Cronin v. Cent. Valley Sch. Dist.

456 P.3d 843

Michael F. CRONIN, Respondent,

v.CENTRAL VALLEY SCHOOL DISTRICT, Appellant.

No. 36291-4-III

Court of Appeals of Washington, Division 3.

FILED JANUARY 30, 2020

Breean Lawrence Beggs, Paukert & Troppmann, PLLC, 522 W Riverside Ave. Ste. 560, Spokane, WA, 99201-0519, Paul Eric Clay, Stevens Clay, PS, 421 W Riverside Ave. Ste. 1575, Spokane, WA, 99201-0409, for Appellant/Cross-Respondent.

Lawrence Jay Kuznetz, Sarah Nicole Harmon, Powell Kuznetz & Parker PS, 316 W Boone Ave. Ste. 380, Spokane, WA, 99201-2346, for Respondent/Cross-Appellant.

William A. Coats, Daniel C. Montopoli, 1201 Pacific Ave. # 1900, Po Box 1315, Tacoma, WA, 98401-1315, Attorney at Law, Heidi Michelle Maynard, Vandeberg Johnson & Gandara, LLP, 1201 Pacific Ave. Ste. 1900, Tacoma, WA, 98402-4391, for Amicus Curiae on behalf of Washington State School Directors' Association.

PUBLISHED OPINION

Lawrence-Berrey, C.J.

¶1 RCW 28A.405.210 creates a conclusive presumption that a teacher is reemployed for the ensuing school year if the school district gives the teacher notice of nonrenewal but fails to provide the teacher an opportunity for a timely statutory hearing. Central Valley School District failed to provide Michael Cronin an opportunity for a timely statutory hearing by rejecting his representative’s request for a hearing, which resulted in the hearing being delayed for almost seven years.

¶2 We affirm the trial court’s summary judgment rulings (1) restoring Cronin to pay status pending a statutory hearing and awarding back pay and benefits, (2) denying Cronin’s request for an additional award to offset the tax consequences of a lump sum award of wages, and (3) determining Cronin’s reasonable attorney fees. We reverse the trial court on only one issue: The trial court erred when it dismissed Cronin’s claim for exemplary damages under RCW 49.52.070. We remand that claim for trial.

FACTS

¶3 In this third appeal, Central Valley School District challenges the trial court’s summary judgment determination restoring Michael Cronin to pay status pending a statutory hearing and awarding back pay and benefits. Cronin cross-appeals the trial court’s summary judgment determinations of damages and reasonable attorney fees. The issues raised by the parties require a fairly extensive review of this saga that has now spanned three appeals and almost one decade.

¶4 In August 2010, police arrested Cronin for physical control of a vehicle while under the influence of alcohol. The charge went unresolved for a while and Cronin taught the 2010-2011 school year without incident.

¶5 Cronin was arrested twice during the summer before the 2011-2012 school year. The arrests involved conduct outside of his employment. Because of his legal troubles, the District placed Cronin on paid administrative leave. This leave requires an employee to be available, at the District’s request, either to work or to meet during business hours.

¶6 In September 2011, Cronin decided he needed alcohol treatment and notified the District in writing of his decision to seek inpatient treatment at a facility in Selah, Washington. The District later confirmed that Cronin, who would be unavailable for work while receiving inpatient treatment, was entitled to use sick leave.

¶7 On September 28, 2011, Cronin pleaded guilty to the August 2010 charge of physical control of a vehicle while under the influence of alcohol. The court sentenced Cronin to 120 days’ confinement with work release privileges and agreed to give him credit for time in alcohol treatment. Cronin received treatment at the Selah facility from September 30, 2011 until October 27, 2011. He then reported to Geiger Corrections Center in Spokane to serve the remainder of his sentence.

¶8 On November 7, 2011, the District’s deputy superintendent sent a letter to Cronin. The letter expressed the District’s concern that it had been unable to contact him and notified him that he had been classified as absent without leave. The letter emphasized that Cronin was required to personally respond to the letter by the next day, and, if he was unavailable for work, he had to make a written request to the District for paid leave.

¶9 On November 22, 2011, the deputy superintendent, Cronin, and Cronin’s union representative, Sally McNair, met at the school district office. The deputy superintendent asked Cronin about various incidents of misconduct. Some incidents were old, some were related to his work with the District, and others were not. The District gave Cronin an opportunity to respond. In addition, the deputy superintendent asked Cronin to provide written confirmation from the Selah treatment center that he successfully completed treatment. Soon after the meeting, Cronin provided the District with that written confirmation.

¶10 The parties dispute whether Cronin was available for work while at Geiger. An email sent by Cronin after the November meeting confirmed his availability for work. The deputy superintendent, however, asserted that Cronin advised him in the November meeting and two later meetings that he had been unable to set up work release and was unavailable for work.

¶11 On December 8, 2011, the deputy superintendent met with Cronin and McNair at Geiger. At the meeting, the District relayed its intent to terminate Cronin’s employment unless he resigned within one week. Cronin refused. On December 15, a similar meeting occurred.

¶12 On December 29, 2011, the District sent a letter to Cronin, informing him that he continued to be absent without approved leave. The District stated that Cronin could use sick leave for the time he spent in alcohol treatment and emergency/personal leave for the time he spent at Geiger. The District explained that Cronin’s available leave was used up effective November 10, 2011, his current status was unapproved leave, and he would be ineligible for paid leave until he sought and received the District’s approval. Cronin did not seek or receive approval for paid leave.

¶13 On January 6, 2012, Cronin received a letter entitled, "Notice of Probable Cause for Discharge and Nonrenewal Pursuant to RCW 28A.405.210 and RCW 28A.405.300." Clerk’s Papers (CP) at 371. The letter, signed by the district superintendent, described several allegations of misconduct, including unprofessional conduct, a pattern of alcohol related incidents involving students and others, and unavailability for work. The letter asserted that the District had discussed these allegations with Cronin and afforded him an opportunity to respond. In the letter, the superintendent advised Cronin that his review of the evidence convinced him that probable cause existed for Cronin’s nonrenewal and discharge from the District. The letter concluded:

Pursuant to RCW 28A.405.210, 28A.405.300 and RCW 28A.405.310 (enclosed), you are entitled to due process rights and a hearing to review my determination of probable cause. According to the above-referenced laws, you must file a timely notice of appeal. If you do not appeal, my decision will become final, binding and non-appealable. A copy of the appeal provision of the law is enclosed.

CP at 372. The appeal provision provides 10 days to appeal the notice.

¶14 Due to Cronin’s incarceration, he could not contact McNair or respond to the District directly.¹ He, therefore, spoke to a friend, Teresa Anderson, and directed her to notify McNair to appeal the notice. Anderson relayed Cronin’s message to McNair.

¶15 On January 11, 2012, McNair delivered a letter to the District, which read:

I have received the Notice of Probable Cause for Termination of Mike Cronin’s employment dated January 5th, 2012. Pursuant to RCW 28A.405.300 and .310, I am requesting a closed hearing on Mr. Cronin’s behalf to determine whether there is sufficient cause for such adverse action. Until counsel has been appointed, I will serve as Mr. Cronin’s nominee for a hearing officer.

Due to the lack of access to Mr. Cronin, I will also be filing a grievance in order to preserve timelines to both procedures. It is clear the contract requires an election of remedies and it is not our intent to pursue both options, only to allow time to consult with Mr. Cronin so he can determine his desired path. We anticipate notifying the District on or before February 10th, 2012 as to Mr. Cronin’s decision to pursue either the statutory hearing or the grievance. At that time, either this request or the grievance will be withdrawn.

CP at 48.

¶16 The District did not respond.

¶17 On January 16, 2012, Cronin, who received good behavior credits, was released from Geiger. After that date, Cronin was available to work. Two weeks later, Cronin did not receive his wages and benefits, even though the District customarily paid him on the last day of each month.

¶18 On February 8, 2012, McNair sent an e-mail to the District:

As a follow-up to my letter from January 11th, 2012, this email is to provide you written notice that Mr. Cronin has decided to pursue the statutory hearing as described in RCW 28A.405.300 as his election of remedy for the notice of probable cause for discharge. He will not be utilizing the grievance procedure.

CP at 49.

¶19 The District still did not respond.

¶20 On February 21, 2012, Cronin’s attorney advised the District’s attorney that he represented Cronin and asked why the District had stopped Cronin’s pay and benefits. The following day, the District sent a letter to McNair:

Thank you for your correspondence dated January 11, 2012. Any appeal of a Notice of Probable Cause under RCW 28A.405.300 and RCW 28A.405.210 must be undertaken by the employee who receives the Notice. Since you are not the employee who received the Notice, your correspondence does not constitute a valid appeal. Further, your correspondence does not mention and thus does not constitute an appeal of the Notice of Probable Cause for Mr. Cronin’s Nonrenewal.

The employee here, Mr. Cronin, did not timely appeal the Notice of Probable Cause for Discharge or Nonrenewal and thus he has waived his

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