Michael Schatz, Etal, Respondents V State Of Washington, Appellant (Majority and Dissent)

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FILED LS G DljRT OF+ N IN THE COURT OF APPEALS OF THE STATE OF W r7\ STA E OIAAIiN DIVISION II No. 42332 -4 -II MICHAEL SCHATZ; DANI KENDALL; and JOSEPH MINOR, as individuals and as class representatives for all others similarly situated, Respondents, V. PUBLISHED OPINION STATE OF WASHINGTON; DEPARTMENT OF AND SOCIAL DEPARTMENT HEALTH SERVICES; PERSONNEL; OF and DOES 1 - 10 in their official capacities, PENOYAR, J. Psychiatric security nurses and psychiatric security attendants' who work in the forensic wards at the state' s psychiatric hospitals filed this suit against the Department of Social both and Health Services ( DSHS), the Department 2 agencies, violated their seeking equal an increase in their salary protection rights, violated of Personnel ( Personnel), and officials of ranges. the The employees alleged that the State comparable worth statutes, and acted arbitrarily and capriciously by setting their salary ranges lower than their counterparts in the civil commitment wards. The trial court agreed with the employees and, following a bench trial, found that the State had violated the employees' equal protection rights and their rights under the comparable worth statutes. The State appeals the trial court' s verdict and award of attorney fees to the employees, arguing that ( 1) there is a rational basis for paying forensic and civil nurses differently, ( 2) the employees have no right to adjustment of their wages under the comparable worth statutes, ( 3) the trial court improperly granted a writ of certiorari, ( We refer to the plaintiffs collectively as the employees. 2 We refer to the defendants collectively as the State. 4) the trial court erred 37 42332 -4 -II by finding that the State was collaterally estopped by a 1983 order, and ( 5) the trial court erred by awarding the employees attorney fees under both the common fund doctrine and fee -shifting The employees cross appeal, arguing that the trial court erred by finding that they are statutes. not entitled to double damages under RCW 49. 52. 070.3 Because it is reasonable for the State. to pay employees the salaries they collectively bargained for, the entitled to any employees' relief under equal protection claim the 1980s fails. Additionally, the employees are not era comparable worth statutes. We reverse and hold that the employees are not entitled to attorney fees because they did not prevail. FACTS BACKGROUND I. This appeal arises from pay disparities between nurses ( PSNs) and nursing attendants PSAs) in the forensic wards of Eastern and Western State Hospitals and their counterparts in the civil commitment MHTs). and 4s. practical nurses ( LPNs) and mental health technicians Practical nurses on both the forensic and civil wards share similar duties and responsibilities, 2s, wards licensed but there LPN4s are are a few administrative designated lead differences. workers on the The LPN series has 3 levels: Is, civil wards. There is only one LPN4 on duty per shift. By contrast, there is only one level of PSN, and each shift has multiple PSNs who share the LPN4 responsibilities. As of 2007, when the complaint was filed in this case, PSNs 3 Some of the statutes in our opinion have been amended since the employees filed their claim. A few of the amendments were minor and did not affect the substance of the statute or our analysis. Unless otherwise noted, we cite to the current version of the statute. 2 42332 -4 -II were in the same salary range as LPN2s. 4 The PSNs argue that their salary range should at least match LPN4s' salary range. Attendants on both the forensic and civil wards also share similar duties and responsibilities. Like the different levels: Is, 2s, practical and 3s, nurses, while the attendants the forensic on the civil attendants PSAs wards MHTs have have only one level. MHT3s have additional administrative duties beyond those assigned to MHT2s and MHT1 s. For example, MHT3s are responsible for placing work orders and ordering supplies and they serve as ward As fire of marshals. 2007, PSAs 5 PSAs perform these same tasks, but they are shared among multiple PSAs. were one salary MHT2s range above and two ranges PSAs below MHT3s. argue that their salary range should at least match MHTs' salary range. II. HISTORY OF PSN AND PSA SALARY SETTING In 1973, Personnel adopted the PSN and PSA classifications for nurses and attendants working in the mental health unit of corrections institutions. Personnel placed forensic PSNs and PSAs in higher salary added ranges danger involved in than dealing civil with LPNs felons and and hospital attendants the criminally insane." in recognition " of the Ex. 40 at 2. In 1976, the State moved the mental health units from corrections institutions to state psychiatric hospitals and reclassified PSNs and PSAs as LPNs and hospital attendants. The former PSNs and PSAs petitioned Personnel to reallocate them to their former, higher paying, classifications. The Personnel Board denied their request and the employees sued. The superior 4 From 1993 to 2006, PSNs were in a lower salary range than LPN2s. 5 MHT3s are fire marshals for day shifts, and MHT2s may be fire marshals on evening shifts. 6 Hospital attendants were reclassified to MHTs. 3 42332 -4 -II court ordered the employees reallocated back to PSNs and PSAs and awarded them back pay for the time they were misclassified as LPNs and hospital attendants. In 1985, the legislature ratified a broad settlement agreement implementing comparable The agreement calculated an average salary line and provided incremental raises for worth. state employees in job classifications that were below the average line. LPNs and MHTs received raises under comparable worth because their salary ranges were below the average salary line. PSNs and PSAs did not receive raises under comparable worth because their salary ranges were already above the average salary line. As a result, LPN4s and MHT3s are now in a higher salary range than PSNs and PSAs. Statutory changes mandated that, in 2004, the employees, through their union, would begin collectively bargaining RCW 41. 80. 010( 1), The wages). with the governor over RCW 41. 80. 020( 1) ( governor represents their salary ranges. See RCW 41. 80. 001, providing the matters subject to bargaining, including DSHS during collective bargaining negotiations. RCW 41. 80. 010( 1). III. PROCEDURAL HISTORY Two PSNs and a PSA filed a class action complaint with the superior court alleging that, by paying PSNs and PSAs less than their LPN and MHT counterparts, the State violated their equal protection rights, acted arbitrarily and capriciously, and violated the comparable worth doctrine. The employees sought declaratory relief directing the State to pay them at the same rate as comparable job classes, double damages for lost wages, and attorney fees. 7 " Comparable worth" is defined as " the provision of similar salaries for positions that require or impose similar responsibilities, judgments, knowledge, RCW 41. 06. 020( 5) ( 1993). 4 skills, and working conditions." Former 42332 - -II 4 Following a bench trial, the trial court concluded that the State violated the employees' equal protection rights, violated their rights to comparable pay under the comparable worth statute, and acted arbitrarily and The trial court ordered the State to adjust the capriciously. PSNs' pay range to match the LPN4s' pay range and to adjust the PSAs' pay range to match the MHT3s' pay granted the range beginning on May 16, 2004, employees prospective relief under and continuing prospectively. 42 U. S. C. § The trial court 1983 and back pay under its inherent authority to compel other branches of government to comply with the law. The trial court denied the employees' request for double damages, but awarded them attorney fees back pay and costs. and interest The trial court awarded employees' counsel one -third of the employees' under the common fund doctrine. Under the fee -shifting statutes, the trial court ruled that the State was responsible for a portion of the common fund fees, and it calculated this amount using the lodestar method. The State appeals. The employees cross -appeal, arguing that the trial court should have awarded double damages under RCW 49. 52. 070. ANALYSIS 1. EQUAL PROTECTION The State first argues that the trial court erred by finding that the State violated the 8 employees' equal protection rights. There is substantial evidence to support the trial court' s findings that PSNs and LPN4s share similar duties and that PSAs and MHT3s share similar 8 The trial court concluded that the State violated both state and federal equal protection State equal protection analysis is subsumed under federal equal protection analysis v. Dep' t of Labor & Indus., 147 Wn.2d 725, party alleges undue favoritism. Willoughby 57 P. 3d 611 ( 2002). The trial court found that there was no favoritism in this case and guarantees. unless a 739 n. 8, the employees do not appeal this finding; therefore, we analyze the arguments under federal equal protection analysis. 5 42332 -4 -II Although historical salary range setting practices are not a rational basis for duties. distinguishing between employees, it is rational for the State to pay the employees what they have bargained to be paid through their We reverse the trial court' s finding that the union. employees have shown an equal protection violation. Equal protection guarantees that persons similarly situated with respect to a legitimate purpose of the law receive like treatment. State v. Harner, 153 Wn.2d 228, 235, 103 P. 3d 738 In analyzing an equal protection claim, we must first determine the applicable standard 2004). Wash. Pub. Emps. Ass' of review. n v. Pers. Res. Bd., 127 Wn. App. 254, 263, 110 P. 3d 1154 Both parties agree that rational basis review applies here, where the classification 2005). involves finite state resources and does not concern a fundamental right or suspect classification. Under rational basis review, a state action is constitutional if (1) it applies alike to all members of the designated the without class, ( class, 2) there are reasonable grounds to distinguish between those within and and ( Wash. Pub. Emps. Ass' that the classification 3) n, the classification has a rational relationship to the state' s purpose.. 127 Wn. App. is purely arbitrary. at 263. The burden is on the challenging parry to show Gossett v. Farmers Ins. Co., 133 Wn.2d 954, 979, 948 P. 2d 1264 ( 1997). A. Designated Class The parties disagree about how to define the designated class. The State argues that each job classification (PSN, PSA, LPN4, and MHT3) constitutes a designated class and that there are rational reasons to treat each job classification differently. The employees argue that the designated class consists of PSNs and PSAs, who do the same work as LPN4s and MHT3s but are paid less. Thus, in order to define the class, it is necessary to first determine whether PSNs and PSAs do the same work as LPN4s and MHT3s. N 42332 - -II 4 The trial that PSAs' duties FF 19, 21). minimus." they are " essentially the MHT3s' duties. XI Clerk' s Papers ( CP) at 2160 are supported court by same" of any differences between the of Tacoma City v. supports a the truth finding, as " de William Rogers Co., 148 Wn.2d Substantial evidence is evidence sufficient to persuade a the of matter City of Tacoma, 148 Wn.2d at 191 asserted. Research Or., 107 Wn.2d quoting Fred Hutchinson Cancer evidence positions quoting Fred Hutchinson Cancer Research Ctr. V. Holman, 107 Wn. 2d 693, 712, 732 P. 2d 974 ( 1987)). person same" We review challenged findings of fact to determine whether substantial evidence. 169, 191, 60 P. 3d 79 ( 2002) ( minded fair - as characterized 2160 ( FF 18). at as LPN4s' duties and are " The trial XI CP essentially the found that PSNs' duties court it does Marriage of Burrill, 113 Wn. App. not that matter other at 712). evidence 863, 868, 56 P. 3d 993 ( 2002). As long as substantial may contradict it. In re Here, there is substantial evidence to support the trial court' s findings regarding the similarities among the positions. PSNs' duties are similar to LPN4s' duties. According to DSHS' s position descriptions and testimony from Western State Hospital' s nurse executive, PSNs and LPN4s have similar education and experience requirements and similar nursing responsibilities. The State points out that LPN4s are designated as lead workers and perform certain administrative tasks, such as assisting registered nurses ( RNs) with assigning work. However, PSNs testified that they perform many of the same tasks as LPN4s, and they too act as lead workers when there is no RN present. Likewise, PSAs' duties are similar to MHT3s' duties. Again, according to DSHS' s position descriptions and testimony from a nurse executive, PSAs and MHT3s require similar education and skills and some have testimony contradicting similar responsibilities. the Although the State argues that there was there are multiple PSNs per shift and only one similarities 7 42332 - -II 4 LPN4, PSNs and PSAs have increased security concerns, and the daily needs of the patients vary by as long as there is substantial evidence to support a finding, we will affirm it despite ward contradictory evidence. Because PSNs and PSAs do the same work as LPN4s and MHT3s but are paid less, we agree with the employees that the designated class consists of PSNs and PSAs. In Washington Public Employees Association, we held that the designated class was defined by those employees who receive disparate treatment. disparate treatment 127 Wn. App. at 264. Here, the PSNs and PSAs are receiving they are paid at a lower salary range than the LPN4s and MHT3s even though their duties are comparable. Reasonable Grounds and Rational Relationship B. The next issue is whether there are reasonable grounds to distinguish between those within State the designated gives two class PSNs reasons why it is and PSAs and those reasonable without LPN4s to pay the forensic MHT3s. and and civil nurses The differently: ( 1) they are in separate job classifications and ( 2) the employees bargained for their wages. The State' s first argument fails because historical rate setting practices are not reasonable grounds for distinguishing between those within and without the designated In class. Washington Public Employees Association, we held that the State violated employees' equal protection rights by paying certain employees in general government less than similarly situated employees in higher education and vice versa. 127 Wn. App. at 257, 268. The State argued that, because general government and higher education employees have historically been treated differently, this Wn. at App. was a rational 267. We basis for paying them differently. rejected this analysis, reasoning that no Wash. Pub. Emps. Ass' n, 127 rational basis existed to set 42332 - -II 4 different salaries for state employees doing the same work where the disparities are based on historical practice rather than job differences. Wash. Pub. Emps. Ass' n, 127 Wn. App. at 268. Similarly, here, the State' s argument for paying PSNs and PSAs less than LPN4s and MHT3s is based on historical rate setting practices and not an evaluation of their job differences. Personnel' that [ PSNs and PSAs are] a fact of the are paid comparable worth and collective way is director testified that "[ s classification and compensation program system and based on the it that occurred over time [ such as so I guess the fact that they' ve ended up this bargaining], .:. how ... actions t]he salary ranges works." 5 Report of Proceedings ( RP) at 493. We rejected a similar explanation in Washington Public Employees Association, and we do so here. However, the State' s second argument is persuasive. A classification that is "` neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy "' does not violate equal protection. 1990) ( Forbes v. City of Seattle, 113 Wn.2d 929, 944, 785 P. 2d 431 quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527, 79 S. Ct. 437, 3 L. Ed. 2d 480 ( 1959)). bargaining Here, the State' s actions are not arbitrary; they are based on the collective agreement bargained for their between the wages since employees 2004, three and years the State. The employees have collectively before they filed this suit. It is reasonable for the State to pay the employees the rates their union negotiated for them during collective bargaining. Additionally, the State' s actions are rationally related to its interest in abiding by collective bargaining agreements. The purpose of chapter 41. 56 RCW is " to promote the continued improvement of the relationship between public employers and their employees by providing a uniform basis for implementing the right of public employees to join labor organizations of their own choosing and to be 0 represented by such organizations." RCW 42332 -4 -II The purpose of the act is not served if the State ignores a collectively bargained 41. 56. 010. agreement and unilaterally sets the 9 employees' rates. The employees do not provide any authority stating that collective bargaining is not a basis for rational determining salary rates. At oral argument, the employees compared their situation to one where the State uses a racially discriminatory collective bargaining agreement to justify its discriminatory actions. However, this hypothetical involves a suspect classification, and the State' s actions would be subject to strict scrutiny, not rational review. Am. Legion Post No. 149 v. Dep' t 192 P. 3d 306 ( 2008). of Health, 164 Wn.2d 570, 608 -09, Further, although we did not find any Washington case law directly on point, case law from other jurisdictions supports our 2008) ( decision. See Collins v. County of Monroe, 531 F. Supp. 2d 522, 527 ( W.D.N.Y. dismissing employee' s equal protection complaint, in part, because employer' s conduct conformed to the collective bargaining Cloud, 555 N.W. 2d 318, 321 ( Minn. Ct. agreement); App. St. Cloud Police Relief Ass' n v. City of St. 1996) ( " The guarantee of equal protection does not require equal outcomes in labor- management negotiations. "). It is reasonable for the State to pay the employees what their union has bargained for them to be paid. Therefore, we reverse the trial court' s conclusion that the employees have proven an equal protection claim. II. COMPARABLE WORTH The State next argues that the trial court erred by granting the employees relief under the comparable worth statutes. Specifically, they argue that ( 1) the comparable worth statutes did not create a private cause of action, ( 2) the employees cannot show that the conditions within the 9 Moreover, as the State points out, it is unlawful for an employer to increase wages outside of the collective bargaining process. Nat' l Labor Relations Bd. v. Katz, 369 U.S. 736, 743, 745 -46, 82 S. Ct. 1107, 8 L. Ed. 2d 230 ( 1962). 10 42332 -4 -II statutes have been worth of positions. met, and ( 3) the trial Appellant' Reply s court cannot " Br. at 28. subjectively determine" the comparable Because legislative intent does not support a remedy in this case and implying a remedy would be inconsistent with the underlying purpose of the legislation, we agree that the comparable worth statutes did not create a private cause of And, even if there was a cause of action, the employees cannot show that they are action. entitled to relief under the statutes. Former RCW 41. 06. 020( 5) defines comparable worth as " the provision of similar salaries for positions that require or impose similar responsibilities, judgments, knowledge, skills, and working conditions." The employees argue that the State violated its duty to achieve comparable worth compensation for PSNs and PSAs. The employees base their argument on two statutes, former RCW 41. 06. 133( 10) ( 2002) and RCW 41. 06. 155. Former RCW 41. 06. 133( 10) states, The director [ of Personnel] shall adopt rules, consistent with the purposes and provisions of this chapter and with the best standards of personnel administration, regarding the basis and procedures to be followed for ... [ a] doption and revision of a state salary schedule to reflect the prevailing rates in Washington state private industries and other governmental units. The rates in the salary schedules or plans shall be increased implementation plan if attain necessary to RCW 41. 06. 155 .... under comparable worth under an Such adoption and revision is subject to approval by the director of financial management in accordance with chapter 43. 88 RCW. RCW 41. 06. 155 states, Salary changes necessary to achieve comparable worth shall be implemented during the 1983 -85 biennium under a schedule developed by the department. Increases in salaries and compensation solely for the purpose of achieving comparable worth shall be made at least annually. Comparable worth for the jobs of all employees under this chapter shall be fully achieved not later than June 30, 1993. 11 42332 -4 -II Private Cause of Action A. First, the State argues that the comparable worth statutes do not create a private cause of action. The statutes do not explicitly create a cause of action, but " a cause of action may be implied from a statutory provision when the legislature creates a right or obligation without a corresponding remedy." v. of Soc. & Health Servs., 167 Wn.2d 697, 703, 222 P. 3d Dep' t To determine whether a cause of action exists, we consider ( 1) whether the plaintiffs 785 ( 2009). are within Ducote the class of persons for whose benefit the statute was enacted, ( 2) whether legislative intent supports, creating or denying a remedy, and ( 3) whether implying a remedy is consistent with the underlying Soc. & purpose of Wash. State Coal. for the Homeless v. Dep' t of the legislation. Health Servs., 133 Wn.2d 894, 912 -13, 949 P. 2d 1291 ( 1997) ( citing Bennett v. Hardy, 113 Wn.2d 912, 920 -21, 784 P. 2d 1258 ( 1990)). The employees are within the class of persons for whose benefit the comparable worth statutes were members of enacted. the Courts look to statutory language to determine whether plaintiffs are protected class. P. 3d 1148 ( 2000) ( quoting 749 ( 1998)). Schooley v. v. Dep' t Pinch' s of Soc. & Health Servs., 141 Wn.2d 68, 78, 1 Deli Mkt., Inc., 134 Wn.2d 468, 475, 951 P. 2d RCW 41. 06. 155 requires achievement of comparable worth for the " jobs of all employees under this of chapter provisions Tyner chapter." RCW 41. 06. 070( 1) 41. 06 RCW. lists employees who are not subject to the This list does not include PSNs and PSAs; thus, they are employees under this chapter" and within the class of persons for whose benefit the comparable worth statutes were enacted. However, legislative intent does not support the remedy the employees seek here and implying a judicial remedy is inconsistent with the underlying purpose of the statutes. The legislature enacted the comparable worth statutes to protect its prerogative in setting state 12 42332 -4 -II employees' compensation. The legislature enacted RCW 41. 06. 155, providing a 10 -year process for achieving comparable worth, subsequent to a 1982 Title VII suit by a group of state employees. Emps. v. LAWS of 1983, 1st Ex. Sess., Wash., 578 F. legislature provided implementation the legislature of statutory enacted 6; see Am. Fed' n of State, Cnty., and Mun. 75, § 846 ( W. D. Wash. 1983).. The litigation continued, so, in 1985, the Supp. more ch. than $ 40 million for settlement of the Title VII comparable worth. the comparable LAWS of 1985, 1st Ex. Sess., statute worth and ch. appropriated suit and 6, § 702. Thus, funds for its implementation in order to settle and avoid, not encourage, litigation. Moreover, the legislature limited the time frame for implementing comparable worth, indicating that it did not c] omparable worth ... intend to shall be provide fully an ongoing remedy. achieved not RCW 41. 06. 155 later than June 30, 1993." states Since 1993, the State has not made any comparable worth adjustments. Because the legislature enacted the comparable worth statutes to avoid litigation and because it limited the time frame for implementing comparable worth, legislative intent does not support an ongoing private cause of action under the comparable worth statutes. B. Relief Even if the comparable worth statutes did create a private cause of action, the employees cannot show that they are entitled to relief. In Washington Public Employees Ass' n, we denied employees relief under a civil service statute because they failed to prove that all the conditions in the statute were met. 127 Wn. App. at 262. There, the employees argued that they had been deprived of equal pay for equal work and sought an order requiring the Personnel Resources Board to adopt a single salary schedule for employees in general government and higher 13 42332 -4 -II former RCW 41. 06. 150( 14) ( 2002). 10 education under at But, to 261. attain Resources Board approved the legislature, Wn. App. that would relief, have the adopted, ( adopted schedule, ( had to show ( 1) what schedule the Personnel 2) that the director of financial management would have 3) that the governor would have sent the adopted schedule to the that the legislature and ( 4) employees Wash. Pub. Emps. Ass' n, 127 Wn. App. would have implemented it. Wash. Pub. Emps. Ass' n, 127 The employees could not prove that any of those conditions would have been 261 -62. met; accordingly, this court denied them relief under former RCW 41. 06. 150( 14). Similarly, here, the employees cannot show that all of the conditions necessary to adopt an increased salary schedule under former RCW 41. 06. 133( 10) would have been met. . In order to receive increased compensation under the comparable worth increase under former RCW 41. 06. 133( 10), the employees must show the increase necessary, ( 2) increase, and ( 127 Wn. App. Dep' t the director of Personnel" would have funded the increase. 262; Teamsters, Chauffers, Warehouse, & of Corr., 119 Wn. would have found the director of financial management would have approved the 3) the legislature at that ( 1) App. See Wash. Pub. Emps. Ass' n, Helpers Union Local No. 313 v. 478, 479 -80, 81 P. 3d 875 ( 2003). The employees have not done so here. 10 " Adoption and revision of a state salary schedule to reflect the prevailing rates in Washington state private industries and other governmental units but the rates in the salary schedules or plans shall be increased if necessary to attain comparable worth under an implementation plan under RCW 41. 06. 155 ... ' management in such adoption and revision subject to approval by the director of financial accordance with the provisions of chapter 43. 88 RCW." Wash. Pub. Emps. Ass' n, 127 Wn. App. at 261 n. 1. 11 Since this complaint was filed, the director of human resources in the office of financial management has replaced the director of Personnel. 401 ( 10). 14 LAWS of 2011, 1st Spec. Sess., ch. 43, § 42332 -4 -II The dissent argues that Washington Public Employees Ass' n is partially distinguishable because the director of Personnel does not have flexibility in setting pay under the comparable worth scheme. But, the statute at issue in Washington Public Employees Ass' n contains the same language as former RCW 41. 06. 133( 10): " the rates in the salary schedules or plans shall be increased if necessary to attain comparable worth under an implementation plan under RCW 127 Wn. 41. 06. 155." App. 261 at In both cases, the employees argued that this language n. l. means the Personnel Resources Board or the directors of Personnel and financial management had to adopt equal pay scales for Washington Public Employees Ass' III. comparable n and we uphold that But, we rejected this contention in work. precedent here. 12 COLLATERAL ESTOPPEL The State also argues that the trial court erred by concluding that the State was collaterally estopped from relitigating the issues from a previous case involving classification of PSNs and PSAs. Because both cases involved issues regarding the employees' duties and work environment, we hold that the trial court did not err. The trial action court concluded "[ brought in Thurston t]hat the findings of fact and conclusions of law entered in the County Superior Court Cause Number 80- 2- 00966 -1 . . . are established as a matter of law and the State is collaterally estopped from relitigating those issues based upon the record therein." XI CP at 2170 -71 ( CL 25). 12 The employees in Washington Public Employees Ass' n did not specifically invoke the comparable worth scheme, definition but they did of comparable worth. pay for 261. But seek " equal 127' Wn. App. at equal work," which arguably fits the even if the dissent is correct that the comparable worth statutes provide a private cause of action and Washington Public Employees Ass' n is distinguishable here, the employees here have still failed to show that the legislature would adopt the new schedule or that we may compel an employer to unilaterally increase wages outside of the bargaining process. 15 42332 -4 -II In its 1983 decision, the Thurston County Superior Court reversed the Personnel Board and ordered the forensic nurses and attendants reallocated back to PSN and PSA job classifications. The court found that the " duties and responsibilities of the staff of the mentally ill offender programs are enhanced and are more onerous and exacting" and that the mentally ill offender units " can be best described as ` mini prisons, "' requiring greater levels of security. Ex. 27 at 4. Collateral estoppel works to prevent relitigation of issues that were resolved in a prior proceeding." City of Aberdeen requires `( estoppel ... v. Regan, 170 Wn. 2d 103, 108, 239 P. 3d 1102 ( 2010). " Collateral 1) identical issues; ( 2) a final judgment on the merits; ( 3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and ( 4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied. "' City of Arlington v. Cent. Puget Sound Growth Mgmt. 193 P. 3d 1077 ( 2008) ( Hearings Bd., 164 Wn.2d 768, 792, Bremerton, 109 Wn.2d 504, 745 P. 2d 858 ( 1987) ( 5075 quoting Shoemaker v. City of quoting Malland v. Dep' t of Ret. Sys., 103 Wn.2d 484, 489, 694 P. 2d 16 ( 1985)). The State argues that the first requirement is not met here because the prior litigation involved " the appropriate classification of positions within the State' s classification system" and n] either party to the instant case is arguing that the positions should be reallocated." Appellant' PSAs' s Br. at 47. classifications, the PSNs' and Although the State is correct that neither party is challenging PSNs' and some of PSAs' duties the underlying and the nature issues in both of the forensic cases are ward identical. were at' In both cases, issue. One of the employees who had worked in the forensic ward since before the first litigation testified that her duties have not changed since the time of the first litigation. Thus, the first requirement is met. 16 42332 - -II 4 The final judgment the The prior litigation resulted in a other collateral estoppel requirements are also met. forensic on wards of application the merits. at the collateral The parties for both actions are the same: nurses and attendants in state estoppel hospitals psychiatric to the issues of Personnel and PSNs' and PSAs' and DSHS. Finally, duties and their work environment would not work an injustice on the State. The State does not argue that an injustice would result, and it does not contest the employees' characterization of their duties or work 13 environment. Therefore, the trial court did not err by finding that collateral estoppel applied to the facts of the previous litigation. IV. ATTORNEY FEES The State argues that the trial court erred by awarding attorney fees under both the fee -shifting common fund doctrine common fund doctrine, RCW 49. 48. 030, prevail, and the and employees have statutes. and Because the employees sought fees under the 42 U. S. C. § 1988 all of which require the party to we reverse the trial court' s attorney fee award. not prevailed The employees seek attorney fees on appeal under RAP 18. 1, RCW 49. 48. 030, RCW 49. 52. 070, U. S. C. § and 1988 42 U. S. C. § require a 1988. party to We deny prevail, and the the employees' employees request. did RCW 49. 48. 030 and 42 not prevail on appeal. RCW 49. 52. 070 does not apply because the State did not act willfully. 13 Rather, the State argues that the PSNs' and PSAs' duties and work environment justify treating them differently from LPNs and MHTs. 17 42332 - -II 4 We reverse the trial court' s verdict for the employees and its award to them of attorney fees. I concur: 18 42332 -4 -II BJORGEN, J. ( dissenting) Although I join in the majority' s thoughtful disposition of the other issues in this appeal, I dissent from its determination that the plaintiffs do not have an implied right of action under Washington' s comparable worth statutes and could not recover even if they had such a right. Because I believe that such an implied right of action exists, I would remand this case to allow the trial court to determine whether the case law supplies a remedy for the violation of the comparable worth statutes. I. ANALYSIS A. An implied right of action exists to enforce the comparable worth statute Where the legislature imposes a statutory duty without a corresponding cause of action to enforce the duty, we recognize an implied cause of action if (1) the plaintiff is within the class the legislature passed the statute to benefit, (2) the legislature' s explicit or implicit intent supports the creation of a cause of action, and ( 3) the implied remedy is consistent with the underlying purposes of the legislation. Bennett v. Hardy, 113 Wn.2d 912, 920 -21, 784 P. 2d 1258 1990). The majority does not dispute that the plaintiffs here satisfied the first element of this test. However, it determines that legislative intent does not support the implication of a cause of action and that implying a judicial remedy is inconsistent with the underlying purpose of the statutes. Consequently, the majority holds that the plaintiffs' suit fails on the Bennett test' s second and third prongs. See Bennett, 113 Wn.2d at 920 -21. An analysis of the majority' s conclusion must begin with the well anchored presumption which that conclusion must overcome. The Supreme Court has repeatedly directed that we should presume identifiable that "` the class without legislature would not enact a remedial statute granting rights to an enabling members of that class to enforce those rights, "' and that we should therefore recognize an implied right of action. Bennett, 113 Wn.2d at 919 -20 ( quoting 19 42332 -4 -II McNeal v. Allen, 95 Wn.2d 265, 277, 621 P. 2d 1285 ( 1980) ( Brachtenbach, J. dissenting)). The Supreme Court itself has repeatedly relied on this presumption to assume that plaintiffs have met the second prong of the Bennett test. See, e. g., M.W. Wn.2d 589, 596 -97, 70 P. 3d 954 ( 2003); Wingert 850, 50 P. 3d 256 ( 2002) ( citing Wingert 13 P. 3d 677 ( 2000)); Tyner v. Dep' t v. v. v. Dep' t of Soc. & Health Servs., 149 Yellow Freight Sys., Inc., 146 Wn.2d 841, Yellow Freight Sys., Inc., 104 Wn. App. 583, 591 -92, of Soc. & Health Servs., 141 Wn.Zd 68, 80, 1 P. 3d 1148 2000). Despite this presumption that the legislature has implicitly created a right of action, the majority finds that none exists under the Bennett test for two reasons. First, the majority determines that the legislature enacted the comparable worth statute in order to preempt a class action suit seeking to compel a comparable worth system. However, the State began studying comparable worth in 1974, nearly a decade before the class action suit and the legislature' s adoption of RCW 41. 06. 155. FINAL LEGISLATIVE REPORT, 48th Leg., at 244 ( Wash. 1983). In fact, former Governor Daniel Evans ordered action to redress. wage discrimination as far back as 1973 and included funds for comparable worth raises in his 1976 budget, although his successor, former Governor Dixie Lee Ray, took the appropriation out the next year. Am. Fed' n ofState, County, and Mun. Emps. v. Wash., 578 F. Supp. 846, 862 ( W.D. Wash. 1983). Governor Ray later reversed her stance on the issue and sought funding for comparable worth raises. Am. Fed' n of Emps., 578 F. Supp. at 862. Given the awareness on the part of state officials about existing wage disparities, and repeated attempts to take action against these disparities, we should view the comparable worth statute as an attempt to redress wage discrimination, rather than an attempt to protect the legislature' s prerogative in setting compensation from judicial infringement. An implied cause of action is consistent with this view of RCW 41. 06. 155. 20 42332 -4 -II The majority also reasons that no implied cause of action exists for RCW 41. 06. 155 because the statute calls for the complete implementation of comparable worth by June 30, 1993. In support, the majority notes that the legislature has not made any adjustments to the comparable worth statute since 1993. While true, this history is incomplete. In the first instance, legislative intent is gathered from the plain meaning of the enactment, " but that meaning is discerned from all that the legislature has said in the statute and related statutes, which Ecology v. disclose legislative intent Campbell & about the provision in question." Dep' t of Gwinn, LLC, 146 Wn.2d 1, 11- 12, 43 P. 3d 4 ( 2002). RCW 41. 06. 155 states in its entirety: Salary changes necessary to achieve comparable worth shall be implemented during the 1983 -85 biennium under a .schedule developed by the department. Increases in salaries and compensation solely for the purpose of achieving comparable worth shall be made at least annually. Comparable worth for the jobs of all employees under this chapter shall be fully achieved not later than June 30, 1993. The requirement of annual increases to achieve comparable worth has never been repealed, despite repeated amendments of chapter 41. 06 RCW. Strikingly, the legislature amended this provision in 1993 with an effective date just after the June 30 deadline for achieving comparable worth, but did not touch the requirement for annual increases. LAWS of 1993, ch. 281, §§ 28, 74 amending RCW 41. 06. 155 effective July 1, 1993). Most revealing, though, under Campbell & Gwinn, is the definition of comparable worth in RCW 41. 06. 020( 6): Comparable require or worth" impose means the provision of similar salaries for positions that similar responsibilities, working conditions. 21 judgments, knowledge, skills, and 42332 - -II 4 By its nature, the problem this addresses is not a sort of static landscape that can be fixed one time for all. The landscape moves. Job descriptions change; some jobs go extinct while other new jobs unthought of in 1993 come into being. The marketplace changes, whether from wage pressures in some sectors or economic transformation, like the demise of industries or the rise of others. By its nature, comparable worth is not a steady state once achieved, always preserved. Therefore, reading RCW 41. 06. 155 to impose a continuing obligation to serve comparable worth is most in keeping with its purposes and its definition. The sweeping language of the duty imposed by RCW 41. 06. 155, the legislature' s preservation of that duty after the 1993 deadline, and above all the nature of the definition of comparable worth show a legislative intent that the comparable worth statute retain ongoing vitality. This meets the second and third prongs of the Bennett test. Under Bennett, the plaintiffs have an implied right of action to bring their claim under RCW 41. 06. 155. An implied right of action allows employees to compel pay parity where the legislature has declared it should exist. Our past precedent does not necessarily preclude all remedies here. B. The majority denies the plaintiffs relief for our past precedent. a second reason: We have on two occasions set out the criteria that plaintiffs must meet to obtain relief under statutes similar Wn. Wash. Pub. Emps. Ass' to former RCW 41. 06. 133( 10) ( 2002). App. n v. Pers. Res. Bd., 127 254, 261 -62, 110 P. 3d 1154 ( 2005) ( WPEA); Teamsters, Chauffeurs, Warehouse & Helpers Union Local No. 313 v. Dep' t of Corr. 119 Wn. App. 478, 479 -80, 81 P. 3d 875 ( 2003). Essentially, the plaintiffs must prove that the Director of Finance or the Personnel Resources Board ( PRB) would adopt the pay schedule they seek, the governor would submit it to the legislature, and the legislature would fund the Teamsters, 119 Wn. App. at 479 -80. 22 schedule. WPEA, 127 Wn. App. at 261 -62; 42332 - -II 4 Some of the reasoning in those cases does not apply here because RCW 41. 06. 155 does not give the Director of Finance or PRB flexibility in setting pay. See WPEA, 127 Wn. App. at 261 ( plaintiffs in that case needed to prove the PRB would adopt the higher wage scale to obtain relief). 14 RCW 41. 06. 155' s comparable worth mandate requires the State to raise the wages in job classifications receiving less than similar benchmarked jobs up to the wage level of the benchmarked job. See H. B. REP. on S. B. 3248, at 1, 48th Leg., 1st Ex. Sess. ( Wash. 1983). Thus, the plaintiffs here do not face any difficulties in identifying the appropriate pay scale or demonstrating that the PRB or Director of Finance would adopt this scale. The comparable worth statutes compel this adoption. However, as with the statutes at issue in WPEA and Teamsters, the legislature would have needed to fund the appropriation to achieve comparable worth. We found the need for legislative appropriation precluded relief Pannell v. in Teamsters and WPEA. Our decisions recognized the holding of Thompson, 91 Wn.2d 591, 598 -99, 589 P. 2d 1235 ( 1979), that courts cannot compel the legislature to fund programs unless constitutionally mandated, although we may compel the executive to ask the legislature to appropriate funds for these programs. Whether a remedy 14 In WPEA, the plaintiffs had sought relief based on a portion of former RCW 41. 06. 150( 14) 2002) that App. at required a salary schedule based on the " prevailing rates in Washington." 127 Wn. 261. Although former RCW 41. 06. 150( 14) required consideration of comparable worth, WPEA itself only mentions comparable worth when quoting the language of former RCW 41. 06. 15 0( 14) in a footnote. See WPEA, 127 Wn. App. at 261 n. 14. We did not discuss, and there is no evidence that the plaintiffs raised, the legislature' s mandate that salaries increase to achieve comparable worth. See H.B. REP. on S. B. 3248, at 1, 48th Leg., 1st Ex. Sess. ( Wash. 1983). Because WPEA did not consider the way that RCW 41. 06. 155 constrained the State' s discretion in setting wage scales, it is not precedential for the question we consider today. Cazzinigi v. Gen. Elec. Credit Corp., 132 Wn.2d 433, 443, 938 P. 2d 819 ( 1997) ( "[ T] he court clearly did not address the issue or arguments like those presented here, and we do not find [a be binding precedent] controlling. "); Cont' l Mut. Say. Bank v. Elliott, 166 Wash. 283, 300, 6 P. 2d 638 ( 1932) ( " An opinion is not authority for what is not mentioned prior case said to therein and what does not appear to have been suggested to the court by which the opinion was rendered. "). 23 42332 -4 -II exists within these confines for the violation alleged by plaintiffs is a question best answered by 15 the trial court on remand. II. CONCLUSION By determining that no implied right of action exists, the majority effectively renders the comparable worth statutes irrelevant, despite evidence that the legislature considers them as possessing continuing vitality. While there are limits to the judiciary' s ability to fashion an appropriate remedy, the question of whether an implied right of action allows the plaintiffs to enforce their right to comparable worth under RCW 41. 06. 155 is a separate question from whether there are appropriate remedies associated with that right of action in this case. Under Bennett, the plaintiffs have an implied right of action to enforce this statute. We should remand this case to the trial court so that it can determine whether, under the circumstances of this case, an appropriate remedy exists under applicable case law restrictions. Bi . is As the State notes, constraint on our collective proposal" 1995) ( the ability to bargaining," parties now GEN. bargain collectively for provide an appropriate which limits or " make a concession "); our Brown remedy. ability to force v. wages. This imposes another See RCW 41. 56. 030 ( definition of one side or another to " agree to a Pro Football, Inc., 50 F. 3d 1041, 1051 ( D. C. Cir. analogous National Labor Relations Act " leaves the outcome of the negotiations to the intervention largely proscribed "). Again, the trial court should consider parties, with government whether it can fashion a remedy consistent with this limitation. 24

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