Yakima County v. Yakima County Law Enforcement Officers Guild

• Citation: 157 Wash.App. 304,237 P.3d 316
• Decision Date: 05 August 2010
• Docket Number: No. 28111-6-III.,28111-6-III.
• Parties: YAKIMA COUNTY, Respondent, v. YAKIMA COUNTY LAW ENFORCEMENT OFFICERS GUILD, Appellant, James A. Lundberg, Arbitrator, and JAN BARTLESON, Defendants.
• Court: Court of Appeals of Washington

157 Wash.App. 304

237 P.3d 316

YAKIMA COUNTY, Respondent,

v.YAKIMA COUNTY LAW ENFORCEMENT OFFICERS GUILD, Appellant,James A. Lundberg, Arbitrator, and JAN BARTLESON, Defendants.

No. 28111-6-III.

Court of Appeals of Washington,Division 3.

Aug. 5, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

James Michael Cline, Cline & Associates, Seattle, WA, for Appellant.

Kirk A. Ehlis, Menke Jackson Beye Ehlis & Harper LLP, Yakima, WA, for Respondent.

SWEENEY, J.

¶ 1 Judicial review of arbitration proceedings is limited. The courts are very deferential to the arbitrator's factual findings and conclusions on the legal questions presented. The superior court here reversed a decision of a labor arbitrator in favor of a law enforcement officers guild, concluding that the guild's claims were untimely, were not brought in the proper forum, and were barred by the doctrine of res judicata or collateral estoppel. We conclude this was error and reverse the court and reinstate the decision of the arbitrator.

FACTS

¶ 2 The Yakima County Sheriff's Office is a unionized workplace pursuant to a collective bargaining agreement (CBA).

¶ 3 Jan Bartleson was hired as a sheriff's deputy in 1995. She generally received positive work reviews until January 2001, when she received a three-day suspension for an on-duty automobile accident. The Yakima County Law Enforcement Officers Guild (Guild) filed a grievance and the suspension was reduced to one day. Thereafter, Ms. Bartleson's relationship with Sheriff Ken Irwin began to deteriorate. Ms. Bartleson exhausted her paid leave due to a combination of personal injuries, a pregnancy, and family care. Sheriff Irwin and Ms. Bartleson's co-workers were unhappy with the amount of time she was away from her job, although none of her leave was unauthorized.

¶ 4 In October 2002, Ms. Bartleson requested extended unpaid medical leave as allowed under the CBA. Sheriff Irwin denied her request. She filed a gender and disability discrimination claim with the Washington State Human Rights Commission. Sheriff Irwin eventually approved the leave. Ms. Bartleson had alleged in her discrimination complaint that she suffered from attention deficit disorder. So Sheriff Irwin required her to undergo a “fit for duty” psychological evaluation as authorized by the CBA. Ms. Bartleson was found fit for duty and returned to work in December 2002. The psychiatrist who treated her (Dr. Agnani) informed the sheriff that people with attention deficit/hyperactivity disorder (AD/HD) can perform effectively at their jobs with treatment.

¶ 5 In February 2003, Ms. Bartleson's child was accused of misconduct at school. Ms. Bartleson had some discussions with school officials and parents. School officials and members of the community complained to the sheriff about her. The sheriff placed her on administrative leave pending an internal investigation. Sheriff Irwin required her to undergo a second “fit for duty” evaluation with a different psychiatrist of the sheriff's choosing, Dr. Gregory D. Sawyer. Sheriff Irwin was not satisfied that Dr. Agnani had fully addressed his concerns about Ms. Bartleson's fitness for duty. Sheriff Irwin sent Dr. Sawyer a letter. He referenced both AD/HD and her recent job performance problems. The sheriff sent a packet to Dr. Sawyer that contained write-ups of six incidents of alleged improper conduct going back to 1998. All were investigated and found to be without basis except for one in which Ms. Bartleson acted discourteously but was not disciplined. Dr. Sawyer concluded that Ms. Bartleson was unfit for duty but not due to AD/HD and wrote a report to that effect dated March 12, 2003.

¶ 6 Ms. Bartleson again requested unpaid medical leave under the CBA on March 20, 2003. Sheriff Irwin directed her to appear for an investigatory interview on March 25. Ms. Bartleson's physician informed Sheriff Irwin that she required medical leave for approximately three months and the interview was cancelled. He granted her unpaid medical leave from April 14 to July 14, 2003, but notified her she would be discharged from employment on July 15, 2003. The sheriff said that her termination was not for discipline but was the result of Dr. Sawyer's finding her unfit for duty. There were no further internal proceedings before the termination. In a discharge letter dated July 16, 2003, Sheriff Irwin again informed Ms. Bartleson that she was terminated for cause because she was not able to perform the duties of a deputy sheriff and the termination was nonvoluntary and nondisciplinary.

¶ 7 Ms. Bartleson filed a grievance on July 24, 2003. She alleged illegal termination due to gender and disability discrimination and violation of the CBA disciplinary provisions. Sheriff Irwin denied her grievance. She appealed to the Yakima County Civil Service Commission, but withdrew that appeal three days before the scheduled hearing and filed a civil suit instead. The commission dismissed her appeal at her request.

¶ 8 Ms. Bartleson sued Yakima County (County) in Benton County Superior Court. She alleged statutory causes of action (chapter 49.60 RCW) for: (1) gender discrimination and harassment, (2) disability discrimination, (3) retaliation, and (4) wrongful termination in violation of public policy. She also alleged common law causes of action for intentional and negligent infliction of emotional distress, and negligent hiring, supervision, and retention. Specifically, she alleged that the County “negligently evaluated plaintiff's fitness for duty by hiring Dr. Sawyer and using his unprofessional ‘evaluation’.” Employer's Ex. 18 at 9. She requested damages for past and future lost wages and benefits. The Guild was not a party in Ms. Bartleson's civil service appeal or her civil suit.

¶ 9 Meanwhile, on August 9, 2003, the Guild filed its own grievance over Ms. Bartleson's termination. The Guild claimed the sheriff violated sections 18.1, 18.3, and 19.3 of the CBA (relating to discipline and related notice procedures). Employer's Ex. 14; Guild's Ex. 1. The Guild's grievance stated it is “concerning the discharge of former Deputy Jan Bartleson” and sought remedies of reinstatement and back pay. Employer's Ex. 14; Guild's Ex. 1. The grievance did not mention any other deputies. The County claimed Ms. Bartleson's discharge was for medical reasons and therefore not subject to the CBA. The County refused to arbitrate.

¶ 10 The Guild sued to compel arbitration. The Guild claimed Ms. Bartleson's discharge was a pretext for disciplinary termination of a tenured deputy without the just cause required by the CBA. The superior court ordered arbitration, but denied the Guild's request for attorney fees. The Guild and the County both appealed to this court.

¶ 11 We concluded that there was an ambiguity between CBA section 19.4 (challenges to employment discharge are pursued with civil service commission), and sections 20.2 and 20.3 (allowing arbitration of disputes involving interpretation and application of CBA just cause and discharge provisions). We could not then conclude that the arbitration clause was not susceptible of an interpretation that covers this dispute. Yakima County Law Enforcement Officers Guild v. Yakima County, 133 Wash.App. 281, 286, 135 P.3d 558 (2006). Our decision was based in part on the strong presumption favoring arbitrability. Id. We also noted that disputes over the procedural prerequisites to arbitration were properly the subject of arbitration. Id. at 287-88, 135 P.3d 558.

¶ 12 Yakima County moved for summary judgment in Ms. Bartleson's 2004 Benton County civil discrimination suit. The court granted the motion and summarily dismissed the suit on March 2, 2007. Ms. Bartleson did not appeal that decision.

¶ 13 The Guild's grievance proceeded to hearing before arbitrator James A. Lundberg on September 11, 2007.

¶ 14 The arbitrator rejected claims by the County that the Guild's grievance was untimely and barred by res judicata or collateral estoppel because of Ms. Bartleson's civil service appeal and civil suit. The arbitrator also rejected the County's arguments that medical discharges were exempt from review under the CBA and the Yakima

County Civil Service Commission General Rules and Regulations

(rev. Oct. 7, 2002) incorporated into the CBA. He explained that the civil service rules require “cause” to terminate a tenured employee and the CBA requires “just cause” to discipline a tenured employee. The civil service rules list 11 disciplinary reasons why a deputy may be terminated, including mental unfitness for the position. Civil Service Rule XIII, § 4(a)-(k) (Employer's Ex. 2 at 10-11). He concluded that nothing in the CBA exempts mental unfitness for a position from the CBA. Thus, the “just cause” standard applies to a tenured employee who was discharged based upon claims of unfitness. In re Arbitration between Yakima County and Yakima County Law Enforcement Employees' Guild, No. 20549-P-06-759, at 40-42 (Wash. Pub. Employment Relations Comm'n, Grievance Arbitration Opinion and Award Dec. 27, 2007) (hereafter Arbitrator's Decision).

¶ 15 The Guild's expert, clinical psychologist Dr. Kathleen Pollock, testified that accepted law enforcement standards for fitness for duty determinations require objective testing standards. Dr. Pollock examined Ms. Bartleson and concluded she was fit and should not have been terminated. The arbitrator found that Dr. Sawyer did not use objective tests to evaluate Ms. Bartleson, but instead relied on rumor and hearsay including some allegations that were actually false.

The arbitrator found that Dr. Sawyer was not credible and rejected Dr. Sawyer's report and conclusions that Ms. Bartleson was unfit for duty.

¶ 16 The arbitrator concluded that Sheriff Irwin violated the CBA because he violated just cause requirements and did not conduct the required predischarge hearing:

The idea that Ms. Bartleson was discharged for anything other than...