Breza v. Ohio County Bd. of Educ.

• Decision Date: 05 December 1997
• Docket Number: No. 23967,23967
• Court: West Virginia Supreme Court
• Parties: , 124 Ed. Law Rep. 1128 Constance M. BREZA, Appellee, v. The OHIO COUNTY BOARD OF EDUCATION, Appellant.

Page 548

497 S.E.2d 548

201 W.Va. 398, 124 Ed. Law Rep. 1128

Constance M. BREZA, Appellee, v. The OHIO COUNTY BOARD OF EDUCATION, Appellant.

No. 23967.

Supreme Court of Appeals of

West Virginia.

Submitted Oct. 7, 1997.

Decided Dec. 5, 1997.

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).

Sandra K. Law, Schrader, Byrd, Companion & Gurley, Wheeling, for Appellant.

Rebecca E. Mick, Crandall, Pyles & Haviland, Charleston, for Appellee.

PER CURIAM: 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 experience 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. 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 Boner 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. 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...