Vest v. Board of Educ. of County of Nicholas

• Decision Date: 17 February 1995
• Docket Number: No. 22547,22547
• Citation: 193 W.Va. 222,455 S.E.2d 781
• Court: West Virginia Supreme Court
• Parties: , 68 Fair Empl.Prac.Cas. (BNA) 1763, 98 Ed. Law Rep. 1094 Barbara L. VEST, Plaintiff, v. The BOARD OF EDUCATION OF the COUNTY OF NICHOLAS, Defendant.

Page 781

455 S.E.2d 781

193 W.Va. 222, 68 Fair Empl.Prac.Cas. (BNA) 1763,

98 Ed. Law Rep. 1094

Barbara L. VEST, Plaintiff, v. The BOARD OF EDUCATION OF the COUNTY OF NICHOLAS, Defendant.

No. 22547.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1995.

Decided Feb. 17, 1995.

[193 W.Va. 223] Syllabus by the Court

1. The West Virginia Education and State Employees Grievance Board does not have authority to determine liability under the West Virginia Human Rights Act, W.Va.Code, § 5-11-1, et seq.; nevertheless, the Grievance Board's authority to provide relief to employees for "discrimination," "favoritism," and "harassment," as those terms are defined in W.Va.Code, 18-29-2 (1992), includes jurisdiction to remedy discrimination that also would violate the Human Rights Act.

2. For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies, at least where there is no statutory authority directing otherwise, the prior decision must be rendered pursuant to the agency's adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court. In addition, the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel.

3. A civil action filed under the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq., is not precluded by a prior grievance decided by the West Virginia Education and State Employees Grievance Board arising out of the same facts and circumstances.

Mike Kelly, Charleston, for plaintiff.

Charles R. Bailey, Belinda B. Neal, Shuman, Annand & Poe, Charleston, for defendant.

Jeffrey G. Blaydes, James M. Haviland, Crandall, Pyles & Haviland, Charleston, for amicus curiae W. Va. Educ. Ass'n.

Paul R. Sheridan, Sr. Asst. Atty. Gen., Charleston, for amicus curiae W. Va. Human Rights Com'n.

CLECKLEY, Justice:

This case involves two questions certified to us by the United States District Court for the Southern District of West Virginia involving the authority of the West Virginia Education and State Employees Grievance Board (Grievance Board) to hear a gender-based discrimination claim.

I. FACTS

The plaintiff, Barbara L. Vest, served as a substitute teacher at Summersville Junior High School in Nicholas County. The plaintiff asserts she was terminated from that position on the basis of pregnancy and sex. The plaintiff filed a grievance against the defendant, the Board of Education of the County of Nicholas, with the Grievance Board. At a level IV grievance hearing, the plaintiff presented evidence in support of her discrimination claim. However, in her post-hearing brief, the plaintiff voluntarily relinquished her claim upon her belief that it was not the proper forum to hear her discrimination claim. At the hearing, the plaintiff was not assisted by a lawyer, but was assisted by a "representative" as permitted by W.Va.Code, 18-29-3(f) (1985). ¹ By decision dated May 20, 1992, the plaintiff's grievance was Subsequently, on June 12, 1992, the plaintiff filed her discrimination claim with the United States Equal Employment Opportunity Commission (EEOC). According to the plaintiff, the EEOC determined there was probable cause under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and issued the plaintiff a Notice of Right to Sue on July 20, 1993. Thereafter, the plaintiff filed an action in the federal district court against the defendant under the Civil Rights Act and the West Virginia Human Rights Act, W.Va.Code, 5-11-1, et seq. The defendant filed a motion for summary judgment with the district court arguing the discrimination claim was barred by the doctrines of res judicata and collateral estoppel because of the plaintiff's previous hearing before the Grievance Board. The following questions then were certified to this Court:

[193 W.Va. 224] denied. The decision contained no conclusions of law with regard to the plaintiff's discrimination claim. ²

1. "Does the West Virginia Education and State Employees Grievance Board ('Grievance Board') have subject matter jurisdiction over claims alleging discrimination because of gender-based discrimination?

2. "If the Grievance Board has such jurisdiction, is a civil action filed pursuant to the West Virginia Human Rights Act precluded by a prior grievance proceeding involving the same parties and arising out of the same facts and circumstances, but which did not result in any findings of fact or conclusions of law regarding the discrimination claim?"

After review, we answer the first certified question in the affirmative and the second certified question in the negative.

II. GRIEVANCE BOARD'S SUBJECT MATTER JURISDICTION

The Legislature established the grievance procedure in W.Va.Code, 18-29-1, et seq., to provide the State's education employees with "a simple, expeditious and fair process for resolving [employment] problems[.]" W.Va.Code, 18-29-1 (1992); see Triggs v. Berkeley County Bd. of Educ., 188 W.Va. 435, 425 S.E.2d 111 (1992); Fayette County Bd. of Educ. v. Lilly, 184 W.Va. 688, 403 S.E.2d 431 (1991). Under W.Va.Code, 18-29-5(a) (1989), the Grievance Board is created and is directed to employ hearing examiners to conduct and decide level IV hearings, as provided in W.Va.Code, 18-29-4 (1992). W.Va.Code, 18-29-5(b) (1989), authorizes the hearing examiners to "provide such relief as is deemed fair and equitable in accordance with the provisions of [article twenty nine.]" Grievances, according to W.Va.Code, 18-29-2(a) (1992), may include claims by employees alleging "discrimination" in the application or interpretation of written rules or procedures, "discrimination" in the "application of unwritten policies or practices of the board, [and] any specifically identified incident of harassment or favoritism[.]" W.Va.Code, 18-29-2 (1992), also defines the following terms for purposes of article twenty-nine:

"(m) 'Discrimination' means any differences in the treatment of employees unless such differences are related to the actual job responsibilities of the employees or agreed to in writing by the employees.

"(n) 'Harassment' means repeated or continual disturbance, irritation or annoyance of an employee which would be contrary to the demeanor expected by law, policy and profession.

"(o ) 'Favoritism' means unfair treatment of an employee as demonstrated by preferential, exceptional or advantageous treatment of another or other employees."

Thus, the Grievance Board, through its hearing examiners, has "jurisdiction" to decide Clearly, the Grievance Board's authority extends only to resolving grievances made cognizable by its authorizing legislation, that is, those grievances recognized in W.Va.Code, 18-29-2. Just as certainly, there is no authority in the statute for the Grievance Board to decide whether a person states a claim under the Human Rights Act. In fact, W.Va.Code, 5-11-10 (1994), W.Va.Code, 5-11-11 (1989), and W.Va.Code, 5-11-13 (1983), commit interpretation and enforcement of the Human Rights Act to the Human Rights Commission and to the courts of this State. Price v. Boone County Ambulance Auth., 175 W.Va. 676, 337 S.E.2d 913 (1985).

[193 W.Va. 225] grievances that include claims of discrimination, harassment, and favoritism which have the potential to overlap claims under the Human Rights Act. The latter prohibits discrimination in public and private employment on the basis of race, religion, color, national origin, ancestry, sex, age, blindness, or handicap. W.Va.Code, 5-11-9 (1992). The two statutes may, in a given case, provide alternative remedies to aggrieved persons. Obviously, a state educational employee who is denied a job benefit solely because of her gender would have a meritorious grievance based on either "discrimination" or "favoritism" and also would have a claim for relief under the Human Rights Act. Similarly, a victim of sexual harassment would be entitled to relief in a grievance that alleged "harassment" ³ and in a claim (administrative or judicial) under the Human Rights Act. E.g., Westmoreland Coal Co. v. West Virginia Human Rights Comm'n, 181 W.Va. 368, 382 S.E.2d 562 (1989). These overlapping remedies lead to issues, such as are presented in this case, where we must reconcile the goals of various statutory schemes with the policies ⁴ supporting the doctrines of claim and issue preclusion doctrines.

On the other hand, the Grievance Board can entertain grievances claiming that a particular employment action was the result of discrimination based on sex or any of the other prohibited motivations listed in the Human Rights Act. If a grieving employee can prevail on the claim that she has been the victim of "discrimination," "harassment," or "favoritism," it necessarily follows that the employee also can prevail by showing that the "discrimination," "harassment," or "favoritism," was motivated by sexual, racial, or some other invidious ground. Conversely, an employment decision that treats an employee differently because of the employee's race or gender, etc., is, by definition, not one that is "related to the actual job responsibilities of the [employee.]" W.Va.Code, 18-29-2(m).

For example, as a practical matter, a grievant who has persuasive evidence that sexual or racial bias entered into an employment decision may want to present such evidence at a grievance hearing both to prove "discrimination" and to rebut the employer's neutral or job-related explanation for its action. To hold that a grievant could not present evidence of an illicit motive to help prove "discrimination" just because such motive Thus, the answer to the District Court's first certified question is in the affirmative. The Grievance Board does not have authority to determine liability under the Human Rights Act, W.Va.Code, 5-11-1, et seq.; nevertheless, the Grievance Board's authority to provide relief to employees for "discrimination," "favoritism,...