Mason County Bd. of Educ. v. State Superintendent of Schools

• Decision Date: 13 July 1982
• Docket Number: No. 15540,15540
• Citation: 170 W.Va. 632,295 S.E.2d 719
• Parties: , 6 Ed. Law Rep. 1148 MASON COUNTY BOARD OF EDUCATION v. STATE SUPERINTENDENT OF SCHOOLS and Bright McCausland.
• Court: West Virginia Supreme Court

Page 719

295 S.E.2d 719

170 W.Va. 632, 6 Ed. Law Rep. 1148

MASON COUNTY BOARD OF EDUCATION v. STATE SUPERINTENDENT OF SCHOOLS and Bright McCausland.

No. 15540.

Supreme Court of Appeals of West Virginia.

July 13, 1982.

Concurring and Dissenting Opinion

Sept. 8, 1982.

Syllabus by the Court

1. The general rule in wrongful discharge claims limiting recovery of lost wages to the term of the breached contract is not applicable to probationary contracts of West Virginia school teachers because of the unique protections granted them by Rule 5300 of the Policies, Rules and Regulations of the West Virginia Board of Education, under which probationary teachers have a statutory right to renewal and a right to due process hearings before termination of the contract.

2. Unless a wrongful discharge is malicious, the wrongfully discharged employee has a duty to mitigate damages by accepting similar employment to that contemplated by his or her contract if it is available in the local area, and the actual wages received, or the wages the employee could have received at comparable employment where it is locally available, will be deducted from any back pay award; however, the burden of raising the issue of mitigation is on the employer.

3. Wages from any job taken by a wrongfully discharged employee will be deducted from his or her back pay award whether the work taken is comparable to the work contracted for or not, if the employee's performance of the job would have been incompatible with his or her performance of the contract.

4. Where mitigation of damages renders the final award nominal, a wrongfully discharged employee will nonetheless be entitled to reimbursement for reasonable attorneys' fees and other expenses of the litigation leading to his or her reinstatement.

Davis & Nesius and John J. Nesius, Charleston, for appellant.

Charles Headley Damron, Point Pleasant, for appellees.

NEELY, Justice:

We granted this appeal in order to clarify the rules that apply to mitigation of damages in wrongful discharge cases. Appellee Bright McCausland was discharged from his position as a probationary school principal by the Mason County Board of Education on 1 September 1972. This case has been before the Court twice before, Mason County Board of Education v. State Superintendent of Schools, 160 W.Va. 348, 234 S.E.2d 321 (1977) and Mason County Board of Education v. State Superintendent of Schools, 164 W.Va. 732, 274 S.E.2d 435 (1980). The first case was brought here by the Mason County Board of Education to appeal a Kanawha County Circuit Court decision that a county board of education lacks standing to seek judicial review of an adverse decision of the State Superintendent of Schools. We held that a board of education does have such standing and remanded the case.

After our remand the State Superintendent's decision was overturned by the Circuit Court of Kanawha County and Mr. McCausland then appealed that ruling to this Court. We reversed the Circuit Court of Kanawha County holding that Mr. McCausland's dismissal was illegal under § 5300(6)(a) of the Policies, Rules and Regulations of the West Virginia Board of Education and ordered Mr. McCausland reinstated to his position with back pay. Upon remand the circuit court ordered Mr. McCausland reinstated as principal of Hannan High School and awarded him $148,362.36 in back pay for the school years 1973-74 through 1980-81. It is from this order of the circuit court that the Mason County Board of Education now appeals.

The Mason County Board of Education asserts one frivolous assignment of error that we shall dispatch summarily. In the circuit court the board sought to re-litigate the issue of whether Mr. McCausland had been properly discharged after we had already decided that issue in the second McCausland case. Obviously, the circuit court was correct in foreclosing any further litigation about whether Mr. McCausland was properly discharged and about whether he should be reinstated as principal at Hannan High School pursuant to this Court's order.

Our final order in the second McCausland case contemplated reinstatement and a back pay award. Those matters are therefore now res judicata, and to that extent we affirm the judgment of the circuit court.

I

The issue of damages is newly before us. The Mason County Board of Education requests for a number of reasons that Mr. McCausland not receive a full back pay award. The appellants assert that Mr. McCausland was a probationary principal who was employed under a three year contract that would have expired in 1975. The board argues that Mr. McCausland's damages are limited at most to the number of years of service to which he would have been entitled under his employment contract.

Appellants evidently derive this conclusion from the rule in employment contracts that "[i]f the contract is for a final term ..., the employment thereunder expires with the term." 11 S. Williston, Contracts § 1017 [3d Ed. 1968]. The cited rule, however, is not applicable to employment contracts of teachers in this state. The unique protection granted teachers by Rule 5300 makes a distinction between their employment contracts and an ordinary employment contract under which the employee has neither a statutory right to renewal nor a right to due process hearings before termination of the contract. This Court has held that Rule 5300 accords certain due process rights even to probationary teachers and that failure to award continuing contract status to a probationary teacher for utterly arbitrary and capricious reasons is a violation of the administrative rules and regulations of the State Board of Education, Leef v. Via, 170 W.Va. 245, 293 S.E.2d 442 (1982); Powell v. Brown, 160 W.Va. 723, 238 S.E.2d 220 (1977). If Mr. McCausland had been accorded his rights under Rule 5300 of the Policies, Rules and Regulations of the West Virginia Board of Education, and had not been wrongfully discharged, he would likely have achieved tenured status and a continuing employment contract. Consequently, we find the board's argument that Mr. McCausland suffered no damage after the expiration date of his probationary contract to be without merit.

II

The primary issue that the board raises, and which we must now address for the first time in many years, concerns the obligation of a wrongfully discharged employee to mitigate his or her damages by seeking and accepting comparable employment for which he or she is qualified during the pendency of litigation. The easiest rule for any court to follow, and the rule which we have followed in the past, is that when an employee is wrongfully discharged he or she is entitled to all back pay from the date of discharge to the date of reinstatement together with interest. Such an award is usually sufficiently generous to cover all actual damages as well as the cost of attorneys' fees. If all wrongful discharge cases were examples of willful, malicious, and deliberate violations of employee rights, equity might justify generous back pay awards without any obligation to mitigate.

Increasingly, however, our cases demonstrate a pattern of more exacting review of discharges. The law regarding both the due process rights of school personnel and the rights of school personnel under the administrative rules and regulations of the State Board has been changing rapidly in West Virginia over the past six years. This Court has followed the national law and attempted to establish orderly procedures by which the performance of school personnel can be upgraded and monitored, and has attempted to do so without generating the sense of insecurity induced if jobs can be forfeited without prior notice and an opportunity to bring performance up to standard.

Unfortunately, the more courts make an effort to protect school personnel and other public employees from arbitrary and capricious discharge, the further they enter a gray area in which there are few absolutely correct answers, and the task of a court becomes simply to exercise its judgment. In the days when courts limited their intrusion into public employee discharge cases to those instances where clear violations of well-established law occurred--as for example, when an employee was fired without any hearing, discriminated against because of race or sex, or transferred out of malice in direct contravention of a civil service statute--it was possible to accept with equanimity the proposition that the employee should receive an award that, in effect, punishes the agency or other employer that is the wrongdoer. This equanimity is no longer appropriate because the standard of review is so much less strict; courts will now overturn a discharge if that discharge was too severe a sanction for even admittedly substandard behavior or if a government employer abused its discretion in discharging a particular employee. Powell v. Brown, supra; Beverlin v. Lewis County Board of Education, 158 W.Va. 1067, 216 S.E.2d 554 (1975).

Judicial recognition of the due process rights of government employees has exacerbated the problem since, while some due process rights in terms of notice and hearing are extremely well defined and easy to follow, others are enormously technical. Reversals of agency decisions are frequently made on the grounds that a technical violation unrelated to the merits of the case has occurred.

Furthermore, the contours of the law controlling government employer-employee relations are still developing, and it often occurs that government employers discharge an employee in reliance upon one interpretation of the law only to discover ex post facto when the interpretation changes that their actions have become illegal. The landmark case of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) is a perfect case in point. Before Elrod, all government employees except those serving under the Federal or State Civil Service were believed to serve entirely at the will and...