Spahr v. Preston County Bd. of Educ., 19082

Decision Date23 March 1990
Docket NumberNo. 19082,19082
Citation391 S.E.2d 739,182 W.Va. 726
CourtWest Virginia Supreme Court
Parties, 60 Ed. Law Rep. 655 Jayne SPAHR, Carolyn Bolyard, Catherine Burke, Karen Huffman and Marilyn Wolfe v. The PRESTON COUNTY BOARD OF EDUCATION.

Syllabus by the Court

1. W.Va.Code, 18-29-4(a)(1) (1985), contains a discovery rule exception to the time limits for instituting a grievance. Under this exception, the time in which to

invoke the grievance procedure does not begin to run until the grievant knows of the facts giving rise to a grievance.

2. A grievance can extend to prior years because the discovery rule exception contained in W.Va.Code, 18-29-4(a)(1) (1985), in effect, tolls the limitation as to those prior years.

3. The legislative intent expressed in W.Va.Code, 18-29-1 (1985), is to provide a simple, expeditious and fair process for resolving problems.

4. "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 Educ., 180 W.Va. 203, 382 S.E.2d 40 (1989).

5. " 'Laches is a delay in the assertion of a known right which works to the disadvantage of another, or such delay as will warrant the presumption that a party has waived his rights.' Bank of Marlinton v. McLaughlin, 123 W.Va. 608, 17 S.E.2d 213 [ (1941) ]." Syllabus Point 4, Caplan v. Shaw, 126 W.Va. 676, 30 S.E.2d 132 (1944).

Stephen A. Weber, Karen Speidel Rodgers, Kay, Casto, Chaney, Love & Wise, Charleston, for The Preston County Bd. of Educ.

Charles R. Garten, Charleston, for Jayne Spahr, Carolyn Bolyard, Catherine Burke, Karen Huffman, and Marilyn Wolfe.

MILLER, Justice:

The Preston County Board of Education (Board) appeals an order of the Circuit Court of Kanawha County, entered October 5, 1988. In that order, the court awarded the five appellees (the teachers) supplemental and back pay to 1981. On appeal, the Board contends that the court erred in awarding back pay because the teachers failed to invoke the grievance procedure within the time limits mandated by W.Va.Code, 18-29-4(a)(1) (1985). We conclude that the grievance was timely filed.

In 1982, the Board and the West Virginia Education Association (WVEA) entered into an agreement in which the Board promised to pay all vocational education teachers in Preston County, including those teaching business courses, a salary supplement, beginning with the 1982-83 school year. Because of an administrative oversight and unknown to the appellees, three of the teachers, i.e., Carolyn Bolyard, Catherine Burke, and Karen Huffman, 1 were not included on the list to receive the supplemental pay, although they taught business courses.

In March, 1986, the teachers heard rumors from their colleagues that the business teachers who taught at the county vocational education center were receiving a pay supplement. On March 6, 1986, in an effort to confirm the truth of these rumors, the teachers wrote to the Superintendent of Schools of Preston County, Elmer Pritt, and inquired about the discrepancies in salaries between themselves and the business teachers who taught at the vocational education center. Having received no response, the teachers wrote a follow-up letter to the superintendent on May 5, 1986. The superintendent again failed to respond. 2

When the teachers returned to school the following fall, they scheduled a meeting with their WVEA representative, Ed Stephenson. During this meeting, the representative confirmed the teachers' suspicions, and opined that the teachers were also entitled to the salary supplement. On October 3, 1986, within fifteen days of this meeting, the teachers filed a written grievance pursuant to W.Va.Code, 18-29-4(a)(3).

A Level II hearing was held with the superintendent on October 29, 1986. In his opinion dated November 10, 1986, the superintendent found that the teachers were entitled to the salary supplement, and he granted them back pay for the 1986-87 school year. The superintendent refused to give the teachers back pay to 1982, because he found that their grievance was untimely filed for those years.

The teachers appealed the portion of the superintendent's decision refusing to give them back pay to 1982. A Level IV grievance hearing was held on March 17, 1987. In an opinion dated May 5, 1987, the hearing examiner affirmed the superintendent's ruling on this issue. The Circuit Court of Kanawha County reversed the hearing examiner's decision. The court found that the grievance had been timely filed because it was filed within "fifteen days of the date on which the event became known to the grievant" and "within fifteen days of the most recent occurrence of a continuing practice giving rise to a grievance." Accordingly, the circuit court granted the teachers back pay to 1981. 3

The parties center the controversy in this case around the application of the time periods for initiating the Level I grievance procedure prescribed in W.Va.Code, 18-29-4(a)(1). 4 This section provides, in pertinent part:

"Before a grievance is filed 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[.]" 5

The Board argues that the teachers were aware of the events upon which their grievance was based when they wrote to the superintendent on March 6 and May 5, 1986, and that as a result, the grievance was not timely filed. The Board also contends that the circuit court erroneously held that the grievance was filed "within fifteen days of the most recent occurrence of a continuing practice giving rise to a grievance." The teachers counter that they did not have actual knowledge of the salary discrepancies until they met with their WVEA representative. The parties agree that the grievance was filed within fifteen days of this meeting.

W.Va.Code, 18-29-4(a)(1), contains a discovery rule exception to the time limits for instituting a grievance. Under this exception, the time in which to invoke the grievance procedure does not begin to run until the grievant knows of the facts giving rise to a grievance. Accord Department of Public Health of San Francisco v. Service Employees Int'l Union Local 790, 215 Cal.App.3d 429, 263 Cal.Rptr. 711 (1989).

Other jurisdictions that do not have an express discovery rule exception to the time limits in their administrative procedures have created one. In Brown v. Public Employment Relations Bd., 345 N.W.2d 88 (Iowa 1984), the Iowa Supreme Court addressed the effect of a ninety-day time limitation for filing a complaint under the Iowa Public Employment Relations Act. Although this administrative statute did not contain an express discovery rule exception for filing a complaint, the court concluded that because it had recognized such an exception in other types of cases, 6 it would find such an exception here. The Iowa Supreme Court explained: "Under this exception Brown's complaint will therefore be considered timely if she establishes factually that she neither knew nor reasonably should have known until after April 28, 1980 that her seniority status had been changed by the midterm modification agreement." 345 N.W.2d at 96. Accord Wapella Educ. Ass'n v. Illinois Labor Relations Bd., 177 Ill.App.3d 153, 126 Ill.Dec. 532, 531 N.E.2d 1371 (1988).

In this case, the teachers' initial letters to the superintendent cannot be characterized as demonstrating actual knowledge of the facts constituting their grievance. The teachers did not know of their entitlement to the supplement until they met with the WVEA representative. Consequently, we find that the grievance was timely filed.

Moreover, we believe that when the superintendent found the filing timely for the 1986-87 school year, the grievance was timely for the preceding years. The language in W.Va.Code, 18-29-4(a)(1), providing for "fifteen days of the date on which the event became known" is designed to cover this type of situation. Once the event giving rise to the grievance became known to the teachers, they were not precluded from claiming more than one year. A grievance can extend to prior years because the discovery rule exception, in effect, tolls the limitation as to those prior years.

Apparently, the circuit judge also relied on the language in W.Va.Code, 18-29-4(a)(1), permitting a grievance to be filed "within fifteen days of the most recent occurrence of a continuing practice" in order to grant the teachers back pay. We do not believe that the legislature intended this language to cover the present situation. Under the circuit court's interpretation, each new pay check would constitute "the most recent occurrence of a continuing practice," and would permit a grievant to obtain an indefinite accrual of back pay by delaying the filing. The current case, however, involves a single act--the inadvertent failure to include the teachers on a list--that caused continuing damage, i.e., the wage deficit. Continuing damage ordinarily does not convert an otherwise isolated act into a continuing practice. Once the teachers learned about the pay discrepancy, they had an obligation to initiate the grievance procedure.

We stress again what we recognized in Duruttya v. Board of Educ., 181 W.Va. 203, 382 S.E.2d 40 (1989)--the grievance procedures set out in W.Va.Code, 18-29-1, et seq., are to be given a flexible interpretation in order to carry out the legislative intent. This intent is expressed in W.Va.Code, 18-29-1 (1985): "This procedure is intended to provide a simple, expeditious and fair process for resolving problems[.]"

In Duruttya, the...

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