Cox v. Sioux Falls School Dist. 49-5

• Decision Date: 11 January 1994
• Docket Number: 18351,Nos. 18350,s. 18350
• Parties: 90 Ed. Law Rep. 785 Marilyn COX, Petitioner and Appellee, v. SIOUX FALLS SCHOOL DISTRICT 49-5, Appellant. Lynn ADLER, Petitioner and Appellee, v. SIOUX FALLS SCHOOL DISTRICT 49-5, Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 868

514 N.W.2d 868

90 Ed. Law Rep. 785

Marilyn COX, Petitioner and Appellee, v. SIOUX FALLS SCHOOL DISTRICT 49-5, Appellant.

Lynn ADLER, Petitioner and Appellee, v. SIOUX FALLS SCHOOL DISTRICT 49-5, Appellant.

Nos. 18350, 18351.

Supreme Court of South Dakota.

Considered on Briefs Jan. 11, 1994.

Decided April 13, 1994.

Rehearing Denied May 20, 1994.

Michael L. Luce, Davenport, Evans, Hurwitz and Smith, Sioux Falls, for appellant.

Thomas K. Wilka and Rita Allen, Hagen, Wilka & Archer, Sioux Falls, for appellees.

SABERS, Justice.

School District appeals determinations that grievances concerning credit for prior teaching experience were timely filed or properly and correctly decided. We affirm.

FACTS

Grievance of Cox

Marilyn Cox (Cox) was employed by the Sioux Falls School District (District) in August, 1988 as a teacher/librarian. For the purpose of determining her salary, Cox was given credit for four years of prior experience as a librarian with the District from 1968 to 1972. Cox also received credit for three years of teaching in other school districts. Cox did not receive credit for her work in marketing and public relations for the University of South Dakota School of Medicine, as an administrative assistant for the City of Sioux Falls, or as librarian for Citibank from 1982 to 1988. Cox only disputes the failure of the District to give her credit for her years with Citibank.

Cox testified at her grievance hearing before the South Dakota Department of Labor (Department) that at the time she was hired, she understood that she was given credit for seven years of prior teaching experience and that she was not given credit for her experience as a librarian for Citibank. She also testified that she was unaware of the District's practice of giving credit for non-teaching experience at that time.

On May 31, 1991, Cox filed a grievance alleging that she was hired as a librarian but was not given credit for the years she served as Library Director of Citibank. The grievance alleged that the failure to give Cox credit was a violation, misinterpretation and/or inequitable application of Article I, Section C and Article IV, Section F of the Negotiated Agreement. Superintendent John Harris denied the grievance. The School Board (Board) heard the grievance in Executive Session on July 22, 1991 and by a three to two vote, denied the grievance.

A grievance hearing was held before the Department on December 10, 1991. On October 23, 1992, Department issued an Order granting Cox' grievance appeal and directing District to cease and desist from like interpretation and application of the negotiated agreement. District was ordered to pay Cox back pay and pre-judgment interest and to place her on the proper salary line in conformance with the Department's Decision. District appealed Department's Decision. On April 20, 1993, the circuit court issued an Order and Judgment affirming the Order of Department. District appeals.

Grievance of Adler

Lynn Adler (Adler) was employed by District in 1988 as an elementary school counselor. She was given full credit for her one year of prior experience as a counselor working with K-12 children at Summit Oaks but she was only given ten years of credit for her seventeen years of work at the Department of Social Services (DSS). According to testimony by then assistant superintendent Prudence Gushwa (Gushwa), Adler was awarded only partial credit based upon the information that Adler provided regarding the extent of her involvement counseling K-12 children while working for DSS.

Adler admitted during her grievance hearing that Gushwa informed her at the time of her employment that she was put on Step 10 on the salary schedule but that she had been informed that the steps did not relate necessarily to the years of experience. There is conflicting testimony as to whether Adler was ever informed that she was not receiving credit for all of her years with DSS.

On January 12, 1991, Adler filed a grievance with Superintendent Harris alleging a violation, misinterpretation, and/or inequitable application of the negotiated agreement because the District failed to give her credit for more than 10 of her 18 years with DSS. Superintendent Harris denied the grievance. After hearing the grievance in executive session, Board unanimously denied the grievance. A hearing was held before Department and on October 23, 1992, Department issued an Order granting Adler's grievance appeal and directing District to cease and desist from like interpretation and application of the negotiated agreement. District was ordered to pay Adler back pay and pre-judgment interest and to place her on the proper salary line in conformance with Department's Decision. District appealed Department's Decision and on April 20, 1993, the circuit court issued an Order and Judgment affirming the Order of Department. District appeals. We issued an Order consolidating the appeals on June 7, 1993.

1. Whether the grievances were timely filed.

Initially, we address District's argument that Cox and Adler failed to timely file their grievances pursuant to the grievance policy. "The Department's jurisdiction is lost if the grievance is not timely filed in accordance with grievance procedures." Rininger v. Bennett County Sch. Dist., 468 N.W.2d 423, 428 (S.D.1991) (citing Schloe v. Lead-Deadwood Indep. Sch. Dist. No. 106, 282 N.W.2d 610, 614 (S.D.1979)). Whether a grievance was timely filed is a question of fact, reviewed under the clearly erroneous standard. Id. Department found that District waived its defense of notice by declining to address the defense in its argument to Department. Our review of the record of the grievance hearings indicates that this finding of fact is clearly erroneous. SDCL 1-26-36(5). We agree with the circuit court that District did raise this argument to Department at the hearing and therefore, the argument was not waived.

Cox and Adler claim that District has inequitably applied, misinterpreted, or violated the negotiated agreement and its own practice in determining credit to be given for their past work experience. According to the Professional Staff Handbook provided to Cox and Adler at the time of their employment, a "teacher ... shall file a formal grievance within thirty-five (35) days of the alleged violation, or within thirty-five (35) days of when the alleged violation was discovered, or through reasonable diligence should have been discovered." (Emphasis added.)

As stated above, Cox testified that she understood at the time she was hired that she was not credited for her years of experience as a librarian for Citibank, but that she was unaware of District's practice of giving credit for non-teaching experience at that time. As to Adler, there was conflicting testimony as to whether she understood at the time she was hired that she was not being given full credit for her years at DSS. It appears both Cox and Adler filed their grievances within 35 days of discovering the inequitable crediting of prior experience, which was the "alleged violation." District has failed to show that either Cox or Adler sat on their claims after discovering District's manner of crediting prior experience for other teachers in similar circumstances. See Rininger, 468 N.W.2d at 425 (District's allegation of deceit constitutes an affirmative defense which must be proven by a preponderance of the evidence). Therefore, District has failed to show untimely filing of either grievance.

2. Whether Department failed to give the proper deference to Board's decision and applied an incorrect standard of review.

District argues that Department applied the incorrect standard of review. According to District, because Board was the original decisionmaker, Department must give deference to Board's factual determinations under SDCL 1-26-36 and reverse only if Board acted arbitrarily or capriciously, or abused its discretion. ¹

The correct standard of review of administrative findings of fact and conclusions of law was discussed at great length in Permann v. South Dakota Dept. of Labor, 411 N.W.2d 113, 115-117 (S.D.1987). According to Permann "[w]hen the issue is a question of law, the decisions of the administrative agency and the circuit court are fully reviewable. When the issue is a question of fact, we ascertain whether the administrative agency was clearly erroneous." Id. at 116 (citations omitted); SDCL 1-26-36.

While we agree this is the correct standard of review of Department by the trial court and this court under Permann, Kleinsasser v. City of Rapid City, 440 N.W.2d 734, 736 (S.D.1989), ² this was not an appeal of a school board decision to the circuit court under SDCL ch. 13-46. SDCL 13-46-1; SDCL 13-46-6; Kellogg v. Hoven Sch. Dist. No. 53-2, 479 N.W.2d 147, 149 (S.D.1991) ("In Dale v. Board of Education, Etc., 316 N.W.2d 108, 112 (S.D.1982), we stated 'on appeal to the circuit court, pursuant to SDCL 13-46-6, the doctrine of separation of power limits the scope of review to that provided in SDCL 1-26-36.' "). Rather, this was an appeal of a school board decision to the Department of Labor under SDCL ch. 3-18. See Rininger, 468 N.W.2d at 424-25 (noting that when Rininger's attempt to appeal Board's decision to circuit court under SDCL ch. 13-46 was dismissed, Rininger appealed to Department under SDCL ch. 3-18). Accordingly, the standard of review is found in SDCL 3-18-15.2, which provides:

If, after following the grievance procedure enacted by the governing body, the grievance remains unresolved, except in cases provided for in Sec. 3-6A-38, it may be appealed to the department of labor, if notice of appeal is filed with the department within thirty days after the final decision by the governing body is mailed or delivered to the employee. The department of labor shall conduct an investigation and hearing and shall issue an order covering the points raised, which order is binding on the employees and the...