Breza v. Ohio County BOE
Annotate this Case
IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
___________
No. 23967
___________
CONSTANCE M. BREZA,
Appellee,
v.
THE OHIO COUNTY BOARD OF EDUCATION,
Appellant.
________________________________________________________
Appeal from the Circuit Court of Kanawha County
Hon. Tod J. Kaufman, Judge
Civil Action No. 91-AA-260
AFFIRMED
________________________________________________________
Submitted: October 7, 1997
Filed: December 5, 1997
Sandra K. Law,
Esq. Rebecca
E. Mick, Esq.
Schrader, Byrd, Companion &
Gurley Crandall,
Pyles & Haviland
Wheeling, West
Virginia Charleston,
West Virginia
Attorney for
Appellant ` Attorney
for Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS
"School
personnel regulations and laws are to be strictly construed in
favor of the employee." Syllabus Point 1, Morgan v.
Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979).
Per Curiam:See footnote 1 1
The Ohio County
Board of Education appeals from a final order of the Circuit
Court of Kanawha County entered on July 31, 1996. The circuit
court reversed the decision of the Hearing Examiner for the
Education and State Employees Grievance Board which held that
Constance M. Breza, an employee of the Ohio County Board of
Education, was not entitled to credit for one year of work
experience for working two part-time jobs in Massachusetts prior
to her employment in Ohio County. The circuit court ordered that
Ms. Breza be given credit for the Massachusetts work experience
and further ordered appropriate back-pay with interest and
benefits. We affirm the decision of the circuit court.
I.
In the fall
semester of 1983, Constance M. Breza, appellee, was hired by the
Ohio County Board of Education ("Board") as a speech
pathologist. During the 1982-83 school year, Ms. Breza worked 115
days for the Boston public schools, and worked at least
two days a week at a Boston children's hospital evaluating
children's speech. Upon being hired by the Board, Ms. Breza was
informed that she would not be given credit for a year of work
experienceSee footnote 2 2
for her two jobs in Massachusetts. Credit for the
Massachusetts work experience would have resulted in a modest
increase in her salary.
Prior to the
beginning of the 1990-91 school year, Ms. Breza learned that she
should have received one year's credit for the year she spent
working at the two part-time jobs in Massachusetts. Ms. Breza
contacted the Board and inquired as to what procedures to follow
to have her classification changed to receive the additional year
of experience credit. After being advised by the Board that she
would not be given credit for the additional year, Ms. Breza
filed a grievance. Her grievance was denied at all hearing
levels.
Ms. Breza then
appealed to the Circuit Court of Kanawha County which reversed
the decision of the grievance board. In its reversal the circuit
court granted Ms. Breza one year's additional experience credit
and awarded her appropriate back pay reflecting her increased
employment experience. The Board appealed the circuit court's
decision. We affirm the ruling of the circuit court.
II.
The Board argues
that the circuit court incorrectly interpreted W.Va. Code, 18A-4-1
[1992], thereby giving Ms. Breza credit for experience which, the
Board argues, she does not deserve. The Board further argues that
the circuit court erred by not considering whether the employment
was in the teaching profession, and in applying the relief
retroactive to the date of Ms. Breza's 1983 employment.See footnote 3 3
We begin by
setting out the standard of review. In reviewing challenges to
the findings and conclusions of a circuit court, we apply a
two-prong deferential standard of review. We review the final
order and the ultimate disposition under an abuse of discretion
standard, and we review the circuit court's underlying factual
findings under a clearly
erroneous standard. Questions of law, however, are subject to
a de novo review. Phillips v. Fox, 193 W.Va. 657,
661, 458 S.E.2d 327, 331 (1995).
We must examine
the Board's argument in light of the axiom that "[s]chool
personnel regulations and laws are to be strictly construed in
favor of the employee." Syllabus Point 1, Morgan v.
Pizzino, 163 W.Va. 454, 256 S.E.2d 592 (1979); See also Syllabus
Point 1, Cruciotti v. McNeel, 183 W.Va. 424, 396 S.E.2d 191 (1990); Syllabus Point 1, State ex rel Bonner v. Kanawha
County Board of Education, 197 W.Va. 176, 475 S.E.2d 176
(1996).
W.Va. Code, 18A-4-1(1)
[1992] defines "years of experience" as the ". . .
number of years the teacher has been employed in the teaching
profession, including active work in educational positions other
than the public schools . . .".
The appellant
Board argues that an employee may not "tack" two
part-time jobs together to comply with the 133-day requirement.See footnote 4 4 However,
nothing in the statute states that the required amount of work
must be performed for only one employer during any given calendar
year. Under the Board's reasoning, if a substitute teacher worked
at several different schools on a part-time basis during the
year, and together these assignments met the requisite number of
days to make a year (133), such work experience would not be
credited to the teacher as a year of experience. Obviously this
reasoning fails in light of Morgan, supra.
The Board next
argues that the circuit court erred by concluding that Ms.
Breza's employment in Massachusetts was in "the teaching
profession." In its ruling the circuit court did make a
factual finding that Ms. Breza had been employed in both
part-time Massachusetts jobs as a "speech language
pathologist" during the year in question. We examine this
factual determination under the clearly erroneous standard as set
out in Phillips v. Fox, 193 W.Va. 657, 661, 458 S.E.2d 327, 331 (1995). One of the part-time jobs consisted of Ms. Breza
working as a speech pathologist at Melrose Public Schools in
Boston, Massachusetts. Ms. Breza's other part-time job required
her to work as a diagnostician, evaluating children's speech,
language and hearing skills at Boston Children's Hospital. We
conclude that the circuit court was not clearly erroneous in
ruling that working as a speech pathologist with children in a
school and a hospital setting, were qualified as educational
positions which should apply toward "years of
experience." W.Va. Code, 18A-4-2 [1993].
Finally, the
Board argues that any award given to Ms. Breza should be
prospective relief only. However, as set forth in W.Va. Code,
18-29-3(v) [1992] "(t)he doctrine of laches shall not be
applied to prevent a grievant or grievants from recovering back
pay or other appropriate relief for a period of one year prior to
the filing of a grievance based upon a continuing practice."
The denial of one year's work experience credit was a continuing
practice under W.Va. Code, 18-29-4(1) [1995]. Therefore,
appropriate back pay would encompass relief back to and including
the year prior to the date she filed her grievance.
For the foregoing
reasons, we affirm the decision of the circuit court.
Affirmed.
Footnote: 1 1 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W.Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4. (1992) ("Per curiam opinions . . . are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta . . . . Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not-to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.")
Footnote: 2 2 State Board of Education Policy 5610 requires an employee to work a minimum of 133 days to become entitled to a year's employment credit. W.Va. Code, 18A-4-2 [1996] sets forth the minimum salary schedule for teachers, and contains a provision for an increase in salary for each year of experience.
Footnote: 3
3 The Board also
argues that the circuit court erred in not addressing the issue
of laches. However, after careful review of the record, we
conclude that the affirmative defense of laches was not presented
to the circuit court. "[T]he defense of laches is
sustainable only on proof of two elements: (1) lack of diligence
by the party against whom the defense is asserted, and (2)
prejudice to the party asserting the defense." State ex rel.
Smith v. Abbot, 187 W.Va. 261, 264, 418 S.E.2d 575, 578
(1992) (citing Mogavero v. McLucas, 543 F.2d 1081 (4th
Cir. 1976)).
By letter dated December 9, 1993, the
circuit court judge provided the Board an opportunity to submit a
memorandum of law to the court on the issue of laches. The Board
opted not to submit this memo. Because laches was not set out in
the Board's response to the petition, nor did they write the
requested memo, this defense was not properly raised below.
Generally we have refused to consider
matters on appeal that were not raised below. See Whitlow v.
Bd. of Educ. of Kanawha County, 190 W.Va. 223, 226, 438 S.E.2d 15, 18 (1993) ("facts underlying . . . [an] issue
will not have been developed in such a way so that a disposition
can be made on appeal"). Because the affirmative defense of
laches was not asserted before the circuit court, we decline to
address that issue on appeal.
Footnote: 4 4 See footnote 2.
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