No. 26911-2-II.The Court of Appeals of Washington, Division Two.
Filed: January 18, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of Thurston County, No. 002006087, Hon. Gary R. Tabor, January 5, 2001, Judgment or order under review.
Counsel for Appellant(s), Edward E. Younglove Iii, Parr Younglove, P.O. Box 7846, Olympia, WA 98507-7846.
Counsel for Respondent(s), Jeffrey W. Davis, Asst. Atty General, University of Washington, P.O. Box 351260, Seattle, WA 98195-1260.
HUNT, J.
John Jackson appeals a Personnel Appeals Board decision denying his motion to dismiss for improper service of a notice of employment termination. He argues that the University of Washington, Harborview Medical Center, did not follow its own rules for termination notification; we agree. But because Jackson did not timely challenge the University’s method of termination below, we dismiss his appeal on that ground and affirm.
FACTS I. Employment Termination
Jackson, a civil service employee, worked as a Patient Registration Representative at University of Washington’s Harborview Medical Center (the University). His scheduled working hours were Monday through Friday, 11:00 p.m. to 7:30 a.m., the night shift.
During Jackson’s shift on the night of January 31 — February 1, 1999, several envelopes containing over $500 cash and other patient property were stolen from a safe in his office. The University investigated the theft; based on a security camera videotape of Jackson taking the envelopes, and other evidence, the University concluded that Jackson was the perpetrator.
At approximately 6:30 a.m. on Monday, March 22, 1999, Jean Mills, Harborview’s Admitting Supervisor, asked Jackson to come to Director of Admitting Chris Martin’s office. When Jackson arrived, Martin gave him a copy of a recommendation for his termination. Martin told Jackson to report on Tuesday, March 23, 1999, at 1:00 p.m. for a predisciplinary hearing. Jackson did not object to the request for, or the timing of, this hearing. Jackson’s union representative, Gerry Morgen, and a friend, Nona Richardson, accompanied Jackson to the disciplinary hearing, at which Martin advised Jackson that he was being placed on administrative leave effective immediately. Thereafter, Jackson stayed home during his regular shift, between 11:00 p.m. and 7:30 a.m. On March 24, 1999, Mills called Jackson at home and asked him to come to Harborview at 1:30 p.m. to receive his termination notice. Local Union President Quinn Womack accompanied Jackson to that meeting. Again, Jackson did not object to the time or place of this meeting or the University’s request.
II. Appellate Procedure
Jackson appealed his termination to the Personnel Appeals Board. Shortly before the scheduled Board hearing, he moved to set aside his termination and be reinstated. For the first time, he alleged a rule violation — that the University had failed to comply with the WAC 251-11-050 requirement that the employer must serve an employee with written notice of dismissal during the employee’s scheduled working hours. The University responded that it had changed Jackson’s work schedule for employer convenience, as allowed by WAC 251-09-025(1)(d) and, therefore, its notice of dismissal was proper.
The Board denied Jackson’s motion. Jackson renewed the motion, and again the Board denied Jackson’s requests. The Board ruled:
[P]roper service of the notice of dismissal was completed when the University changed [Jackson’s] scheduled working hours for the purpose of serving the notice, [Jackson] reported to the workplace at the time directed by his supervisor, and [Jackson] received written notice of the specified causes, specified charges, and the right to appeal the dismissal action at least fifteen calendar days prior to the effective date of his dismissal. . . .Findings of Fact, Conclusions of Law and Order of the Board, Clerk’s Papers (CP) at 7 — 8.
Jackson did not appeal the Board’s ruling that the University had properly dismissed him for cause. But he did appeal the Board’s decision on the rule violation to the Thurston County Superior Court on March 31, 2000. The court affirmed the Board.
ANALYSIS I. Standard of Review
We review factual questions under the clearly erroneous standard; we do not try facts de novo on review. We review issues of law under the error of law standard: We may substitute our judgment for that of the administrative body, although we accord substantial weight to the agency’s view of the law if it falls within its expertise. Macey v. Dep’t of Employment Sec., 110 Wn.2d 308, 312-313, 752 P.2d 372 (1988).[1]
II. Work Schedule Changes for “Employer Convenience”
WAC 251-11-050 governs dismissal of a permanent employee for cause. It requires written notice of such dismissal:
The notice shall be furnished at least fifteen calendar days prior to the effective date of the action . . . and shall be furnished directly to the employee during his/her scheduled working hours, or if this is not possible because of the absence of the employee during his/her regularly scheduled working hours, mailed by certified letter to the employee’s last know address.
(Emphasis added.)
WAC 251-09-025 prescribes conditions under which an employer may change an employee’s scheduled work period and assigned hours:
(1) For temporary changes of work hours within the assigned week:. . . .
(d) For operational convenience . . . in which case the employee shall have the right to work his/her regularly assigned schedule in addition to the modified schedule . . . .
(Emphasis added.) The WAC’s do not further elaborate, however, on how or when to notify the employee of a modification of work schedule for “operational convenience.” Jackson argues that WAC 251-09-025(1)(d) effectively renders WAC 251-11-050 “meaningless, because according to the Board, the employee’s schedule is automatically changed whenever the employer decides to give the notice.” Brief of Appellant at 18. In essence, Jackson asks us to hold that WAC 251-09-025(1)(d) is invalid when an employer temporarily changes an employee’s work schedule for “operational convenience” for purposes of delivering a notice of termination to the employee. Jackson further contends that (1) there was no evidence that the University changed his work schedule; (2) thus, there is no evidence to support the Board’s finding that the University changed his regularly scheduled hours by virtue of calling him in during his off-hours to receive his termination notice; and (3) consequently, the Board’s finding was improper. Brief of Appellant at 17.
IV. Waiver of Rule Violation Objection
The record suggests that the University did not follow its own rules for notifying Jackson of his termination: It did not present his termination notice during Jackson’s regularly scheduled working hours; and it failed to notify Jackson that it was modifying his work schedule for “operational convenience,” temporarily assigning him to daytime hours, at least for the time when the University called him in to receive his termination notice.
But we do not reach the issue of whether the University properly followed the rules for notifying Jackson of his termination. Rather, we conclude that Jackson waived his right to challenge the timing and manner of notification because he failed to file a rule violation challenge to his dismissal within thirty days, as required by WAC 251-12-075. WAC 251-12-075 governs appeals from alleged violations of chapter 41.06 RCW or Title 251 WAC:
Any employee . . . desiring to appeal an alleged violation of chapter 41.06 RCW or Title 251 WAC rules adopted thereunder, may appeal such alleged violation. Appeals must be in writing and must be filed with the personnel appeals board as provided in Title 358 WAC within thirty calendar days of the effective date of the action appealed.
(Emphasis added). Further, WAC 358-20-040 provides:
(1) An appeal must be received in writing . . . within 30 days after: . . . (e) the employee could reasonably be expected to have knowledge of the action giving rise to a law or rule violation claim under WAC 358-20-020 or the stated effective date of the action, whichever is later.
. . . (3) An appeal of a violation of the state civil service law or of the rules promulgated thereunder must cite the law(s) or rule(s) which the appellant claims has been violated, the particular circumstances of the alleged violation, and how the employee is adversely affected by the alleged violation.
Jackson initially appealed his termination under WAC 251-12-080, which governs appeals from dismissal of any permanent employee. Jackson timely filed that appeal with the Board within thirty days of the effective date of his dismissal. See WAC 251-12-080. But he challenged only the University’s stated reason for terminating him, not the manner in which the University notified him. Nor did he separately claim under WAC 251-12-075 that any rule had been violated. Moreover, Jackson has not shown that the University’s alleged rule violation adversely affected him. The University had already placed him on paid administrative leave: The University continued to pay him while he stayed at home; it did not require him to appear for work on his night shift. The record does not reflect that being called in briefly during one day to receive his formal termination notice unduly inconvenienced him.[2] Furthermore, the University terminated him for stealing patient property.
The University would have fired him regardless of how and when it presented the termination notice. Having been fired for such cause, Jackson would not have been entitled to reinstatement. Had Jackson timely filed a rule violation challenge, the University would have had an opportunity to correct promptly any error in his dismissal process.[3]
The result would have been the same — the University would have terminated him for theft. By failing to file a rule violation claim within thirty days, Jackson waived his right to challenge the manner of his dismissal. See WAC 251-12-075. Accordingly, we affirm both the Board and the superior court.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, C.J. and BRIDGEWATER, J., concur.