Onysko v. Dep't of Envtl. Quality & Career Serv. Review Office

• Decision Date: 26 March 2020
• Docket Number: No. 20180984-CA,20180984-CA
• Citation: 463 P.3d 669
• Parties: Steven J. ONYSKO, Petitioner, v. DEPARTMENT OF ENVIRONMENTAL QUALITY and Career Service Review Office, Respondents.
• Court: Utah Court of Appeals

463 P.3d 669

Steven J. ONYSKO, Petitioner,

v.DEPARTMENT OF ENVIRONMENTAL QUALITY and Career Service Review Office, Respondents.

No. 20180984-CA

Court of Appeals of Utah.

Filed March 26, 2020

Ryan B. Hancey and J. Adam Knorr, Salt Lake City, Attorneys for Petitioner

Sean D. Reyes and Peggy E. Stone, Salt Lake City, Attorneys for Respondent Department of Environmental Quality

Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Diana Hagen concurred.

Opinion

ORME, Judge:

¶1 The Department of Environmental Quality (DEQ) terminated Steven J. Onysko's nearly twenty-year employment, citing his unprofessional and abusive conduct toward coworkers, supervisors, and DEQ customers. Onysko appealed his termination to the Career Service Review Office (the CSRO). Following a seven-day evidentiary hearing before one of its hearing officers, the CSRO issued a decision (the CSRO Decision) affirming his termination. Onysko now seeks judicial review of the CSRO Decision, and we decline to disturb it.

BACKGROUND¹

¶2 Onysko worked as a level III environmental engineer with career service status in DEQ's Division of Drinking Water (DDW). During Onysko's long employment at DEQ, his technical abilities and expertise as an engineer had never been called into question.

DEQ's Termination of Onysko's Employment

¶3 In 2006, DDW's director issued a written warning to Onysko (the 2006 Warning) regarding, among other things, Onysko's "rude, nasty, arrogant, and confrontational" behavior toward his work colleagues and DEQ customers. Nearly two years later, in 2008, another director issued a second written warning to Onysko (the 2008 Warning) regarding an incident with a coworker in which the director characterized Onysko's conduct as "clearly inappropriate and unprofessional." These warnings, however, did not prevent Onysko from receiving favorable work performance evaluations. Between 1998 and 2016, Onysko's annual evaluations rated his work performance as either "Successful" or "Exceptional."

¶4 In September 2016, Onysko's supervisor (Supervisor) completed a performance evaluation for the July 2015–June 2016 work period, giving Onysko a rating of Successful. In the evaluation, Supervisor commended Onysko for his expertise in the field, stating, "Other DDW staff has commented that every troubled water system in Utah should go through a Steve Onysko sanitary survey." She also characterized him as "an excellent mentor to other engineers because of his knowledge, experience, and willingness to help." But Supervisor noted that "[t]here is room for improvement regarding ... follow up and follow through ... as some projects are not responded [to] within the expected time frame."

¶5 Onysko believed he at the very least deserved a rating of Very Successful and considered the Successful rating unfair. He also disagreed with Supervisor's room-for-improvement comment and said as much in the "Employee Comment" section of the evaluation form, calling it "unfair criticism." But Onysko did not stop at this. He continued:

My inference is that DDW management more favorably performance-evaluates engineering staff who rubber-stamp public works engineering designs, and less favorably performance-evaluates engineering staff who do due diligence in review of public works engineering designs.

....

DDW management should first be investigated to determine whether or not there is conscious, deliberate under-supervision of new staff, and other junior staff, to leave them intentionally ill-prepared to review public works project designs, and intentionally ill-prepared to protect the public against water project design errors.

Secondly, DDW management should be investigated to determine whether or not management's reason for taking away certain review assignments from me is to "shop" the assignments to other less-senior staff until DDW management can find a less discerning engineer with consequent briefer review time and more likely favorable review finding.

Thirdly, DDW management should be investigated to determine whether or not certain categories of review assignments for illegitimate reason are not given to me and other experienced engineers. It should be determined whether or not DDW management excludes experienced engineers from review of certain projects because DDW management fears our raising of design flaw issues that junior engineers, ill-trained by DDW management, will not discern.

In an abusive conduct complaint that Supervisor later filed against Onysko, she alleged that when she met with Onysko to discuss the evaluation, he threatened to "expose information showing that [Supervisor] had improperly monitored other [DDW] review engineers" unless she removed the room-for-improvement comment from his evaluation.

¶6 The following month, Supervisor issued a written warning to Onysko (the 2016 Warning). In it, Supervisor informed Onysko that she "received numerous verbal and two written complaints" from DDW staff and customers about him. She stated that "[t]he complaints have had a consistent theme, the individuals felt that they could not work with you collaboratively or efficiently, and the customers indicated that they were being harassed or abused." Supervisor continued that "[m]any of these complaints are actually related to your communication style and your demeanor perceived by the customers and co-workers," and after speaking with Onysko about the complaints, she had determined that his conduct violated DEQ policy. Supervisor then listed six directives Onysko was to follow and concluded by warning that "if similar unsatisfactory behavior occurs in the future, further corrective and/or disciplinary action may be taken which may include termination of your employment."

¶7 A little over a week later, Onysko filed a complaint with the federal Occupational Safety and Health Administration (OSHA), alleging that the 2016 Warning was retaliatory and in violation of the federal Safe Drinking Water Act. OSHA eventually dismissed this complaint on the ground that "the content did not ‘relate definitively and specifically to the subject matter’ of the [Safe Drinking Water Act]."

¶8 In November 2016, Onysko filed a grievance concerning the 2016 Warning and, on that same day, filed six record requests under the Utah Government Records Access and Management Act (GRAMA), see Utah Code Ann. §§ 63G-2-101 to -901 (LexisNexis 2019),² for all of Supervisor's telephone records spanning the prior six months. During a subsequent investigation by the Department of Human Resource Management (DHRM), Onysko stated that he did not limit the requests to the issues in the 2016 Warning because "he did not know the phone numbers of the two parties who made [written] complaints against him."³ He also, as the assigned hearing officer later found, "more likely than not" left a copy of the GRAMA requests on Supervisor's desk.

¶9 On December 16, 2016, Supervisor issued Onysko a "Notice of Intent to Discipline—Written Reprimand" (the Intent to Reprimand) concerning a November 2016 incident with a non-DDW employee.⁴ Specifically, Onysko had missed a morning appointment with the employee, and after it was pointed out to him that he had accepted the appointment to his calendar, Onysko "became extremely upset and yelled at" the employee. Onysko questioned why the employee had not called him when he had not appeared for the appointment, and it was explained to him that it was not the employee's responsibility to do so. Onysko responded that the situation was "ridiculous" and that he did not understand why the employee had not called him. The employee apologized, and Onysko responded, "I'm not upset; I'm just disappointed." In the Intent to Reprimand, Supervisor described Onysko's conduct as inappropriate, a cause for grave concern, and in violation of the DEQ Code of Conduct. She further noted that this "incident and previous complaints against [him] all share a similar theme of unprofessional and impolite communication with others." As a result, Supervisor notified him that she intended to discipline him "in the form of a Written Reprimand."

¶10 Supervisor and a DHRM representative (DHRM Representative) met with Onysko to deliver and discuss the Intent to Reprimand, but he quickly became upset and cut the meeting short, citing health reasons. As a result, Supervisor and DHRM Representative left the Intent to Reprimand on Onysko's desk. The next business day, Onysko met with DHRM Representative to discuss the document. He then informed DHRM Representative that he intended to file a criminal complaint regarding the manner in which she and Supervisor had delivered the Intent to Reprimand on the previous work day.

¶11 After receiving the Intent to Reprimand, but before Supervisor issued the corresponding "Notice Imposing Discipline—Written Reprimand" (the Written Reprimand), Onysko filed another GRAMA records request for "all sanitary survey reports performed by [Supervisor]," a copy of which he also "more likely than not" left on Supervisor's desk.⁵ He also filed an abusive conduct complaint against Supervisor with DHRM.

¶12 In mid-January 2017, Supervisor issued the Written Reprimand, informing Onysko that "[t]his Letter also serves as a notice that if misconduct continues to occur, I will consider further disciplinary action, which may include termination of your employment." Onysko protested the Written Reprimand on the ground that it did not include mandatory right-to-appeal language, and a subsequent letter—identical to the original but with the mandatory language included—was issued 10 days later. Onysko filed a grievance challenging the amended Written Reprimand, which DEQ's executive director (Executive Director) denied, along with Onysko's earlier grievance related to the 2016 Warning.

¶13 Less than a week after receiving the Written Reprimand, Onysko delivered a copy of his abusive conduct complaint, made to DHRM two weeks earlier, to Supervisor. Supervisor, in...