Kathy S. Crofts v. State of Wyoming, ex rel., Department of Game and Fish

2016 WY 4, 367 P.3d 619, 2016 Wyo. LEXIS 4
CourtWyoming Supreme Court
DecidedJanuary 7, 2016
DocketS-15-0090
StatusPublished
Cited by40 cases

This text of 2016 WY 4 (Kathy S. Crofts v. State of Wyoming, ex rel., Department of Game and Fish) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kathy S. Crofts v. State of Wyoming, ex rel., Department of Game and Fish, 2016 WY 4, 367 P.3d 619, 2016 Wyo. LEXIS 4 (Wyo. 2016).

Opinion

FOX, Justice.

[T1] Kathy Crofts appeals from the Of fice of Administrative Hearings' (OAH) finding that good cause supported two suspensions and her dismissal by the Wyoming Game and Fish Department (Game & Fish). Ms. Crofts claims she was denied pre-depri-vation due process and that the OAH did not have jurisdiction to hear her case because her supervisors did not have authority to issue her suspensions. Ms. Crofts did not raise these issues below. We conclude her due process claim is not of such a fundamental nature that it may be raised for the first time on appeal, and that,; because the question of her supervisors' authority is not jurisdictional and was not raised below, we will not hear it now. We affirm.

ISSUES

[T2] 1. May Ms. Crofts raise the issue of deprivation of her procedural due process rights for the first time on appeal? 20,

2, Did the OAH lack jurisdiction over Ms. Crofts' personnel appeal?

FACTS

[¶ 3] Kathy Crofts was a long-term Game & Fish employee. At all relevant times, Ms. Crofts was a wildlife investigator based in Cody, and was entitled to the protections provided to full-time, permanent employees by the State of Wyoming's Personnel Rules.

[¶ 4] Ms. Crofts was issued a one-day suspension without pay on October 18, 2011. That suspension was based upon Ms. Crofts' insubordinate behavior during a September 8, 2011, mid-term performance evaluation meeting with her immediate supervisor, Mike Ehlebracht, and other unprofessional behaviors that Mr. Ehlebracht had addressed during that meeting (including improperly completed travel vouchers and Daily Activity Record (DAR) entries, rude behavior toward the public, and overtime misuse). Mike Cho-ma, Mr. Ehlebracht's immediate supervisor, investigated the conduct and issued the notice of disciplinary suspension. The notice of suspension was hand-delivered at 4:00 p.m. on October 18 and Ms. Crofts served the suspension the next day.

[T5] Ms. Crofts filed a grievance concerning the October 18, 2011, suspension on October 27, 2011. In that grievance, Ms. Crofts claimed that the suspension was issued without cause. She did not question the notice provided to her or Mr. Choma's authority to issue the suspension.

[T6] On April 27, 2012, Game & Fish issued Ms. Crofts a three-day suspension, again without pay. This suspension arose from Ms. Crofts' behavior in conjunction with a joint investigation with U.S. Forest Service Special Agent Bragonier Ms. Crofts and Special Agent Bragonier had investigated a Wyoming outfitter regarding several alleged unlawful behaviors. Ms. Crofts and Special Agent Bragonier had agreed upon the violations .to be charged in state court and those to be filed in federal court. Despite their understanding and contrary to their agreement, state citations were issued on two charges that effectively precluded the federal charges. When he confronted Ms.. Crofts about this, she told Special Agent Bragonier that it was "luck" that the Park County Deputy Attorney chose to prosecute those charges. However, when Special Agent Bra-gonier questioned him, the attorney told him that Ms.. Crofts had specified which state charges should be pursued and which could be dismissed. As a result, Special Agent Bragonier submitted a written complaint to Mr, Ehlebracht questioning Ms. Crofts credibility and stating that he had no desire to work any further investigations with her.

[T7] Mr. ~Ehlebracht investigated the complaint and concluded that Ms. Crofts had misled Special Agent Bragonier and then lied to him to cover it up. The three-day disciplinary suspension without pay was based upon the results of this investigation, past *622 behaviors, and personnel rule violations. The letter notifying Ms. Crofts of the suspension was signed by Mr. Ehlebracht and delivered to Ms. Crofts on Friday, April 27, 2012. She began serving the suspension the following Monday.

[T8] Ms. Crofts filed a grievance concerning the April 27, 2012, three-day disciplinary suspension on May 3, 2012. © That grievance challenged the factual allegations contained in the suspension notice, and contended that the suspension was in retaliation for her filing the first grievance and charges of discrimination that she 'had previously filed before the Equal Employment Opportunity Commission, The grievance did not mention the notice provided to her or Mr. Ehlebracht's authority to sign the letter issuing the suspension. -

[¶ 9] Ms. Crofts returned to work on May 3, 2012, and was immediately placed on administrative leave, this time with pay, and was given notice of intent to dismiss. John Kennedy, the Deputy Director of Internal Operations for Game -& Fish, issued this notice of intent to dismiss Ms. Crofts based upon a number of items, including prior misconduct, unsatisfactory work performance history, incapacity to perform assigned duties, her likely inability to testify in future cases due to her disciplinary record, and her behavior surrounding the Ten Sleep case. Ms. Crofts participation in the Ten Sleep case resulted in U.S. Fish and Wildlife Senior Special Agent Armstrong's complaints that "the success of the investigation was frequently in jeopardy due to [Ms. Crofts'] refusal to recognize [her] own faults and amend [her] behavior to what was expected .."; that Ms. Crofts incorrectly and inaceu-rately documented information in her reports; and stating that he would prefer not to work with her in the future.

[T 10] In addition, because of Ms. Crofts prior suspensmns, the attorney prosecuting the case determined that her testimony would raise Giglio v. United States, 405 U.S. 150, 92 S.Ct 763, 31 L.Ed.2d 104 (1972) issues, bringing into question her credibility as a witness, and thus, he elected not to call her as a witness in the trial, which was to be held in Casper, Ms. Crofts was advised by the attorney that she would not testify as a result of pending disciplinary matters. The day before trial was to start, Ms. Crofts left Cody, heading to Casper. At 8: 80 that morning, Mr, Ehlebracht phoned the Cody. office and got no answer; he then , called Ms. Crofts' cell phone, spoke to.. her about the trial, and directed her to stay in Cody. She questioned his decision several times and did not tell him she was on her way to Casper. Mr. Eblebracht emailed Ms. Crofts and got no response. He then called her again at 8:50 and asked where she was and what she was doing. At that time, Ms. Crofts admitted that she was three-and-a-half hours out of Cody en route to Casper. He told her to return to Cody and answer his email when she got there. She did not respond to the email until 2:59 p.m.

[T 11} On May 16, 2012, Ms Crofts ffled & written response to the notice of intent to dismiss in which she argued that the intent to dismiss was taken in retaliation for her complaint of a hostile work environment; her grievance concerning the October 18, 2011, disciplinary. suspension; her discrimination and hostile work environment claim; and the decision of the state human resources manager to go forward with her grievance. She contended that her April 27, 2012, suspension was retaliatory, and that all of the disciplinary actions were instigated by Mr. Ehle-bracht to set the stage for allegations of dishonesty and ultimately her termination, In addition, she contested the factual bases for the termination. On May 25, 2012, Mr.

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Bluebook (online)
2016 WY 4, 367 P.3d 619, 2016 Wyo. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kathy-s-crofts-v-state-of-wyoming-ex-rel-department-of-game-and-fish-wyo-2016.