IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JONATHAN GREENBERG, ) ) No. 74931-5-1 Appellant, ) ) DIVISION ONE V. ) C-) ) UNPUBLISHED OPINION SEATTLE SCHOOL DISTRICT, ) ) FILED: March 6, 2017 Respondent. ) )
BECKER, J. —This is an appeal from an order dismissing a claim for c. 03 01 declaratory judgment and petition for a writ of review filed by a public school
teacher who objects to his employer's imposition of discipline recommended by
an arbitrator. Both claims fail because the arbitration provided an adequate
remedy at law.
In 2012, appellant Jonathan Greenberg was teaching a high school
humanities class in a Seattle school. A student in the class complained about
Greenberg's methods of teaching a unit on race. After the school district
conducted an investigation, the race unit was suspended.
Students drafted a petition to reinstate the race unit. Greenberg allowed
the petition to be circulated during class time. This conduct drew a second
complaint.
The superintendent determined that Greenberg should be disciplined. No. 74931-5-1/2
A collective bargaining agreement between the district and the teachers' union
provides that teachers may not be disciplined without "just and sufficient cause."
The agreement requires a process of "progressive discipline," including "oral
warning, written warning or reprimand, suspension and/or termination as
appropriate to the circumstances." Greenberg had no prior disciplinary history.
The superintendent found just cause to reprimand Greenberg and to transfer him
to a different school.
The union filed grievances on Greenberg's behalf in response to the
proposed discipline, invoking a provision of the bargaining agreement that
requires binding arbitration to resolve disputes. Arbitration hearings occurred
over the course of two days in March 2014. Greenberg was represented by a
union advocate.
On August 12, 2014, the arbitrator issued an opinion and award in which
he determined the district did not have just cause to transfer Greenberg but could
suspend him for 10 working days without pay. Neither party had proposed that
Greenberg be suspended. The opinion stated that the arbitrator would retain
jurisdiction until October 13, 2014, "to resolve disputes regarding the remedy
directed herein." If the arbitrator was advised before October 13 "of any dispute
regarding the remedy directed," the arbitrator's jurisdiction would be "extended
for so long as is necessary to resolve disputes regarding the remedy." If the
arbitrator was not advised of a dispute by October 13, "the Arbitrator's jurisdiction
over this grievance shall then cease."
2 No. 74931-5-1/3
Greenberg requested to take a voluntary leave from teaching from
September 1, 2014, until January 30, 2015. The district approved this request.
The district notified Greenberg on August 20, 2014, of its intention to
implement the arbitrator's decision and provided a draft letter imposing the
recommended 10-day suspension. The arbitrator approved the proposed
discipline during a telephone conference with the parties on September 12, 2014.
On September 28, 2014, the superintendent again notified Greenberg of the
district's plan to impose a suspension.
October 13, 2014, came and went without Greenberg advising the
arbitrator that he disputed the remedy directed by the arbitrator's opinion.
On December 8, 2014, the district notified Greenberg that the suspension
would occur in February 2015, when he was expected to return to teaching. He
responded with a notice of appeal and request for a hearing "to determine
whether sufficient cause exists to adversely impact my employment contract in
the manner set forth in the Notice of Probable Cause issued to me on or about
December 8, 2014." The district responded by informing Greenberg that his
suspension was not subject to further review and his request was untimely.
Greenberg commenced the current action in King County Superior Court
on December 23, 2014, seeking a writ of review and declaratory relief. He
alleged that the district and arbitrator acted unlawfully by sanctioning him to a
suspension.
On January 28, 2015, the superintendent notified Greenberg that in
consideration of the best interests of his students, he would no longer be No. 74931-5-1/4
required to serve a suspension in February. "I will consider that you served your
10-day suspension while you were out on leave from September 1, 2014 to
January 30, 2015." The letter advised Greenberg, "Any further violations of
District policy will be the basis for further discipline, including termination of your
employment."
Greenberg moved for summary judgment on his claim for declaratory
relief. He sought a ruling that the arbitrator had exceeded his authority by
recommending a suspension. He argued that a suspension is a form of
discipline that cannot be imposed without a statutorily required hearing, and that
"matters covered by statutory due process procedures" are exempted by the
collective bargaining agreement from those issues which may be addressed
through arbitration. The district opposed summary judgment, asserting, among
other things, that Greenberg could not meet the requirements for either a writ of
review or declaratory relief.
The court struck Greenberg's motion without prejudice, citing King County
Superior Court Local Civil Rule (KCLR) 98.40, a rule governing writs of review.
That rule provides in part, "When the court has found adequate cause for
issuance of a writ, the filing party shall obtain a trial date and a case schedule
from the clerk who will also assign the case to a Judge." KCLR 98.40(f).
Greenberg had not yet asked the court for a finding of adequate cause to
proceed with his application for a writ. The court's ruling stated, "Only after
receipt of a trial date, case schedule and judicial assignment can dispositive
motions be scheduled."
4 No. 74931-5-1/5
Greenberg filed a motion requesting that the court find adequate cause to
issue a case schedule pursuant to KCLR 98.40 or, in the alternative, that the
court adjudicate the motion for summary judgment with respect to his nonwrit
claim for declaratory relief. The district opposed the motion on various grounds,
including the argument that to obtain either a writ of review or a declaratory
judgment, the petitioner must demonstrate he has no other adequate remedies.
The district argued that because Greenberg had participated in arbitration, he
had been afforded adequate remedies.
The court denied Greenberg's motion and dismissed the suit. Greenberg
appeals.
A writ of review is "an extraordinary remedy reserved for extraordinary
situations." Foster v. King County, 83 Wn. App. 339, 344, 921 P.2d 552 (1996).
The purpose of a writ is to correct errors of law when, among other requirements,
"there is no appeal, 'nor in the judgment of the court, any plain, speedy, and
adequate remedy at law." Devine v. Dep't of Licensing, 126 Wn. App. 941, 949,
110 P.3d 237
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JONATHAN GREENBERG, ) ) No. 74931-5-1 Appellant, ) ) DIVISION ONE V. ) C-) ) UNPUBLISHED OPINION SEATTLE SCHOOL DISTRICT, ) ) FILED: March 6, 2017 Respondent. ) )
BECKER, J. —This is an appeal from an order dismissing a claim for c. 03 01 declaratory judgment and petition for a writ of review filed by a public school
teacher who objects to his employer's imposition of discipline recommended by
an arbitrator. Both claims fail because the arbitration provided an adequate
remedy at law.
In 2012, appellant Jonathan Greenberg was teaching a high school
humanities class in a Seattle school. A student in the class complained about
Greenberg's methods of teaching a unit on race. After the school district
conducted an investigation, the race unit was suspended.
Students drafted a petition to reinstate the race unit. Greenberg allowed
the petition to be circulated during class time. This conduct drew a second
complaint.
The superintendent determined that Greenberg should be disciplined. No. 74931-5-1/2
A collective bargaining agreement between the district and the teachers' union
provides that teachers may not be disciplined without "just and sufficient cause."
The agreement requires a process of "progressive discipline," including "oral
warning, written warning or reprimand, suspension and/or termination as
appropriate to the circumstances." Greenberg had no prior disciplinary history.
The superintendent found just cause to reprimand Greenberg and to transfer him
to a different school.
The union filed grievances on Greenberg's behalf in response to the
proposed discipline, invoking a provision of the bargaining agreement that
requires binding arbitration to resolve disputes. Arbitration hearings occurred
over the course of two days in March 2014. Greenberg was represented by a
union advocate.
On August 12, 2014, the arbitrator issued an opinion and award in which
he determined the district did not have just cause to transfer Greenberg but could
suspend him for 10 working days without pay. Neither party had proposed that
Greenberg be suspended. The opinion stated that the arbitrator would retain
jurisdiction until October 13, 2014, "to resolve disputes regarding the remedy
directed herein." If the arbitrator was advised before October 13 "of any dispute
regarding the remedy directed," the arbitrator's jurisdiction would be "extended
for so long as is necessary to resolve disputes regarding the remedy." If the
arbitrator was not advised of a dispute by October 13, "the Arbitrator's jurisdiction
over this grievance shall then cease."
2 No. 74931-5-1/3
Greenberg requested to take a voluntary leave from teaching from
September 1, 2014, until January 30, 2015. The district approved this request.
The district notified Greenberg on August 20, 2014, of its intention to
implement the arbitrator's decision and provided a draft letter imposing the
recommended 10-day suspension. The arbitrator approved the proposed
discipline during a telephone conference with the parties on September 12, 2014.
On September 28, 2014, the superintendent again notified Greenberg of the
district's plan to impose a suspension.
October 13, 2014, came and went without Greenberg advising the
arbitrator that he disputed the remedy directed by the arbitrator's opinion.
On December 8, 2014, the district notified Greenberg that the suspension
would occur in February 2015, when he was expected to return to teaching. He
responded with a notice of appeal and request for a hearing "to determine
whether sufficient cause exists to adversely impact my employment contract in
the manner set forth in the Notice of Probable Cause issued to me on or about
December 8, 2014." The district responded by informing Greenberg that his
suspension was not subject to further review and his request was untimely.
Greenberg commenced the current action in King County Superior Court
on December 23, 2014, seeking a writ of review and declaratory relief. He
alleged that the district and arbitrator acted unlawfully by sanctioning him to a
suspension.
On January 28, 2015, the superintendent notified Greenberg that in
consideration of the best interests of his students, he would no longer be No. 74931-5-1/4
required to serve a suspension in February. "I will consider that you served your
10-day suspension while you were out on leave from September 1, 2014 to
January 30, 2015." The letter advised Greenberg, "Any further violations of
District policy will be the basis for further discipline, including termination of your
employment."
Greenberg moved for summary judgment on his claim for declaratory
relief. He sought a ruling that the arbitrator had exceeded his authority by
recommending a suspension. He argued that a suspension is a form of
discipline that cannot be imposed without a statutorily required hearing, and that
"matters covered by statutory due process procedures" are exempted by the
collective bargaining agreement from those issues which may be addressed
through arbitration. The district opposed summary judgment, asserting, among
other things, that Greenberg could not meet the requirements for either a writ of
review or declaratory relief.
The court struck Greenberg's motion without prejudice, citing King County
Superior Court Local Civil Rule (KCLR) 98.40, a rule governing writs of review.
That rule provides in part, "When the court has found adequate cause for
issuance of a writ, the filing party shall obtain a trial date and a case schedule
from the clerk who will also assign the case to a Judge." KCLR 98.40(f).
Greenberg had not yet asked the court for a finding of adequate cause to
proceed with his application for a writ. The court's ruling stated, "Only after
receipt of a trial date, case schedule and judicial assignment can dispositive
motions be scheduled."
4 No. 74931-5-1/5
Greenberg filed a motion requesting that the court find adequate cause to
issue a case schedule pursuant to KCLR 98.40 or, in the alternative, that the
court adjudicate the motion for summary judgment with respect to his nonwrit
claim for declaratory relief. The district opposed the motion on various grounds,
including the argument that to obtain either a writ of review or a declaratory
judgment, the petitioner must demonstrate he has no other adequate remedies.
The district argued that because Greenberg had participated in arbitration, he
had been afforded adequate remedies.
The court denied Greenberg's motion and dismissed the suit. Greenberg
appeals.
A writ of review is "an extraordinary remedy reserved for extraordinary
situations." Foster v. King County, 83 Wn. App. 339, 344, 921 P.2d 552 (1996).
The purpose of a writ is to correct errors of law when, among other requirements,
"there is no appeal, 'nor in the judgment of the court, any plain, speedy, and
adequate remedy at law." Devine v. Dep't of Licensing, 126 Wn. App. 941, 949,
110 P.3d 237 (2005), quoting RCW 7.16.040. The absence of a right to appeal
or other remedy is an "essential element" of the superior court's authority to grant
a statutory writ of review. Coballes v. Spokane County, 167 Wn. App. 857, 866,
274 P.3d 1102 (2012). Writs of review "should be granted sparingly." City of
Seattle v. Holifield, 170 Wn.2d 230, 239-40, 240 P.3d 1162 (2010), quoting City
of Seattle v. Williams, 101 Wn.2d 445, 455, 680 P.2d 1051 (1984).
The existence of another adequate remedy "does not preclude a judgment
for declaratory relief in cases where it is appropriate." CR 57. But courts "will be No. 74931-5-1/6
circumspect" in granting declaratory relief. Ronken v. Bd. of County Comm'rs of
Snohomish County, 89 Wn.2d 304, 310, 572 P.2d 1 (1977). "Ordinarily, where a
plaintiff has another adequate remedy, he or she should not proceed by way of a
declaratory judgment action." Wagers v. Goodwin, 92 Wn. App. 876, 880, 964
P.2d 1214 (1998).
Thus, both Greenberg'S claim for declaratory relief and his petition for a
writ of review presuppose that he had no other adequate remedies.
After the arbitrator issued his ruling, he retained jurisdiction for two months
in case it became necessary to resolve a dispute about the recommended
remedy. Greenberg did not contact the arbitrator to dispute the recommended
remedy of a 10-day suspension during the 2-month period when he could have
done so. If Greenberg had advised the arbitrator that he believed the arbitrator
lacked authority to impose a suspension, the arbitrator would have had the
opportunity to recommend a different remedy if he found that Greenberg's
position was meritorious.
Greenberg was promptly notified of the arbitrator's ruling and the district's
intention to impose the remedy recommended. He had ample time to seek
reconsideration by the arbitrator. Greenberg fails to show that his opportunity to
return to the arbitrator was not an adequate remedy.
"This court can affirm on any ground within the proof before the trial court."
Bremerton Concrete Prods. Co. v. Miller, 49 Wn. App. 806, 810, 745 P.2d 1338
(1987); see also State v. Carroll, 81 Wn.2d 95, 101, 500 P.2d 115 (1972). There
6 No. 74931-5-1/7
was proof before the trial court that the grievance procedure afforded Greenberg
an adequate remedy. Thus, the court did not err in dismissing his claims.
Because Greenberg had an adequate remedy, he cannot satisfy the
requirements for a writ or declaratory relief. It is unnecessary to address the
district's remaining arguments in support of dismissal.
Affirmed.
WE CONCUR: