Smith v. STATE EMPLOYMENT SEC. DEPT.

Citation997 P.2d 1013,100 Wash.App. 561
Decision Date28 April 2000
Docket NumberNo. 23730-0-II.,23730-0-II.
PartiesFranchot E. SMITH and Mary E. Smith, and the marital community Composed thereof, Appellants, v. The STATE of Washington EMPLOYMENT SECURITY DEPARTMENT, Respondent.
CourtWashington Court of Appeals

John Francis Dziedzic and Stewart Arthur Johnston, Asst. Attorneys General, Olympia, for Respondent.

Charles Stephen Ferguson, Attorney At Law, Seattle, for Appellants.

SEINFELD, J.

Franchot Smith brought this action against his former employer, the State of Washington Employment Security Department (Department), claiming constructive wrongful termination; negligent hiring, retention and supervision; and negligent infliction of emotional distress. The trial court granted summary judgment to the Department, finding that Smith had failed to exhaust his administrative remedies and had failed to establish a prima facie case to support his claims. Smith claims that the exhaustion of remedies requirement is inapplicable because the Department failed to provide a safe workplace, thereby violating public policy. But as he has failed to make a prima facie case of a violation, we affirm.

FACTS

In August 1983, the Department hired Smith to work in the Disabled Veterans Outreach Program at the Job Service Center (JSC) in Bellingham. Ronald Halfhill, a co-worker, held the same position and the two enjoyed a "pretty good" relationship.

In early 1986, Halfhill left the agency but he asked to be rehired in January 1987. Because of deficiencies in Halfhill's earlier work habits, the JSC manager required, as a condition of reemployment, that Halfhill agree to certain conditions designed to improve his job performance. Shortly thereafter, Smith began to consider Halfhill's performance to be substandard.

In September 1987, JSC promoted Smith to unit supervisor; his new duties included supervising Halfhill. According to Smith, Halfhill became increasingly uncooperative and the Smith-Halfhill relationship deteriorated. Smith reported to supervisors that Halfhill elbowed him as they passed in the hallway; followed him around the office disrupting his conversations with others; and directed long, hostile stares at him. Co-workers were aware of the angry bickering between the two.

Smith expressed his fear and frustration with Halfhill to JSC Administrator David Cowling and told Cowling about at least one incident, a hallway bumping encounter. Cowling investigated, but he was unable to find a witness to corroborate Smith's claim. Cowling then told Smith and Halfhill that they had a "personality conflict" and must learn to get along.

From 1987 through 1992, Smith's duties included evaluating Halfhill's work performance. On one occasion, Smith attempted to file an evaluation indicating Halfhill's poor performance, but his supervisor persuaded him to raise Halfhill's ratings. Thus, Halfhill's written evaluations contained no indication of a problem between the two men other than Halfhill's comment that he would "benefit greatly" from improved communications with Smith.

In February 1992, Smith requested a demotion from his supervisory position. He did not mention Halfhill as a reason, citing only stress and health factors.1 Then, in August of that year, Smith requested a six-month leave of absence without pay. This time he cited the recent end of his 28-year marriage, several major surgeries in 1990, and the death of his 25-year-old son as reasons for the request. Again, Smith did not mention Halfhill.

In March 1993, after Smith returned from his leave of absence, the verbal conflicts between Smith and Halfhill resumed. Supervisors counseled them; counseling session records indicate that each blamed the other for instigating the conflicts and viewed the other as having the potential to be dangerous to himself and others. Supervisor Pete Lee opined that both were contributing to the problems.

When the conflicts continued, supervisors brought in a facilitator from Employee Advisory Service (EAS) for help. In preparation for the meeting with the EAS facilitator, Smith wrote a summary of his problems with Halfhill. In this document, Smith conceded that he was unable, despite his "better judgment," to ignore Halfhill's provocations and instead responded angrily to them. He also admitted that he left a "caustic" and insulting note on Halfhill's desk and that he once communicated to Halfhill a desire to hit him.

Following the EAS meeting, Smith wrote a "footnote" to his original summary of problems with Halfhill. In it, he noted a "profound" change in Halfhill's behavior toward him and stated that Halfhill had "dropped his personal harassment campaign" against him.

Nonetheless, Smith placed his name on a transfer list, and when no transfer opportunities had become available by September 1994, he gave notice that he would leave his job on December 1. In his resignation letter, Smith cited unspecified concerns about stress, various health problems, and his inability to handle the "public contact and the public relations nature" of the position. Again, he did not mention Halfhill.

Then, on October 17, 1994, Smith heard that Halfhill's wife had filed for divorce. According to Smith's later testimony, Smith believed that Halfhill's emotional stability rested on a stable marriage and that Halfhill's marital difficulties could cause Halfhill to act out. Smith submitted a second letter of resignation, this time effective immediately. Smith's letter contained only one reason for the request: Smith's fear of Halfhill's potential for violence against him.

During this period, Smith did not seek relief through his union's grievance process or utilize any administrative civil service remedies. Further, he admitted that Halfhill never caused him any physical injury, never threatened to do so, and, to Smith's knowledge, never directed any physically intimidating behavior toward anyone else.

In September 1996, Smith sued the Department, claiming constructive wrongful termination; negligent hiring, retention and supervision; and negligent infliction of emotional distress. The Department moved for summary judgment, arguing that Smith had failed to exhaust available administrative remedies and had failed to present sufficient legal bases or evidence to support his claims. The trial court granted summary judgment, dismissing Smith's claims with prejudice.

DISCUSSION

The Department argues that Smith, as a public employee subject to the State Civil Service Law (RCW 41.06), had a duty to exhaust his administrative remedies before commencing a civil lawsuit. Smith responds that he brought his complaint under the Washington Industrial Safety and Health Act (WISHA), not under RCW 41.06, and, thus, the exhaustion requirement does not apply.

The general purpose of the Civil Service Law is to

establish for the state a system of personnel administration based on merit principles and scientific methods governing the appointment, promotion, transfer, layoff, recruitment, retention, classification and pay plan, removal, discipline, training and career development, and welfare of its civil employees, and other incidents of state employment. All appointments and promotions to positions, and retention therein, in the state service, shall be made on the basis of policies hereinafter specified.

RCW 41.06.010.

This statute also provides for a personnel resources board (the Board), which is empowered to adopt rules for the "reduction, dismissal, suspension, or demotion of an employee." RCW 41.06.110 and .150; see Reninger v. Department of Corrections, 79 Wash. App. 623, 631, 901 P.2d 325 (1995)

. Pursuant to this authority, the Board adopted a comprehensive set of merit system rules governing the terms and conditions of state employment.

See WAC 356; Reninger, 79 Wash. App. at 631,

901 P.2d 325.

The Civil Service Law and the Board's regulations give civil service employees the right to appeal any violation of civil service or merit system rules to the State Personnel Appeals Board (PAB). RCW 41.06.170(2); WAC 358-20-010 and -020; Reninger, 79 Wash.App. at 631, 901 P.2d 325. The employee then has the right to appeal the decision of the PAB to the superior court. RCW 41.64.130 and .140.

As we stated in Reninger, "This elaborate system of rules, procedures, and remedies provides a vehicle and forum created specifically to resolve civil service employment relations claims." 79 Wash.App. at 631, 901 P.2d 325. But if a wrongful discharge claim involves a violation of public policy, the courts do not require exhaustion of contractual or administrative remedies. Smith v. Bates Technical College, 139 Wash.2d 793, 991 P.2d 1135 (2000).

Smith contends that the violation of a public...

To continue reading

Request your trial
5 cases
  • Grisby v. Herzog, 71904–1–I.
    • United States
    • Washington Court of Appeals
    • October 26, 2015
    ... ... Scarpelli [ 1 ] and State v. Ziegenfuss. " [ 2 ] Apparently familiar with this ... ...
  • Department of Labor v. Kaiser Aluminum
    • United States
    • Washington Court of Appeals
    • April 4, 2002
    ...is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. Smith v. Employment Sec. Dep't, 100 Wash. App. 561, 568, 997 P.2d 1013 (2000). A material fact is one upon which the outcome of the case depends, in whole or in part. Morris v. McNicol, ......
  • Lee v. Safeway Stores, Inc.
    • United States
    • Washington Court of Appeals
    • September 18, 2012
    ...Dep't of Labor & Indus. v. Kaiser Aluminum & Chem. Corp., 111 Wn. App. 771, 778, 48 P.3d 324 (2002) (citing Smith v. Emp't Sec. Dep't, 100 Wn. App. 561, 568, 997 P.2d 1013 (2000)). "Amaterial fact is one upon which the outcome of the case depends, in whole or in part." Kaiser Aluminum, 111 ......
  • Lee v. Stfeway Stores, Inc.
    • United States
    • Washington Court of Appeals
    • December 4, 2012
    ... ... Appellant, DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, Defendant. No. 42240-9-IICourt of Appeals of ... back in the course of her employment with Safeway, a ... self-insured employer. On March ... 771, 778, 48 P.3d 324 (2002) ... (citing Smith v. Emp't Sec. Dep't, 100 ... Wn.App. 561, 568, 997 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT