Wintle-Butts v. Career Serv. Review Office

• Decision Date: 26 July 2013
• Docket Number: No. 20110574–CA.,20110574–CA.
• Parties: Dori WINTLE–BUTTS, Petitioner, v. CAREER SERVICE REVIEW OFFICE and Department of Technology Services, Respondents.
• Court: Utah Court of Appeals

307 P.3d 665

739 Utah Adv. Rep. 70

Dori WINTLE–BUTTS, Petitioner,

v.CAREER SERVICE REVIEW OFFICE and Department of Technology Services, Respondents.

No. 20110574–CA.

Court of Appeals of Utah.

July 26, 2013.

Grant W.P. Morrison and Court J. Klekas II, for Petitioner.

John E. Swallow and Stanford E. Purser, for Respondent Department of Technology Services.

Judge MICHELE M. CHRISTIANSEN authored this Opinion, in which Judges JAMES Z. DAVIS and CAROLYN B. McHUGH concurred.

Opinion

CHRISTIANSEN, Judge:

¶ 1 Petitioner Dori Wintle–Butts seeks review of the Career Service Review Office (CSRO) Administrator's (the Administrator) determination that CSRO lacked jurisdiction to consider Wintle–Butts's employment grievance. We approve the Administrator's decision.

BACKGROUND

¶ 2 Wintle–Butts has been an employee of the Department of Human Services (DHS) since 1983. On September 20, 2010, Wintle–Butts transferred from her position with DHS to a position with the Department of Technology Services (DTS) with a corresponding increase in pay from $40.40 to $46.27 per hour. As with all new hires to DTS, Wintle–Butts's employment offer was conditioned upon successful completion of a criminal background check.

¶ 3 On September 23, 2010, Wintle–Butts received a letter from her supervisor at DTS indicating that she had failed to pass the required background check and was being placed on paid administrative leave until a final decision could be made regarding the status of her employment. Five days later, Wintle–Butts signed a letter entitled “Request for Transfer,” in which she requested transfer from her position with DTS to her former position with DHS, which became effective that same day. By signing the transfer request, Wintle–Butts specifically agreed to “waive any and all right [she] might have to grieve the transfer or the decrease in salary.”

¶ 4 On October 5, 2010, consistent with the grievance process for career service employees, see generallyUtah Code Ann. § 67–19a–402 (LexisNexis 2011), Wintle–Butts filed with DTS a grievance challenging her “[w]rongful dismissal on September 28, 2010, of [her] conditional employment under the provisions of the DTS Policy and Procedure 2000–0014 Background Investigations.” Wintle–Butts's former supervisor at DTS reviewed her grievance and determined that he was “not authorized” to reverse the DTS employment decision.¹ On October 14, Wintle–Butts advanced her grievance to the Executive Director of DTS (Director), who denied her grievance, explaining that Wintle–Butts was “not eligible ... to use the grievance procedures.” In addition, the Director noted that any claim of procedural error was moot because Wintle–Butts was “not qualified for the IT Analyst III position because [the Bureau of Criminal Identification] denied [her] the access necessary to do the job.”

¶ 5 Wintle–Butts then advanced her grievance to CSRO, and a prehearing conference was scheduled before the Administrator on December 1, 2010. At the conference, the Administrator elected to schedule a formal hearing to determine if CSRO had authority to review Wintle–Butts's grievance. See id. § 67–19a–202 (setting forth the scope of authority of CSRO). In advance of the formal hearing, Wintle–Butts filed a Verified Request For Finding Of Jurisdiction By Administrator, arguing that because she was a career service employee, CSRO had jurisdiction over her grievance. DTS filed a motion to dismiss, asserting that because Wintle–Butts was “transferred” from her position at DTS back to a position with DHS, her alleged grievance did not fall within any of the statutory categories over which CSRO has jurisdiction pursuant to Utah Code section 67–19a–202. In her response to DTS's motion to dismiss, Wintle–Butts argued that her placement on paid administrative leave constituted a dismissal by DTS, thereby giving CSRO jurisdiction over her grievance.

¶ 6 At the hearing, Wintle–Butts argued that she was dismissed from DTS or, alternatively, that she was demoted or suspended. Wintle–Butts also argued that her transfer back to DHS was not voluntary because the request was signed under circumstances of duress or coercion as a result of her dismissal. On June 7, 2011, the Administrator issued his decision, concluding that because Wintle–Butts was “transferred” from her position at DTS back to a position with DHS, her grievance did not fall within any of the categories set forth in Utah Code section 67–19a–202 over which CSRO has jurisdiction. The Administrator also concluded that Wintle–Butts was not under duress and was not coerced when she signed the request for transfer. Wintle–Butts seeks judicial review of the Administrator's final decision.

ISSUE AND STANDARD OF REVIEW

¶ 7 Wintle–Butts argues that the Administrator erred when he determined that CSRO did not have jurisdiction over her grievance. The determination whether a personnel matter falls within CSRO's jurisdiction requires interpretation or application of a statute. SeeUtah Code Ann. § 67–19a–202. Thus, we may grant relief only if “the agency has erroneously interpreted or applied the law.” Id. § 63G–4–403(4)(d). Because review under subsection (4)(d) does not “imply a specific standard of review,” we are “free to apply our traditional approach in selecting the appropriate standard of review” based on “whether the [agency]'s decision qualifies as a finding of fact, a conclusion of law, or a determination of a mixed question of law and fact.” See Murray v. Labor Comm'n, 2013 UT 38, ¶¶ 23–24, 308 P.3d 461, 2013 WL 3246403. “The issue of whether an agency has jurisdiction is a question of law, which we review for correctness.” Mendoza v. Labor Comm'n, 2007 UT App 186, ¶ 5, 164 P.3d 447 (citing Stokes v. Flanders, 970 P.2d 1260, 1262 (Utah 1998)).²

ANALYSIS

I. This Court Has Jurisdiction To Review the Administrator's Decision.

¶ 8 “[A]s a threshold matter, we must first determine whether this court has subject matter jurisdiction to [review] the [agency action].” Pleasant Grove City v. Orvis, 2007 UT App 74, ¶ 4, 157 P.3d 355. The Utah Administrative Procedures Act provides for judicial review by this court or the Utah Supreme Court of agency actions resulting from formal adjudicative proceedings. Utah Code Ann. § 63G–4–403(1) (LexisNexis 2011).

¶ 9 Here, the Administrator designated the hearing on CSRO's jurisdiction over Wintle–Butts's claim as a formal proceeding. The parties were afforded the opportunity to conduct limited discovery, file responsive pleadings, and argue their cross-motions. See id. §§ 63G–4–204 to –206. Following the hearing, the Administrator entered findings of fact and a decision dismissing Wintle–Butts's grievance for lack of jurisdiction. See id. § 63G–4–208. Wintle–Butts then timely filed a petition for review within thirty days after the Administrator issued his decision. SeeUtah R.App. P. 14(a). We have little difficulty concluding that this proceeding satisfied the requirements of a formal adjudicative proceeding, and we therefore have jurisdiction to review the Administrator's decision. SeeUtah Code Ann. § 63G–4–403(1).

II. The Administrator Correctly Determined that CSRO Does Not Have Jurisdiction To Review Wintle–Butts's Grievance.

¶ 10 Wintle–Butts argues that the Administrator erred in determining that CSRO did not have jurisdiction over her grievance against DTS. CSRO is an independent appellate forum “established to provide state civil service employees with a tribunal for appealing personnel decisions outside of the agency for which they work.” Olson v. Utah Dep't of Health, 2009 UT App 303, ¶ 8, 221 P.3d 863. It is the final administrative body to which a career service employee's grievance regarding certain employment issues may be advanced for review. Utah Code Ann. § 67–19a–202(1)(a) (LexisNexis 2011). See generally id.§ 67–19a–402 (setting forth the grievance procedure for career service employees). Once a grievance is advanced to CSRO, the Administrator must make an initial determination of “(i) whether the employee is a career service employee and is entitled to use the grievance system; (ii) whether the office has authority to review the grievance; and (iii) whether the employee has been directly harmed.” Utah Code Ann. § 67–19a–403(2)(a).

¶ 11 The parties both accept, and we agree, that upon her transfer to DTS, Wintle–Butts remained a career service employee by operation of Utah Code section 63F–1–106(4)(a).³ However, while career service status is a necessary element of CSRO jurisdiction, it is not sufficient alone to establish CSRO's jurisdiction over an employee's grievance.

¶ 12 The scope of CSRO's authority to review grievances is strictly limited to the personnel matters enumerated in Utah Code section 67–19a–202(1)(a). Id. § 67–19a–202(1)(b) (“The office may not review or take action on ... a personnel matter not listed in Subsection (1)(a)....”). CSRO may therefore review only grievances founded upon

(i) a dismissal;

(ii) a demotion;

(iii) a suspension;

(iv) a reduction in force;

(v) a dispute concerning abandonment of position;

(vi) a wage grievance if an employee is not placed within the salary range of the employee's current position; (vii) a violation of a rule adopted under Chapter 19, Utah State Personnel Management Act; or

(viii) [the equitable administration of certain benefits].

Id. § 67–19a–202(1)(a). Because CSRO is a tribunal of limited subject matter jurisdiction, Wintle–Butts bore the burden of “present[ing] sufficient facts to invoke the limited jurisdiction of [CSRO].” See Olson, 2009 UT App 303, ¶ 13, 221 P.3d 863 (citation and internal quotation marks omitted). Wintle–Butts now argues that CSRO has jurisdiction because she was either demoted or dismissed by DTS, or because DTS violated a rule guaranteeing to her certain procedural rights.

A. Wintle–Butts Was Not Demoted by DTS.

¶ 13 Wintle–Butts first argues that she was demoted by DTS and that CSRO therefore had jurisdiction to hear her...