Michael Schatz et al., as Individuals and as Class Representatives for All Others Similarly Situated, Respondents,
The Department of Social and Health Services et al., Appellants
[Copyrighted Material Omitted]
Appeal from Pierce County Superior Court. Docket No: 07-2-07962-4. Date filed: 06/09/2011. Judge signing: Honorable Brian Maynard Tollefson.
Robert W. Ferguson, Attorney General, and Kara Larsen and Alicia Young, Assistants, for appellants.
Richard H. Wooster (of Kram & Wooster PS ); and Philip A. Talmadge (of Talmadge / Fitzpatrick ), for respondents.
AUTHOR: Joel Penoyar, J. J. Robin Hunt, P.J. concurs. Thomas R. Bjorgen, J. (dissenting).
[178 Wn.App. 19] ¶ 1 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 and Health Services (DSHS), the Department of Personnel (Personnel), and officials of both agencies, seeking an increase in their salary ranges. The employees alleged that the State violated their equal protection rights, violated the 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 [178 Wn.App. 20] granted a writ of certiorari, (4) the trial court erred 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 statutes. The employees cross appeal, arguing that the trial court erred by finding that they are not entitled to double damages under RCW 49.52.070.
¶ 2 Because it is reasonable for the State to pay employees the salaries they collectively bargained for, the employees' equal protection claim fails. Additionally, the employees are not entitled to any relief under the 1980s era comparable worth statutes. We reverse and hold that the employees are not entitled to attorney fees because they did not prevail.
¶ 3 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 wards--licensed practical nurses (LPNs) and mental health technicians (MHTs). Practical nurses on both the forensic and civil wards share similar duties and responsibilities, but there are a few administrative differences. The LPN series has 3 levels: 1, 2, and 4. LPN4s are designated lead workers on the 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 were in the same salary range as LPN2s.  The PSNs argue that [178 Wn.App. 21] their salary range should at least match LPN4s' salary range.
¶ 4 Attendants on both the forensic and civil wards also share similar duties and responsibilities. Like the practical nurses, the attendants on the civil wards--MHTs--have different levels: 1, 2, and 3, while the forensic attendants--PSAs--have only one level. MHT3s have additional administrative duties beyond those assigned to MHT2s and MHT1s. For example, MHT3s are responsible for placing work orders and ordering supplies, and they serve as ward fire marshals. PSAs perform these same tasks, but they are shared among multiple PSAs. As of 2007, PSAs were one salary range above MHT2s and two ranges below MHT3s. PSAs argue that their salary range should at least match MHTs' salary range.
II. History of PSN and PSA Salary Setting
¶ 5 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 ranges than civil LPNs and hospital attendants  in recognition " of the added danger involved in dealing with felons and the criminally insane." Ex. 40, at 2.
¶ 6 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 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.
[178 Wn.App. 22] ¶ 7 In 1985, the legislature ratified a broad settlement agreement implementing comparable worth. The agreement calculated an average salary line and provided incremental raises for 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.
¶ 8 Statutory changes mandated that in 2004, the employees, through their union, would begin collectively bargaining with the governor over their salary ranges. See RCW 41.80.001, .010(1), .020(1) (providing the matters subject to bargaining, including wages). The governor represents DSHS during collective bargaining negotiations. RCW 41.80.010(1).
III. Procedural History
¶ 9 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.
¶ 10 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 capriciously. The trial court ordered the State to adjust the PSNs' pay range to match the LPN4s' pay range and to adjust the [178 Wn.App. 23] PSAs' pay range to match the MHT3s' pay range beginning on May 16, 2004, and continuing prospectively. The trial court granted the employees prospective relief under 42 U.S.C. § 1983 and back pay under its inherent
authority to compel other branches of government to comply with the law.
¶ 11 The trial court denied the employees' request for double damages but awarded them attorney fees and costs. The trial court awarded employees' counsel one-third of the employees' back pay and interest 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.
¶ 12 The State appeals. The employees cross appeal, arguing that the trial court should have awarded double damages under RCW 49.52.070.
I. Equal Protection
¶ 13 The State first argues that the trial court erred by finding that the State violated the 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 duties. Although historical salary range setting practices are not a rational basis for distinguishing between employees, it is rational for the State to pay the employees what they have bargained to be paid through their union. We reverse the trial court's finding that the employees have shown an equal protection violation.
[178 Wn.App. 24] ¶ 14 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 (2004). In analyzing an equal protection claim, we must first determine the applicable standard of review. Wash. Pub. Emps. Ass'n v. Pers. Res. Bd., 127 Wn.App. 254, 263, 110 P.3d 1154 (2005). Both parties agree that rational basis review applies here, where the classification 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 class, (2) there are reasonable grounds to distinguish between those within and without the class, and (3) the classification has a rational relationship to the state's ...