Fleming v. Pima County

• Decision Date: 14 June 1983
• Docket Number: CA-CIV,No. 2,2
• Citation: 685 P.2d 1319,141 Ariz. 167
• Parties: Forrest FLEMING, Plaintiff/Appellee, v. PIMA COUNTY, Arizona; Pima County Board of Supervisors, E.S. "Bud" Walker, Katie Dusenberry, Conrad Joyner, Sam Lena and David Yetman; Sandy Bowling, an employee of Pima County, Defendants/Appellants. 4611.
• Court: Arizona Court of Appeals

Page 1319

685 P.2d 1319

141 Ariz. 167

Forrest FLEMING, Plaintiff/Appellee, v. PIMA COUNTY, Arizona; Pima County Board of Supervisors, E.S. "Bud" Walker, Katie Dusenberry, Conrad Joyner, Sam Lena and David Yetman; Sandy Bowling, an employee of Pima County, Defendants/Appellants.

No. 2 CA-CIV 4611.

Court of Appeals of Arizona Division 2.

June 14, 1983.

Rehearing Denied Oct. 5, 1983.

Review Granted Jan. 4, 1984.

Watt & Cohen by Melvin C. Cohen, Tucson, for plaintiff/appellee.

Jones, Dickerman, Nuckolls, Edwards & Smith, P.C. by John Gabroy, Tucson, for defendants/appellants.

OPINION

HOWARD, Chief Judge.

In 1977 appellee was the automotive service supervisor in the automotive service department of Pima County. Due to a reorganization of the department he was laid off effective July 1, 1977. He filed suit against the county contending, inter alia, that he was wrongfully terminated since the layoff was a subterfuge to fire him without having to go through the merit system. The trial court agreed and reinstated appellee as a "permanent county worker," ¹ awarded him judgment in the sum of $20,705 for his backpay with prejudgment interest in the sum of ten per cent on what would have been the net amount on each paycheck as it became due, and also awarded appellee attorney's fees in the sum of $14,000 plus his costs.

Appellants contend the trial court erred in (1) finding that the layoff was a subterfuge to avoid trying to discharge appellee for cause; (2) declining to deduct unemployment and GI benefits from the backpay award; (3) awarding prejudgment interest; (4) failing to hold that appellee did not mitigate his damages, and (5) awarding attorney's fees.

Since the trial court made findings of fact, our review shall be guided by these principles: The trial court's findings of fact are binding unless clearly erroneous and due regard should be given to the trial court to weigh the credibility of witnesses. Mead v. Nacey, 23 Ariz.App. 121, 531 P.2d 166 (1975), cert. den. 423 U.S. 866, 96 S.Ct. 128, 46 L.Ed.2d 95. Where the trial court's necessary findings are based on a conflict in the evidence, they will not be disturbed on appeal. Gressley v. Patterson Tillage & Leveling Inc., 119 Ariz. 154, 579 P.2d 1124 (App.1978). On appeal from a judgment entered on findings, the appellate court views the evidence in the strongest manner for appellee and it cannot substitute its opinion of the evidence for that of the trial court. Romney Produce Company v. Edwards, 9 Ariz.App. 258, 451 P.2d 338 (1969).

The record and the trial court's findings of facts show that appellee worked in the automotive services department of the Pima County Highway Department. Jerry Jones was the director of the department and Fleming was the automotive service supervisor. Sandy Bowling was in charge of the automotive service department and was Fleming's immediate supervisor.

Fleming's job was to supervise the people who pumped the gas at the Mission Road branch of the division, see that there was sufficient gas on hand and order it when necessary. There was friction between Bowling and Fleming. Prior to Fleming's layoff, Bowling removed the tire shop, oil and lube bay, outlying service stations and motor pool from Fleming's authority. Bowling constantly criticized Fleming and at one time he objected to Fleming receiving his annual salary increase and threatened him with discipline. Two months before the layoff Bowling recommended to Fleming that he ought to change to an administrative field.

In 1977, when the automotive service division was still under Jerry Jones, the Pima County Board of Supervisors requested all county departments to reduce their proposed budgets for the new fiscal year 1977-1978. The automotive service division at that time had 55 permanent positions, of which 50 were filled. After consulting with the finance department and the county manager, Jones submitted a budget for automotive services which proposed the funding of 48 permanent positions, including the position held by Fleming. Jones recommended the elimination of the positions of deputy director, clerk typist, a shop supervisor, one automotive mechanic and three mechanics' helpers. At least one of the mechanics' helper positions was filled which meant that at least one helper would have to be laid off. Any positions not filled were to be eliminated.

On May 24, 1977, the board of supervisors removed the automotive service department from the control of the highway department and appointed Sandy Bowling as its director. The board told Bowling he could submit his own proposed budget. Bowling prepared a new budget eliminating Fleming's position. Fleming's duties were to be distributed among other employees in the automotive service department. Bowling contended that this elimination was based solely on his intention to retain more mechanics' helpers in the "budgetary crunch" that existed. Bowling's budget also provided for one new paint and body position and created a "vehicle maintenance inspector."

Bowling presented his new budget to the board on June 16, 1977. At the hearing before the board, Bowling told them that his reorganization would save money, cause the loss of one position, and this would not cause a hardship because "the individual is a troublemaker anyway." Bowling's proposed budget was approved the next day and Fleming was given notice of his termination effective in two weeks.

A new mechanics' helper was not hired and the new paint and body position was never filled. As the trial court observed, Bowling never adequately explained why the unfilled paint and body position could not have been used instead of Fleming's position to retain the mechanics' helper position. Jones testified that Fleming was an outstanding employee and he did not understand why July 1, 1977, was used as a termination date since the department head could have worked to find a slot for Fleming within the county until the final budget was approved in September. Jones thought the budget process was used specifically to eliminate Fleming. Although evidence was presented that there was increased efficiency in Bowling's department over the succeeding years after the layoff of Fleming, this increased efficiency was not connected to the elimination of Fleming's position.

While the county has recited to us a great deal of law concerning its right to reorganize without incurring any liability towards an employee who may be laid off in a bona fide reorganization, the thrust of the county's argument is that the trial court's finding that the layoff was a subterfuge is unsupported by the evidence. We do not agree. While there might have been conflicting evidence and while the trial court may have drawn other inferences from the evidence which may have been favorable to the county, we are unable to say that the trial court's findings of fact are clearly erroneous and unsupported by the evidence. All of the cases which the county cites in favor of its position stand for the proposition that the reorganization must be bona fide. See City of Phoenix v. Powers, 57 Ariz. 262, 113 P.2d 353 (1941). We agree with the county's contention that the validity of an otherwise proper abolition of a position is not negated by the presence of ulterior motives. See Kessel v. Civil Service Comm'n, 130 N.J.L. 618, 34 A.2d 131 (1943); Santucci v. City of Paterson, 113 N.J.L. 192, 173 A. 611 (1934); Greco v. Smith, 40 N.J.Super. 182, 122 A.2d 513 (1956); City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960). However, the trial court here could legitimately conclude that the reorganization was not done in good faith especially in view of the fact that the avowed purpose for laying off Fleming, to-wit: a mechanics' helper was more important than an automotive service supervisor, was not fulfilled. As was said by the court in Greco v. Smith, supra:

"The mere fact that the removal of an individual from the municipal payroll results in an economy is not the exclusive test, since such removal will always be manifested by a saving. The...