Opinion
No. 37144-8-II.
April 28, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-2-00415-4, Richard D. Hicks, J., entered November 21, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
Linda Ambler, Carol Peden, Francis Tagbo and Cheryl Waters, appeal from a summary judgment in favor of the Employment Security Department (ESD). We affirm.
FACTS
Linda Ambler, Carol Peden, Francis Tagbo and Cheryl Waters (collectively referred to as the employees) worked for the ESD. In the summer of 2002, each employee filed a request for review of their civil service position classification. They sought an upward reallocation from their Employment Security Program Coordinator 2 (ESPC 2) classification to Employment Security Program Coordinator 3 (ESPC 3) classification. Although the employees originally submitted their requests to their supervisor in 2002, the human resource management branch did not receive the requests until March 17, 2003.
On June 30, 2004, while the employees' reallocation requests were pending, the ESD implemented an agency-wide reduction in force (RIF), in which it laid off 126 employees and eliminated certain positions. The RIF eliminated the employees' ESPC 2 positions. The employees except Peden exercised their RIF options. Peden separated from service.
Meanwhile, the ESD denied the employees' requests for reallocation on September 30, 2004. The employees filed reallocation appeals with the Director of the Department of Personnel. The Director's designee, Paul Peterson, conducted a hearing on April 11, 2005, to address the reallocation review. On May 26, 2005, Peterson entered a written determination reallocating the employees' positions to the ESPC 3 classification.
The ESD challenged Peterson's determination, filing an appeal with the Personnel Appeals Board (Board) on June 24, 2005. Although the Board sent notice to the ESD on October 14, 2005, indicating that a hearing was scheduled for December 16, 2005, no representative from the ESD appeared at the hearing. The employees appeared in person or through counsel. On December 20, 2005, the ESD human resources manager sent a letter to the Board, explaining that the ESD did not receive the scheduling notice. The human resources manager requested the Board consider the exceptions to the director's determination in the ESD's written appeal.
On March 24, 2006, the Board entered findings of fact, conclusions of law, and an order affirming Peterson's May 26, 2005 determination. In its ruling, the Board held that there was sufficient evidence supporting Peterson's determination. As a result of the Board's decision, the ESD reallocated the employees positions to ESPC 3. It awarded back pay from March 17, 2003, the date that human resources received the employees' requests, through June 30, 2004, the date the RIF eliminated the employees' ESPC 2 positions.
The employees objected to the retroactive pay determination, asserting that the ESD's computation was incorrect. Through their attorney, the employees sent a letter to the ESD demanding back pay from March 2003 through April 2006. They threatened civil suit against the ESD unless it complied with the Board's order and fully compensated them in back pay. The ESD maintained that it properly calculated the employees' back pay and compensated them fully under the applicable code.
The employees filed a civil suit against the ESD on February 27, 2007. They alleged that the ESD failed to comply with the Board's order. The employees sought a declaratory judgment stating that the ESD breached its duty to comply with WAC 357-18-085 and WAC 356-10-050(6) when it calculated their back pay. The employees also sought a writ of mandamus ordering the ESD to comply with those WACs, recalculate their back pay awards, and provide them with RIF options for ESPC 3 positions.
The ESD moved for summary judgment, contending that the employees had no remedies available. Following argument and supplemental briefing by both parties, the trial court granted summary judgment in favor of the ESD. The employees moved the trial court for reconsideration under CR 59(a)(4) and (9). The trial court denied the employees' motion.
The employees appeal. The only remedy the employees requested at the time of oral argument before us was to extend the salary award at an ESPC 3 level from June 2004 through April 2006.
ANALYSIS
On an appeal from summary judgment, we engage in the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). We apply a de novo standard of review. Hisle, 151 Wn.2d at 860. Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We construe all facts and reasonable inferences in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
On summary judgment, the moving party bears the burden of demonstrating that there is no genuine issue of material fact. Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). "If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute." Atherton, 115 Wn.2d at 516. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). If the nonmoving party fails to demonstrate that material facts are in dispute, then summary judgment is proper. Atherton, 115 Wn.2d at 516.
A. Due Process Claim
The trial court granted summary judgment in favor of the ESD. It reasoned that, contrary to the employees' contention, the ESD properly calculated their back pay and the employees had no other remedies available under the law. This case presents a quandary, however, because the employees challenge the merits of the trial court's decision under the guise of a constitutional argument that they did not raise below. Specifically, the employees contend that the ESD deprived them of due process by unduly delaying consideration of their reallocation requests.
Generally, we will not consider new issues for the first time on appeal unless the claim reflects a manifest error affecting a constitutional right. RAP 2.5(a); In re Disability Proceeding Against Diamondstone, 153 Wn.2d 430, 442, 105 P.3d 1, cert. denied, 546 U.S. 845 (2005). An error is only manifest if it results in actual prejudice to the litigant. State v. WWJ Corp., 138 Wn.2d 595, 602-03, 980 P.2d 1257 (1999). But an error is not manifest if the trial court record is insufficient to demonstrate the merits of the constitutional claim. WWJ Corp., 138 Wn.2d at 602.
Here, the record is devoid of any evidence on the ESD's allocation procedures. And while it is regrettable that the ESD did not decide their reallocation requests until after the RIF, there is no evidence as to whether the delay was, in fact, undue. See former WAC 356-10-030(5) (1988) (stating that the agency shall not cause undue delay in determining reallocation requests). The employees have failed to demonstrate the merits of their constitutional claim. There is simply no basis on which we can consider the employees' due process argument on appeal. RAP 2.5(a)(3); WWJ Corp., 138 Wn.2d at 602. We do, however, address the merits of the summary judgment.
B. Merits of Summary Judgment
The trial court dismissed the employees' claim on summary judgment, finding that the ESD properly calculated their back pay and that the employees had no other remedies available under the law. The trial court's ruling and reasoning were proper.
The employees complain that because their reallocation requests were pending when the ESD implemented the 2004 RIF and the ESD eventually reallocated them to the ESPC 3 classification, they were wronged by the RIF and are entitled to a remedy. Before the trial court, the employees sought additional back pay, in addition to a declaratory judgment and a writ of mandamus directing the ESD (1) to reclassify each employee's current position to ESPC 3; (2) to elevate each employee's salary to the ESPC 3 and offer each of them the next available ESPC 3 position; or (3) to identify unfunded positions and fund them at the level of salary to which each employee is allegedly entitled. The employees had complained that had the ESD acknowledged their reallocation requests before the RIF, they would have had different RIF options based on ESPC 3 positions. But again, at oral argument before us, the employees abandoned their requests for reallocation options available to ESPC 3s at the time of the 2004 RIF and they abandoned their initial request to be reinstated as ESPC 3s.
The 2004 RIF eliminated the positions in four Unemployment Insurance Adjudication Centers and reduced staff in the TeleCenters. The RIF eliminated the ESPC 2 and ESPC 3 positions in these locations. Regardless of whether the employees were classified as ESPC 2 or ESPC 3s at the time, they would have been included in the RIF. Here, the ESD eventually compensated the employees with back pay from the date the human resources management office received their classification questionnaires (March 17, 2003) through the date of the RIF when the ESPC 3 positions were eliminated (June 30, 2004).
During oral argument, the employees conceded that March 17, 2003, was the appropriate date on which they were entitled to begin pay at the ESPC 3 level.
Nevertheless, the employees seek additional compensation at the higher salary level for some time period after their positions were eliminated in the June 30, 2004 RIF on the grounds that they would have had different RIF options had the ESD reallocated them before June 30, 2004. On the surface, this proposition supporting damages seems reasonable, but we cannot apply it in practice because it is premised on speculation and conjecture.
"[E]vidence or proof of damages must be established by a reasonable basis and must not subject the trier of fact to mere speculation or conjecture." ESCA Corp. v. KPMG Peat Marwick, 86 Wn. App. 628, 639, 939 P.2d 1228 (1997), aff'd, 135 Wn.2d 820, 959 P.2d 651 (1998). Subjective, self-serving characterizations are insufficient to establish damages.
The employees' contention that they would have exercised different RIF options as an ESPC 3 is self-serving and speculative at best. See ESCA, 86 Wn. App. at 639. Moreover, the ESD implemented additional RIFs in 2005 and 2006. There is no guarantee that any of the employees would not have found themselves in worse positions if they had been laid off in 2004 as ESPC 3s, exercised one of the available options, and then been laid off again in 2005 or 2006. Finally, the 2004 RIF impacted 126 employees. Under the RIF options, more senior employees are entitled to bump less senior employees out of positions. Employees also received notice of any vacancies at their current level or below. Stated another way, the RIF options of employees affect the rights of other employees. There were a number of employees that were above the range of ESPC 2 that were given and exercised options at their level or below. Readministrating the RIF in regard to the appellant employees would, in effect, invalidate the options that other employees received as a part of the RIF and the hiring activities that occurred between July 1, 2004, and the Board's final decision in 2006. This is simply not feasible, as the employees acknowledged at oral argument.
As far as the extension of pay for ESPC 3 from June 2004 through April 2006, the record does not show whether after the RIF any of the employees would have bumped other employees or would have been bumped back to their previous ESPC 2 classification. It also does not show whether they would have been bumped in the two successive RIFs. The employees had the burden of proof and they failed to prove that they would have been present later after the RIF as ESPC 3s.
Thus, there is no reasonable basis to fashion a remedy beyond that which the employees have already received in the form of back pay compensation. Any of the other remedies sought would be based on mere speculation or conjecture. ESCA, 86 Wn. App. at 639. For this reason, the trial court properly recognized that, based on their pleadings, the employees had no further remedies available. Therefore, the trial court properly determined that the ESD is entitled to judgment as a matter of law. See Atherton, 115 Wn.2d at 516.
ATTORNEY FEES
The employees are not entitled to either attorney fees or costs because the trial court properly granted summary judgment in favor the ESD.
Affirmed.
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, J. and PENOYAR, A.C.J., concur.