Osterlof v. University of Washington, 3877--I

• Decision Date: 23 May 1977
• Docket Number: No. 3877--I,3877--I
• Parties: Rachel OSTERLOF, Appellant, v. UNIVERSITY OF WASHINGTON, Respondent.
• Court: Washington Court of Appeals

Page 621

17 Wn.App. 621

564 P.2d 814

Rachel OSTERLOF, Appellant, v. UNIVERSITY OF WASHINGTON, Respondent.

No. 3877--I.

Court of Appeals of Washington.

May 23, 1977.

McCutcheon, Groshong, Geisness & Day, Gerald G. Day, Thomas M. Geisness, Seattle, for appellant.

Slade Gorton, Atty. Gen. of Washington, Gerald L. Coe, Asst. Atty. Gen., Seattle, for respondent.

WILLIAMS, Judge.

Rachel Osterlof, a publications designer on the staff of the University of Washington, was laid off because of curtailment of work and a decrease in appropriations. She appealed to the Higher Education Personnel Board (RCW 28B.16.120) and from an adverse ruling there to the King County Superior Court, which remanded the cause for further proceedings. The board reconsidered the case, and when it adhered to its original decision, Osterlof again appealed to the superior court, which sustained the board's findings, conclusions, and order. This appeal followed.

The facts are these: In 1962, Osterlof was hired to work as an artist in a nonclassified position in the printing department of the university. On April 1, 1968, its printing and publications departments were reorganized, and Osterlof was appointed to a classified (civil service) position in the Department of Publications as a graphic illustrator, subsequently redesignated publications designer. There were four regular employees in the graphics section of the department, a Mr. Auvil, called design supervisor, and three women, one of whom was Osterlof. In addition, a Mr. Walsh was retained as a consultant, at approximately the same rate of pay as the others. On August 12, 1971, when it was necessary to reduce the number of persons in the graphics section by one, Osterlof was laid off.

The first question is whether Mr. Auvil's seniority for layoff purposes was greater than that of the three women. Although the record smacks of discrimination, Auvil had occupied a lead position over the three women for some time prior to the reduction in staff with no protest or appeal. The evidence is adequate to support the board's decision sustaining the determination of the department head that as between Auvil and Osterlof, Osterlof was the one to go.

The second and most important question, recognized as such by the superior court which remanded the cause for further proceedings on the point, is whether Walsh should have been the one relieved in the reduction of force rather than Osterlof. We believe the University was mistaken in retaining Walsh.

The head of the Department of Publications, a Mr. Miller, did not consider separating Walsh because, as he expressed it before the board:

Well, I have been trying to establish something that would be clear to everyone and yet identify the essence of it. I will probably go amiss, but I felt that because of the unique qualifications and his intelligence, he had the ability and also the emotional and professional detachment, not being a specific captive staff member of the University, to most comprehensively envision how the University could both properly project its image and maintain and reserve the continuity of that image to the public and to the many communities within that public. I felt that although those of us who had the responsibility for carrying out this objective within the University could preserve those things that had to be done, it was only through someone with a special professional development that Frederick Walsh manifested that this could really be achieved in an excellent way. I think we could have done it, but perhaps without the degree of excellence or special quality that we were able to attain with Fred Walsh's particular vision and understanding.

It was for the reasons so expressed by Mr. Miller that Walsh had been retained under a blanket requisition as a 'design consultant' for 9 of the 10 years immediately preceding the discharge of Osterlof.

The best description of Walsh's function during those 9 years is supplied by himself:

The word consultant is misleading. It is just the only way they have of putting a tag on me, because I am actually a working art director and working chief designer. I actually do the work and usually people think of a consultant as only giving advice, and my job is as a working art director and working chief designer.

and again,

(T)he word 'consultant' is confusing because the only function I ever performed for the University was in a working situation. I was actually designing and implementing publications except for my first involvement with the University. I was hired to make a study of the...