Council v. Board of Regents of University System

Carley, Judge.

Appellant initiated this action against appellee pursuant to OCGA § 45-19-20 et seq., the “Fair Employment Practices Act of 1978.” The special master found in favor of appellant. Appellee appealed to the superior court. The superior court reversed the award of the special master. Appellant’s application for a discretionary appeal to this court was granted.

1. Among the reasons given by the superior court for reversing the award of the special master was that the special master’s findings of fact did not support the conclusion that appellee had engaged in an unlawful practice with regard to the employment of appellant. The superior court’s order reflects that its determination that there was insufficient evidentiary support for the special master’s findings of fact as to that legal issue was based upon a thorough and extensive review of the record of the hearing before the special master. It would be erroneous, however, to construe the extent to which the superior court’s order contains a discussion of the evidence which was before the special master as evincing the superior court’s failure to apply the “any evidence” standard. The record clearly shows that the superior court applied that correct standard when it reviewed the award of the special master. What the superior court did was to elect not to limit itself merely to a holding that the special master’s award was erroneous, but to go further and to explicate how the special master had erred. Thus, the superior court’s order does not contain only its bare legal determination that, as to several factual issues, the special master’s findings of fact represented an erroneous mischaracterization of the evidence which had been adduced as to those issues. The superior court’s order goes further and indicates what the true characterization of the evidence as relevant to those factual issues would be. In indicating that the evidence did in fact show as to certain factual issues, the superior court was not undertaking to substitute its findings of fact for those which had been reached by the special master. By demonstrating what the evidence as to those issues did show, the superior court was merely explaining its legal determination as to the erroneous mischaracterization of the special master’s findings.

Our review of the record shows that the superior court was correct in its conclusion that the special master’s findings were without probative evidentiary support and that it is the superior court’s determination as to the evidentiary posture of the case that is the correct one. Accordingly, the judgment of the superior court reversing the award of the special master for a lack of probative evidence and entering judgment in favor of appellee is affirmed.

2. Any remaining contention that the superior court’s reversal of the award of the special master was erroneous is moot by virtue of our holding in Division 1.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Sognier, Pope, and Beasley, JJ., concur. McMurray, P. J., Banke, P. J., and Ben-ham, J., dissent.