Case Information
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T HE U TAH C OURT OF A PPEALS
D ORI W INTLE B UTTS , Petitioner, v.
C AREER S ERVICE R EVIEW O FFICE AND D EPARTMENT OF T ECHNOLOGY S ERVICES , Rеspondents.
Opinion No.
Filed July
Original Proceeding Court
Grant W.P. Morrison Court J. Klekas II, Attorneys Petitioner John E. Swallow Stanford E. Purser, Attorneys Respondent Department Technology Services J UDGE M ICHELE M. C HRISTIANSEN authored Opinion, in J UDGES J AMES Z. D AVIS C AROLYN B. M C H UGH concurred.
CHRISTIANSEN, Judge:
¶1 Petitioner Dori seeks Career Service Review Office (CSRO) Administrator’s (the Administrator) determination lacked consider employment grievance. We approve Administrator’s decision.
BACKGROUND
Wintle Butts Butts been of the Department of Human Services (DHS) since On September 20, 2010, Wintle transferred from her position with DHS to a position with Department Technology Services (DTS) with corresponding increase pay from $40.40 to $46.27 per hour. As with all new hires DTS, Wintle Butts’s employment offer was сonditioned upon successful completion criminal background check. ¶3 On September 23, 2010, Wintle received letter from her supervisor at DTS indicating had failed pass required background check being placed on paid until final decision could be made regarding the status her employment. Five days later, Wintle signed letter entitled “Request Transfer,” which requested transfer from her with DTS her former position with DHS, became effective same day. By signing the transfer request, specifically agreed “waive all right [she] might grieve the the decrease salary.” ¶4 On October 2010, consistent with grievance process career service employees, see generally 2011), filed DTS grievance challenging “[w]rongful dismissal September of [her] conditional employment under provisions DTS Policy Procedure Background Investigations.” former supervisor at DTS reviewed grievance determined he “not authorized” reverse DTS employment decision. On October advanced her griеvance Executive Director (Director), who denied It unclear record when Butts received denial grievance at stage. However, entitled grievance process to advance after receipt denial, after five working days had passed without response, our analysis affected.
Wintle ‐ Butts CSRO her grievance, explaining that Wintle ‐ Butts was “not eligible . . . to use the grievance procedures.” In addition, the Director noted that any claim procedural error was moot because Wintle Butts was “not qualified the IT Analyst III position because [the Bureau of Criminal Identification] denied [her] the access necеssary to the job.” then advanced her grievance to CSRO, a
prehearing conference was scheduled before Administrator on December 2010. At conference, Administrator elected to schedule formal hearing to determine CSRO had authority to Wintle grievance. id. 19a (setting forth scope authority CSRO). In advаnce formal hearing, Wintle filed Verified Request For Finding Of Jurisdiction By Administrator, arguing that because she was career service employee, CSRO had jurisdiction over her grievance. DTS filed motion dismiss, asserting that because was “transferred” from her position at DTS back position with DHS, her alleged grievance did fall within any statutory categories over which pursuant Code section 19a In her response motion dismiss, argued that her placement paid administrative constituted dismissal DTS, thereby giving over her grievance. ¶6 At hearing, argued she was dismissed from DTS or, alternatively, was demoted suspended. also argued back DHS was voluntary because rеquest was signed under circumstances of duress coercion result dismissal. On June Administrator issued his decision, concluding “transferred” at back position DHS, fall categories set forth section has jurisdiction. The also concluded Butts duress coerced when signed v. request for transfer. seeks judicial review of Administrator’s final decision.
ISSUE AND STANDARD OF REVIEW erred when he
determined jurisdiction grievance. The determination whether a personnel matter falls CSRO’s jurisdiction requires interpretation application of statute. See § Thus, we may grant relief only “the agency has erroneously interpreted applied law.” Id. 63G 403(4)(d). Because review subsection (4)(d) does “imply specific standard of review,” we are “free apply our traditional approach selecting appropriate standard of review” based on “whether [agency]’s decision qualifies finding of fact, conclusion law, determination mixed question law fact.” Murray v. Labor Comm’n , UT ¶¶ 23–24. “The issue whether agency has jurisdiction question law, we review correctness.” Mendoza Labor Comm ʹ n , 2007 (citing Stokes Flanders , P.2d (Utah 1998)).
ANALYSIS
I. This Court Has Jurisdiction To Review
Administrator’s Decision.
¶8 “[A]s threshold matter, we must first determine whether court subject matter [review] [agency Because our analysis CSRO’s is dispositive, we need reach question whether request valid Administrator’s decision issue. ‐ v. action].” Pleasant Grove City Orvis , 2007 UT App ¶ 157 P.3d 355. The Utah Administrative Procedures Act provides for judicial review court the Utah Supreme Court agenсy actions resulting formal adjudicative proceedings. Utah Code Ann. § 63G ‐ ‐ 403(1) (LexisNexis 2011).
¶9 Here, the Administrator designated the hearing CSRO’s jurisdiction over ‐ Butts’s claim formal proceeding. The parties were afforded the opportunity conduct limited discovery, file responsive pleadings, argue their cross motions. See id. §§ 63G ‐ 206. Following heаring, Administrator entered findings fact decision dismissing Butts’s grievance for lack jurisdiction. See id. § 63G 208. Butts then timely filed petition for review thirty days after the Administrator issued his decision. See Utah R. App. P. 14(a). We have little difficulty concluding proceeding satisfied requirements formal adjudicative proceeding, therefore have Administrator’s decision. Utah Code Ann. § 63G 403(1).
II. The Administrator Correctly Determined CSRO Does Not
Have Jurisdiction To Review Grievance. Administrator erred in determining grievance against DTS. is independent appellate forum “established provide state civil service employees tribunal appealing personnel decisions outside agency for which they work.” Olson Dep’t Health, It is final body career service еmployee’s grievance regarding certain employment issues may be advanced review. § 19a 202(1)(a) 2011). generally id. (setting forth grievance procedure career service employees). Once grievance is advanced CSRO, must make an initial determination “(i) whether employee career service еntitled use system; (ii) whether office has authority to review grievance; (iii) whether employee been directly harmed.” Utah Code Ann. § 19a ‐ 403(2)(a).
¶11 The parties both accept, agree, upon transfer to DTS, remained a career service employee by operation Utah Code section 63F 106(4)(a). Howеver, while career service status is a necessary element jurisdiction, it sufficient alone to establish CSRO’s an employee’s grievance.
¶12 The scope CSRO’s authority review grievances is strictly limited personnel matters enumerated in Code section 202(1)(a). Id. § 19a 202(1)(b) (“The office may review take . . . personnel mаtter listed in Subsection (1)(a) . . . .”). may therefore only grievances founded upon
(i) dismissal;
(ii) demotion;
(iii) suspension;
(iv) reduction in force; (v) dispute concerning abandonment position; Section 63F 106(4)(a) provides, An employee executive branch agency who career service July who transferred [DTS] continues in em ployee’s careеr service status during employee’s service [DTS] duties position new department are substantially similar those employee’s previous posi tion. 63F 106(4)(a) 2011). The parties
agree duties at were be substantially similar duties at DHS. Butts v.
(vi) wage an is placed the salary range of the employee’s current position; (vii) violatiоn of rule adopted Chapter 19, State Personnel Management Act; or (viii) [the equitable administration of certain benefits]. Id. 67 202(1)(a). Because CSRO is tribunal of limited subject matter jurisdiction, bore burden “present[ing] sufficient facts invoke limited [CSRO].” See Olson , UT App 303, ¶ 13 (citation internal quotation marks omitted). now argues that CSRO jurisdiction either demoted dismissed by DTS, because DTS violated rule guaranteeing certain procedural rights. A. Wintle Was Not Demoted by DTS. first argues that demoted by DTS and therefore had hear grievance. Both
argues failed sufficiently raise issue “demotion” before therefore argu ‐ ment properly preserved review court. preservatiоn case is governed by less stringent “level consciousness” standard, she satisfied. We agree with “level of consciousness” standard applicable formal administrative proceedings. Badger Brooklyn Canal Co. , P.2d 844, 847 (Utah 1998) (applying “level consciousness” standard an informal hearing before state engineer). Rather, preserve issue judicial review it must be “‘raised timely fash ion’” before agency, be “‘specifically raised’” “‘sup porting evidence relevant legal authority.’” Dinger v. Department Workforce Servs., UT ¶ P.3d (quoting Main St. Easy Heat, Inc. , 801) (holding preservation rule applicable to agency decisions “when issue raised appeal
(continued...) ‐ Utah Code section 67 19 ‐ 3(7)(a) Utah Administrative Code R477 1 1(31) define demotion “disсiplinary action resulting in reduction an employee’s current actual wage.” Utah Code 3(7)(a) 2011); Utah Admin. Code R477 1 ‐ 1(31). [5]
1. Wintle Transfer Back DHS Was Not Disciplinary
Action Taken by Management Under Utah Administrative R477 11. ¶14 To arrive at argument demoted by DTS, conflates action in placing on administrative leave subsequent voluntary transfer back DHS. Demotion, however, premisеd on “disciplinary action” is “taken by management Rule R477 11.” Admin. Code R477 1(31), (36). As Administrator correctly observed, transfer “[a]n mandated management moving an one job another job position with an equal lesser salary range maximum which employee qualifies,” such “may include decrease actual wage.” Id. R477 1(99).
(...continued) could been resolved administrative setting” (citation internal quotation marks omitted)). Nonetheless, with respect demotion argument, we conclude sufficiently raised issue before so had opportunity rule on issue. Columbia HCA Labor Comm’n , (mem.). Throughout opinion cite version Administrative Code, effect at time placed paid dur
ing course subsequent proceedings.
Wintle ‐ ¶15 We agreе Administrator Wintle ‐ Butts’s transfer back DHS fits squarely within agency’s definition transfer was not disciplinary action taken by under R477 ‐ 11. id. R477 ‐ ‐ 1(36). Indeed, Wintle ‐ Butts’s request to transfer back DHS was not any sense action “taken by management” therefore cannot be basis for demotion. See id. R477 ‐ ‐ 1(31), (36). Wintle ‐ also repeatedly argued the she was not grieving her transfer baсk DHS, but was grieving only what she then characterized as her dismissal DTS. For purposes ‐ Butts’s demotion argument, we therefore consider only action taken by DTS—placement of ‐ on paid administrative leave. 2. DTS’s Placement ‐ on Paid Administrative
Leave Was Not Disciplinary Action. contends action placing her on аdministrative leave when failed background check was disciplinary action was taken when no longer met requirements position. Admin. Code R477 1(1) (“Agency management may discipline employee for . . . no longer meet[ing] requirements . . . .”). Indeed, disciplinary action is defined as “[a]ction taken by management Rule R477 11.” Id. R477 1(36). Howеver, placement paid administrative leave not one disciplinary actions provided for R477 but rather governed by R477 Compare id. R477 1(4)(a)–(d) (providing disciplinary reprimand, also challenges Administrator’s determi nation request transfer back DHS freely signed coerced. Even were determine that Butts’s transfer coerced, it would affect our conclusion demotion regulatory definition does otherwise serve basis exercise grievance. See 202(1) 2011).
Wintle ‐ Butts suspension without pay, demotion, dismissal), with id. R477 ‐ 7(1), (1)(a)(iv), (1)(b)(v) (providing paid administrative leave reasons “consistent with agency policy”). Moreover, in his letter placing Wintle ‐ Butts on paid administrative leave, Wintle ‐ Butts’s supervisor specifically explаined, “This leave in accordance with [rule] R477 ‐ ‐ 7.” ‐ that the denial letter the Director
proves that DTS’s actions were disciplinary because the letter refers R477 ‐ states that Wintle ‐ “no longer meet[s] requirements of the position.” We not agree that the letter conclusively demonstrates that Wintle ‐ was subject to disciplinary action. Rather, letter explains the Director’s view that any procedural errors handling of Wintle ‐ Butts’s conditional employment with were moot Wintle ‐ Butts “no longer [met] requirements position” under R477 ‐ 11. However, recognition Director Wintle ‐ could been disciplined under R477 ‐ does demonstrate she disciplined. Admin. Code R477 ‐ ‐ 1(1) (“Agency management may discipline . . . no longer meet[ing] requirements . . . .” (emphasis added)). Rather, supervisor indicated Wintle was placed on leave accordance R477 made no mention disciplinary action R477 11. Because evidence Butts has advanced does demonstrate otherwise, conclude that placement on administrative leave taken by management R477 Accordingly, failed demonstrate subject “disciplinary action” meaning Administrative R477 1(36). 3. DTS’s Placement on Paid Administrative
Leave Did Not Result Reduction Her Current Actual Wage.
¶18 The record also shows placement Butts paid result “in reduction of [Wintle Butts]’s current actual wage.” id. R477 1(31).
Wintle Butts Butts’s hourly rate was increased to $46.27 on September 20, 2010, when she transferred to DTS. Her hourly rate was not reduced until September when she transferred back DHS. It does appear from record that placement Wintle Butts on paid administrative leave on September had effect on her then current actual wage, she has introduced no evidence contrary. Thus, Wintle Butts cannot demonstrate that DTS’s actions resulted in reduction then current actual wage. ¶19 Because Wintle has not demonstrated either that she was subject disciplinary that such action resulted in reduction current actual wage, we conclude that Wintle Butts was not demoted when DTS placed on paid administrative leave. Thus, did not err determining that Wintle was demoted, that have over Butts’s grievance this basis. B. Wintle Did Not Adequately Brief Her Dismissal
Argument. next argues has her she was dismissed DTS. However, fails develop this argument beyond bare assertions her employment DTS “ceased exist” when she was placed on administrativе she was thereby separated from state employment. does address relevant definition dismissal Administrator’s determination she never separated state employment. As correctly points out, has failed adequately brief issue, therefore consider it further. R. App. P. 24(a)(9) (listing requirements brief includes heading, “Whether Griеvant suspended dismissed.” However, Butts never suspended briefs court. To extent raised suspension ground CSRO’s
(continued...)
v.
arguments in an appellant’s briefs);
State v. Lamb
,
Argument Before CSRO. ¶21 Wintle also that CSRO has jurisdiction over her because violated its own rules by failing to afford due process and an opportunity to respond to DTS’s proposed regarding employment. See Utah Code Ann. 19a 202(1)(a)(vii) 2011); Utah Admin. Code R477 1(3) (“All disciplinary actions career service employees shall be governed principles due process and Title 67, Chapter 19a.”). However, failеd preserve argument she not present it CSRO. “We consistently held issues raised in proceedings before agencies are subject judicial except in exceptional circumstances.” Sullivan Board Oil, Gas & Mining , UT ¶ P.3d (citation internal quotation marks omitted). contends issue preserved her
statement grievance, alleged she was wrongfully dismissed dismissal “was provisions policy without [her] right appeal as career service under Utah Code 63F 106.” While we agree that raised issue wrongful dismissal before CSRO, demonstrated, we see nothing record support contention, ever argued that alleged violation its rules independent basis section 202(1)(vii). (...continued) grievance, decline address it inade quately briefed. R. App. P. 24(a)(9); State Lamb , 639. Because Administrator did address this issue his decision, faults Administrator “fail[ing] put together” determine alleged violation due process rights granted jurisdiction CSRO. However, onus on specifically raise issue so it could been adjudicated. Dinger Department Workforce Servs., Because did prеserve argument before CSRO, we address it further.
CONCLUSION failed demonstrate demoted properly raise other ground upon could
exercise jurisdiction. Therefore need address arguments regarding whether CSRO’s survived subsequent voluntary validity transfer grievance waiver. We conclude err in dismissing lack and accordingly approve Administrator’s decision.