Dedman v. Wash. Personnel Appeals Bd.
| Decision Date | 17 December 1999 |
| Docket Number | No. 24163-3-II.,24163-3-II. |
| Citation | 989 P.2d 1214,98 Wash.App. 471 |
| Court | Washington Court of Appeals |
| Parties | Judith DEDMAN, Appellant, v. WASHINGTON PERSONNEL APPEALS BOARD and the Department of Corrections, Respondents. |
Elizabeth Delay Brown, Atty. Gen. Ofc. Labor & Pers., Olympia, for Respondents.
Mark Spencer Lyon, Olympia, for Appellant.
Richard Allen Heath, Sr. Assistant Attorney General, Olympia, for Wash. State Personnel Appeals Board.
Department of Corrections ("DOC") employee Judith Dedman appeals the Washington Personnel Appeals Board ("PAB") ruling that, because her permanent disabilities prevented her from physically restraining inmates, she could not perform the essential functions of a correctional officer. The PAB, therefore, concluded that DOC properly removed her from her job in the control booth and reassigned her to a clerical position. We affirm.
In February 1993, Dedman was appointed a correctional officer (guard) for the Washington Corrections Center for Women in Gig Harbor ("WCCW"), a facility housing approximately 625 female felons.1 Dedman worked at a variety of posts throughout the facility until November 1994, when she was temporarily assigned to the control booth to accommodate a knee and back injury. That assignment became permanent in December 1994, following Dedman's successful bid under the terms of a collective bargaining agreement.2
The control booth is a locked room with reinforced glass windows; it serves as the primary control center for WCCW. Correctional officers assigned to that post operate the facility's gates and doors, process communications, issue keys to staff, and operate audio and video surveillance systems. While inside the control booth, the officers have no physical contact with inmates. Correctional officers assigned to the control booth seldom leave it during their shifts. But there is always the possibility that such officers may be called upon to restrain inmates in the event of an emergency.
In early April 1996, Dedman was scheduled to attend a routine training session for correctional officers. On the first day of the session, April 26, Dedman gave her supervisor a note from her chiropractor, James Murphy, D.C., which stated that, because of back problems, Dedman was "not to participate in any defense tactics training at this time." In response, WCCW provided Dedman's physician, Lowell Finkleman, M.D., with a form entitled, "Essential Duties of a Correctional Officer," and asked him to comment on Dedman's ability to perform those duties.
Dr. Finkleman expressed concern in relation only to essential duty number three:
Stand, bend, squat, and stoop to pat search and/or apply handcuffs, waist chains, and/or leg irons to a resistive or non-resistive inmate. Physically able to engage in physical force to subdue an inmate, which may include assisting in the physical movement of an inmate (average weight 150 lbs.) to another area.
Dr. Finkleman wrote:
I am not convinced that she is agile enough or strong enough to wrestle with inmates. She has suffered low back and knee injury related to her work along with arthritic changes in the spine and knees. Due to her injuries and arthritis, I do not feel she should safely be expected to wrestle with inmates. I recommend continuing current light duties job which is totally acceptable.
In Dr. Finkleman's opinion, Dedman's condition was permanent.
Based on that information, WCCW reassigned Dedman to a light duty clerical post, away from the control booth. From May through August 1996, Dedman filed grievances and requested returning to the control booth as a reasonable accommodation. Because Dedman was unable to use physical force to subdue an inmate, and because the need might arise to move her from the control booth to a post with inmate contact, DOC denied her grievances and requests. During this time, DOC searched for alternative, permanent jobs for which Dedman was qualified.
On August 16, 1996, WCCW superintendent Alice Payne gave Dedman the option of accepting either a demotion to supply control technician or a disability separation.3 Dedman chose the former and appealed to the PAB, seeking reinstatement as a correctional officer assigned to the control booth and an award of back pay and benefits retroactive to the date of demotion.4 Following a hearing, the PAB denied Dedman's appeal, concluding that: (1) physical contact with inmates is an essential function of the correctional officer position at WCCW, which function Dedman could not perform; (2) the case is analogous to Kees v. Wallenstein, 973 F.Supp. 1191, 1196 (W.D.Wash. 1997), aff'd, 161 F.3d 1196 (9th Cir.1998), holding that King County jail correctional officers whose disabilities precluded direct contact with inmates could not, with or without accommodation, perform an essential function of their job; (3) WCCW made good faith efforts to accommodate Dedman; and (4) Dedman failed to meet her burden of proof on appeal. Dedman petitioned for judicial review in Thurston County Superior Court, which affirmed the PAB's decision. By the time of the superior court hearing, Dedman had been reinstated as a correctional officer at WCCW after a physician found her able to perform the essential duties of a correctional officer.5
On appeal, Dedman seeks reversal of the PAB's decision, reinstatement as a correctional officer assigned to the WCCW control booth, and back pay and benefits. At oral argument, Dedman acknowledged that she has been reinstated to her job in the control booth and, thus, she abandons reinstatement as an issue on appeal.
Because Dedman has been reappointed as a correctional officer at WCCW and reassigned to the control booth, she concedes that her request for reinstatement is moot. See State v. Turner, 98 Wash.2d 731, 733, 658 P.2d 658 (1983)
().6 Thus, the remaining issues concern her request for back pay and benefits for the period between her demotion and reinstatement.
We review the PAB's decision de novo, but we use the same standards of review as did the superior court. Adams v. Department of Soc. & Health Serv., 38 Wash.App. 13, 14, 683 P.2d 1133 (1984). An employee may appeal a PAB decision if it is: (1) founded on an error of law; (2) contrary to the evidence; (3) materially affected by unlawful procedure; (4) based upon a constitutional violation; or (5) arbitrary and capricious. RCW 41.64.130(1)(a)-(e). A PAB decision is arbitrary and capricious if it is willful and unreasonable, and made without consideration and in disregard of facts or circumstances. See National Elec. Contractors Ass'n, Cascade Chapter v. Riveland, 138 Wash.2d 9, 29, 978 P.2d 481 (1999)
.
We review factual challenges to a PAB decision to determine only "whether `there exists ... any competent, relevant and substantive evidence which, if accepted as true, would, within the bounds of reason, directly or circumstantially support the challenged finding or findings.'" Ballinger v. Department of Soc. and Health Serv., 104 Wash.2d 323, 328, 705 P.2d 249 (1985) (quoting Gogerty v. Department of Inst., 71 Wash.2d 1, 8-9, 426 P.2d 476 (1967)). As to asserted errors of law, we may essentially substitute our "`judgment for that of the administrative body, though substantial weight is accorded the agency's view of the law.'" Sullivan v. Department of Trans., 71 Wash.App. 317, 321, 858 P.2d 283 (1993) (quoting Franklin County Sheriff's Office v. Sellers, 97 Wash.2d 317, 325, 646 P.2d 113 (1982)), review denied, 123 Wash.2d 1018, 871 P.2d 600 (1994).
Under Washington's Law Against Discrimination (WLAD), an employer may not "discharge or bar any person from employment because of ... any sensory, mental, or physical disability."7 RCW 49.60.180(2). Rather, an employer must reasonably accommodate an employee's disability unless to do so would impose an undue hardship on the employer's business. WAC 162-22-080(1). But the prohibition against disability discrimination does not apply if the disability prevents the employee from properly performing her job. WAC 162-22-050.
To establish a prima facie case of disability discrimination, an aggrieved employee must show that she: (1) has a disability; (2) can perform the essential functions of the job; and (3) was not reasonably accommodated. See Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 579, 731 P.2d 497 (1987),
rev'd on other grounds, Phillips v. Seattle, 111 Wash.2d 903, 766 P.2d 1099 (1989); Dean v. Metropolitan Seattle, 104 Wash.2d 627, 639, 708 P.2d 393 (1985).8 "In cases such as this, where the employer acknowledges reliance on the [disability], once the employee establishes a prima facie case of [disability] discrimination, the burden shifts to the employer to rebut the inference with evidence that the [disability] was relevant to the requirements of the position." Sherman v. State, 128 Wash.2d 164, 198, 905 P.2d 355 (1995).9
Here, there is no dispute as to the first factor: Dedman had disabilities that prevented her from being in physical contact with inmates. Because of her disabilities DOC reassigned her from her position as a correctional officer. Thus, we focus on the two remaining factors: whether inmate contact is an essential job function of a correctional officer and whether the DOC reasonably accommodated Dedman's disabilities.
Dedman contends that physical contact with inmates is not an essential function of a correctional officer's job. She asserts that the PAB failed to consider the more limited physical functions performed by a correctional officer while assigned to the control booth, claiming that she was merely a "control booth officer," not a general "correctional officer."
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