Hitter v. Bellevue School Dist. No. 405

Citation66 Wn.App. 391,832 P.2d 130
Decision Date13 July 1992
Docket NumberNo. 28321-9-I,28321-9-I
CourtCourt of Appeals of Washington
Parties, 75 Ed. Law Rep. 914 James HITTER, Appellant, v. BELLEVUE SCHOOL DISTRICT NO. 405, Respondent.
Judith A. Lonnquist, Jennifer P. Zavatsky, Seattle, for appellant

WEBSTER, Acting Chief Judge.

James Hitter appeals two superior court orders denying him reasonable attorney's fees and dismissing his claims of negligent investigation and defamation. He asserts that the trial court erred in determining that: (1) his arbitration award did not entitle him to attorney's fees under RCW 49.48.030, (2) he failed to prove prima facie that the school district negligently investigated the accusations against him, (3) statements made by the school principal to a student's mother that Hitter had been accused of improperly touching were conditionally privileged, (4) he did not meet his burden of proving that the school principal abused the conditional privilege, (5) the principal's statements to the alleged victim's mother were

                immune under RCW 26.44.060, and (6) he presented insufficient evidence of objective symptomatology to recover damages for negligent infliction of emotional distress.   We affirm

Hitter began his employment with the Bellevue School District (the District) in 1985 as a special education aide. His first assignment was at Tyee Middle School, where he worked for 2 1/2 years with behaviorally disordered students. He received excellent performance evaluations. During the 1987-88 school year he was assigned to Highland Middle School to work with severely handicapped students. There, he worked primarily at the motor function station with a teacher, Karen Vandenburg, and several aides. He had never worked with severely handicapped students and received his training from Vandenburg. Hitter's duties involved physical manipulation of students to stretch their muscles and teaching basic movement skills such as sitting, standing, and walking. His job required him to touch students regularly. Hitter worked closely with a student named Jenny, a mentally retarded Down's Syndrome child with a severe heart defect and the mental capacity of a 1-year-old child. Jenny is small in stature, flat chested, and has very poor eyesight. In the fall of 1987, Hitter made considerable progress with Jenny using motivators such as patting, tickling, rubbing, and hugging.

In late 1987 some of the other aides reported to Hitter's supervisors that he was not doing certain aspects of his job properly and persuaded them to meet with Hitter to discuss the matter. After the meeting, Hitter became upset that the other aides had gone to his supervisors, rather than discussing the issue with him directly, and entered into a confrontation with at least one of the aides. Following the confrontation, Hitter was called into Principal Shuzo Takeuchi's office. While there, Hitter complained that the other aides had been excluding him.

In January of 1988, several aides or assistants began reporting that they had observed Hitter touching Jenny in hugging and rubbing Jenny's chest on several occasions; letting his left hand slide down and cover Jenny's breast; working with Jenny in a sitting position with Jenny's head close to his groin.

                ways they believed were inappropriate.   On February 11, Takeuchi met with Hitter to tell him that he had been accused of inappropriately fondling Jenny.   Hitter expressed astonishment and demanded copies of any accusations.   Although Takeuchi refused to provide copies, he told Hitter that the accusations included

Hitter expressed that he had not done anything inappropriate and was only doing his job. Takeuchi notified Hitter that he was being suspended pending further investigation and that Child Protective Services had been notified.

The District investigated the accusations further and Hitter received a letter notifying him that he was being discharged for "inappropriate touching of a female student." After the Board of Directors ratified the termination, Hitter commenced an arbitration proceeding pursuant to his union's collective bargaining agreement with the District. The arbitrator found that most of the alleged improper touching of Jenny was not objectively inappropriate, and that although the alleged improper touching was not included in her motor skills program, it was necessary to motivate her. The arbitrator further found that, while Hitter may have inappropriately touched Jenny on one or two occasions, he did not realize he was doing it, and certainly did not intend it as a sexual gesture. Finally, the arbitrator found that returning Hitter to a job "where he must work with aides so quick to label behavior inappropriate would place [him] in an untenable position." The arbitrator concluded that the District did not have just cause to discharge Hitter and ordered the District to

(a) reinstate [Hitter] to his choice of either his former position or an equivalent position where he would not be working with the aides who leveled accusations against him;

(b) restore to [Hitter] all wages and benefits lost as a result of his terminations; and

(c) remove from [Hitter's] personnel file all documents relating to his termination and the charges upon which that In so concluding, the arbitrator commented that the proceeding revealed that "if the District errs, it intends to err in the direction of assuming an accused teacher or aide is guilty until proven innocent."

termination was based and give no further weight to such documents in any subsequent personnel action affecting [Hitter].

Following the arbitration, Hitter filed suit in superior court seeking damages for emotional distress, defamation, and attorney's fees. The trial court denied Hitter's claim for attorney's fees under RCW 49.48.030 and granted the District's motion for summary judgment on Hitter's claims for defamation and negligent infliction of emotional distress.


Hitter contends that he is entitled to attorney's fees under RCW 49.48.030 in connection with his arbitration award. The trial court held that Hitter could not recover attorney's fees incurred in the arbitration proceeding held pursuant to the collective bargaining agreement because an arbitration proceeding is not an "action" and an arbitrator's award is not a "judgment" under RCW 49.48.030.

RCW 49.48.030 provides:

Attorney's fee in action on wages--Exception. In any action in which any person is successful in recovering judgment for wages or salary owed to him, reasonable attorney's fees, in an amount to be determined by the court, shall be assessed against said employer or former employer: Provided, however, That this section shall not apply if the amount of recovery is less than or equal to the amount admitted by the employer to be owing for said wages or salary.

We find nothing in Chapter 49.48 indicating that an arbitration proceeding is not an "action" or that an arbitration award is not a "judgment". Chapter 7.04, which governs arbitrations, provides that once a superior court order confirming, modifying, correcting, or vacating an arbitration award has been entered, the judgment "has the same force and effect, in all respects as, and is subject to all the provisions of law relating to, a judgment in an action". RCW 7.04.210; see RCW 7.04.200. This provision suggests that the terms "action" and "judgment" were not intended to preclude RCW 49.48.030 from applying to arbitration awards. Furthermore, since RCW 49.48.030 is a "remedial statute[, it] should be liberally construed to effect its purpose." Naches Valley School Dist. JT3 v. Cruzen, 54 Wash.App. 388, 399, 775 P.2d 960 (1989). We hold that RCW 49.48 applies to arbitration awards and that the trial court erred in ruling otherwise.

The District contends that the collective bargaining agreement between Hitter's union and the District precludes Hitter from recovering attorney's fees from the District. The agreement states in relevant part:

c. The fees and expenses of the arbitrator shall be shared equally by the District and the Union. All other expenses shall be borne by the party incurring them, and neither party shall be responsible for the expenses of witnesses called by the other.

We reject Hitter's assertion that he is not a "party" under this provision of the collective bargaining agreement. Hitter is a member of the union bound by the agreement, and the above-cited provision clearly states that all expenses besides those of the arbitrator "shall be borne by the party incurring them".

We raise sua sponte whether the right to attorney's fees accorded by RCW 49.48.030 can be bargained away in a collective bargaining agreement. In Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), cert. den'd, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1985), employees asserting wage claims under the terms of their collective bargaining agreement and under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., submitted their contractual grievances to arbitration for a "final and binding decision" as required by the terms of the collective bargaining agreement. Barrentine, 450 U.S. at 731, 101 S.Ct. at 1440. After the arbitration panel rejected their grievances, the petitioners sued in federal court, alleging that their employer had violated minimum wage provisions of the FLSA and requesting the statutory remedy of liquidated damages, costs, and reasonable attorney's fees. Barrentine, 450 U.S. at 732-33, 101 S.Ct. at 1440-41. The Court held that since the petitioners' FLSA rights stemmed from their rights as individual workers rather than as members of a collective organization, they were not waivable. The Court further held that since Congress intended to give individual employees the right to vindicate their wage claims in court, submission of the petitioner's contractual...

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