Lehr v. Department of Labor of State of S.D., 15172

• Citation: 391 N.W.2d 205
• Decision Date: 24 July 1986
• Docket Number: No. 15172,15172
• Parties: In the Matter of the Grievance of Marilyn LEHR, Grievant and Appellant, v. DEPARTMENT OF LABOR OF the STATE OF SOUTH DAKOTA, Employer and Appellee.
• Court: Supreme Court of South Dakota

Page 205

391 N.W.2d 205

In the Matter of the Grievance of Marilyn LEHR, Grievant and Appellant, v. DEPARTMENT OF LABOR OF the STATE OF SOUTH DAKOTA, Employer and Appellee.

No. 15172.

Supreme Court of South Dakota.

Submitted on Briefs May 20, 1986.

Decided July 24, 1986.

Ronald J. Hali of Siegel, Barnett & Schutz, Aberdeen, for grievant and appellant.

Drew Johnson, Sp. Asst. Atty. Gen., S.D. Labor Dept., Aberdeen, for employer and appellee.

WUEST, Justice.

Grievant/appellant, Marilyn Lehr (Lehr), appeals from a circuit court judgment dismissing her appeal from the South Dakota Career Service Commission's (Commission) decision upholding the South Dakota Department of Labor's (Department) action to demote Lehr from Statistical Assistant to Staff Assistant II. We reverse and remand for a decision on the merits.

Lehr worked in the Research and Statistics (R & S) section of Department in Aberdeen, South Dakota, from June 1959 until July 1983. In April 1976 she was promoted to Statistical Assistant. Shortly before April 1, 1983, her direct supervisor gave Lehr an unsatisfactory rating on her performance as third person in line to answer the telephone. On April 1, 1983, Lehr talked to Julie Johnson (Johnson), who had been Deputy Secretary of Department since February 1983, about the performance appraisal. Johnson later talked to Jewel Husby (Husby), Chief of the R & S section, concerning Lehr's complaint. On April 5, 1983, Husby terminated Lehr's employment with Department on the grounds that Lehr bypassed her supervisors by complaining to Johnson and because Lehr violated warnings about answering the telephone.

Lehr initiated a grievance over her firing. Prior to a decision on her grievance, Department and Lehr entered into a written agreement, which reinstated Lehr to her Statistical Assistant position on May 9, 1983, with the condition that she successfully complete a thirty-day work improvement program. The program was extended another thirty days. Department demoted Lehr on July 11, 1983, based on results from the program. After receiving no relief from the grievance procedure, Lehr appealed Department's demotion action to Commission, which, after a hearing, upheld the demotion. This decision was then appealed to the circuit court.

The circuit court held Department had no authority to enter into the agreement with Lehr; therefore, Commission had no jurisdiction to hear her appeal from the demotion and, consequently, the court had no jurisdiction to hear the appeal from the Commission to it.

The court did find Lehr was subject to the provisions of the Career Services Personnel Management Act. SDCL ch. 3-6A. Under the provisions of SDCL 3-6A-36, Commission has authority, pursuant to SDCL ch. 1-26, to adopt rules for grievances and appeals to Commission for career services personnel. Commission has adopted such rules. See A.R.S.D. 55:01:13 and 55:01:14. Under these rules, an employee may appeal to Commission from a dismissal or demotion after exhausting all grievance procedures. A.R.S.D. 55:01:13:04.

Neither Lehr nor Department raised the jurisdiction issue in the trial court. It was raised on the court's own motion. Department takes no position on the jurisdiction issue on appeal, except to contend that the circuit court could determine whether or not it had jurisdiction of the appeal. We agree the trial court could determine whether it had jurisdiction of the appeal. In this court's recent opinion, State v. Waldner, 381 N.W.2d 273, 275 (S.D.1986), we stated:

Jurisdiction, although not raised by either party on appeal or at the trial level, may be addressed by this Court sua sponte. See State v. Oban, 372 N.W.2d 125, 130-31 (S.D.1985); State v. Huftile 367 N.W.2d 193, 195 (S.D.1985); Long v. Knight Constr. Co., 262 N.W.2d 207, 209 (S.D.1978); Estate of Putnam, 254 N.W.2d 460, 461 (S.D.1977); and Shryock v. Mitchell Concrete Products, 87 S.D. 566, 567-68, 212 N.W.2d 498, 499 (1973). Thus, although a jurisdictional issue was not raised below or on appeal, we are required to address this issue. (Citations omitted.) (Emphasis...