Jones v. Des Moines Civil Service Com'n, 87-1301

• Decision Date: 19 October 1988
• Docket Number: No. 87-1301,87-1301
• Parties: Anthony S. JONES, Appellee, v. DES MOINES CIVIL SERVICE COMMISSION, Appellant. DES MOINES ASSOCIATION OF PROFESSIONAL FIRE FIGHTERS LOCAL NO. 4 and Anthony S. Jones, Appellees, v. CITY OF DES MOINES, Iowa, Appellant.
• Court: Iowa Supreme Court

Page 106

430 N.W.2d 106

Anthony S. JONES, Appellee, v. DES MOINES CIVIL SERVICE COMMISSION, Appellant.

DES MOINES ASSOCIATION OF PROFESSIONAL FIRE FIGHTERS LOCAL NO. 4 and Anthony S. Jones, Appellees, v. CITY OF DES MOINES, Iowa, Appellant.

No. 87-1301.

Supreme Court of Iowa.

Oct. 19, 1988.

Rehearing Denied Nov. 18, 1988.

Nelda Barrow Mickle, City Sol., Des Moines, for appellants.

Charles E. Gribble and Linda G. Hanson of Sayre & Gribble, P.C., Des Moines, for appellees.

Considered by HARRIS, P.J., and LARSON, SCHULTZ, LAVORATO, and NEUMAN, JJ.

HARRIS, Justice.

The questions here center on (1) whether Anthony S. Jones became established as a Des Moines fire fighter so that the city was compelled to treat him as a permanent employee when undertaking to discharge him and (2) his rights under a collective bargaining agreement to challenge his discharge. The district court entered summary judgment for Jones and we affirm.

The city became ensnarled in its own efforts to cooperate with Jones while he wrestled with his inability to pass a required examination. Jones was appointed a probationary fire fighter December 17, 1984. The following December, as he approached the end of his first twelve months of civil service employment, he had not achieved certification for emergency medical training--ambulance (EMT-A), a Des Moines fire department requirement.

On December 11, 1985, the fire chief notified Jones that:

Because you will not have the test results of your latest attempt at passing the EMT-A test until after your one-year anniversary, the City will wait until you have had up to three attempts, which is State policy, to pass the EMT-A written test.

The only consideration we ask for in exchange for those three attempts is that they be made in a timely fashion. The longer you wait to test after a course, usually effects your grades in an adverse manner.

If you fail to pass the national EMT-A written examination after three attempts, Anthony, you will be processed for dismissal from employment with the Des Moines Fire Department.

Jones' precarious standing thereafter became considerably strengthened because the city officials were kindly disposed towards his ambitions and acted accordingly.

Jones received a pay increase and, according to a city personnel action form, was given permanent employment status, effective December 16, 1985. At that time results from the EMT-A test were pending. They later revealed that Jones failed. After he was also unsuccessful in two more attempts at the EMT-A test Jones was discharged July 8, 1986, for failure to achieve certification.

Jones then filed a grievance, alleging he had been discharged in violation of the collective bargaining agreement entered between the city and his union. The city denied Jones' grievance, contending that any dispute concerning Jones' discharge fell under the jurisdiction of the civil service commission. Jones then brought a certiorari action and, together with his union, brought an equity action against the city.

The certiorari action challenged the jurisdiction of the Des Moines civil service commission to consider Jones' appeal of his dismissal. The action brought by Jones and the union was in equity and sought to compel the city to arbitrate the dismissal. Because both actions involve the same factual and legal disputes they were consolidated and are considered together on this appeal. The district court ruled in favor of Jones in both cases.

I. In the certiorari proceeding our review is governed by the rules applicable to appeals in ordinary actions. Iowa R.Civ.P. 318. Summary judgments are governed by Iowa rule of civil procedure 237(c). Our review is for correction of errors. Iowa R.App.P. 4. The burden of showing the nonexistence of material fact is upon the moving party. Knapp v. Simmons, 345 N.W.2d 118, 121 (Iowa 1984). We examine the record in the light most favorable to the party opposing the motion. Sandbulte v. Farm Bureau Mut. Ins. Co., 343 N.W.2d 457, 464 (Iowa 1984). Summary judgment is not proper if reasonable minds could draw different inferences and conclusions from the undisputed facts. Knapp, 345 N.W.2d at 121.

II. In Devine v. City of Des Moines, 366 N.W.2d 580, 583 (Iowa 1985), we held that the grievance procedure of Iowa Code chapter 400 (civil service) provides the exclusive means of challenging the dismissal of a civil service employee. We said:

[W]e will not extend jurisdiction over civil service employee discharges to an arbitrator in the absence of an expression of legislative intent to that effect.

Id. at 582-83.

In the present case the city, relying on Devine, urges that Jones was not entitled to pursue the remedies sought here but should have pursued the administrative remedy provided in our civil service Act. The district court correctly rejected this contention because the legislature moved promptly to address and overturn our Devine holding.

The very next session of the General Assembly amended Iowa Code section 20.18 (public employment relations-collective bargaining) as follows:

Public employees of the state or public employees covered by civil service shall follow either the grievance procedures provided in a collective bargaining agreement, or in the event that grievance procedures are not provided, shall follow grievance procedures established pursuant...