No. 49412-1-IThe Court of Appeals of Washington, Division One.
Filed: December 9, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 002299834, Hon. Suzanne M. Barnett, September 26, 2001, Judgment or order under review.
Counsel for Appellant(s), Oscar Y. Lewis Jr., Hendricks Lewis, 999 3rd Ave Ste 2675, Seattle, WA 98104-1040.
Kevin W. Crean, 11202 Marine View Dr SW, Seattle, WA 98146.
Counsel for Respondent(s), Frederick E. Wollett, City of Seattle Law Dept, 600 4th Ave 10th Flr, Seattle, WA 98104.
AGID, J.
In 1991, Carl Josef filed a complaint with the Seattle Human Rights Department (SHRD), now known as the Seattle Office of Civil Rights (OCR), based on discriminatory conduct by the Seattle Police Department (SPD) in handling his application for employment. After a five-year investigation, OCR determined SPD discriminated against Josef in violation of the Seattle Fair Employment Practices Ordinance, an ordinance enacted under authority of RCW 49.60.010, the Washington Law Against Discrimination (WLAD). After multiple failed attempts to secure a damage award to his liking from OCR and the Seattle Human Rights Commission (HRC), Josef appealed to the superior court. The court dismissed his petition for lack of jurisdiction. Josef appeals from summary judgment dismissal of his complaint against SPD, HRC, and OCR (collectively the City). He maintains the superior court had jurisdiction, and that even if it did not, this court should nonetheless reach the merits of his claim and enter a declaratory judgment in his favor. The City maintains the superior court lacked jurisdiction because (1) there was no hearing before an administrative law judge or hearing examiner, (2) HRC and OCR are not “agencies” under the Washington Administrative Procedure Act (APA), (3) the administrative process was conciliatory rather than “adjudicative,” (4) Josef could have brought a private cause of action in violation of RCW 34.05.510(3), and (5) his administrative appeals were untimely.
We hold the superior court lacked jurisdiction under RCW 49.60.330
because the process was conciliatory and no administrative remedy was ordered. We therefore affirm.
FACTS
On March 14, 1991, Carl Josef filed a charge of employment discrimination with the SHRD, alleging that SPD refused to hire him as a police officer because of his age and handicap in violation of Seattle’s Fair Employment Practices Ordinance, chapter 14.04 SMC.
In 1996, after a five-year investigation, SHRD formally determined that SPD discriminated against Josef when they required him to take a medical examination as part of his application. The Department concluded SPD violated the Fair Employment Practices Ordinance. SPD did not appeal the director’s order to HRC. On September 24, 1997, OCR proposed that SPD pay Josef $10,256 plus attorney fees. Josef appealed the award to HRC, arguing it failed to redress the discrimination for which OCR found SPD was liable. On appeal, SPD argued the record needed to be further developed to show that liability was limited to its requiring an unlawful pre-employment medical requirement. On November 20, 1997, HRC remanded the matter to OCR, stating that it was “shocking” that after nearly seven years of agency process, there was no order clearly addressing Josef’s claims. On remand, however, SPD continued to deny additional liability, and OCR refused to increase the proposed damage award. Josef appealed to HRC for a second time on April 1, 1998. Again, HRC reversed OCR, finding that its failure to increase the award was “clearly erroneous.” HRC stated that discrimination had been conclusively documented by 13 factual findings, the discriminatory conduct was not limited to a suspect medical examination, and SPD’s liability could not be reexamined. It instructed OCR to cease its “Orwellian re-write” of the record and remanded the case a second time for appropriate calculation of damages. On the second remand, OCR entered a slightly modified recommendation on September 4, 1998. It increased the damages recommendation by less than $2,500, with an additional $1,500 for attorney fees. Josef appealed to HRC for a third time on October 2, 1998. SPD did not participate in this appeal, and Josef’s damages evidence was considered without objection. HRC then held a summary proceeding under SMC 14.04.070 to review OCR’s proposed remedy. Josef introduced uncontested evidence of back pay, front pay, medical expenses, pain and suffering damages, and incidental expenses totaling $464,116. Based on this record, HRC vacated OCR’s calculation of damages and remanded the case for a third time with instructions to “sizably increase” the award. OCR refused to do so. On November 4, 1999, Josef filed a motion to compel OCR to implement HRC’s order. OCR decided to administratively close the case. Josef appealed the administrative closure to HRC on December 8, 1999, but HRC declined to exercise jurisdiction over the appeal. OCR wrote Josef a letter dated October 3, 2000, stating that it would keep his case open until October 18, 2000, and again offered him the chance to accept the offer of $12,721. On November 17, 2000, Josef petitioned the superior court for judicial review of the administrative orders, actions, and inaction. In his complaint for declaratory judgment, Josef asked the court to determine that SPD violated his rights under chapter 49.60 RCW and SMC 14.04 and that OCR and HRC were arbitrary and capricious in handling his claim and violated his due process rights. Josef and the City filed cross motions for summary judgment. The superior court granted the City’s summary judgment motion and dismissed Josef’s petition for review on jurisdictional grounds. Josef appeals.
DISCUSSION
The trial court dismissed Josef’s appeal on summary judgment for lack of jurisdiction. This is a question of law we review de novo.[1] The WLAD provision allowing judicial review of local agency decisions is set forth in RCW 49.60.330. This provision provides:
Any county or any city classified as a first class city under RCW 35.01.010 with over one hundred twenty five thousand population may enact resolutions or ordinances consistent with this chapter to provide administrative and/or judicial remedies for any form of discrimination proscribed by this chapter. The imposition of such administrative remedies shall be subject to judicial review. The superior courts shall have jurisdiction to hear all matters relating to violation and enforcement of such resolutions or ordinances, including petitions for preliminary relief, the award of such remedies and civil penalties as are consistent with this chapter, and enforcement of any order of a county or city administrative law judge or hearing examiner pursuant to such resolution or ordinance. Any local resolution or ordinance not inconsistent with this chapter may provide, after a finding of reasonable cause to believe that discrimination has occurred, for the filing of an action in, or the removal of the matter to, the superior court.[2]
This statute allows for judicial review where an administrative remedy has been imposed. But here, neither City agency imposed an administrative remedy. Rather, they engaged in a process of investigation and conciliation authorized by the Seattle ordinance.[3] In the absence of a judicially enforceable order, the trial court has nothing to review. To hold otherwise would permit the court to intervene in all manner of discretionary actions by administrative agencies. This is not the function of judicial review. Rather, RCW 49.60.330, like other administrative review provisions, permits the courts to intervene only when the administrative agency has completed its process and entered an order the judicial branch can enforce. A superior court can only review final orders.[4] Where the agency has only investigated a charge and tried to settle the matter, there is nothing for the superior court to review.
In Russell v. Department of Human Rights,[5] we did apply the APA to review a decision of OCR under the Seattle Fair Employment Practices Ordinance. But Russell is distinguishable because we were reviewing the final decision of an administrative agency on the administrative record. Here, there is no final administrative remedy or record to review because HRC and OCR administratively closed Josef’s case after it was unable to persuade the parties to agree to a remedy. Accordingly, the trial court lacked jurisdiction.
The Seattle Fair Employment Practices Ordinance provides two parallel tracks for handling discrimination claims: one applies when the respondent is a city department and the other applies when the respondent is not a city department. Here, the respondent is a city department, and the ordinance requires OCR to conduct an investigation[6] to determine whether there is reasonable cause to believe the department has violated the ordinance.[7] A determination of reasonable cause is deemed a finding that an unfair employment practice has occurred.[8] Once a reasonable cause determination is made, the Director may attempt conciliation.[9] The charging party or respondent may appeal the Director’s determination of reasonable cause to HRC.[10] HRC then considers the appeal and either affirms the Director’s determination or remands it to the Director with appropriate instructions.[11] SMC 14.04 provides for no further rights or remedies for either party when the respondent is a city department. Where the respondent is not a city department, the ordinance provides different rights and procedures. In these cases, following submission of the investigatory file from the Director, the city attorney must prepare a complaint against the respondent and prosecute it on the behalf of OCR and the city at a hearing before a Seattle hearing examiner.[12] The examiner makes a final decision, which may be appealed to the superior court for enforcement or compliance.[13] This process is distinguishable from the first because it provides for an adjudicative hearing and order, not just conciliation.[14] The City contends that if Josef was dissatisfied with the agency action, he could have brought suit under RCW 49.60.030(2).[15]
The City is correct. SMC 14.04.020(D) provides that “[n]othing in this chapter shall be deemed to deny any person the right to institute any action or to pursue any civil or criminal remedy for the violation of such person’s civil rights.”[16] Because the state discrimination statute gives victims of discrimination an alternative method for seeking relief, Josef was not prejudiced by the lack of a formal process that would permit the courts to review the agency’s action under RCW 49.60.330.
Having determined that the superior court lacked jurisdiction, we need not address the City’s remaining arguments.
Affirmed.
COX and ELLINGTON, JJ., concur.