance Board, claiming his termination was improper and that he was discriminated against.


Kanawha Circuit Court reversed the administrative law judge's decision, ruling that the board's termination was improper, according to the decision.


"After careful consideration of the record, we find the circuit court erred when it reversed the grievance board's decision," the opinion states. "We find that the Board properly assessed Holden’s ability to perform his job and did not discriminate against him in terminating his employment. We also find that Holden did not timely contest the September 11th denial of his request for a leave of absence."


The administrative law judge correctly found that Holden did not timely file his grievance as to the leave of absence issue and the circuit court erred in finding otherwise, according to the opinion.


Lewis County was represented by Jason S. Long and Denise M. Spatafore of Dinsmore & Shohl LLP.


Holden was represented by Andrew J. Katz of the Katz Working Families Law Firm.


W.Va. Supreme Court of Appeals case number: 14-0045

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