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Bayless v. Community College District No. X IX

December 5, 1996


Appeal from Superior Court of Franklin County. Docket No: 862502222. Date filed: 06/26/95. Judge signing: Hon. Carolyn A. Brown.

Authored by Ray E. Munson. Concurring: Dennis J. Sweeney, Philip J. Thompson

The opinion of the court was delivered by: Munson

MUNSON, J. M. Sully Bayless appeals the trial court's ruling that RCW 42.40.050, which authorizes actions for damages for unlawful retaliation against whistleblowers, does not apply retroactively. We hold the 1993 amendment was retroactive and remand for a determination of actual damages.

Mr. Bayless was formerly the director of admissions and registrar at Columbia Basin College. In February 1985, Mr. Bayless contacted the state auditor pursuant to the "whistleblower" statute, RCW 42.40, to inform the auditor of what he perceived to be improprieties in the operation and conduct of the College. In May 1985, the College removed Mr. Bayless from his administrative duties and assigned him to his former position as an instructor.

In July 1986, Mr. Bayless filed a complaint in superior court pursuant to former RCW 42.40.050. The statute in effect at that time provided that any employee who supplied information to the auditor which the auditor found warranted further investigation, or which was provided in good faith, and who was subjected to any "reprisal or retaliatory action," could "seek judicial review of the reprisal or retaliatory action in superior court, whether or not there has been an administrative review of the action."

Laws of 1982, ch. 208, sec. 5. The only monetary relief provided by the statute was "reasonable attorney's fees." Laws of 1982, ch. 208, sec. 5. Despite that limitation, Mr. Bayless prayed in his complaint for lost wages and benefits, in addition to reinstatement and attorney fees.

The case was eventually scheduled for a jury trial on March 10, 1993.

In 1992, the Legislature amended RCW 42.40.050 to provide that any whistleblower who has been subjected to workplace reprisal or retaliation may seek the remedies set forth in RCW 49.60, Law Against Discrimination.

Laws of 1992, ch. 118, sec. 3. That law provides for private actions for injunctive relief and for the recovery of actual damages and attorney fees for unlawful discriminatory acts. RCW 49.60.030(2). As a result of the 1992 amendment, Mr. Bayless filed a motion asking the trial court to rule that the new legislation is retroactive, thus entitling him to seek actual damages for the College's retaliatory action. The trial court denied Mr. Bayless' motion, concluding that the 1992 legislation is not retroactive.

Accordingly, the court determined that Mr. Bayless was limited to the recovery of attorney fees, as provided in the former version of RCW 42.40.050. *fn1 This matter then proceeded to trial. In a special verdict, the jury found that Mr. Bayless was a whistleblower and the College exposed him to retaliation and reprisal as a result of his whistleblower activities. The trial court entered a judgment finding that the College violated the whistleblower statute and awarded Mr. Bayless costs and attorney fees totaling $29,879.02. Mr. Bayless has appealed the denial of his request for actual damages.

The general rule is that, absent contrary legislative intent, statutes are presumed to operate prospectively only. Adcox v. Children's Orthopedic Hosp. & Medical Ctr., 123 Wash. 2d 15, 30, 864 P.2d 921 (1993). However, a statute will be deemed to apply retroactively if it is remedial in nature and retroactive application would further its remedial purpose. Macumber v. Shafer, 96 Wash. 2d 568, 570, 637 P.2d 645 (1981). A statute is remedial if it relates to "'practice, procedure or remedies, and does not affect a substantive or vested right.'" In re F.D. Processing, Inc., 119 Wash. 2d 452, 462-63, 832 P.2d 1303 (1992)(quoting In re Mota, 114 Wash. 2d 465, 471, 788 P.2d 538 (1990)). Remedial statutes generally "afford a remedy, or better or forward remedies already existing for the enforcement of rights and the redress of injuries." Haddenham v. State, 87 Wash. 2d 145, 148, 550 P.2d 9 (1976).

The key issue is whether the 1992 amendment is remedial. Mr. Bayless contends that the amendment is remedial because a right to a private cause of action already existed at the time Mr. Bayless first brought this action and the 1992 amendment simply enhances the remedy for the existing cause of action. Mr. Bayless bases his argument largely on Macumber, 96 Wash. 2d 568, 637 P.2d 645, where the Supreme Court retroactively applied a statute increasing the homestead exemption from $10,000 to $20,000. The court found that the amendment was remedial in nature because the increased exemption merely modified the remedy, not the existing right of an unsecured creditor from seeking judgment against the debtor. Macumber, 96 Wash. 2d at 572.

Another decision on point, although not relied on by Mr. Bayless, is Marine Power & Equip. Co. v. Human Rights Comm'n Hearing Tribunal, 39 Wash. App. 609, 694 P.2d 697 (1985). In Marine Power, the Human Rights Commission granted an employee emotional distress damages for national origin discrimination. Marine Power, 39 Wash. App. at 611. While the case was on review in superior court, the Washington Supreme Court held that the Commission was not authorized to award emotional distress damages. Human Rights Comm'n ex rel. Spangenberg v. Cheney Sch. Dist. 30, 97 Wash. 2d 118, 641 P.2d 163 (1982). The superior court therefore granted summary judgment reversing the Commission's monetary award. Marine Power, 39 Wash. App. at 612. While that appeal was pending, the Legislature amended the relevant statute to explicitly authorize the Commission to award any relief that could be ordered by a court, except that mental distress damages were limited to $1,000. RCW 49.60.250; Marine Power, 39 Wash. App. at 612. The Court of Appeals held that the amendment was remedial and applied retroactively since "it created a supplemental remedy for enforcement of a preexisting right." Marine Power, 39 Wash. App. at 617. The amendment did not affect a vested right because companies do not have a right to discriminate against employees. Marine Power, 39 Wash. App. at 617.

This case is similar to both Macumber and Marine Power. When the whistleblower statute was originally enacted in 1982, it provided that "any employee" may seek judicial review. Laws of 1982, ch. 208, sec. 5. This version of the statute was in effect when Mr. Bayless instituted his action in 1986. The College has argued that a private cause of action did not exist under the statute in 1986. However, it is clear ...

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