Christensen v. GRANT COUNTY HOSP. DIST.

• Decision Date: 17 December 2002
• Docket Number: No. 21045-6-III.,21045-6-III.
• Citation: 60 P.3d 99,114 Wash.App. 579
• Parties: Kimball D. CHRISTENSEN, a single man, Appellant, v. GRANT COUNTY HOSPITAL DISTRICT NO. 1 d/b/a Samaritan Hospital, a non-profit municipal corporation, Respondent.
• Court: Washington Court of Appeals

60 P.3d 99

114 Wash.App. 579

Kimball D. CHRISTENSEN, a single man, Appellant, v. GRANT COUNTY HOSPITAL DISTRICT NO. 1 d/b/a Samaritan Hospital, a non-profit municipal corporation, Respondent.

No. 21045-6-III.

Court of Appeals of Washington, Division 3, Panel Five.

December 17, 2002.

Michael A. Arch, Shelley M. Engquist, Foreman & Arch, Wenatchee, WA, for Appellant.

Susan W. Troppmann, Etter, McMahon, Lamberson & Clary, Spokane, WA, for Respondent.

BROWN, C.J.

Grant County Hospital District No. 1, d/b/a Samaritan Hospital (Samaritan) terminated Kimball Christensen for alleged misconduct. Mr. Christensen's union, claiming unfair labor practices, sought redress for him before the Public Employee Relations Commission (PERC). PERC rejected the union's claims. The union did not seek judicial review of PERC's final decision. Mr. Christensen then filed his own tort claim against Samaritan in superior court, alleging wrongful discharge in violation of public policy. After considering Reninger v. Dep't of Corrections, 134 Wash.2d 437, 951 P.2d 782 (1998) and Smith v. Bates Technical College, 139 Wash.2d 793, 991 P.2d 1135 (2000), the trial court granted Samaritan's summary judgment motion and dismissed Mr. Christensen's claims after giving preclusive effect to the administrative proceedings. Mr. Christensen appealed.

We hold, in this issue of first impression, that Smith permits a public employee whose union fails to achieve a remedy from PERC to file a separate superior court tort claim for wrongful termination in violation of public policy. Accordingly, we reverse.

FACTS

The key facts are undisputed. Samaritan employed Mr. Christensen as a public employee paramedic in January 1996. Mr. Christensen was active in unionizing fellow employees on behalf of the International Association of EMTs and Paramedics (Union).

In January 1997, the Union filed a petition with PERC seeking to resolve representation and certification issues. In October 1997, the Union filed an unfair labor practices complaint with PERC, seeking, among other things, redress for Mr. Christensen, who allegedly had been unfairly disciplined and suspended. Before resolution of the complaint, Samaritan terminated Mr. Christensen in December 1997, alleging misconduct in the form of sexual harassment with S.H., a female. In January 1998, the Union amended its complaint before PERC, alleging Samaritan terminated Mr. Christensen "because of his participation in protected union activities." Clerk's Papers (CP) at 46. The Union requested reinstatement of Mr. Christensen "with back pay, benefits and interest" to the date of termination. CP at 47.

In March 1998, PERC conducted hearings on the Union's complaints, including Mr. Christensen's discipline and termination. Mr. Christensen relied on the Union's regional counsel.

In April 1998, the Union and Samaritan entered a written agreement (Agreement) recognizing the Union as the exclusive bargaining agent for its union members. The Agreement granted Samaritan authority to terminate employees for just cause.

In April 1999, the PERC hearing officer issued findings of fact, conclusions of law, and an order dismissing the Union's claims. Regarding Mr. Christensen, the hearing officer concluded:

The union has failed to sustain its burden of proof to establish a prima facie case that the employer's action to discharge Kimball Christiansen [sic] was substantially motivated by the exercise of rights protected by Chapter 41.56 RCW, and the employer has in any case articulated lawful reasons for its actions, related to Christiansen's [sic] inappropriate interactions with [S.H.], so that no violation of RCW 41.56.140(1) is established in regard to Christiansen [sic].

CP at 112.

The Union filed an administrative appeal in May 1999. In December 1999, a panel of PERC commissioners affirmed the hearing officer's order. The Union did not seek judicial review of PERC's decision and order.

In January 1998, with the aid of Union counsel, Mr. Christensen applied successfully to the Employment Security Department (ESD) for unemployment benefits. Samaritan appealed the award of benefits arguing Mr. Christensen was ineligible because of misconduct. An Administrative Law Judge (ALJ) affirmed the award, concluding in part that Samaritan had failed to establish by a preponderance of the evidence that employee misconduct had occurred. Samaritan unsuccessfully appealed the ALJ's decision and order to the ESD Commission.

In November 2000, Mr. Christensen filed a complaint against Samaritan with the Grant County Superior Court. The complaint alleged retaliatory discharge and wrongful discharge in violation of public policy. Mr. Christensen alleged he was entitled to back and front pay, emotional distress damages, costs, and attorney fees.

Samaritan moved for summary judgment, arguing collateral estoppel barred Mr. Christensen's claims. Mr. Christensen filed a cross-motion for summary judgment, arguing the favorable ESD decisions and orders collaterally barred Samaritan's argument that it had terminated Mr. Christensen for a non-retaliatory reason. In response, Samaritan successfully argued RCW 50.32.097 precluded Mr. Christensen from relying on ESD decisions and orders in litigating a matter outside the unemployment compensation area. In March 2002, the trial court issued a letter opinion, followed by a written order, granting Samaritan's summary judgment motion and dismissing Mr. Christensen's claims with prejudice.

ANALYSIS

The issue is whether the trial court erred when granting summary judgment to a public employer (Samaritan) and concluding an adverse PERC adjudication has a preclusive effect on a public employee's (Mr. Christensen's) ability to subsequently bring in superior court a tort claim of wrongful termination in violation of public policy.

In reviewing a summary judgment, we engage in the same inquiry as the trial court. Huff v. Budbill, 141 Wash.2d 1, 7, 1 P.3d 1138 (2000). Summary judgment is justified when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. CR 56(c); Huff, 141 Wash.2d at 7, 1 P.3d 1138. Whether collateral estoppel bars Mr. Christensen's claims is a legal question we review de novo. See Smith v. Bates Technical College, 139 Wash.2d 793, 800, 991 P.2d 1135 (2000).

The parties agree collateral estoppel is central to their controversy. "The doctrine of collateral estoppel is well known to Washington law as a means of preventing the endless relitigation of issues already actually litigated by the parties and decided by a competent tribunal." Reninger v. State Dep't of Corrs., 134 Wash.2d 437, 449, 951 P.2d 782 (1998). "Collateral estoppel promotes judicial economy and prevents inconvenience, and even harassment, of parties." Id. (citing Hanson v. City of Snohomish, 121 Wash.2d 552, 561, 852 P.2d 295 (1993)).

Collateral estoppel consists of four elements:

"(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied."

Reninger, 134 Wash.2d at 449, 951 P.2d 782 (quoting Southcenter Joint Venture v. Nat'l Democratic Policy Committee, 113 Wash.2d 413, 418, 780 P.2d 1282 (1989)). "In addition, the issue to be precluded must have been actually litigated and necessarily determined in the prior action." Shoemaker v. City of Bremerton, 109 Wash.2d 504, 508, 745 P.2d 858 (1987).

Mr. Christensen concedes the first three elements; therefore, we consider Mr. Christensen's main contention that the fourth "injustice" element has not been met. More specifically, Mr. Christensen contends collateral estoppel should not apply (1) because of significant differences between the agency procedure and procedures available in superior court, and (2) because collateral estoppel conflicts with policy considerations. We discuss Mr. Christensen's concessions later. "Decisions of administrative tribunals may have preclusive effect under Washington law." Reninger, 134 Wash.2d at 449,951 P.2d 782. We apply three criteria to determine whether an administrative decision will have preclusive effect: (1) whether the agency made a factual decision within its field of competence; (2) whether the agency's procedures were significantly different from procedures available in superior court; and (3) whether application of the collateral estoppel would contravene public policy. Reninger, 134 Wash.2d at 450,951 P.2d 782. Mr. Christensen argues PERC's decision did not meet the second and third criteria.

Regarding procedural differences, Mr. Christensen complains generally about being represented by the Union's California-based lawyer rather than one of his own choosing, although he successfully pursued his unemployment compensation claim with the same counsel. In any event, Mr. Christensen has not cited any authority precluding him from retaining his own counsel in the PERC forum. RAP 10.3(a)(5).

Similarly without authority, Mr. Christensen argues insufficient discovery because he was represented by a Union lawyer. Overall, Mr. Christensen faults tactical decisions rather than the adequacy of the procedures afforded him. Nothing would have prevented Mr. Christensen from employing independent counsel. Indeed, the record reflects Mr. Christensen did consult his Moses Lake attorney before his termination interview in December 1997.

Moreover, the Administrative Procedures Act (APA), chapter 34.05 RCW, governs PERC adjudication procedures. RCW 41.56.165; see also Wash. Pub. Employees Ass'n v. Wash. Pers. Res. Bd., 91 Wash.App. 640, 656-57, 959 P.2d 143 (1998), review denied, 145 Wash.2d 1034, 43 P.3d 21 (2002). Under the APA, "appropriate procedural protections must be afforded the parties." Reninger, 134 Wash.2d at 450, 951 P.2d 782. PERC...