Van Scoyk v. St. Mary's Assumption Parochial School, 48625

• Decision Date: 15 July 1978
• Docket Number: No. 48625,48625
• Citation: 580 P.2d 1315,224 Kan. 304
• Parties: , 27 Fair Empl.Prac.Cas. (BNA) 356, 17 Empl. Prac. Dec. P 8620 Gwynne VAN SCOYK and Kay Wiley, Appellants, v. ST. MARY'S ASSUMPTION PAROCHIAL SCHOOL and Kansas Commission on Civil Rights, Appellees.
• Court: Kansas Supreme Court

Page 1315

580 P.2d 1315

224 Kan. 304, 27 Fair Empl.Prac.Cas. (BNA) 356,

17 Empl. Prac. Dec. P 8620

Gwynne VAN SCOYK and Kay Wiley, Appellants, v. ST. MARY'S ASSUMPTION PAROCHIAL SCHOOL and Kansas Commission on Civil Rights, Appellees.

No. 48625.

Supreme Court of Kansas.

July 15, 1978.

Syllabus by the Court

1. No appeal lies from a No Probable Cause determination by an investigating commissioner of the Kansas Commission on Civil Rights.

2. After a No Probable Cause determination is made and the Commission's file is closed, an aggrieved person may bring an independent civil action in the district court, based upon an alleged violation of K.S.A.1977 Supp. 44-1009.

3. A parochial school, being a sectarian organization, is not an "employer" within the definition of "employer" contained in the Kansas act against discrimination.

Richard D. Cordry of Michaud & Cranmer, Chartered, Wichita, argued the cause, and Russell Cranmer, of the same firm, was with him, on brief, for appellants.

Roger W. Lovett, Topeka, argued the cause and was on brief, for appellee, Kansas Commission on Civil Rights, and Alan D. Herman, of Jochems, Sargent & Blaes, Wichita, argued the cause, and Lawrence McDonough, Wichita, was on brief, for appellee, St. Mary's Assumption Parochial School.

MILLER, Justice:

This is a civil rights action involving alleged religious discrimination. The trial court sustained motions to dismiss, filed by the defendants, St. Mary's Assumption Parochial School and the Kansas Commission on Civil Rights. Plaintiffs appeal.

Plaintiffs, Gwynne Van Scoyk and Kay Wiley, were elementary school teachers, for two years at St. Mary's Assumption Parochial School in Derby, Kansas. Before the fifteenth day of March of their second year, Father Watson, the administrative head of the school, informed the plaintiffs that neither of their contracts would be renewed. No reason was given for this decision. Both plaintiffs were terminated at the end of the school year, in May, 1975.

Neither plaintiff is a Roman Catholic; both are Protestants. They contend that they were each terminated because of religion. Each filed a complaint with the Kansas Commission on Civil Rights in November, 1975. About a month later the Commission notified each plaintiff that the evidence was not sufficient to support a charge of discrimination; that a No Probable Clause determination was being made; and that the Commission was closing its file. About two months later, each plaintiff filed a notice of appeal with the Commission.

This action was commenced in the district court on May 28, 1976. The initial pleading, entitled "Petition and Appeal," states two claims for relief. The first is a claim against St. Mary's for reinstatement, or in the alternative for damages, for wrongful discharge based on a claim of religious discrimination. The second claim, in the nature of an appeal, is against the Commission. Plaintiffs claim that the Commission's action was arbitrary, capricious and unreasonable, and they seek to have the matter remanded to the Commission with directions to hold a trial on plaintiffs' claims of discrimination. Following service of summons, both defendants filed motions to dismiss. The trial court sustained both motions and dismissed the action with prejudice.

The first issue is whether plaintiffs could appeal to the district court from the No Probable Clause finding. We recently determined this adversely to plaintiffs' present contentions in Bush v. City of Wichita, 223 Kan. 651, 576 P.2d 1071 (1978), where we held that no appeal lies from a No Probable Clause determination by the investigating commissioner. The trial court was therefore correct in sustaining the motion of the Commission to dismiss.

The next issue before us is whether an independent action, such as that here asserted against St. Mary's, may be brought directly in the district court, or whether the enforcement procedure within the civil rights act is exclusive.

K.S.A. 44-1001, Et seq., declares it to be the public policy of the state of Kansas to assure equal opportunities to every citizen in securing and holding employment, without discrimination because of race, religion, color, sex, physical handicap, national origin, or ancestry. K.S.A.1977 Supp. 44-1009 makes it an unlawful employment practice for an employer, because of the religion of any person, to refuse to hire or employ, or to bar or to discharge from employment, such person. Any person who claims to be aggrieved by an alleged unlawful employment practice may file a complaint with the Commission. But may such a charge be the basis for a direct civil action in the courts, following the exhaustion of the administrative procedure before the Commission? We hold that it may. We find no language in the act evidencing a legislative intent to make the procedure before the Commission the exclusive means by which rights granted by the act may be enforced.

The Workmen's Compensation Act states in its first section, K.S.A.1977 Supp. 44-501, that "Except as provided in the workmen's compensation act, no . . . employer . . . shall be liable for any injury for which compensation is recoverable thereunder . . . " We have long held that the Workmen's...