DAVIS, Justice:
These consolidated appeals submit the same legal issue for this Court's review: whether a circuit court action alleging violations of the West Virginia Human Rights Act, W. Va.Code § 5-11-1 et seq. ("WVHRA") is proper in the absence of the exhaustion of administrative remedies available pursuant to the West Virginia Public Employees Grievance Procedure, W. Va. Code § 6C-2-1 et seq. ("Grievance Procedure"). In these combined cases, Theresa Weimer ("Ms. Weimer") and Vicky Lou Hughes ("Ms. Hughes") (collectively, "the petitioners") appeal the respective circuit courts' dismissals of their complaints. On appeal to this Court, the petitioners argue that the circuit courts erred in the determinations that the exhaustion of the Grievance Procedure was a necessary precondition to the filing of a circuit court action. Upon a review of the parties' briefs,
Because the errors assigned in each of the cases sub judice are substantially the same, they have been consolidated for this Court's consideration and decision. Resolution of these cases is based purely on the legal issues. However, a brief recitation of the individual facts giving rise to each appeal is set forth below.
In 2006, Ms. Weimer began teaching at Pocahontas County High School ("PCHS"), a
In late 2011, Ms. Weimer tripped and fell in her classroom. Ms. Weimer contends that the principal used this incident against her based on the perception that it occurred because of her disabilities. Shortly thereafter, it was recommended that Ms. Weimer's employment be terminated: a pretermination hearing was conducted, which included evidence that Ms. Weimer had teaching deficiencies, including falling asleep while teaching and leaving students unattended. Based upon the recommendations of the school principal and the school superintendent, Ms. Weimer's position as a public school teacher was terminated by the Pocahontas County Board of Education on October 27, 2011.
Subsequent thereto, on November 30, 2011, Ms. Weimer filed a complaint in the Circuit Court of Pocahontas County against Thomas Sanders, the Principal of PCHS; C.C. Lester, the Superintendent of the Pocahontas County Board of Education; and the Pocahontas County Board of Education (collectively, "the Weimer respondents"). Ms. Weimer did not file a grievance with the West Virginia Public Employees Grievance Board ("Grievance Board"). See W. Va.Code § 6C-2-1 et seq. The circuit court complaint asserted violations under the WVHRA: discriminatory discharge on the basis of actual or perceived disability; hostile work environment on the basis of actual or perceived disability; and disparate discipline on the basis of actual or perceived disability.
The Weimer respondents filed a motion to dismiss the lawsuit, in which they argued that Ms. Weimer's complaint was flawed because she failed to exhaust her administrative remedies with the Grievance Board. By order entered March 12, 2012, the circuit court granted the motion to dismiss. The lower court reasoned that facts alleged in the complaint point to "discrimination," "harassment," "favoritism," and other matters that may properly be addressed by the Grievance Procedure. Ultimately, the circuit court ruled that Ms. Weimer first must exhaust her administrative remedies available through the Grievance Procedure prior to bringing a claim pursuant to the WVHRA before the circuit court. Ms. Weimer appealed to this Court, and her case was consolidated with Hughes v. West Virginia University, Case Number 12-1506.
Ms. Hughes began employment in December 2007 as a coordinator/clinical associate for the Center for Excellence in Disabilities ("CED"), a branch of West Virginia University ("WVU"). Her position provided Traumatic Brain Injury ("TBI") services throughout the state. During the interview process, Ms. Hughes advised the CED that she has a disability known as multiple chemical sensitivity, which requires reasonable accommodation. Initially, the CED accommodated Ms. Hughes's requests, permitting her to use her personal vehicle for work travel and allowing her to work from a different office location while her regular office location was undergoing renovation.
On April 6, 2010, a meeting was held wherein Ms. Hughes was informed that there had been consumer complaints regarding her job performance. After an investigation, a warning letter was issued June 11, 2010, stating that Ms. Hughes's work quality was unsatisfactory. After the April 6, 2010, meeting, it was alleged that Ms. Hughes had engaged in additional inappropriate and potentially unethical clinical procedures and
Ms. Hughes, in June 2010, suffered an orthopedic injury that resulted in a medical leave of absence of approximately one year. When she attempted to return to work, she was advised that several of her requests for accommodation had been rejected. On October 31, 2011, her employment was terminated.
Ms. Hughes initiated the Grievance Procedure, asserting that her employer had refused to provide needed reasonable accommodations. Reportedly, several grievance hearings had occurred, with another grievance hearing scheduled to take place in late 2012. However, prior to the holding of the latest grievance hearing, Ms. Hughes filed the instant civil action in circuit court against the respondents: WVU;
By order of November 13, 2012, the circuit court granted the motion to dismiss, finding that a circuit court action under the WVHRA is not precluded by prior grievance proceedings. However, the circuit court found that a parallel, contemporaneous proceeding may not be maintained. Accordingly, the circuit court ruled that Ms. Hughes, having elected the Grievance Procedure, must exhaust her administrative remedies before filing an action in circuit court. Ms. Hughes appealed to this Court, and her case was consolidated with Weimer v. Sanders, Case Number 12-0477.
The consolidated appeals before this Court result from the lower courts' granting of motions to dismiss. It is well settled that "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). Further, recognizing that this case requires review of a purely legal issue, we have counseled that "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Mindful of this applicable standard, we now consider the substantive issues raised herein.
On appeal to this Court, Ms. Weimer asserts that the circuit court erred in its determination that administrative procedures must be exhausted before an action can be maintained in the circuit court. Thus, Ms. Weimer claims that the circuit court's dismissal of her complaint was flawed. Similarly, Ms. Hughes argues that the circuit court erred in dismissing her complaint based on its finding that she had not completed the grievance process and, further, in its ruling that commencement of the Grievance Procedure requires conclusion of the same. In essence, these cases present to this Court the question of whether a public employee, whose employment confers grievance rights before the Grievance Board, is required to exhaust the administrative Grievance Procedure
At the outset, the initial question for this Court is whether the Grievance Procedure supplies an exclusive remedy or mandatory proceeding to the petitioners. To determine the answer, this Court must look to the statute. The Grievance Procedure applies to public employees and states, in pertinent part, that
W.Va.Code § 6C-2-4(a)(1) (2008) (Repl.Vol. 2010). The first step in statutory construction is to identify the intent expressed by the Legislature in promulgating the provision at issue. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). Next, we look to the particular language used by the Legislature. "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). Accord Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959) ("When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute."). Further guidance states that, "[i]n the absence of any definition of the intended meaning of words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used." Syl. pt. 1, Miners in Gen. Group v. Hix, 123 W.Va. 637, 17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W.Va. 162, 291 S.E.2d 477 (1982).
Under the plain wording of the statute, a public employee has a fifteen day time limit that begins to accrue based upon different factual scenarios. Within the applicable fifteen day period, "an employee may file a written grievance with the chief administrator stating the nature of the grievance[.]" (Emphasis added). As a general rule, the word "may" is afforded a permissive connotation, which renders the referenced act discretionary, rather than mandatory, in nature. See State v. Hedrick, 204 W.Va. 547, 552, 514 S.E.2d 397, 402 (1999) ("The word `may' generally signifies permission and connotes discretion." (citations omitted)). Thus, applying this discretionary connotation to the present case, we now hold that a public employee may file a written grievance to the West Virginia Public Employee Grievance Board pursuant to W. Va.Code § 6C-2-4(a)(1) (2008) (Repl.Vol.2010); however, such filing is permissive and not mandatory under the clear wording of the statute.
Having determined that the Grievance Procedure is discretionary, we turn to the issue of whether the decision to forego the filing of the permissive grievance with the Grievance Board precludes a petitioner's right to file a cause of action elsewhere. In other words, we must determine whether the exhaustion of administrative remedies is a precondition to the filing of an action in circuit court.
As noted previously, Ms. Weimer filed her action in the circuit court pursuant to the WVHRA, without having filed a grievance with the Grievance Board.
It stands to reason that if a claimant is not required to maintain an action before the Human Rights Commission prior to filing a claim in the circuit court, the claimant is, likewise, not required to file a grievance with the Grievance Board before filing a claim pursuant to the WVHRA in the circuit court. This is especially true given the fact that the Human Rights Commission has broader power and authority to remedy discrimination claims than does the Grievance Board.
Syl. pt. 1, Vest v. Board of Educ., 193 W.Va. 222, 455 S.E.2d 781 (1995) (internal footnote added). Therefore, we now hold that a plaintiff may, as an alternative to filing a grievance with the West Virginia Public Employees Grievance Board, initiate an action in circuit court to enforce rights granted by the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq.
To hold otherwise would create a disparity between remedies for WVHRA violations available to public employees and employees in the private sector. The Legislature, in enacting the WVHRA, sets forth that all West Virginia citizens shall have equal employment opportunities:
W. Va.Code § 5-11-2 (1998) (Repl.Vol.2011). We discern no reason why a public employee should be treated differently than a private employee in cases of alleged discrimination, et cetera, and be deprived of the opportunity to proceed directly to the Human Rights Commission or the circuit court.
Having determined that a claimant is not required to pursue his or her administrative remedies under the Grievance Procedure prior to the commencement of an action in circuit court that alleges a claim under the WVHRA, we now turn to discuss the additional legal issue raised by the facts of Ms. Hughes's case. Ms. Hughes initiated the Grievance Procedure and several grievance hearings were held. Another grievance hearing was scheduled; however, prior to the time for the scheduled grievance hearing, Ms. Hughes filed the instant civil action in circuit court. The circuit court granted the motion to dismiss on the basis that "Ms. Hughes has failed to exhaust her available remedies by pursuing an action in Circuit
We have held that a previous grievance does not preclude a subsequent action in circuit court. In that regard, we stated that "[a] civil action filed under the West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq., is not precluded by a prior grievance decided by the West Virginia Education and State Employees Grievance Board arising out of the same facts and circumstances." Syl. pt. 3, Vest, 193 W.Va. 222, 455 S.E.2d 781. Because of the striking differences between the procedures before the Grievance Board and the Human Rights Commission and/or a circuit court, the Vest Court determined that even a resolution of a grievance by the Grievance Board does not preclude further adjudication of the claims pursuant to the WVHRA. Specifically,
Syl. pt. 2, Vest, id.
In reaching the result in Vest, we explained that
Vest, 193 W.Va. at 227, 455 S.E.2d at 786.
Factually, Ms. Vest, a substitute teacher at a public school, filed a grievance with the Grievance Board based on her termination. At a grievance hearing, Ms. Vest presented evidence in support of her discrimination claim. However, in her post-hearing brief, she voluntarily relinquished her claim upon her belief that the Grievance Procedure was not the proper forum to hear her discrimination claim. Ms. Vest's grievance was denied in a decision that contained no conclusions of law with regard to her discrimination claim. Despite the fact that her grievance had culminated in a decision, albeit a decision that did not address the discrimination claim, we found the Grievance Board's determinations had no preclusive effect over her human rights claims.
Vest stands for the proposition that a claimant can prosecute a case before the Grievance Board to its conclusion, yet still retain the right to redress for the same issue before the circuit court. The logic follows that, if a claimant commences an action before
Based on the foregoing, the circuit courts' dismissal orders are reversed and remanded for further consideration.
Reversed and Remanded.
Justice WORKMAN, deeming herself disqualified, did not participate.
Liller v. West Virginia Human Rights Comm'n, 180 W.Va. 433, 441, 376 S.E.2d 639, 647 (1988). Indeed, our cases require us to determine "whether applying the doctrines [of preclusion] is consistent with the express or implied policy in the legislation which created the body." Syl. pt. 3, in part, Mellon-Stuart Co. v. Hall, 178 W.Va. 291, 359 S.E.2d 124 (1987).
We also have recognized exceptions to the rule requiring the exhaustion of remedies. Indeed, in Price, we recognized that the alternative administrative and judicial avenues run "counter to the general rule of statutory construction that where a new right is created by statute, the remedy provided for its violation is exclusive." Price v. Boone Cnty. Ambulance Auth., 175 W.Va. 676, 678, 337 S.E.2d 913, 915-16 (1985). "Where the available administrative remedy is inadequate, this Court recognizes an exception to the general rule that where a new right is created by statute, the remedy can be only that which the statute prescribes." Syl. pt. 2, Wiggins v. Eastern Assoc. Coal Corp., 178 W.Va. 63, 357 S.E.2d 745 (1987). Also, "[t]his Court will not require the exhaustion of administrative remedies where such remedies are duplicative or the effort to obtain them futile." Syl. pt. 6, Wiggins, id. Finally, "[t]he doctrine of exhaustion of administrative remedies is inapplicable where resort to available procedures would be an exercise in futility." Syl. pt. 1, State ex rel. Board of Educ. v. Casey, 176 W.Va. 733, 349 S.E.2d 436 (1986).