Blauer v. Career Serv. Review Bd.

• Decision Date: 19 April 2012
• Docket Number: No. 20101048–CA.,20101048–CA.
• Citation: 276 P.3d 1246,706 Utah Adv. Rep. 6,2012 UT App 120
• Parties: Lorin BLAUER, Petitioner, v. CAREER SERVICE REVIEW BOARD and Department of Workforce Services, Respondents.
• Court: Utah Court of Appeals

276 P.3d 1246

706 Utah Adv. Rep. 6

2012 UT App 120

Lorin BLAUER, Petitioner,

v.CAREER SERVICE REVIEW BOARD and Department of Workforce Services, Respondents.

No. 20101048–CA.

Court of Appeals of Utah.

April 19, 2012.

Vincent C. Rampton, Salt Lake City, for Petitioner.

Mark L. Shurtleff and Bridget K. Romano, Salt Lake City, for Respondent Department of Workforce Services.

Before Judges VOROS, THORNE, and ROTH.

OPINION

THORNE, Judge:

¶ 1 Lorin Blauer seeks judicial review of a memorandum decision issued by the Career Service Review Board (the Board), which affirmed a hearing officer's order denying all of Blauer's remaining grievance claims against his former employer, the Utah Department of Workforce Services (DWS). We uphold the Board's decision.

BACKGROUND

¶ 2 This matter originated in September 2003, when Blauer initiated a grievance claim alleging that DWS had demoted him from his Legal Counsel III position when his supervisor reassigned him to conducting unemployment insurance hearings on a full-time basis. The circumstances of Blauer's reassignment and ultimate termination by DWS can be briefly summarized. In 2003, Blauer was employed by DWS as Legal Counsel III, where he performed general legal work including the occasional conducting of unemployment insurance hearings. Blauer received annual performance reviews from 1999 to 2003 and updated performance plans in 1999–2000 and 2000–2001 but not thereafter. Prior to June 2003, Blauer's evaluations identified some problems with his performance but ultimately rated him as “successful.”

¶ 3 In June 2003, Blauer received an “unsuccessful” job rating on his performance review. The stated reason for the unsuccessful rating was Blauer's continued inability to maintain the workload expected of him by DWS. The rating acknowledged Blauer's contention that his productivity problems were the result of health issues but also observed that Blauer had never procured an Americans with Disabilities Act (ADA) accommodation for his alleged physical disabilities. Blauer challenged the unsuccessful rating with an employee grievance, and DWS amended Blauer's 2003 job rating to successful on September 5, 2003.

¶ 4 In the course of challenging the unsuccessful rating, Blauer began the process of seeking an ADA accommodation for his health issues, which included sleep apnea, sciatica, and coronary artery disease. Blauer submitted various letters from his doctor in support of his request for accommodation. DWS denied Blauer's request by letter dated September 5, 2003.

¶ 5 On September 9, 2003, Blauer's supervisor issued a Notice of Reassignment (the Notice) assigning Blauer to conducting unemployment insurance hearings on a full-time basis. The Notice made clear that only Blauer's assigned duties were being changed, and not his job title, pay, or benefits. The Notice listed several factors that had gone into the reassignment decision, including Blauer's prior performance problems, his doctor's recommendation that he not be required to sit for more than an hour at a time, and feedback from his former clients and their current attorneys. The Notice also identified certain deficiencies in Blauer's prior performance for the stated purpose of helping Blauer “understand this new assignment.” These deficiencies included Blauer's use of a signature stamp, his poor editing of his written work, and his potentially improper use of DWS wage data. The Notice concluded by asserting that Blauer's new duties would allow him to better know what was expected of him and that the reassignment was “in the best interest of [DWS] for the reasons ... stated above.”

¶ 6 Blauer filed a second grievance, challenging the Notice as an effective demotion. While the grievance was being addressed at the DWS level, Blauer went on sick leave and never returned to work, despite some efforts on his part to secure accommodations that would have allowed him to do so. When Blauer failed to return to work for a period of one year, he was terminated. In the meantime, DWS denied Blauer's second grievance, determining that the Notice did not constitute a demotion, and the Board upheld that determination. ¹

¶ 7 Since that decision, Blauer has been litigating his demotion claim and six other claims alleging that DWS violated various personnel rules. The matter has repeatedly wound its way back and forth from the Board to the district court and this court.² This court previously held that Blauer's reassignment did not constitute a demotion and that “DWS did nothing more than extend one of Blauer's core job functions, in response to varying department needs.” See Blauer v. Department of Workforce Servs. ( Blauer I ), 2005 UT App 488, ¶ 32, 128 P.3d 1204. We did, however, ultimately remand Blauer's six claims of personnel rule violations to the Board for a hearing on their merits, enforcing a prior district court decision holding that those claims had been adequately preserved. See Blauer v. Department of Workforce Servs. ( Blauer III ), 2008 UT App 84U, paras. 3–5, 2008 WL 660522 (mem.). A hearing officer denied these claims after conducting a four-day hearing in 2009. The Board upheld the hearing officer's decision, and Blauer now seeks judicial review in this court.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Blauer first argues that the Board acted in contravention of this court's prior directions when it concluded that it lacked subject matter jurisdiction to consider his claim that he had been subjected to workplace discrimination on account of his disability.³ “[I]issues that require interpretation of prior decisional precedents” are “questions of law which we review for correctness.” In re A.F.K., 2009 UT App 198, ¶ 16, 216 P.3d 980 (internal quotation marks omitted); see also State v. Leyva, 951 P.2d 738, 741 (Utah 1997) (“A lower court's interpretation of binding case law presents a question of law which we review for correctness.”).

¶ 9 Next, Blauer argues that the Board erred when it determined that DWS had not improperly defined Blauer's job parameters. This issue presents a mixed question of law and fact “in which the agency's special expertise puts it in a better position than an appellate court to evaluate the circumstances of the case in light of the agency mission.” Sorge v. Office of the Attorney Gen., 2006 UT App 2, ¶ 17, 128 P.3d 566 (internal quotation marks omitted). Accordingly, “we apply a deferential standard of review to the [Board's] decision” and uphold it “if it was reasonable or rational.” Id.

¶ 10 Finally, Blauer argues that the Board erred in determining that the Notice reassigning him was not a grievable written reprimand pursuant to Utah Code section 67–19a–202(1)(a). SeeUtah Code Ann. § 67–19a–202(1)(a) (2004).⁴ This issue also presents a mixed question of law and fact implicating the Board's special expertise, and we likewise review this decision with deference for reasonableness and rationality. See Sorge, 2006 UT App 2, ¶ 17, 128 P.3d 566.

ANALYSIS

¶ 11 On judicial review, Blauer challenges the Board's dismissal of three of his six claims that DWS had violated personnel rules.⁵ The three claims currently before us are (1) Blauer's claim that his reassignment and DWS's failure to grant him an ADA accommodation constituted discrimination against him based on a disability and retaliation in violation of the then-existing provisions of Utah Administrative Code R477–15–1 to –3; (2) his claim that DWS failed to properly define his job parameters in violation of R477–10–1 to –2 of the Utah Administrative Code; and (3) his claim that the September 9, 2003 Notice reassigning his job duties constituted a grievable “written reprimand” pursuant to the then-existing Utah Code section 67–19a–202(1)(a). We uphold the Board's dismissal of these claims.

I. The Board Lacked Jurisdiction over Blauer's Workplace Discrimination Claim

¶ 12 Blauer first argues that the Board erred in dismissing his workplace discrimination claim on the ground that it lacked jurisdiction to consider that claim. The Board based its jurisdictional decision on Utah Code sections 67–19–32 and 35A–5–107 and Utah Administrative Code R137–1–5.⁶Utah Code section 67–19–32 provides that career service employees who allege workplace discrimination may pursue such claims by submitting a written grievance to the department head where the alleged act occurred and that employees who are dissatisfied with the response may then submit a complaint with the Utah Division of Antidiscrimination and Labor. SeeUtah Code Ann. § 67–19–32(1), (3) (2011). Section 34A–5–107(15) states that the Utah Antidiscrimination and Labor Act provides “the exclusive remedy under state law for employment discrimination based upon ... disability.” SeeUtah Code Ann. § 34A–5–107(15)(i) (2011). And Utah Administrative Code R137–1–5 states, “Claims alleged to be based upon a legally prohibited practice as set forth in [ Utah Code section] 34A–5–106, including employment discrimination on the basis of ... disability, are not admissible under these grievance procedures. The [Board] and [Board] hearing officers have no jurisdiction over the preceding claims.” Utah Admin. Code R137–1–5(1).

¶ 13 In light of these provisions, the Board concluded that it lacked jurisdiction to consider Blauer's claim that he had been the victim of workplace discrimination.⁷ Blauer does not argue that the Board's interpretation of the cited statutes and rule is incorrect. Rather, he argues that this court conclusively established the Board's jurisdiction in this particular instance when we stated, in Blauer III, “[W]e conclude that the district court determined that Blauer's claims had been raised in such a way that there were no jurisdictional deficiencies at the agency or district court level.” 2008 UT App 84U, para. 4, 2008 WL 660522 (mem.) (emphasis added). Blauer relies on the admittedly broad statement “no jurisdictional deficiencies” as establishing, as the law of the case, that the...