Opinion
No. 30443-1-II.
Filed: May 25, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 02-2-01102-8. Judgment or order under review. Date filed: 05/23/2003. Judge signing: Hon. Paula K Casey.
Counsel for Appellant(s), Christopher John Coker, Attorney at Law, PO Box 7846, Olympia, WA 98507-7846.
Counsel for Respondent(s), Patricia Ann Thompson, Attorney Generals Office, 1116 W Riverside Ave, Spokane, WA 99201-1106.
The Washington Department of Social and Health Services (DSHS) terminated Gerry Baum for failing to follow the DSHS policy that he provide a written note from his treating physician before returning to work after taking sick leave. Baum appealed to the Personnel Appeals Board (Board) and then the superior court; each upheld the dismissal. Baum contends that the Board's termination decision is contrary to the preponderance of the evidence and arbitrary and capricious because he did submit a medical verification form. He also contends that the Board's decision unconstitutionally invaded his privacy by requiring disclosure of the specific reason for his absence. We disagree and affirm.
FACTS
Baum was an Attendant Counselor 1 with DSHS at Lakeland Village, a residential habilitation center for the developmentally disabled, located in Medical Lake, Washington. Baum had worked for the State of Washington since 1986, and had a history of formal and informal discipline for attendance issues. Because of previous absences from work, Baum had been subject to a `last chance agreement' since May 2000. The agreement subjected him to a `medical verification' requirement that Baum provide a medical verification form from a licensed provider before returning to work following sick leave.
See RCW 71A.20.020.
Baum missed work from January 28 through March 11, 2000. At a `pre-disciplinary meeting' following the absence, Baum asked Lakeland Superintendent Al Kertes for another chance to improve his attendance. It was the third time Baum had been disciplined for attendance issues. Baum and Kertes reached a `last chance agreement' under which Baum agreed that he would follow the rules or resign. Baum stipulated at the hearing before the Board that he was subject to such an agreement.
Lakeland Village Policy 5.12,
`Medical Verification,' states in part: A. An employee may be placed on medical verification when the supervisor determines it necessary because of suspected sick leave abuse. Before placing an employee on medical verification, the supervisor is to conduct verbal and written counseling.
. . . .
C. While an employee is on medical verification, upon return to work from each use of sick leave, the employee must present a medical release from the employee's licensed medical provider to the appropriate supervisor BEFORE going to the work site. . . . The medical release must state that the employee was examined/treated by a licensed medical staff and is released to return to work without any restrictions. Any absence for illness for which a medical verification is required, but not received, will be charged as leave without pay and will be considered an unauthorized absence. If this procedure is not followed, corrective/disciplinary action may result.
Administrative Record (AR) at 146-47.
Baum again missed work from September 15 through September 29, 2000. When he returned to work, he submitted a medical verification form from his doctor stating `patient ill with chest cold 9/15-9/29[;] may return 9/30 without restriction.' Clerk's Papers (CP) at 48. But the form indicated via checkmark that Baum had not been examined or treated for the chest cold. Lakeland Village Policy 5.12 requires `[t]he medical release must state that the employee was examined/treated by a licensed medical staff and is released to return to work without any restrictions.' Administrative Record (AR) at 147. Baum's supervisor, Attendant Counselor Donna Morley, received the form on October 3, 2000. Because the form indicated that Baum had not been examined or treated, Morley disapproved Baum's leave request; and on October 26, 2000, she initiated a `Conduct Investigation Report' (CIR) alleging that Baum had failed to comply with his medical verification requirement. During the investigation, Baum's doctor supplied a revised medical verification form indicating that Baum had been examined or treated but with the notation `seen for sebaceous cyst 9/29/00.' CP at 49. Debe LaForce, another Attendant Counselor Manager, conducted the CIR investigation on Baum; she requested clarification from Baum's doctor as to whether he was seen for the cyst or the chest cold. On November 9, Baum's doctor provided a third medical verification form (which appears to be a modified version of the first form), stating `Baum was seen . . . for a cyst and mentioned the respiratory infection and time loss then.' CP at 50. LaForce concluded that Baum had not been examined or treated for a respiratory infection.
Following the investigation, Kertes met twice with Baum. At both meetings, Baum admitted to Kertes that the doctor had seen him on September 29 for a cyst, but by that time he was already over his cold, the reason for his absence, and he had not been seen or treated for the cold. Kertes determined that Baum had violated his last chance agreement and medical verification requirement. Kertes sent Baum a disciplinary letter dated February 27, 2001, terminating his employment for neglect of duty, gross misconduct, and willful violation of the published employing agency personnel rules or regulations.
Kertes was Baum's `appointing authority,' or `[a] person . . . lawfully authorized to make appointments.' WAC 356-05-040. The appointing authority has authority to hire employees and take disciplinary action, including dismissal. WAC 356-34-010. See former RCW 41.06.150(21) (1999).
See WAC 356-34-010(1).
Baum appealed his termination to the Board. Following an April 25, 2002 hearing, the Board upheld Baum's termination, concluding that Baum failed to comply with the medical verification requirement. Baum appealed to the Thurston County Superior Court and, on March 28, 2003, the trial court upheld the Board's decision, but acknowledged in its oral ruling that Lakeland Village's medical verification policy was `very inartfully drafted.' CP at 68. Baum appeals.
ANALYSIS Standard of Review
We review a Board decision de novo, using the same standards of review as did the superior court. Dedman v. Washington Pers. Appeals Bd., 98 Wn. App. 471, 476, 989 P.2d 1214 (1999). We review the decision of the Board based on the record made at the Board (not the superior court) level. See Nelson v. Dep't of Corrections, 63 Wn. App. 113, 115, 816 P.2d 768 (1991). A Board decision is improper if it is: (1) founded on an error of law; (2) contrary to the preponderance of the evidence as disclosed by the entire record; (3) materially affected by unlawful procedure; (4) based on a constitutional violation; or (5) arbitrary and capricious. RCW 41.64.130(1)(a)-(e); Dedman, 98 Wn. App. at 476.
We review asserted errors of law de novo while giving substantial weight to the administrative agency's interpretation of its rules and the law authorizing agency action. Dedman, 98 Wn. App. at 477; Sullivan v. Dep't of Transp., 71 Wn. App. 317, 321, 858 P.2d 283 (1993) (citing Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 325, 646 P.2d 113 (1982)), review denied, 123 Wn.2d 1018 (1994). In other words, we give an agency's interpretation of its own rule great weight, but that interpretation remains subject to our independent review. Thomas v. Dep't of Social Health Serv., 58 Wn. App. 427, 432, 793 P.2d 466 (1990).
We review factual challenges to a Board decision to determine only `whether there exists . . . any competent, relevant and substantive evidence which, if accepted as true, would, within the bounds of reason, directly or circumstantially support the challenged finding or findings.' Dedman, 98 Wn. App. at 477 (quoting Ballinger v. Dep't of Social Health Serv., 104 Wn.2d 323, 328, 705 P.2d 249 (1985)) (internal quotations omitted); Gogerty v. Dep't of Inst., 71 Wn.2d 1, 8-9, 426 P.2d 476 (1967). And we will find a Board decision arbitrary and capricious if it is willful and unreasonable and made without consideration and in disregard of facts or circumstances. Dedman, 98 Wn. App. at 477 (citing Nat'l Elec. Contractors Ass'n v. Riveland, 138 Wn.2d 9, 29, 978 P.2d 481 (1999)). But where there is room for two opinions, action is not arbitrary and capricious even though one may believe an erroneous conclusion has been reached. Pierce County Sheriff v. Civil Serv. Comm'n of Pierce County, 98 Wn.2d 690, 695, 658 P.2d 648 (1983).
Unauthorized Absence
Baum contends that the Board decision upholding his termination was contrary to the preponderance of the evidence as well as arbitrary and capricious. He argues that in fact he did comply with the medical verification requirement.
Baum's disciplinary letter states that he was dismissed for failure to be treated or examined by a licensed medical provider for an illness that caused him to be absent from work from September 15 through September 29, 2000. The Board agreed that Baum failed to provide a medical verification form for his absence.
When Baum returned to work, he submitted a medical verification form asserting that he could return to work without restriction. But the form did not verify that Baum had been receiving medical treatment for the illness that he asserts caused his absence during the time in question. We agree with the trial court's observation that Policy 5.12's language is less than crystal clear. But the language is sufficient to alert the employee that the medical verification must be related to the illness for which he seeks to be excused.
The medical verification form Baum presented was thus insufficient to excuse his absence, and Baum's absence was unauthorized. Disciplinary action and enforcement of the last chance agreement were appropriate under Lakeland Village Policy 5.12, which states `[a]ny absence for illness for which a medical verification is required, but not received, will be . . . considered an unauthorized absence. . . . [C]orrective/disciplinary action may result.' AR at 147. Competent evidence supported the Board's decision upholding Baum's termination. Moreover, the decision was not arbitrary or capricious but was a reasonable decision based on the substantial evidence and established policy language.
Right to Privacy
Baum also contends that the Board's decision was impermissibly based on Baum's failure to disclose the specific reason for his absence. He argues that requiring him to divulge his specific medical condition violates his constitutional right to privacy.
Lakeland Village Policy 5.12 states in part:
While an employee is on medical verification, upon return to work from each use of sick leave, the employee must present a medical release from the employee's licensed medical provider to the appropriate supervisor BEFORE going to the work site. . . . The medical release must state that the employee was examined/treated by a licensed medical staff and is released to return to work without any restrictions. Any absence for illness for which a medical verification is required, but not received, will be charged as leave without pay and will be considered an unauthorized absence. If this procedure is not followed, corrective/disciplinary action may result.
AR at 147 (emphasis added).
The authority for Policy 5.12 derives from Title 356 WAC, `Personnel, Department of (General Government).' WAC 356-18-070 provides:
(1) Sick leave shall be reported at the beginning of the absence and in accordance with agency procedure.
(2) Upon returning to work the employee shall report the general reason or circumstance for the sick leave as found in WAC 356-18-060 (1) through (6). A medical certificate may be required when there is cause to suspect sick leave abuse; to assist agencies in protecting the employees from returning to work too soon following an illness or injury; or to protect fellow employees or clients from contagious illness.
Former WAC 356-18-060(1) through (6) (1996) permitted sick leave to be used for personal illness, illness of family members, or preventive care. Regarding personal illness, former WAC 356-18-060(1) stated:
Accumulated sick leave shall be granted when an employee is required to be absent from work for any of the following reasons:
(a) Illness or injury of the employee or for preventative health care.
(b) Exposure of the employee to contagious disease when attendance at work would jeopardize the health of others.
WAC 356-18-070 (emphasis added).
Courts have recognized an individual's constitutional right to confidentiality, specifically nondisclosure of intimate personal information. See Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977); Bedford v. Sugarman, 112 Wn.2d 500, 509-10, 772 P.2d 486 (1989); Peninsula Counseling Ctr. v. Rahm, 105 Wn.2d 929, 935, 719 P.2d 926 (1986).
Baum argues that while neither the WAC nor Policy 5.12 require that an individual disclose the specific reason for sick leave, the Board has effectively imposed such a requirement, violating his constitutional right to privacy.
Baum acknowledges that Policy 5.12 does not require disclosure of the specific reason for the absence, only that a licensed treatment provider verify that the employee was treated, when the employee was treated, and that the employee is released from the medical disability and may return to work following the treatment. The Policy does not require disclosure of the reason for the need for treatment.
But Baum's privacy argument mischaracterizes the Board's decision. The Board upheld Baum's termination not because he failed to disclose the specific illness he alleged caused his absence, but because, after being allowed to keep his job on condition that he comply with the medical verification policy, he failed to provide a medical verification form that complied with the policy. Baum's medical verification form did `release' him to return to work but it also indicated that he had not been treated for the condition that he claimed excused his absence. Policy 5.12 provides that `[a]ny absence for illness for which a medical verification is required, but not received, will be charged as leave without pay and will be considered an unauthorized absence.' AR at 147. As stated above, the policy language is sufficient to alert the employee that the verification must be related to the illness causing the absence. But nothing in the regulations or policy requires that the employee reveal the specific illness that caused his or her absence. The Board's decision therefore did not unconstitutionally invade Baum's privacy.
It is worth noting that Baum and his doctor volunteered the specific reason for Baum's absence. And if Baum's first medical verification form had not been marked correctly, Baum's supervisors might never have realized that Baum was not treated for the illness that caused his absence, and Baum might never have been terminated. But the fact that the information did come to light does not make it unconstitutional for DSHS to act on it.
In sum, Baum's claims that (1) the Board's decision unconstitutionally invaded his privacy by requiring disclosure of the specific reason for his absence and (2) he in fact complied with the verification requirement and last chance agreement when he submitted the medical verification form are not supported by this record. Baum was terminated for repeated unauthorized absenteeism, not because his doctor failed to properly complete a form.
We affirm.
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.
SEINFELD, J.P.T., ARMSTRONG, J., concur.