Opinion
Case No. 20050055-CA.
Filed February 16, 2006. (Not For Official Publication).
Appeal from the Original Proceeding in this Court.
Blake Nakamura, Salt Lake City, for Petitioner.
Mark L. Shurtleff and J. Clifford Petersen, Salt Lake City, for Respondent.
Before Judges Greenwood, Davis, and Orme.
MEMORANDUM DECISION
Petitioner Kevin Yardley appeals the decision of the Career Service Review Board (CSRB) upholding the termination of his employment by the Utah Department of Corrections (the Department). Petitioner argues that (1) he was deprived of due process because his sanction was inconsistent with prior Department disciplinary actions, (2) he was deprived of due process because the Department failed to use committee reviews or conduct an adequate investigation prior to his termination, and (3) his termination was precluded because the Department's prior warning was a promise not to discipline him unless he engaged in similar conduct in the future. We affirm.
In its brief, the Department contended that we lack jurisdiction over Petitioner's claims because he failed to name the CSRB as a party to the appeal. However, in Blauer v. Department of Workforce Services, 2005 UT App 488, 538 Utah Adv. Rep. 60, which involved a similar jurisdictional argument, we determined that the failure to name the CSRB as a party in an appeal did not defeat jurisdiction over the plaintiff's appeal.See id. at ¶ 27. Pursuant to the Utah Rules of Appellate Procedure, the Department subsequently cited Blauer and withdrew its jurisdictional argument. See Utah R. App. P. 24(i). We appreciate its prompt concession.
On appeal, "we review [the Department's] application of its own rules for reasonableness and rationality," according some, but not total, deference to the Department. Lunnen v. Utah Dep't of Transp., 886 P.2d 70, 72 (Utah Ct.App. 1994).
Petitioner first argues that his termination was inconsistent because the Department did not terminate, or even investigate, employees about whom rumors of workplace romantic affairs had circulated. To show inconsistency, a petitioner must demonstrate how "similar factual circumstances led to a different result without explanation." Kelly v. Salt Lake City Civil Serv. Comm'n, 2000 UT App 235, ¶ 31, 8 P.3d 1048. However, Petitioner has not shown how rumors of workplace romantic affairs "realistically compare to [his] overall conduct." Id. The Hearing Officer concluded and the CSRB affirmed that Petitioner's on-duty masturbation prevented him from fulfilling his guard duties, a concern that is different than the potential negative impact on the workplace caused by rumors and innuendo concerning a workplace romantic affair.
Furthermore, the one instance the Hearing Officer determined to be "sufficiently similar . . . to warrant comparison" to Petitioner's case involved another prison guard who admitted to videotaping himself while masturbating in the guard tower. In that instance, the guard received a twenty-day suspension, five days more than Petitioner's own original sanction. The conduct resulting in Petitioner's termination, however, was significantly different and more egregious than the conduct justifying temporary suspension. In sum, "[t]he facts, as confirmed by the CSRB, establish that Petitioner's behavior was detrimental to the workplace and impeded the Department in performing its duties."Sorge v. Office of the Attorney Gen., 2006 UT App 2, ¶ 32, ___ P.3d ___. Additionally, because Petitioner's behavior was "uniquely opprobrious," Kelly, 2000 UT App 235 at ¶ 33, it could not be realistically compared to that of his coworkers. Therefore, we agree with the CSRB that the Department "acted consistently with other cases" in terminating Petitioner.
Petitioner next alleges that the Department deprived him of due process because it did not follow its own procedure of using committee reviews in the disciplinary process.
"`In disciplinary proceedings, a public body must comply with its own rules and an employee being disciplined is entitled to rely upon those rules.'" Lucas v. Murray City Civil Serv. Comm'n, 949 P.2d 746, 754 (Utah Ct.App. 1997) (citation omitted). In the instant case, it is undisputed that the Department did not follow its normal practice of utilizing committee reviews prior to terminating Petitioner. However, Petitioner's pretermination hearing reviewed the same issues that would have been covered by a committee review, including Petitioner's personnel file, prior discipline imposed on Petitioner, and mitigating and aggravating factors. Moreover, a review of the record indicates that Petitioner did not contest the factual allegations that led to his dismissal by the Department.
Based on the facts of this case, therefore, "[w]e cannot say that [Petitioner] was denied due process when the record shows that [he] had actual notice of the charges . . . against him, and had a pretermination opportunity to respond to the charges."Id. at 755. Hence, any error was harmless. See id. (concluding that petitioner's procedural due process argument fails because of his inability to show how minor procedural errors were harmful, or how a different outcome would have resulted without such errors).
Petitioner additionally argues that the Department's failure to conduct an adequate investigation prior to his termination deprived him of due process. We do not agree.
Petitioner fails to explain how further investigation would have produced a different outcome in this case. He does not dispute that the Department had a videotape depicting him masturbating and displaying the guard tower phone number while he was on duty in the guard tower. As the Hearing Officer noted, Petitioner's actions in the tower while he was supposed to be guarding inmates could endanger the peace and safety of others, in violation of Utah Code section 67-19-18. See Utah Code Ann. § 67-19-18(4) (2004).
Accordingly, the Department's immediate action in this case was justified by the serious nature of Petitioner's misconduct. Furthermore, there is nothing in the record to indicate that the Department's failure to conduct an investigation caused Petitioner harm or resulted in "fundamental unfairness." Kent v. Dep't of Employment Sec., 860 P.2d 984, 986 n. 4 (Utah Ct.App. 1993) (quotations and citation omitted). Hence, this argument also fails.
Finally, Petitioner maintains that his termination was a violation of the prior warning the Department issued him. Petitioner argues that the warning served as a promise that the Department would not terminate him for conduct "of the same type" occurring prior to the warning for which he had been suspended.
Petitioner's reliance on the prior warning is misplaced because the conduct for which he was terminated was of a different type than that for which he was suspended. The Hearing Officer noted and the CSRB affirmed that the conduct supporting termination was so much more serious than the misconduct supporting his earlier fifteen-day suspension that it could not be considered the "same type" of conduct. Furthermore, it is illogical to contend that because the Department did not know the full extent of Petitioner's inappropriate conduct when it disciplined him, the Department was precluded from later taking action based on the hitherto unknown and undisciplined conduct. Indeed, as the CSRB stated, the "egregious" conduct which led to Petitioner's termination "brought discredit on the Department while simultaneously affecting the efficiency of [its] operations." Hence, the warning language in the first complaint did not immunize Petitioner from termination.
We affirm.
Pamela T. Greenwood, Associate Presiding Judge, James Z. Davis, Judge and Gregory K. Orme, Judge, concur.