Crofts v. State ex rel. Dep't of Game & Fish

• Decision Date: 07 January 2016
• Docket Number: No. S–15–0090.,S–15–0090.
• Citation: 367 P.3d 619
• Parties: Kathy S. CROFTS, Appellant (Petitioner), v. STATE of Wyoming, ex rel., DEPARTMENT OF GAME AND FISH, Appellee (Respondent).
• Court: Wyoming Supreme Court

367 P.3d 619

Kathy S. CROFTS, Appellant (Petitioner),

v.STATE of Wyoming, ex rel., DEPARTMENT OF GAME AND FISH, Appellee (Respondent).

No. S–15–0090.

Supreme Court of Wyoming.

Jan. 7, 2016.

Representing Appellant: Bruce S. Asayand Greg B. Asay of Associated Legal Group, LLC, Cheyenne, Wyoming. Argument by Greg Asay.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Elizabeth C. Gagen, Senior Assistant Attorney General. Argument by Ms. Gagen.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

[¶ 1] Kathy Crofts appeals from the Office of Administrative Hearings' (OAH) finding that good cause supported two suspensions and her dismissal by the Wyoming Game and Fish Department (Game & Fish). Ms. Crofts claims she was denied pre-deprivation due process and that the OAH did not have jurisdiction to hear her case because her supervisors did not have authority to issue her suspensions. Ms. Crofts did not raise these issues below. We conclude her due process claim is not of such a fundamental nature that it may be raised for the first time on appeal, and that, because the question of her supervisors' authority is not jurisdictional and was not raised below, we will not hear it now. We affirm.

ISSUES

[¶ 2] 1. May Ms. Crofts raise the issue of deprivation of her procedural due process rights for the first time on appeal?

2. Did the OAH lack jurisdiction over Ms. Crofts' personnel appeal?

FACTS

[¶ 3] Kathy Crofts was a long-term Game & Fish employee. At all relevant times, Ms. Crofts was a wildlife investigator based in Cody, and was entitled to the protections provided to full-time, permanent employees by the State of Wyoming's Personnel Rules.

[¶ 4] Ms. Crofts was issued a one-day suspension without pay on October 13, 2011. That suspension was based upon Ms. Crofts' insubordinate behavior during a September 8, 2011, mid-term performance evaluation meeting with her immediate supervisor, Mike Ehlebracht, and other unprofessional behaviors that Mr. Ehlebracht had addressed during that meeting (including improperly completed travel vouchers and Daily Activity Record (DAR) entries, rude behavior toward the public, and overtime misuse). Mike Choma, Mr. Ehlebracht's immediate supervisor, investigated the conduct and issued the notice of disciplinary suspension. The notice of suspension was hand-delivered at 4:00 p.m. on October 13 and Ms. Crofts served the suspension the next day.

[¶ 5] Ms. Crofts filed a grievance concerning the October 13, 2011, suspension on October 27, 2011. In that grievance, Ms. Crofts claimed that the suspension was issued without cause. She did not question the notice provided to her or Mr. Choma's authority to issue the suspension.

[¶ 6] On April 27, 2012, Game & Fish issued Ms. Crofts a three-day suspension, again without pay. This suspension arose from Ms. Crofts' behavior in conjunction with a joint investigation with U.S. Forest Service Special Agent Bragonier. Ms. Crofts and Special Agent Bragonier had investigated a Wyoming outfitter regarding several alleged unlawful behaviors. Ms. Crofts and Special Agent Bragonier had agreed upon the violations to be charged in state court and those to be filed in federal court. Despite their understanding and contrary to their agreement, state citations were issued on two charges that effectively precluded the federal charges. When he confronted Ms. Crofts about this, she told Special Agent Bragonier that it was "luck" that the Park County Deputy Attorney chose to prosecute those charges. However, when Special Agent Bragonier questioned him, the attorney told him that Ms. Crofts had specified which state charges should be pursued and which could be dismissed. As a result, Special Agent Bragonier submitted a written complaint to Mr. Ehlebracht questioning Ms. Crofts' credibility and stating that he had no desire to work any further investigations with her.

[¶ 7] Mr. Ehlebracht investigated the complaint and concluded that Ms. Crofts had misled Special Agent Bragonier and then lied to him to cover it up. The three-day disciplinary suspension without pay was based upon the results of this investigation, past behaviors, and personnel rule violations. The letter notifying Ms. Crofts of the suspension was signed by Mr. Ehlebracht and delivered to Ms. Crofts on Friday, April 27, 2012. She began serving the suspension the following Monday.

[¶ 8] Ms. Crofts filed a grievance concerning the April 27, 2012, three-day disciplinary suspension on May 3, 2012. That grievance challenged the factual allegations contained in the suspension notice, and contended that the suspension was in retaliation for her filing the first grievance and charges of discrimination that she had previously filed before the Equal Employment Opportunity Commission. The grievance did not mention the notice provided to her or Mr. Ehlebracht's authority to sign the letter issuing the suspension.

[¶ 9] Ms. Crofts returned to work on May 3, 2012, and was immediately placed on administrative leave, this time with pay, and was given notice of intent to dismiss. John Kennedy, the Deputy Director of Internal Operations for Game & Fish, issued this notice of intent to dismiss Ms. Crofts based upon a number of items, including prior misconduct, unsatisfactory work performance history, incapacity to perform assigned duties, her likely inability to testify in future cases due to her disciplinary record, and her behavior surrounding the Ten Sleep case. Ms. Crofts' participation in the Ten Sleep case resulted in U.S. Fish and Wildlife Senior Special Agent Armstrong's complaints that "the success of the investigation was frequently in jeopardy due to [Ms. Crofts'] refusal to recognize [her] own faults and amend [her] behavior to what was expected ..."; that Ms. Crofts incorrectly and inaccurately documented information in her reports; and stating that he would prefer not to work with her in the future.

[¶ 10] In addition, because of Ms. Crofts' prior suspensions, the attorney prosecuting the case determined that her testimony would raise Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)issues, bringing into question her credibility as a witness, and thus, he elected not to call her as a witness in the trial, which was to be held in Casper. Ms. Crofts was advised by the attorney that she would not testify as a result of pending disciplinary matters. The day before trial was to start, Ms. Crofts left Cody, heading to Casper. At 8:30 that morning, Mr. Ehlebracht phoned the Cody office and got no answer; he then called Ms. Crofts' cell phone, spoke to her about the trial, and directed her to stay in Cody. She questioned his decision several times and did not tell him she was on her way to Casper. Mr. Ehlebracht emailed Ms. Crofts and got no response. He then called her again at 8:50 and asked where she was and what she was doing. At that time, Ms. Crofts admitted that she was three-and-a-half hours out of Cody en route to Casper. He told her to return to Cody and answer his email when she got there. She did not respond to the email until 2:59 p.m.

[¶ 11] On May 16, 2012, Ms. Crofts filed a written response to the notice of intent to dismiss in which she argued that the intent to dismiss was taken in retaliation for her complaint of a hostile work environment; her grievance concerning the October 13, 2011, disciplinary suspension; her discrimination and hostile work environment claim; and the decision of the state human resources manager to go forward with her grievance. She contended that her April 27, 2012, suspension was retaliatory, and that all of the disciplinary actions were instigated by Mr. Ehlebracht to set the stage for allegations of dishonesty and ultimately her termination. In addition, she contested the factual bases for the termination. On May 25, 2012, Mr. Kennedy issued his letter terminating Ms. Crofts' employment.

[¶ 12] Ms. Crofts timely appealed her dismissal to the OAH. In her Petition for Personnel Appeal Hearing before the OAH, Ms. Crofts alleged:

a. That there is no cause for her dismissal, and that the grounds alleged for her dismissal were fabricated to provide otherwise non-existent cause for her dismissal.

b. That the dismissal and disciplinary suspensions were taken in retaliation for:

i. Her having filed a formal complaint within the Department alleging hostile work environment sexual harassment.

ii. Her having grieved the October 13, 2011 Disciplinary Suspension without Pay.

iii. Her having filed a Charge of Discrimination pursuant to Title VII of the Civil Rights Act of 1964 on December 22, 2011.

iv. The April 4, 2012 decision of the Human Resources Manager to allow her grievance of the October 13, 2011 disciplinary action to go forward.

v. Her initial grievance of the April 27, 2012 Disciplinary Suspension without Pay.

vi. Her alleging retaliation in her Response to the Notice of Intent to Dismiss and her grievance of the April 27, 2012 disciplinary action.

c. That the retaliatory disciplinary actions including her discharge violate both Chapter 12, § 1 of the Personnel Rules for the State of Wyoming ^[1] and Title VII of the Civil Rights Act of 1964.

In her prehearing memorandum/disclosures, she stated: "The sole issue is whether there was just cause for her termination[,]" and "Petitioner does not anticipate any amendments to pleadings."

[¶ 13] The OAH held a week-long administrative hearing of Ms. Crofts' consolidated appeals of the three disciplinary actions (the October 13, 2011 suspension, the April 27, 2012 suspension, and the May 25, 2012 dismissal). The hearing examiner determined that "good cause" supported the disciplinary actions and that they were supported by substantial evidence.

[¶ 14] Ms. Crofts timely appealed the hearing examiner's decision to the district court, which affirmed the OAH findings. This appeal followed. She raises these issues:

I. Did the agency action violate the Appellant's

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