Bowers v. Bowyer, 15720

• Decision Date: 14 December 1983
• Docket Number: No. 15720,15720
• Parties: , 15 Ed. Law Rep. 402 Louise H. BOWERS v. Garnett BOWYER, et al.
• Court: West Virginia Supreme Court

Page 474

310 S.E.2d 474

172 W.Va. 713, 15 Ed. Law Rep. 402

Louise H. BOWERS v. Garnett BOWYER, et al.

No. 15720.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1983.

Syllabus by the Court

1. "The State Superintendent of Schools may review a decision by a county board of education on appeal by an employee. Certiorari will lie to a circuit court from the State Superintendent's decision." Syllabus, Jones v. Board of Education, County of Lincoln, 170 W.Va. 310, 294 S.E.2d 113 (1982).

2. "Ordinarily, in the absence of some showing of good cause, an application for a writ of certiorari must be filed within four months from the date of the final administrative order of the State Superintendent of Schools." Syllabus Point 3, State ex rel. Gibson v. Pizzino, 164 W.Va. 749, 266 S .E.2d 122 (1979).

Jacqueline A. Kinnaman, Charleston, for appellant.

Andrew N. Frye, Jr., Petersburg, for appellees.

PER CURIAM:

This is an appeal from a judgment of the Circuit Court of Kanawha County dismissing a petition for a writ of certiorari as untimely. We reverse that judgment and remand for further proceedings.

Appellant, Louise H. Bowers, is employed at the South Branch Vocational Center in Grant County, West Virginia, as the coordinator of the Human Resource and Learning Resource Centers. The vocational center is governed by an Administrative Council, with the Grant County Board of Education serving as the fiscal agent. At the end of the 1979-80 school year, the administrative council approved the creation of a new position of assistance director, and Bowers applied for the position.

When a male classroom teacher with less seniority was hired for the new position, Bowers filed a grievance alleging a violation of State Board of Education Policy No. 5300 and the Civil Rights laws. The grievance was denied by the executive director of the vocational center, and Bower appealed to the administrative council. A grievance hearing was held on June 26, 1980, but the council did not issue a decision on the grievance and instead voted to present the grievance to the State Superintendent of Schools. Bowers also filed a complaint with the West Virginia Human Rights Commission.

On October 27, 1980, the state superintendent dismissed her "appeal", reasoning that discrimination claims normally should be resolved by the West Virginia Human Rights Commission, "absent a very clear--virtually incontrovertible--showing of sexual discrimination." The superintendent found that her claim was based on work experience and seniority and that she had not presented any evidence of sexually discriminatory behavior directed against her by her employment superiors. The state superintendent also stated that his office would not interfere with a discretionary act on the part of an administrative council of a multi-county area vocational-technical center and its executive director, unless such act was clearly beyond their authority.

Within four months of the state superintendent's adverse decision, Bowers filed a petition for a writ of certiorari in the Circuit Court of Kanawha County. Following a hearing on the petition, the trial court granted a motion to dismiss the petition as untimely and entered judgment dismissing the case from the docket. Bowers moved to set aside the judgment and reopen the case for consideration on the merits. By letter opinion of July 6, 1981, the trial court denied the motion, ruling that the petition was untimely because not filed within four months after the administrative council's decision. This ruling was premised on the conclusion that the state superintendent of schools does not have jurisdiction to consider appeals by school employees. It is this ruling that is now before the Court for appellate review.

The decision below was rendered prior to our decision in Jones v....