By David E. Worley
In Woodbury v. City of Seattle (2012 Wash. App LEXIS 47), the Washington Appeals Court upheld the dismissal of a Superior Court complaint by a police officer regarding retaliation for a whistleblower action. The Appellate Court held that under the relevant statute, a local government employee may only seek administrative relief initially, and Civil Courts will only be involved when appealing that administrative relief.
RCW 42.41 governs the whistleblower protection afforded to local government employees, granting relief through administrative hearings only. Further, SMC 4.20.860 controls how Seattle City employees may appeal the relief granted at the local level. There is no provision in either law that allows a local government employee a claim in Superior Court.
The court noted the conspicuous absence of any language indicating a tort claim may be available, unlike the law for state government employees.
State government employees are granted a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees. In contrast, chapter 42.41 RCW does not mention any cause of action, and does not mention Washington’s law against discrimination.It is well settled that where the legislature uses certain language in one instance but different, dissimilar language in another, a difference in legislative intent is presumed.
Woodbury argued the permissive language in both statutes indicated that the administrative relief was not intended to be the sole relief available. Examining precedential cases regarding statutory construction, the court found that alternative claims are only acceptable when an alternative tort claim is actually recognized under common law. As there is no common law tort for disciplinary action less than termination, there is no alternative claim available for the alleged retaliatory demotion of Woodbury.
