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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GEORGIANA ARNOLD,
No. 71445-7-1
Appellant,
DIVISION ONE
v.
CITY OF SEATTLE, d/b/a HUMAN PUBLISHED OPINION
SERVICES DEPARTMENT,
FILED: March 23, 2015
Respondent.
Becker, J. — RCW 49.48.030 provides for an award of reasonable
attorney fees in any action in which a person successfully recovers judgment for
wages or salary owed. A person may seek an award of attorney fees from the
superior court under this statute upon winning an appeal to a city civil service
commission that results in an order for back pay.
Appellant Georgiana Arnold was employed as a manager of services
development and contracts with the Aging and Disabilities Services division of
the city of Seattle's Human Services Department. In 2010, one of Arnold's
subordinates failed to make an adequate inquiry into a whistleblower's complaint
about fraud and misappropriation of funds in a program administered by a
subcontractor. After a state audit uncovered embezzlement, Arnold's agency
No. 71445-7-1/2
conducted an internal investigation. The resulting report criticized Arnold and
two other supervisors for lapses in their supervision.
The deputy director of the department recommended that Arnold be
terminated. Arnold, whose performance evaluations had otherwise been
excellent, hired counsel and requested a hearing. After the hearing, the director
decided against termination and chose instead to demote Arnold from her
management position with an annual salary of $85,500 to an entry-level position
with an annual salary of approximately $56,000.
Through counsel, Arnold and her subordinate appealed to the Seattle Civil
Service Commission. A hearing examiner conducted a lengthy hearing, in which
three attorneys participated—one representing the City and one representing
each employee. The issue with respect to Arnold was whether the demotion was
for justifiable cause. The examiner concluded that demoting Arnold was not
consistent with discipline imposed in comparable cases. For example, one of the
other supervisors had received a two-week suspension but no demotion. The
examiner's written decision reversed Arnold's demotion and converted it to a two-
week suspension. The decision reinstated Arnold to her former position and
awarded back pay and related employee benefits.
Arnold requested an award of attorney fees. The Seattle Municipal Code
provides that an appellant "may be represented at a hearing before the
Commission by a person of his/her own choosing at his/her own expense."
SMC 4.04.260(E) (emphasis added). On this ground, the examiner denied
Arnold's request for attorney fees, and the commission affirmed the examiner.
No. 71445-7-1/3
Arnold filed suit in superior court, claiming she was entitled to an award of
attorney fees incurred for representation at the civil service hearing. The court
granted the City's motion to dismiss the case on summary judgment. Arnold
sought direct review in the Supreme Court. The Supreme Court transferred her
appeal to this court.
Arnold's claim that she is entitled to an award of attorney fees is based on
RCW 49.48.030, as construed by the Supreme Court in International Ass'n of
Fire Fighters. Local 46 v. City of Everett. 146 Wn.2d 29, 42 P.3d 1265 (2002).
The statute provides as follows:
In any action in which any person is successful in recovering
judgment for wages or salary owed to him or her, reasonable
attorney's fees, in an amount to be determined by the court, shall
be assessed against said employer or former employer:
PROVIDED, HOWEVER, That this section shall not apply if the
amount of recovery is less than or equal to the amount admitted by
the employer to be owing for said wages or salary.
This attorney fee statute, first enacted in 1888, took its current form in
1971. It is a remedial statute construed liberally in favor of employees. Fire
Fighters, 146 Wn.2d at 34-35. Part of a "comprehensive scheme to ensure
payment of wages," the attorney fee statute provides employees both an
incentive and a means to pursue their claims to unpaid wages or salary.
Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 157, 961 P.2d 371 (1998).
"One of the primary purposes of remedial statutes like RCW 49.48.030 is to allow
employees to pursue claims even though the amount of recovery may be small."
Fire Fighters, 146 Wn.2d at 50: see also Schilling, 136 Wn.2d at 159. Public
No. 71445-7-1/4
employees are included within the fee provision. RCW 49.48.080; Mclntvre v.
State, 135 Wn. App. 594, 599, 141 P.3d 75 (2006).
Because the statute is interpreted liberally in favor of employees, the
"action" in which the person is successful "in recovering judgment for wages or
salary owed" is not restricted to lawsuits filed in a court. So in Fire Fighters, the
Supreme Court held that a grievance arbitration proceeding was sufficiently
judicial in nature to qualify as an "action" under RCW 49.48.030.
Because RCW 49.48.030 is a remedial statute, which must be
construed to effectuate its purpose, we find no reason to not
interpret "action" to include arbitration proceedings. A restrictive
interpretation of "action" would preclude recovery of attorney fees in
cases involving arbitration even though the employee is successful
in recovering wages or salary owed. Thus, it would be inconsistent
with the legislative policy in favor of payment of wages due
employees.
Fire Fighters. 146 Wn.2d at 41.
In Fire Fighters, the city of Everett had suspended two union members
without pay. The union, represented by counsel, argued at a two-day arbitration
hearing that the suspensions violated the collective bargaining agreement. The
arbitrator agreed and ordered the city to set aside the suspensions and to award
back pay. The city abided by the arbitrator's decision but refused to pay the
union's attorney fees. The union brought suit in superior court and obtained an
award of fees.
The city of Everett appealed and attempted to rely, in part, on Cohn v.
Department of Corrections, 78 Wn. App. 63, 895 P.2d 857 (1995). Cohn upheld
a superior court's decision to deny an award of attorney fees requested by a
state employee whose reduction in pay was reversed by the Personnel Appeals
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Board. The court observed that in chapter 41.64 RCW, the legislature intended
to create a comprehensive scheme for aggrieved employees but did not list
attorney fees as one of the "rights and benefits" available. Cohn. 78 Wn. App. at
67-69. Since the statutes governing the Board did not explicitly provide for
attorney fees, the court determined that the Board lacked authority to award
them. The central rationale of Cohn was that because the Board did not possess
express or implied authority to award attorney fees, the reviewing court likewise
lacked such authority, notwithstanding RCW 49.48.030. Cohn. 78 Wn. App. at
69-70. A related rationale was that the superior court itself did not increase the
amount of back pay owed to the employee and therefore its decision simply
affirming the Board's decision could not be a "judgment for wages or salary
owed" within the meaning of RCW 49.48.030. Cohn, 78 Wn. App. at 70-71.
In Fire Fighters, the Supreme Court found Cohn distinguishable because it
addressed an appeal from a government agency rather than an arbitration. The
court determined that the superior court properly awarded attorney fees under
RCW 49.48.030 for the union's successful recovery of wages in the arbitration.
The award of fees was "for the arbitration proceeding and all superior and
appellate court proceedings in this matter." Fire Fighters. 146 Wn.2d at 52.
The Supreme Court explicitly declined to address whether RCW
49.48.030 would apply to administrative or quasijudicial proceedings other than
arbitration. Fire Fighters. 146 Wn.2d at 42 &n.11. Arnold's appeal presents that
question. Arnold contends that applying the statute to cover the attorney fees
No. 71445-7-1/6
she incurred in her successful appeal to the civil service commission is a proper
extension of Fire Fighters.
The City responds that Cohn is still good law. According to the City, the
superior court's denial of an award of attorney fees to Arnold was justified by
both of the Cohn rationales: the civil service code does not include payment of
attorney fees among the remedies available to a successful appellant, and
Arnold did not obtain a "judgment" in superior court for an increased amount of
back pay.
The City points out that this court has followed Cohn even after Fire
Fighters. For example, we followed Cohn in Trachtenberg v. Department of
Corrections. 122 Wn. App. 491, 496, 93 P.3d217. review denied. 103P.3d 801
(2004). The appellant, a state employee, became entitled to an award of back
pay as a result of his successful appeal to the state Personnel Appeals Board.
He filed suit in superior court seeking an award of attorney fees under RCW
49.48.030. The superior court dismissed the suit following Cohn, and we
affirmed, holding that RCW 49.48.030 "does not apply to state disciplinary
appeals because the Board has limited authority and a Board appeal is not an
action for a judgment for wages owed." Trachtenberg, 122 Wn. App. at 493.
Noting that Fire Fighters did not "explicitly overrule" Cohn. we concluded that
Cohn's central rationale remained intact: "attorney fees cannot be awarded under
RCW 49.48.030 for an appeal of a disciplinary action to the Board because of the
limited statutory authority granted to the Board." Trachtenberg. 122 Wn. App. at
495&n.1.
No. 71445-7-1/7
The Cohn rationale was not followed by the next Court of Appeals case to
address the issue, Mclntyre v. State. 135 Wn. App. 594. In Mclntyre. an
employee of the Washington State Patrol was terminated upon the
recommendation of a trial board within the agency. Her appeal to superior court
under the Administrative Procedure Act, chapter 34.05 RCW, was unsuccessful,
but further appeal to the Court of Appeals resulted in reinstatement and an award
of back pay and lost benefits. The employee then brought suit in superior court
under RCW 49.48.030 to recover the attorney fees she incurred in appealing her
termination order. The superior court dismissed the suit, and the employee
appealed. The State argued, based on Cohn and Trachtenberg. that the right to
attorney fees under RCW 49.48.030 depends on whether attorney fees are
among the remedies the administrative agency is statutorily authorized to grant.
This argument did not prevail in the Court of Appeals. Mclntyre. 135 Wn. App. at
602 ("State's argument that a single statutory remedy is self-limiting is not
convincing"). The court reversed and remanded for an award of the fees
requested after focusing its analysis on Fire Fighters as well as Hanson v. City of
Tacoma. 105 Wn.2d 864, 719 P.2d 104 (1986).
Here, the City urges us to adhere to Cohn and Trachtenberg and hold that
when a civil service employee recovers back pay under an administrative
scheme that does not include attorney fees as a remedy, the employee may not
institute a lawsuit solely to recover attorney fees under RCW 49.48.030. That
limitation is acceptable, the City argues, because in exchange, the civil service
No. 71445-7-1/8
employee receives the right to a low cost and speedy civil service forum, a right
not available to an at-will employee who must go to court to recover wages.
Arnold's successful effort before the commission to win reinstatement and
back pay cannot fairly be described as low cost when the hearing went on for
eight days and the City alone presented 11 witnesses. But more importantly, the
City is simply wrong in its suggestion that RCW 49.48.030 protects only "at-will"
employees. Even before Fire Fighters, the Supreme Court approved a superior
court's decision to award attorney fees under RCW 49.48.030 to a successful
civil service appellant. Hanson. 105 Wn.2d at 872. Similarly in Mclntyre, the
employee recovered back wages through an administrative appeal that would not
have been available to an at-will employee, yet the court applied RCW
49.48.030. In short, the applicability of RCW 49.48.030 is not limited to at-will
employees either by its own text or by case law.
Normally, we would expect to follow our own precedent in Trachtenberg.
But this court now has in Mclntyre a post-Fire Fighters decision concluding that
remedies offered by an administrative agency are not "self-limiting" and thus do
not exclude the application of RCW 49.48.030. In view of that conflict, we
conclude it is appropriate to reexamine Trachtenberg.1 which also requires
reexamining Cohn.2 Like the Mclntyre court, we conclude our focus should be on
1There was a petition for review in Trachtenberg, but it was denied as
untimely.
2The City has cited as supplemental authority this court's recent decision
in International Union of Police Ass'n. Local 748 v. Kitsap County. 183 Wn. App.
794, 333 P.3d 524 (2014). There, the issue of attorney fees under RCW
49.48.030 arose in connection with a union's complaint about an unfair labor
practice. This court held that notwithstanding Fire Fighters, an unfair labor
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No. 71445-7-1/9
the pertinent Supreme Court cases—Hanson and Fire Fighters—rather than on
our own.
As discussed above, Hanson affirmed a superior court's award of attorney
fees to a city employee who had obtained an award of back pay from the
Tacoma Civil Service Board. To conclude that a superior court cannot make an
award of fees under RCW 49.48.030 in an administrative appeal unless the
agency itself is authorized to award attorney fees, the Cohn court had to
distinguish Hanson. It did so by observing that in Hanson, the superior court's
review of the administrative board's decision resulted in a wage recovery not
granted in the administrative forum. Thus, according to Cohn, the superior court
in Hanson did enter a "judgment for wages," while the superior court in Cohn did
not. Cohn. 78 Wn. App. at 70-71.
The argument that a "judgment for wages" occurs only when at least some
portion of the wage recovery is obtained in the superior court action is no longer
viable after Fire Fighters, where the Supreme Court expressly disagreed with
Cohn's reading of Hanson. Fire Fighters. 146 Wn.2d at 43. In Fire Fighters, the
court refused to limit the recovery of attorney fees to the same "action" in which
practice proceeding is not an action for a judgment for wages under
RCW 49.48.030. The opinion describes as "dispositive" Cohn's reasoning that
where an administrative agency does not have the authority to make an award of
attorney fees, the superior court similarly lacks such authority. Local 748. 183
Wn. App. at 800-01. We need not address Local 748 separately to the extent
that it represents a continuation of the Cohn approach, which we have fully
discussed above. Possibly, the result in Local 748 is sustainable on an
alternative ground if the unfair labor practice appeal can be distinguished in the
same way that Fire Fighters distinguished interest arbitrations from grievance
arbitrations. Fire Fighters. 146 Wn.2d at 47.
No. 71445-7-1/10
the wages were recovered. "As discussed above, the Hanson court made it clear
that the nature of the proceeding did not affect the availability of attorney fees to
an employee who is successful in recovering wages or salary owed." Fire
Fighters. 146 Wn.2d at 43.
Discussing Fire Fighters in Trachtenberg. we said that the Supreme
Court's disagreement with Cohn's reading of Hanson was "not material to the
issues we have here." Trachtenberg. 122 Wn. App. at 495 & n.1. That was
incorrect. As discussed above, it was only by distinguishing Hanson that the
Cohn court was able to hold that an administrative scheme with limited remedies
precludes application of RCW 49.48.030. That distinction did not survive Fire
Fighters, as noted above. The "nature of the proceeding"—administrative
appeal, arbitration, or superior court action—does not control the availability of an
award of attorney fees. Fire Fighters, 146 Wn.2d at 43.
In Trachtenberg, we also said that an appeal to a civil service board
cannot be an "action" for a "judgment for wages" within the meaning of RCW
49.48.030:
Moreover, an appeal to the Board is not an "action" for a
"judgment for wages." As noted above, a civil service employee
may administratively "appeal" a disciplinary decision and may not
bring an independent "action" to challenge the disciplinary decision.
Additionally, the Board may enter only an "order" and not a
"judgment." In Fire Fighters, the Supreme Court found "no reason
to not interpret 'action' to include arbitration proceedings." Fire
Fighters. 146 Wn.2d at 41. Arbitration proceedings are often
substitutes for court proceedings. Administrative appeals, on the
other hand, are not substitutes for independent court proceedings.
Additionally, administrative agencies, like the Board, do not have
authority to determine issues outside of their delegated functions.
Tuerk v. Dep't of Licensing. 123 Wn.2d 120, 125, 864 P.2d 1382
(1994). The legislature did not give a civil service employee the
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No. 71445-7-1/11
right to bring an independent action or suit to challenge a
disciplinary decision and did not give the Board the authority to
enter a judgment or award attorney fees. Because of the limitations
placed on appeals to the Board, we conclude that the legislature
did not intend RCW 49.48.030 to apply to disciplinary challenges
before the Board. The Cohn court's reasoning on this issue is
sound.
Trachtenberg. 122 Wn. App. at 496-97.
The fact that the decision of an administrative board such as a civil service
commission is called an "order" rather than a "judgment" is an unsatisfactory
basis on which to distinguish a civil service appeal from the grievance arbitration
considered in Fire Fighters. Fire Fighters established that the meaning of the
word "action" in RCW 49.48.030 is not restricted to a proceeding in a court of
law. Fire Fighters. 146 Wn.2d at 38-41. The analysis turned instead on whether
the arbitration was "an exercise of a judicial function." Fire Fighters. 146 Wn.2d
at 38. The court found that "action" includes arbitration proceedings. Fire
Fighters. 146 Wn.2d at 41. The court similarly had no difficulty in deeming the
arbitration award equivalent to a "judgment" because it was the final
determination of the rights of the parties in the "action." Fire Fighters. 146 Wn.2d
at 36 n.8, quoting 49 C.J.S. Judgments § 2, at 51-52 (1997).
The City's brief in the present case maintains that a civil service appeal is
not an "action" because it is not judicial in nature and the civil service
commission's resolution of an appeal cannot be a "judgment" because it is not
signed by a judge. The dissenters in Fire Fighters made the same argument
about arbitration, but they did not carry the day. Fire Fighters. 146 Wn.2d at 52-
54. The City simply does not address the Fire Fighters majority's lengthy
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No. 71445-7-1/12
discussion of "action" and "judgment" that requires these terms to be interpreted
functionally and liberally. Fire Fighters. 146 Wn.2d at 36-41. The same failing is
evident in Trachtenberg. Arnold's appeal demonstrates that Trachtenberg is
inconsistent with Hanson. Fire Fighters. Mclntyre. and the long line of cases
requiring that RCW 49.48.030 be given a liberal interpretation in keeping with its
remedial purpose.
Just as the Fire Fighters court found no reason to interpret "action" as
excluding arbitration proceedings, we find no reason to interpret it as excluding
civil service appeals. Like an arbitration, such an appeal is judicial in nature.
This conclusion is supported by the Rules of Practice and Procedure for the
Seattle Civil Service Commission. Under rules 5.13 and 5.15 respectively, the
parties had the right to cross-examine witnesses and present evidence. We hold
that "action" as used in RCW 49.48.030 includes civil service appeals in which
wages or salary owed are recovered. The decision of the commission awarding
Arnold back pay was equivalent to a "judgment" as that term was interpreted in
Fire Fighters.
The Fire Fighters court affirmed a superior court's decision to award
attorney fees in an arbitration proceeding without inquiring whether the arbitrator
had authority to award attorney fees. Similarly, we find no reason to hold that a
superior court's authority to award attorney fees incurred in an administrative
proceeding depends on whether the administrative agency had authority to
award attorney fees.
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No. 71445-7-1/13
Following Fire Fighters, we conclude it is irrelevant that the commission
itself is not authorized to award attorney fees to an employee who recovers
wages in a successful appeal. The authority for the award of fees is found in
RCW 49.48.030. The superior court may exercise that authority in a separate
suit brought by the employee solely for the purpose of vindicating the statutory
right.
We grant Arnold's request to remand to superior court for an award of
attorney fees under RCW 49.48.030 for the appeal to the commission and for all
superior and appellate court proceedings in this matter. See Fire Fighters, 146
Wn.2d at 52.
The City claims the fees incurred by Arnold were unreasonable. We take
no position on the amount of fees to which Arnold is entitled or the methodology
by which they should be calculated. Such matters are left to the superior court to
determine in further proceedings.
Reversed.
ckW; *
WE CONCUR:
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