Reninger v. Department of Corrections

• Decision Date: 01 November 1995
• Docket Number: No. 17124-4-II,17124-4-II
• Citation: 79 Wn.App. 623,901 P.2d 325
• Court: Washington Court of Appeals
• Parties: Richard RENINGER and Joanne Reninger, husband and wife, and William Cohen and Claire L. Thompson Cohen, husband and wife, Respondents, v. The DEPARTMENT OF CORRECTIONS, Robert Shepherd and Robin Shepherd, husband and wife, and their marital community, Allen Scamahorn and Margarette Scamahorn, husband and wife, and their marital community, Don Daniel and Leota Daniel, husband and wife, and their marital community, William Callahan and Sharon Callahan, husband and wife, and their marital community, Jim Spaulding and Jane Doe Spaulding, husband and wife, and their marital community, Appellants.

Page 623

79 Wn.App. 623

901 P.2d 325

Richard RENINGER and Joanne Reninger, husband and wife, and William Cohen and Claire L. Thompson Cohen husband and wife, Respondents, v. The DEPARTMENT OF CORRECTIONS, Robert Shepherd and Robin Shepherd, husband and wife, and their marital community Allen Scamahorn and Margarette Scamahorn, husband and wife and their marital community, Don Daniel and Leota Daniel husband and wife, and their marital community, William Callahan and Sharon Callahan, husband and wife, and their marital community, Jim Spaulding and Jane Doe Spaulding, husband and wife, and their marital community, Appellants.

No. 17124-4-II.

Court of Appeals of Washington, Division 2.

Nov. 1, 1995.

Michael Patrick Lynch, Asst. Atty. Gen., Office of Atty. Gen., Olympia, for appellants.

Stephen Gregory Smith, Bellevue, for respondents.

ORDER ON MOTION FOR RECONSIDERATION: AMENDING OPINION AND

DENYING RECONSIDERATION

WHEREAS, Respondents moved for reconsideration of our opinion in the above referenced matter entered on August 29, 1995;

WHEREAS, we find merit in Respondents' claim that the opinion erroneously stated that the trial court admitted the Employment Security Department decision at trial and, accordingly, amend the opinion by replacing pages 16 through 21 as set forth in the attached amended opinion ; and

WHEREAS, we reject Respondents' further contention that Appellants did not preserve the issue regarding the admissibility of the Personnel Appeal Board process; and

WHEREAS, Respondents' final issue-that RCW 50.32.097 is not applicable because the statute only applies to actions between employers and employees-is not timely because Respondents raise it for the first time in their motion for reconsideration;

Accordingly, it is

ORDERED that the opinion is amended as shown on the attached amended opinion and Respondents' motion for reconsideration is denied in all other respects.

AMENDED OPINION

SEINFELD, Chief Judge.

The Department of Corrections (DOC) disciplined former corrections officers Richard Reninger and William Cohen by demoting them for four and one-half months and reassigning them during that period to guard duty in a unit for problem inmates at McNeil Island Corrections Center. Rather than use administrative processes to appeal the reassignment, Reninger and Cohen resigned and then sued and recovered against DOC and several DOC employees for constructive discharge and intentional interference with a business relationship. ¹ We conclude that a civil service employee challenging a work assignment may not sue in tort instead of using those

remedies available under the Civil Service Act. Thus, we reverse.

FACTS

In October 1988, then Sergeant Reninger and then Lieutenant Cohen were employed by DOC as correctional officers at McNeil Island Correctional Center. As part of their duties, they conducted a weapons re-certification training session for other correctional staff. This involved removing shotguns from the armory and taking them to the firing range. Reninger and Cohen were responsible for ensuring the proper return of the weapons to the armory after their use.

A few days after the training session Sergeant Robert Shepherd observed what looked like the barrel of a gun protruding from a locker in the range office. He contacted Associate Superintendent Donald Daniel who checked the range office and reported his discovery of three shotguns. His report did not mention Shepherd's involvement.

Captain Allen Scamahorn then conducted an inventory and determined that Reninger and Cohen had last used the three shotguns during their training session. Daniel later acknowledged that his initial report was not accurate, that it was actually Shepherd who had found the weapons. Daniel said he had not disclosed Shepherd's involvement because of his concern about a troubled past family relationship between Shepherd and Cohen.

Following the investigation and subsequent administrative review hearings, Superintendent William Callahan concluded that Cohen and Reninger had failed to account for the weapons. Callahan officially notified the two officers of his decision in letters dated January 23, 1989. The letters state that Reninger and Cohen neglected their duties, were inefficient and "were guilty of gross misconduct in failing to properly account for weapons you used Upon receipt of Callahan's letter, Reninger and Cohen took sick leave until March 1989; both then resigned, claiming that the reassignment jeopardized their personal safety. They did not express their concerns about their safety to their supervisors before resigning. Nor did they seek review of their reassignments through the civil service appeals process or complain to the Department of Labor & Industries under the Washington Industrial Safety and Health Act (WISHA).

                to train staff."   It continues:  "Had these weapons been found by an inmate, the lives of staff, community members and/or other inmates, and control of the institution, could have been severely jeopardized."   Callahan sanctioned the officers by demoting them for a four and one-half month period;  Scamahorn then reassigned them to a segregation unit that housed "problem inmates."
                

The two officers did use the administrative process to appeal the misconduct finding and the demotion. They claimed that they had returned the guns to the armory and they suggested that Shepherd, Daniel, and possibly others had colluded against them, motivated by personal conflicts.

During the review process, both officers were represented by counsel who had the opportunity to conduct formal depositions, discover DOC documents, and submit hearing memoranda. At the hearing, their counsel made opening and closing statements, called and cross-examined witnesses, and made objections. Following the hearing, the hearings examiner upheld the misconduct finding and the demotion.

The two officers then took the matter before the Personnel Appeals Board (PAB), which affirmed the examiner's decision. Its March 1990, findings and conclusions state:

[Reninger's and Cohen's] conduct constitutes gross misconduct. For an act to constitute gross misconduct, the act must be glaring and flagrant and must detrimentally affect the agency's ability to carry out its function. [Reninger and Cohen] failed to account properly for the weapons, a glaring Conclusions V and VI for Cohen and Reninger respectively.

omission which detrimentally affected the agency's ability to carry out its functions of protecting inmates, staff, and the community.

The PAB also found that under all the circumstances the four and one-half month demotion was an appropriate disciplinary action. Thus, it affirmed the demotion and denied the appeal. Reninger and Cohen then appealed to superior court, but the superior court later dismissed their appeals because they had been filed in the wrong county.

In June 1990, Reninger and Cohen filed a complaint for damages in superior court, alleging multiple theories of relief including constructive discharge, interference with a contractual relationship, and outrage. The named defendants included DOC, Callahan, Daniel, Scamahorn, and Shepherd.

Defendants moved for summary judgment. The trial court dismissed several claims, but denied summary judgment on the constructive discharge claim against DOC and on the tortious interference and outrage claims against the individual defendants.

The trial court also denied a defense request to strike evidence that the Employment Security Department had granted unemployment compensation to Reninger and Cohen. It granted Reninger's and Cohen's motion to exclude any evidence or testimony regarding "[t]he existence of the hearing, results, findings, conclusions, plaintiffs' appeal from, or the decision of the Personnel Appeals Board relating to the discipline of Richard Reninger and/or William Cohen."

The jury returned a verdict for plaintiffs against Daniel, Scamahorn, and Shepherd on the constructive discharge and intentional interference claims; it found no liability on the part of defendant Callahan. The jury awarded Reninger $29,257 for past economic damages, $75,000 non-economic damages, and $62,883 for future economic Reninger and Cohen then moved for attorney's fees, citing RCW 49.48.030. Reninger requested $36,856, and Cohen requested $108,066.80; each based his request upon his 40% contingent fee agreement (for economic damages only) with his attorney. The court awarded the requested amounts and ordered them to be paid by DOC.

damages. The jury awarded Cohen $63,189 for lost wages, $64,788 for other past economic damages, $100,000 for non-economic damages, and $142,190 for future economic damages.

DOC, Daniel, Scamahorn, and Shepherd appeal. They challenge the denial of their motion for summary judgment and the trial court's exclusion of evidence related to the PAB's hearing process and findings. Additionally, they challenge the denial of their motion for a directed verdict on the constructive discharge claim, the denial of a jury instruction related to Shepherd's discovery of the missing weapons, the denial of their motion to exclude evidence of the Employment Security Department's action, the denial of their motion to dismiss at the close of plaintiffs' case, and the award of attorney's fees.

I DENIAL OF SUMMARY JUDGMENT

DOC presented three theories to support its motion for summary judgment of dismissal of Reninger's and Cohen's constructive discharge claim: (1) civil service remedies are exclusive for a claim of improper work assignment; (2) the trial court should have applied the doctrine of collateral estoppel to prevent Reninger and Cohen from denying they engaged in misconduct, and the doctrine, so applied, would have left no issue of material fact for resolution; and (3) the existence of civil service and WISHA remedies preclude a claim for constructive discharge. We find the first two theories meritorious and thus need not...