Zavala v. Arizona State Personnel Bd., 1

• Decision Date: 01 October 1987
• Docket Number: No. 1,CA-CIV,1
• Citation: 159 Ariz. 256,766 P.2d 608
• Parties: Sostemo R. ZAVALA, Plaintiff-Appellant, v. ARIZONA STATE PERSONNEL BOARD; Everett W. Kyle, Esther Tang, Salvador Martinez, Harry Lakin, individually and in their official capacity as members of the Arizona State Personnel Board; James G. Ricketts, individually and in his official capacity as the Director of the State of Arizona Department of Corrections, and the State of Arizona, Defendants-Appellees. 9015.
• Court: Arizona Court of Appeals

Page 608

766 P.2d 608

159 Ariz. 256

Sostemo R. ZAVALA, Plaintiff-Appellant, v. ARIZONA STATE PERSONNEL BOARD; Everett W. Kyle, Esther Tang, Salvador Martinez, Harry Lakin, individually and in their official capacity as members of the Arizona State Personnel Board; James G. Ricketts, individually and in his official capacity as the Director of the State of Arizona Department of Corrections, and the State of Arizona, Defendants-Appellees.

No. 1 CA-CIV 9015.

Court of Appeals of Arizona Division 1, Department A.

Oct. 1, 1987.

Supplemental Opinion on Denial

of Motion for Reconsideration

June 28, 1988.

Review Denied Jan. 17, 1989.

[159 Ariz. 258] Edward Camacho, Phoenix, for plaintiff-appellant.

Robert K. Corbin, Atty. Gen. by Michael N. Harrison, Asst. Atty. Gen., Phoenix, for defendant-appellee, State of Ariz.

Sundberg & Mousel by Craig L. Mousel, Phoenix, for defendants-appellees, Arizona State Personnel Bd.

OPINION

FIDEL, Judge.

Appellant Sostemo Zavala was terminated as an employee of the Arizona Department of Corrections (DOC) for sexually harassive and unprofessional behavior. The Arizona State Personnel Board upheld his dismissal. From the superior court's summary judgment affirming the decision of the board, Zavala appeals. Because the DOC failed to honor Zavala's due process right to a pre-termination hearing, we reverse.

In 1981 Zavala was employed as a correctional services officer (CSO) by DOC. In 1982 he was assigned to the Perryville State Prison as a yard worker and as an occasional officer-in-charge (OIC). On March 6, 1984, Zavala received a letter from the Perryville warden, William E. Dodds, suspending him without pay for a period of eighty hours, from March 6 to March 17, 1984, as discipline for "inappropriate language and gestures used in conversations with employees and in front of inmates over the past several months." The warden wrote that Zavala had no right to appeal, but could file a grievance within ten days if he felt the suspension unjust. See A.C.R.R. R2-5-404. ¹ The warden warned that "[c]ontinued violations of this nature will result in more serious disciplinary action including dismissal from State Service." He did not, however, indicate that the suspension was subject to review by the director of DOC or that the director might increase Zavala's sanction and dismiss him.

Zavala filed no grievance. He chose to accept suspension without protest after the warden verbally advised him to "forget about it" and that "this issue was dead." Zavala relied on the warden's statements, on the language of the letter, and on the advice of his immediate superiors and his wife that "it was just better to let the thing go." "[A]s far as I was concerned," testified Zavala, "the issue, the matter was over. After serving the eighty hour suspension."

Zavala returned to work on March 19, 1984, and was transferred to another unit. He faced no further allegations of misconduct. However, on May 25, 1984, eighty days after the warden's letter of suspension, Zavala received a letter from DOC director James G. Ricketts, rescinding the suspension and dismissing him immediately pursuant to A.R.S. § 41-770. The director detailed as cause for Zavala's dismissal a series of alleged acts and comments toward "at least two female correctional service officers" from "approximately January 1983 through January 1984." These were not supplemental allegations, but simply a more detailed version of the allegations underlying the warden's letter of suspension, based upon the same internal investigation that the warden had acted upon, an investigation completed ninety-nine days before the director's decision. The director summarized Zavala's behavior as "sexually harass[ing]," "totally inappropriate and unprofessional," "vulgar, discordant," and "detrimental to professional working relations." He advised Zavala that his wages would be paid for the period of the now-rescinded suspension and that he had a right to appeal his dismissal to the Board within ten days. See A.R.S. § 41-785(A).

Though Zavala had been willing to accept his eighty hour suspension without protest, he appealed his dismissal to the Arizona State Personnel Board. At a full hearing before hearing officer Harold Merkow, Zavala vigorously contested the accusations. The hearing officer concluded that "most of the conduct attributed to appellant [could] be dismissed as mere banter between CSOs," but that "reasonable cause existed ... to discipline appellant for 'sexual harassment'. Appellant's comments to at least two female CSOs went beyond mere 'camaraderie' or joking and, by virtue of the position appellant held as OIC, the comments were inappropriate." However, the hearing officer recommended that the board reverse Zavala's dismissal and reinstate suspension. He stated:

While your undersigned has no quarrel with the proposition advanced by the Department that the Director has the "inherent" authority to review subordinates' decisions relating to discipline and overrule such decisions, your undersigned believes that it was unfair to appellant for the Director to have waited more than two months to conduct such review. Appellant was led to believe, and on the basis of the suspension letter had the right to believe, that he would serve his suspension and that no further action would be taken against him unless there were continued violations.... Your undersigned believes that any review of a disciplinary action by a superior within a department must be accomplished no later than the time within which a grievance is allowed to be filed....

There must be an element of certainty in the discipline procedure used by every State department. Public employees have the right to be treated fairly by their employer and, since this dismissal was brought about more than two months following a suspension for the same allegations, appellant was not treated fairly.

On August 21, 1984, the board adopted the hearing officer's findings concerning the conduct of Zavala, but rejected his recommendations and upheld Zavala's dismissal. Pursuant to A.R.S. § 41-785(D), Zavala sought review in the Superior Court of Maricopa County, where the parties submitted the matter for decision upon the administrative record and legal memoranda. In granting summary judgment for the appellees and affirming Zavala's dismissal, the court found:

that there has been no showing that the Plaintiff was ignorant of the fact that the disciplinary action by the Warden was subject to further review by the Director of the Department of Corrections nor that he relied upon the actions of the Warden or other supervisors to his detriment. Also, the record supports the factual findings underlying cause for termination and therefore the Defendants did not act arbitrarily in dismissing Plaintiff.

In a timely appeal to this court, pursuant to A.R.S. § 41-785(E), Zavala argues that the manner of his dismissal violated his due process rights under the fourteenth amendment to the United States Constitution and that the DOC should be estopped from dismissing him in light of his reliance upon representations by his superiors that no further disciplinary action would result if he accepted suspension without protest. He also argues that the record fails to support the board's conclusion that his conduct amounted to sexual harassment or otherwise constituted cause for termination.

Sufficiency of Evidence

The superior court reviewed the record of Zavala's dismissal pursuant to the Administrative Review Act. A.R.S. § 12-901, et seq. In such matters,

[t]he scope of the Superior Court's review is limited to deciding whether the administrative action was illegal, arbitrary, capricious, or involved an abuse of discretion.... In reviewing actions of the trial court under the act, appellate courts will only search the record to determine whether the evidence is of a substantial nature to support the lower court's decision.

Schade v. Arizona State Retirement System, 109 Ariz. 396, 398, 510 P.2d 42, 44 (1973) (citations omitted).

The accusations concerning Zavala's conduct were the subject of hotly disputed evidence at the administrative hearing. There was substantial evidence from which the factfinder could have found for or against Zavala. On such a record the trial court correctly declined, and we in turn decline, to substitute a reviewer's judgment for that of the fact-finding tribunal. Nor do we substitute our judgment on the question whether suspension or dismissal was a more appropriate response to Zavala's conduct. Instead, we turn to Zavala's challenge to the procedural fairness of his dismissal.

Procedural Fairness

We would avoid determination of a constitutional issue if we could decide this case on other grounds. See State v. Yslas, 139 Ariz. 60, 676 P.2d 1118 (1984). However, Zavala's due process and estoppel arguments are so intertwined that we cannot resolve the merits without deciding whether he received due process of law.

We first dispose of the state's contention that Zavala waived his due process argument on appeal by failing to advance it below. Zavala first raised the issue in his letter of appeal to the board on June 1, 1984, in which he denied the director's allegations and stated, "It is unconscionable that the Department of Corrections could make such accusations without due process." Zavala alleged in his complaint to the superior court that the board's determination was "violative of Plaintiff's constitutional guarantees...." Additionally, Zavala has consistently maintained, in arguing that the state should be estopped from accomplishing a procedurally unjust dismissal, that the state misrepresented the finality of an unprotested suspension, induced him to accept suspension without protest, and thereby denied him a fair and timely opportunity to contest the accusations against him. We find these invocations of due process rights and principles of fundamental fairness sufficient to...