SER Catron v. Raleigh County BOE
Annotate this CaseSeptember 1997 Term
___________
No. 24084
___________
STATE OF WEST VIRGINIA ex rel.
WILLIE C. CATRON,
Petitioner below, Appellant,
v.
RALEIGH COUNTY BOARD OF EDUCATION,
Respondent below, Appellee.
________________________________________________________
Appeal from the Circuit Court of Raleigh County
Hon. Robert A. Burnside, Judge
Civil Action No. 95-C-866-B
REVERSED AND REMANDED
________________________________________________________
Submitted: September 17, 1997
Filed: November 20, 1997
Robert S. Baker,
Esq. Erwin
L. Conrad, Esq.
Beckley, West Virginia
Fayetteville,
West Virginia
Attorney for Appellant
Attorney
for Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "The
legislative intent expressed in W.Va. Code, 18-29-1 (1985), is to
provide a simple, expeditious and fair process for resolving
problems." Syllabus Point 3, Spahr v. Preston County
Board of Education, 182 W.Va. 726, 391 S.E.2d 739 (1990).
2. "In
the absence of any evidence of bad faith, a grievant who
demonstrates substantial compliance with the filing provisions
contained in W.Va. Code §§ 18A-2-8 and 18-29-1, et seq.
(1988) is entitled to the requested hearing." Syllabus Point
2, Duruttya v. Board of Education of the County of Mingo,
181 W.Va. 203, 382 S.E.2d 40 (1989).
3. "W.Va.
Code § 18-29-3(a) (1992) (Repl. Vol. 1994) makes mandatory the
time periods within which grievances by educational
employees must be filed, heard, and decided. If a grievance
evaluator does not comply with the hearing and decision time
periods, and his/her inaction does not come within one of the
enumerated statutory exceptions, 'the grievant shall prevail by
default.'" Syllabus Point 3, Hanlon v. Logan County Board
of Education, W.Va. , S.E.2d (No. 23957, November 20, 1997).
Per Curiam:See footnote 1
1
This is an appeal
from a May 17, 1995 order of the Circuit Court of Raleigh County
which denied Willie C. Catron's petition for a writ of mandamus.
Mr. Catron, a substitute teacher, sought to compel the Raleigh
County Board of Education to pay him wages that he would have
received had he been called in to replace a full-time teacher who
had taken a medical leave of absence. We reverse the circuit
court's order and remand this case for an evidentiary hearing to
determine the amount of wages that Mr. Catron lost.
I.
Willie C. Catron
("Catron"), the petitioner below and appellant, was
laid off from his job as a full-time mathematics teacher in the
spring of 1992 due to a reduction in the work force in the
Raleigh County school system. During the fall semester of 1992,
Catron worked sporadically for the appellee, Raleigh County Board
of Education ("Board"), as a substitute mathematics
teacher. Catron was the only mathematics teacher on the Board's
preferred recall list.
In October
1992, a mathematics teacher at Shady Spring Junior High School
began an extended leave for medical reasons. The Board placed a
business teacher in this vacant mathematics teaching position
even though the teacher was not trained as a mathematics teacher.See footnote 2 2
After learning
that there had been a full-time opening for a mathematics
teacher, Catron had an informal meeting with Dr. Emily Meadows,
who was then the Director of Personnel for Raleigh County
Schools. During this meeting, Dr. Meadows confirmed that a
mathematics position had opened and that the position had been
filled by another substitute teacher who was not certified to
teach mathematics. Catron stated that he wished to file a
grievance, and he was provided a grievance form by Dr. Meadows
and given a "grievance control number." The record is
unclear as to what Dr. Meadows told Catron to do with the form,
but Catron believed he was to file the form with the principal at
Shady Spring Junior High School.
Within ten days
of this informal meeting with Dr. Meadows, Catron mailed his
completed grievance form to the principal of the Shady Spring
Junior High School. Neither the principal nor the Board responded
to Catron's grievance. Two years after the filing of the
grievance, Catron delivered a letter to Dr. Meadows, claiming
that the Board was in default for failing to respond to his
grievance within a timely manner. The Board denied that
it was in default and refused to pay any
additional salary which may have been owed to Catron for the fall
of 1992. A petition for a writ of mandamus was filed with the
Circuit Court of Raleigh County, which petition was subsequently
denied. This appeal followed.
II.
The standard of
appellate review of a circuit court's decision regarding the
extraordinary writ of mandamus is de novo. Syllabus Point
1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995).
The main issue in
this case is the "default" provision set forth in W.Va.
Code, 18-29-3(a)[1992].See
footnote 3 3 The grievance procedure statutes
provide that a grievant "shall schedule a conference
with . . . [his] immediate supervisor to discuss
the nature of the grievance. . . ." W.Va. Code,
18-29-4(a)[1992]. Catron argues that he had the conference with
the only immediate supervisor of whom he was aware, the director
of personnel, as required by the
grievance procedure, and that he followed up on this
conference with a written grievance filed with the principal of
the school where the act being aggrieved occurred.See footnote 4 4 W.Va.
Code, 18-29-2(g) [1992] defines "immediate
supervisor" as "that person next in rank above the
grievant possessing a degree of administrative authority and
designated as such in the employee's contract, if any."
In response to
Catron's position, the Board argues that Dr. Meadows was not
Catron's immediate supervisor; the Board also contends that
Catron should have sent his grievance form to the principal where
he was then working as a substitute teacher, and not the
principal of Shady Spring Junior High School, the school with the
open position.
We find the
Board's argument unpersuasive. "The legislative intent
expressed
in W.Va. Code, 18-29-1 (1985), is to provide a simple,
expeditious and fair process for resolving problems."
Syllabus Point 3, Spahr v. Preston County Board of Education,
182 W.Va. 726, 391 S.E.2d 739 (1990). See also Syllabus
Point 1, Hale v. Mingo County Board of Education, 199
W.Va. 387, 484 S.E.2d 640 (1997); Duruttya v. Mingo County
Board of Education, 181 W.Va. 203, 205, 382 S.E.2d 40, 42
(1989). If we were to adopt the Board's argument, a grievant who
is a substitute teacher and who is assigned to work at various
schools for short periods of time might never have an
"immediate supervisor" long enough at any school to
follow through with the grievance procedures.
In filing his
grievance, Catron attempted in good faith to follow the required
procedures as they fit his circumstances and as directed by the
director of personnel. As a substitute teacher, Catron met with
the director of personnel, the one supervisor who was a constant
in circumstances in which Catron was working at a different
school every few days. Following this meeting, Catron filed his
grievance with the principal of the school where the event that
gave rise to his complaint occurred and in accordance with the
direction of the personnel director.
There was no
evidence presented by the Board showing that Catron performed
these actions in bad faith, nor did the Board provide any
explanation as to why it failed to respond to Catron's grievance
for two years. Also, Catron was provided a grievance control
number by Dr. Meadows, presumably so the Board could monitor this
particular grievance. "In the absence of any evidence of bad
faith, a grievant who demonstrates substantial
compliance with the filing provisions contained in W.Va. Code
§§ 18A-2-8 and 18-29-1, et. seq. (1988) is entitled to
the requested hearing." Syllabus Point 2, Duruttya v.
Board of Education of the County of Mingo, 181 W.Va. 203, 382 S.E.2d 40 (1989): See also Syllabus Point 2, Hale v.
Mingo County Board of Education, 199 W.Va. 387, 484 S.E.2d 640 (1997). Further, in Duruttya the grievant filed his
Level 4 grievance with the local board of education rather than
the grievance board as was required, and this Court held that the
grievant had substantially complied with the filing proceedings
and was entitled to his hearing. In the instant case we find that
Catron substantially complied with the grievance procedures; the
Board was, therefore, required to respond to his complaint, and
it failed to do so within the time limits set out in W.Va.
Code, 18-29-1, et. seq.
We recently
stated in Syllabus Point 3 of Hanlon v. Logan County Board of
Education and Tim Murphy, W.Va. , S.E.2d (No. , month, day,
1997) that:
W.Va. Code §
18-29-3(a) (1992) (Repl. Vol. 1994) makes mandatory the time
periods within which grievances by educational employees
must be filed, heard, and decided. If a grievance evaluator does
not comply with the hearing and decision time periods, and
his/her inaction does not come withing one of the enumerated
statutory exceptions, "the grievant shall prevail by
default."
In conclusion, since Mr. Catron substantially complied with the grievance procedure he was entitled to have this matter addressed by the Board. Since the Board failed to comply with the time requirements set out in W.Va. Code, 18-29-3 [1992], we find that Mr. Catron was entitled to default judgment against the Board and that the Circuit Court of
Raleigh County erred in denying the appellant's
request for a writ of mandamus. Accordingly, we reverse the
circuit court's May 17, 1995 order, and remand this case to the
circuit court for an evidentiary hearing to determine the amount
of wages owed to Mr. Catron.
Reversed and remanded.
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 Catron was placed in this position at the beginning of the second semester, January 27, 1993, and held the position until the end of the school year.
Footnote: 3
3 W.Va. Code,
18-29-3(a)[1992] states, in part:
A grievance must
be filed within the times specified in section four [§ 18-29-4]
of this article and shall be processed as rapidly as possible.
The number of days indicated at each level specified in section
four of this article shall be considered as the maximum number of
days allowed and, if a decision is not rendered at any level
within the prescribed time limits, the grievant may appeal to the
next level: Provided, That the specified time limits may be
extended by mutual written agreement. . . . If a grievance
evaluator required to respond to a grievance at any level fails
to make a required response in the time limits required in this
article, unless prevented from doing so directly as a result of
sickness or illness, the grievant shall prevail by default. . . .
Footnote: 4
4 W.Va. Code, 18-29-4(a)
[1992] states, in part:
(1) Before a
grievance is filled and within fifteen days following the
occurrence of the event upon which the grievance is based, or
within fifteen days of the date on which the event became known
to the grievant or within fifteen days of the most recent
occurrence of a continuing practice giving rise to a grievance,
the grievant or the designated representative shall schedule a
conference with the immediate supervisor to discuss the nature of
the grievance and the action, redress or other remedy sought. . .
.
(2) The
immediate supervisor shall respond to the grievance within ten
days of the conference.
(3) Within ten
days of receipt of the response from the immediate supervisor
following the informal conference, a written grievance may be
filed with said supervisor by the grievant or the designated
representative on a form furnished by the employer or agent.
(4) The
immediate supervisor shall state the decision to such filed
grievance within five days after the grievance is filed.
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