Hom v. Utah Dept. of Public Safety

• Decision Date: 16 July 1998
• Docket Number: No. 970592-CA,970592-CA
• Citation: 962 P.2d 95
• Parties: 347 Utah Adv. Rep. 50 Michael W. HOM, Plaintiff and Appellant, v. UTAH DEPARTMENT OF PUBLIC SAFETY, a governmental agency; Cherie Ertel; Douglas Bodrero; A. Roland Squire; Arthur Hudachko; Bart Blackstock; and John Does I through X, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 95

962 P.2d 95

347 Utah Adv. Rep. 50

Michael W. HOM, Plaintiff and Appellant, v. UTAH DEPARTMENT OF PUBLIC SAFETY, a governmental agency Cherie Ertel; Douglas Bodrero; A. Roland Squire Arthur Hudachko; Bart Blackstock; and John Does I through X Defendants and Appellees.

No. 970592-CA.

Court of Appeals of Utah.

July 16, 1998.

L. Zane Gill, Salt Lake City, for Appellant.

Jan Graham and Debra J. Moore, Salt Lake City, for Appellees.

Before BENCH, BILLINGS and ORME, JJ.

BILLINGS, Judge:

Michael Hom appeals the trial court order granting summary judgment in favor of the Utah Department of Public Safety (the Department) and individual defendants in Hom's suit for breach of employment contract, breach of implied covenant of good faith and fair dealing, and disability discrimination. We affirm.

FACTS

Because this is an appeal from a grant of summary judgment, we recite the facts in the light most favorable to the nonmoving party. See Glover v. Boy Scouts of Am., 923 P.2d 1383, 1384 (Utah 1996). Hom presents the following account of the events leading up to and surrounding his termination from the Department.

Hom was hired in 1985 as a programmer/analyst. Although Hom was employed by the Department and had access to sensitive law enforcement information, he was a career civil servant and not a sworn police officer. His primary responsibilities were to provide technical assistance and to remain on call to deal with computer problems for the Bureau of Criminal Investigation (BCI) and the Driver License Division. From 1985 through 1987, Hom performed satisfactorily and received positive evaluations on his job performance. However, Hom concedes that during this period his supervisor advised him in job evaluations that he should try to improve his "political and people skills."

In 1987, Hom was appointed the technical subcommittee chairperson for a "Request for Proposal Committee" (RPC) formed by the Department to select a vendor for a new computer system. Hom's RPC duties were in addition to his regular work. Hom lost sleep, frequently worked twenty-hour days and felt stress and pressure because of overwork. As the RCP selection process progressed, Hom became convinced that his fellow committee members were acting illegally to favor certain vendors. Hom confronted the other RPC members about this perceived illegal conduct. As a result of these confrontations, several coworkers lodged complaints against Hom, and he was banned from the Driver License Division offices.

During the RPC dispute, Hom also became involved in a dispute with his direct supervisor about overtime hours. Hom filed a grievance on this issue and won an award of additional overtime. Hom used the overtime to take a leave of absence, and he was away from the Department from November 1988 to May 1989.

In July 1989, Hom was assigned to supervise the Driver License Division annual job run, a major annual event in which Department personnel purged the Driver License Division computer files. Hom encountered problems during the job run, and these problems led to a second internal affairs investigation. As a result of the job run incident, Hom's immediate supervisor issued a letter of intent to reprimand and met with Hom to explain the reasons for the reprimand. The supervisor was concerned with Hom's refusal to obey the supervisor's direct orders, and Hom's inability to provide a satisfactory explanation for the job run failure. Hom's supervisor was also concerned because Hom had ignored explicit instructions during the job run. The supervisor informed Hom that he could discuss disagreements and alternatives with supervisors, but in the future Hom would be expected to carry out supervisors' instructions even if he disagreed with them. Hom objected to this requirement. Hom then made a statement about having the power to crash and disable the Department computer system. Hom asserts that he intended this statement as a claim that he would not follow an order that would crash the system. However, Hom's supervisor interpreted it as a threat that Hom would crash the system.

After this meeting, Hom was placed on temporary leave. On his return, Hom met with the BCI chief to discuss the internal affairs investigation and Hom's own plans to file a grievance over the job run incident. Hom alleges that the Department head attempted to dissuade him from prosecuting his grievance and "warned him to work things out with" his supervisor. At this meeting, Hom made another statement about his power to damage the computer system. While Hom remembers this comment as a response to a theoretical question, the BCI chief remembers it as "coming out of the blue" and sounding like a threat. Shortly after making this comment, Hom broke down and began crying uncontrollably. The BCI chief later stated that he felt Hom was "on a downward spiral" and had become emotionally unstable. However, Hom states the BCI chief never recommended that he seek counseling.

During the subsequent internal affairs investigation, Hom's superiors concluded that he was responsible for the job run failure, had acted insubordinately, and had perjured himself. Hom was dismissed from the Department in March 1990. The Department gave the following reasons for the dismissal: 1) Hom was perceived to be a security threat, 2) Hom had committed perjury, 3) Hom had committed malfeasances and misfeasance, and 4) Hom had been insubordinate.

Hom appealed his termination administratively under the Utah State Personnel Management Act (Personnel Management Act), but his administrative appeal was ultimately dismissed for lack of prosecution. In 1994, Hom filed suit against the Department, claiming that his dismissal violated the Personnel Management Act and Department of Human Resources (DHR) regulations implementing that Act. In 1995, Hom amended his complaint to add a disability discrimination claim under the Federal Vocational Rehabilitation and Other Rehabilitation Services Act of 1978 (the Rehabilitation Act), 29 U.S.C. §§ 701 to 796 (Supp.1998). The trial court granted summary judgment in favor of the Department, dismissing both claims. Hom now appeals.

ANALYSIS

Hom presents two arguments on appeal. First, he argues the trial court erred in barring his wrongful termination claim under the three-year statute of limitations for violations of rights created by statute. He asserts that his suit was an action for breach of contract subject to the six-year statute of limitations for claims arising out of contracts in writing under Utah Code Ann. § 78-12-23(2) (1996). Second, Hom argues the trial court erred in refusing to toll the statute of limitations on his disability discrimination claim under the discovery rule. "Because summary judgment presents only a question of law, we review the trial court's determinations under a standard of correctness, according no deference to the trial court's legal conclusions." Macris & Assocs., Inc. v. Images & Attitude, 941 P.2d 636, 639 (Utah Ct.App.1997).

I. Did Hom Fail to Exhaust His Administrative Remedies?

As a threshold issue, we first address the Department's argument that we lack jurisdiction over this case because Hom has failed to exhaust his administrative remedies under the Personnel Management Act. Hom argues that we cannot consider this issue because the Department did not raise it before the trial court. We disagree. If Hom has failed to exhaust his administrative remedies, then we lack subject matter jurisdiction, and we must dismiss the case "[r]egardless of who raises the issue." Maverik Country Stores, Inc. v. Industrial Comm'n, 860 P.2d 944, 947 (Utah Ct.App.1993); see also Hi-Country Homeowners Ass'n v. Public Serv. Comm'n, 779 P.2d 682, 684 (Utah 1989) (holding court had no subject matter jurisdiction where plaintiff failed to timely appeal an agency order); Heinecke v. Department of Commerce, 810 P.2d 459, 462-64 (Utah Ct.App.1991) (addressing defense of failure to exhaust remedies though raised for first time at oral argument on appeal). "When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct.App.1989).

Under Utah law, parties protesting agency actions must generally exhaust all available administrative remedies before seeking judicial relief. "The basic purpose underlying the doctrine of exhaustion of administrative remedies 'is to allow an administrative agency to perform functions within its special competence--to make a factual record, to apply its expertise, and to correct its own error so as to moot judicial controversies.' " Maverik Country Stores, 860 P.2d at 947 (quoting Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 818, 31 L.Ed.2d 17 (1972)); accord State Farm Mut. Auto. Ins. Co. v. Utah Indus. Comm'n, 904 P.2d 236 (Utah Ct.App.1995).

In this case, the Grievance and Appeal Procedures Act, Utah Code Ann. §§ 67-19a-101 to -408 (1996), provided a clearly available administrative remedy. The Grievance and Appeal Procedures Act provides a formal review process for career service employee dismissals. See Utah Code Ann. § 67-19a-401 (1996). Furthermore, the Act explicitly prohibits judicial review of a career service employee's grievance when the employee has failed to pursue the grievance in a timely manner:

(4)(a) Unless the employee meets the requirements for excusable neglect established by rule, if the employee fails to process the grievance to the next step within the time limits established in this part, he has waived his right to process the grievance or to obtain judicial review of the grievance.

Id. § 67-19a-401(4)(a) (1996) (emphasis added).

Hom failed to complete the administrative appeal process. Hom initially appealed his dismissal to the Career Services Review Board (the Board) under the Grievance and Appeal Procedures Act. However, Hom failed to actively pursue his administrative appeal. Thus the...