Brown v. Jefferson Cnty. Sch. Dist. No. R–1

• Decision Date: 21 June 2012
• Docket Number: No. 09CA2554.,09CA2554.
• Citation: 297 P.3d 976
• Parties: Steve BROWN, Plaintiff–Appellant, v. JEFFERSON COUNTY SCHOOL DISTRICT NO. R–1, Defendant–Appellee.
• Court: Colorado Court of Appeals

297 P.3d 976

Steve BROWN, Plaintiff–Appellant,

v.JEFFERSON COUNTY SCHOOL DISTRICT NO. R–1, Defendant–Appellee.

No. 09CA2554.

Colorado Court of Appeals,

Div. I.

June 21, 2012.

Cameron W. Tyler and Associates, P.C., Cameron W. Tyler, Bruce W. Sarbaugh, Boulder, CO, for Plaintiff–Appellant.

Caplan and Earnest, LLC, Michael W. Schreiner, Meghan E. Pound, Boulder, CO, for Defendant–Appellee.

Opinion by Judge FOX.

¶ 1 Plaintiff, Steve Brown, appeals the trial court's order dismissing his breach of contract claim against defendant, Jefferson County School District No. R–1 (the District). We affirm.

I. Background

¶ 2 Brown was reprimanded in 2006 by the District, his former employer, because of insubordination toward a supervisor. The District disciplined Brown a second time in 2007 for his vulgar language toward a coworker. In January 2008, three witnesses reported that Brown made threatening comments about his supervisor on different occasions, one as far back as June 2007. In response to the January reports, the District terminated Brown that same month.

¶ 3 As a member of the Classified School Employee's Association (the CSEA), Brown was subject to the collective bargaining agreement (the CBA) between the CSEA and the District, which provides a four-step grievance process.

¶ 4 Step one of this process requires the employee to attempt to resolve the grievance informally by meeting with the employee's administrator. If step one does not result in a satisfactory resolution, the employee, through a CSEA representative, may submit a formal written grievance to the District's Executive Director, and a meeting is held to discuss the problem. The CSEA may demand a step-three hearing on the employee's behalf if it deems the grievance “meritorious.” If the grievance is not resolved, the CSEA may demand an arbitration hearing within ten days of receiving the step-three decision. After the arbitrator issues an advisory decision, the arbitrator meets with the District and the CSEA to discuss the decision. The Board of Education (the Board), an entity separate from the administration of the school district, ¹ then takes “official action on the decision of the arbitrator” within thirty days and that completes the administrative process.

¶ 5 After receiving notice of the District's decision to terminate his employment, Brown's CSEA representative filed a grievance in accordance with the four-step grievance process. The parties agreed, as permitted by the CBA, that Brown would waive steps one and two of the grievance process and that the parties would proceed to step three. The hearing officer found that Brown was wrongfully terminated, and stated that the District and the CSEA needed to reach an agreement regarding Brown's reinstatement.

¶ 6 After receiving the hearing officer's decision, Robert Archibold, the District's Executive Director of Employee Relations, informed Brown's CSEA representative that the District rejected the hearing officer's recommendation. The CSEA did not proceed to step four on Brown's behalf and never secured a final decision from the Board. Instead, Brown filed a complaint claiming that the District breached the CBA by refusing to follow the hearing officer's recommendations.

¶ 7 The District filed a motion for summary judgment arguing that the court lacked subject matter jurisdiction because Brown failed to exhaust his administrative remedies. Brown filed a motion for partial summary judgment arguing that, based upon the undisputed facts, the District breached the CBA by failing to honor the hearing officer's binding recommendation. The trial court dismissed Brown's complaint for lack of subject matter jurisdiction, explaining that it was not persuaded by Brown's argument that further administrative review would be futile.

¶ 8 Brown argues on appeal that the district court erred by (1) dismissing his complaint without resolving whether the District breached the CBA, and (2) concluding that further administrative review was not futile. We reject both arguments.

II. Standard of Review

¶ 9 We review de novo the trial court's grant of summary judgment. Brodeur v. Am. Home Assurance Co., 169 P.3d 139, 146 (Colo.2007). Summary judgment is appropriate when the pleadings and supporting documents show that there is no genuine issue as to any material facts and as a matter of law the moving party is entitled to judgment. C.R.C.P. 56(c); In re Tonko, 154 P.3d 397, 402 (Colo.2007). Although the parties presented the issues under Rule 56(c), the court evaluated the District's jurisdictional challenge pursuant to Colorado Rule of Civil Procedure 12(b)(1). Pursuant to C.R.C.P. 12(b)(1), the plaintiff has the burden of proving that the trial court has jurisdiction to hear the case. Lee v. Banner Health, 214 P.3d 589, 594 (Colo.App.2009). We review the trial court's factual determinations under a clear error standard and its legal conclusions under a de novo standard. Monez v. Reinertson, 140 P.3d 242, 244 (Colo.App.2006).

III. Legal Principles

¶ 10 If a party fails to exhaust administrative remedies, the trial court lacks jurisdiction to hear the action. In re Tonko, 154 P.3d at 402;see also Moss v. Members of Colo. Wildlife Comm'n, 250 P.3d 739, 742 (Colo.App.2010). The exhaustion requirement “prevents piecemeal application for judicial relief and unwarranted interference by the judiciary in the administrative process.” Horrell v. Dep't of Admin., 861 P.2d 1194, 1197 (Colo.1993). Exhaustion also allows an agency to correct errors on matters within its expertise and to compile a record adequate for judicial review. Colorado Dep't of Pub. Health & Env't v. Bethell, 60 P.3d 779, 784 (Colo.App.2002).

IV. Grievance Process and Board Action

¶ 11 The Board's final decision is an affirmative requirement of the grievance process.² Article 6–5–4–3 of the CBA states:

Within ten (10) workdays after receipt of the arbitrator's [advisory] decision, the District and the CSEA will schedule a meeting to discuss the decision. No public release of information may be made until after such meeting. The Board shall take official action on the decision of the arbitrator within thirty (30) days of the discussion meeting.

(Emphasis added). The term “shall” in a contract denotes mandatory compliance. RCS Lumber Co. v. Sanchez, 136 Colo. 351, 355, 316 P.2d 1045, 1047 (1957). Because the step-four arbitrator issues an advisory,³ rather than a binding, decision, the grievance process remains unresolved until the Board makes a final decision.

¶ 12 Thus, according to the CBA and consistent with section 22–32–109(1)(f)(I), C.R.S.2011—which grants the Board authority to delegate the duty of maintaining employment relations to the District—the Board, acting through its elected members, considers a dispute between the District, acting through the Executive Director of Employee Relations, and an employee only after the four-step grievance process is completed. See Littleton Educ. Ass'n v. Arapahoe Cnty. Sch. Dist. No. 6, 191 Colo. 411, 415–18, 553 P.2d 793, 796–98 (1976) (declining to invalidate a collective bargaining agreement between a school district and local education association which did not provide for binding arbitration and which gave the Board the power to make a final decision, without further negotiation, on all unresolved issues). The Board can override the District's refusal to abide by a step-three recommendation. See Adams Cnty. Sch. Dist. No. 50 v. Heimer, 919 P.2d 786, 789–93 (Colo.1996) (court of appeals division set aside the board's decision to dismiss the teacher, finding that the hearing officer's recommendation to reinstate the teacher had more support in the record; supreme court reversed, holding that, because boards of education “have primary responsibility for hiring and firing teachers in their school districts,” their actions should be set aside on appeal only if arbitrary, capricious, or legally impermissible); see also Greeley Police Union v. City Council of Greeley, 191 Colo. 419, 422, 553 P.2d 790, 792 (1976) (explaining that the collective bargaining agreement between the school district and the employee association in Littleton Educ. Ass'n did not require the board of education “to surrender any of its ultimate decision-making authority”; such an agreement would conflict with Colo. Const. art. XXI, § 4 and art. V, § 35, which prohibit delegating legislative power to politically unaccountable persons).

¶ 13 Allowing Brown to seek judicial review on the basis of the District representative's unilateral decision, without the benefit of a vote by the Board, the politically accountable body responsible for employment decisions, as the dissent proposes, conflicts with the constitution and with the operative statute. SeeColo. Const. art. XXI, § 4 & art. V, § 35; § 22–32–109, C.R.S.2011.

¶ 14 Because the five elected Board members never reviewed the District's decision, they did not issue any order.

V. Administrative Exhaustion

¶ 15 Initially, we must determine whether the doctrine of exhaustion of administrative remedies applies to the CBA.⁴ We conclude that it does. Brown is not immune from the exhaustion requirement. As the trial court below correctly recognized, courts are cautious not to intervene until a petitioner has exhausted all available administrative remedies contained in the operative legal framework. See, e.g., Jefferson Cnty. Sch. Dist. No. R–1 v. Shorey, 826 P.2d 830, 844–46 (Colo.1992) (directing trial court to stay proceedings on plaintiff's claim pending completion of the grievance process contained in the agreement, where plaintiff claimed that school district breached the collective bargaining agreement when it did not select her for a position as a library media specialist); see also Crow v. Penrose–St. Francis Healthcare Sys., 169 P.3d 158, 164 (Colo.2007) (physician peer review conducted by a private hospital, and not a state agency is an administrative procedure subject to the...