Gossage v. State
| Decision Date | 02 July 2002 |
| Docket Number | No. 26796-9-II.,26796-9-II. |
| Citation | 49 P.3d 927,112 Wash.App. 412 |
| Court | Washington Court of Appeals |
| Parties | Henry GOSSAGE, Appellant, v. STATE of Washington, Respondent. |
Kelley J. Sweeney, Tacoma, Michael Patrick Lynch, Asst. Atty. Gen., Olympia, for Respondent.
Paul David Doumit, Doumit & Doumit, Olympia, for Appellant.
PART PUBLISHED OPINION
When Henry Gossage, a former state employee, was not hired for various state jobs, he sued claiming the State discriminated against him due to his disability, race, and former convict status. He also alleged that the State did not follow the Veterans' Preference Act requiring preference for veterans in state hiring. The trial court dismissed all these claims. Gossage appeals. Holding that the Veterans' Preference for which Gossage qualified is not absolute and that Gossage failed to present a prima facie case of discrimination, we affirm.
Gossage worked for the State off and on from 1979 to 1992 in various jobs.1 He resigned in 1992 to serve a prison sentence at Twin Rivers Correctional Center in Monroe.2
After his release, Gossage began reapplying for state employment. In his complaint he alleges that he was unlawfully denied a job with the State due to racial and disability discrimination.
State agency jobs are filled from ranked registers. To get on a register, a candidate first applies for a position. The Department of Personnel (DOP) then screens the applicants, and those who meet the minimum standards are tested. The tests vary among written, oral, essay, performance, and "experience and training." Clerk's Papers at 53. The names of applicants who pass these tests are placed on the appropriate register. The registering process is normally handled by computer; names on the same register are ranked according to score. When an agency has a vacancy, it requests certification, which means the DOP certifies to the agency a list of names from the ranked registers, usually six candidates for each vacancy. An agency may hire any person referred from the DOP register list.
In the hiring processes at issue, a panel interviewed the candidates certified by DOP. The interview questions were job specific and designed to reveal the candidate's qualifications for the job.
At the time of Gossage's interviews, the State had stated affirmative action goals.3 Persons in a protected group for affirmative action purposes were referred to as "plus 3" candidates. Gossage qualified as a plus-3 candidate because he is Japanese-American and disabled by psoriasis.
After the parties exchanged discovery, the State moved for summary judgment. Gossage then moved for partial summary judgment, claiming that he had been denied his veteran's preference. The court found it undisputed that Gossage was a veteran as defined by RCW 73.16.010. But the court ruled that because Gossage applied for a competitive job, RCW 41.04.010, not RCW 73.16.010, governed the preference available to him:
Applying the ruling in [State ex. rel. Ford v. King County, 47 Wash.2d 911, 290 P.2d 465 (1955)], by analogy, the Legislature has by law created a preference for veterans applying for employment positions that require competitive examinations. This Court thus cannot rule as a matter of law that Plaintiff is entitled to a preference under RCW 73.16.010 for such employment positions because of his status as a veteran.
Gossage moved for reconsideration. He then moved to amend his complaint to request a writ of mandamus (to order the State to hire him) and to update the time period encompassing the alleged discrimination. The trial court granted Gossage's motion, allowing him to allege the mandamus cause of action, and reserved its ruling on the motion to allege claims after March 25, 1998, "pending final resolution of this action." Clerk's Papers at 340. In this same order, dated December 15, 2000, the court denied Gossage's motion for reconsideration, re-affirming the ruling explained in its memorandum decision on the parties' cross motions for summary judgment. Gossage appealed and then filed a motion on the merits, which we denied.
We address two basic issues. First, did the State properly refuse to apply the veteran's preference in RCW 73.16.010? Second, did Gossage establish a prima facie case of discrimination?
This court engages in the same inquiry as the trial court when reviewing an order for summary judgment: Review is de novo. Enterprise Leasing, Inc. v. City of Tacoma, 139 Wash.2d 546, 551, 988 P.2d 961 (1999); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). This court will affirm summary judgment if no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c); Marquis v. City of Spokane, 130 Wash.2d 97, 105, 922 P.2d 43 (1996). We consider all facts and reasonable inferences in the light most favorable to the nonmoving party. Marquis, 130 Wash.2d at 105, 922 P.2d 43. If the court determines there is a dispute as to any material fact, summary judgment is improper; however, where reasonable minds could reach but one conclusion from the admissible facts in evidence, summary judgment is appropriate. Marquis, 130 Wash.2d at 105, 922 P.2d 43.
Gossage claims that the trial court denied him the benefit of his veterans' preference when it ruled that chapter 41.04 RCW impliedly repealed or amended chapter 73.16 RCW, and that neither the plain language of the statutes nor the standard rules of statutory construction warrant such a construction.
RCW 73.16.010 gives preference for hiring veterans of wars and military campaigns for State employment:
In every public department, and upon all public works of the state, and of any county thereof, honorably discharged soldiers, sailors, and marines who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon shall have been awarded, and their widows or widowers, shall be preferred for appointment and employment.
The chapter does not define what being "preferred for appointment and employment" entails.
RCW 41.04.010 also creates a preference for the employment of veterans by providing a scoring advantage to veterans on State examinations and increasing their competitive examination scores according to the type and duration of their military service:
. . .
(4) There shall be no examination preferences other than those which have been specifically provided for above and all preferences... must be claimed by a veteran within eight years of the date of his release from active service.
Former RCW 41.04.010 (1974)5 (emphasis added).
It is undisputed that Gossage qualifies for preference as a veteran under RCW 73.16.010, which provides in pertinent part that honorably discharged service men and women who are veterans of any war of the United States, or of any military campaign for which a campaign ribbon was awarded "shall be preferred for appointment and employment." Gossage's discharge papers show that he was honorably discharged and received both the National Defense Service Medal and the Armed Forces Expeditionary Medal for his service in Vietnam and Korea. Additionally, the trial court found it undisputed that Gossage "qualifies as a veteran within the meaning of RCW 73.16.010" (Clerk's Papers at 319), and the State does not challenge this ruling on appeal.
The issue here concerns the application of the general veterans' preference statute (RCW 73.16.010) in relation to the more specific preferential point advantage awarded veterans on competitive tests for jobs under RCW 41.04.010. Gossage claims that the point advantage statute does not affect the general preference statutes. And he argues for an interpretation that results in the general preference statute providing an absolute preference if the veteran passes the appropriate exam.
The State argues that RCW 73.16.010 governs general employment with a state or county agency, providing an "abstract preference" in employment. It claims that RCW 41.04.010 satisfies this abstract preference in the specific situations where a competitive exam is required. Gossage argues that RCW 73.16.010 defines who is entitled to the veterans' preference and that definition "is different than and not encompassed in" the definition of "veteran" as defined under RCW 41.04.005. Br. of Appellant at 8. Additionally, he notes, RCW 73.16.010 provides no expiration date for the preference, while RCW 41.04.010 provides the point preference only for eight years. Former RCW 41.04.010(4) (1974).
The trial court ruled that RCW 41.04.010 defines the nature of and limits of the preference set forth in RCW 73.16.010 for all veterans in the context of employment determined by...
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