                                                                                                                   FILED
                                                                                                         G DljRT OF+             LS


                                                                                                                         r7\     37
      IN THE COURT OF APPEALS OF THE STATE OF W                                                                      N
                                                                                                         STA E OIAAIiN
                                                       DIVISION II


MICHAEL SCHATZ; DANI KENDALL; and                                                         No. 42332 -4 -II
JOSEPH MINOR, as individuals and as class
representatives for all others similarly situated,

                                           Respondents,


          V.



STATE OF WASHINGTON; DEPARTMENT                                                       PUBLISHED OPINION

OF     SOCIAL              AND     HEALTH         SERVICES;
DEPARTMENT                    OF     PERSONNEL;                  and

DOES 1 - 10 in their official capacities,




           PENOYAR, J. —           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,
                       2
                           seeking   an   increase in their salary      ranges.      The employees alleged that the State

                                                  rights,   violated     the   comparable      worth   statutes,   and   acted
violated       their       equal   protection




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

                                                                   granted a writ of certiorari, (   4) the trial court erred
 worth statutes, (         3) the trial   court   improperly


     We refer to the plaintiffs collectively as the employees.

 2
     We   refer   to the defendants collectively            as   the State.
42332 -4 -II




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. 070.3

         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.

                                                            FACTS


I.           BACKGROUND


             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: Is,


 2s,   and   4s.    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




 3 Some of the statutes in our opinion have been amended since the employees filed their claim.
 A few of the amendments were minor and did not affect the substance of the statute or our
 analysis. Unless otherwise noted, we cite to the current version of the statute.

                                                                 2
42332 -4 -II




were   in the   same   salary    range as     LPN2s.   4 The PSNs argue that their salary range should at least

match LPN4s' salary range.

           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:      Is, 2s,    and   3s,    while   the forensic         attendants — PSAs       —have       only one level.

MHT3s have additional administrative duties beyond those assigned to MHT2s and MHT1 s. For

example, MHT3s are responsible for placing work orders and ordering supplies and they serve as

ward   fire   marshals.   5 PSAs perform these same tasks, but they are shared among multiple PSAs.

As         2007, PSAs     were one               range above        MHT2s       and   two   ranges      below MHT3s.          PSAs
      of                                salary


argue that their salary range should at least match MHTs' salary range.

II.        HISTORY OF PSN AND PSA SALARY SETTING

           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



           danger involved in                        felons             the criminally insane."         Ex. 40 at 2.
 added                             dealing    with            and




            In 1976, the State moved the mental health units from corrections institutions to state

                hospitals   and reclassified         PSNs     and       PSAs   as    LPNs   and    hospital     attendants.    The
 psychiatric




 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




 4 From 1993 to 2006, PSNs were in a lower salary range than LPN2s.

 5 MHT3s are fire marshals for day shifts, and MHT2s may be fire marshals on evening shifts.
 6 Hospital attendants were reclassified to MHTs.
                                                                    3
42332 -4 -II



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.

         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.

          Statutory changes mandated that, in 2004, the employees, through their union, would
                                                  the   governor over    their salary   ranges.    See RCW 41. 80. 001,
begin collectively       bargaining        with




RCW 41. 80. 010( 1),         RCW 41. 80. 020( 1) (        providing the matters subject to bargaining, including

                                                                                      bargaining       negotiations.   RCW
wages).        The    governor    represents       DSHS       during    collective




41. 80. 010( 1).


 III.     PROCEDURAL HISTORY


          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.



 7 " Comparable worth" is defined as " the provision of similar salaries for positions that require or
                                             judgments, knowledge,          skills, and                conditions."    Former
 impose    similar responsibilities,                                                      working

 RCW 41. 06. 020( 5) ( 1993).
                                                                  4
42332 - -II
      4




           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 PSAs' pay range to match the
                                                      16, 2004,                                        The trial court
MHT3s' pay           range   beginning     on   May                  and   continuing prospectively.


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.
           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.

           The State      appeals.      The employees cross -appeal, arguing that the trial court should have

awarded double damages under RCW 49. 52. 070.

                                                         ANALYSIS


1.         EQUAL PROTECTION


           The State first argues that the trial court erred by finding that the State violated the
                                                  8
 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



 8 The trial court concluded that the State violated both state and federal equal protection
 guarantees.       State equal protection analysis is subsumed under federal equal protection analysis
                                                            v. Dep' t of Labor & Indus., 147 Wn.2d 725,
 unless a      party alleges undue favoritism. Willoughby
 739   n. 8,   57 P. 3d 611 ( 2002). The trial court found that there was no favoritism in this case and
 the employees do not appeal this finding; therefore, we analyze the arguments under federal
 equal protection analysis.
                                                                 5
42332 -4 -II




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.


          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 purpose..

 Wash. Pub. Emps. Ass'           n,     127 Wn.   App.    at   263.   The burden is on the challenging parry to show

that the    classification      is purely arbitrary.       Gossett        v.   Farmers Ins. Co., 133 Wn.2d 954, 979, 948


 P. 2d 1264 ( 1997).


           A.        Designated Class


           The parties disagree about how to define the designated class. The State argues that each

job classification (PSN, PSA, LPN4, and MHT3) constitutes a designated class and that there are

 rational   reasons     to treat        each   job   classification        differently.   The employees argue that the


 designated class consists of PSNs and PSAs, who do the same work as LPN4s and MHT3s but

 are paid    less.   Thus, in order to define the class, it is necessary to first determine whether PSNs

 and PSAs do the same work as LPN4s and MHT3s.
                                                                      N
42332 - -II
      4



         The trial   court     found that PSNs' duties             are "   essentially the       same"   as LPN4s' duties and


that PSAs'    duties   are "   essentially the       same"    as   MHT3s' duties. XI Clerk' s Papers ( CP) at 2160


 FF 19, 21).         The trial       court    characterized        any differences between the                positions       as "   de


minimus."     XI CP     at   2160 ( FF 18).        We review challenged findings of fact to determine whether

                                                              City      of Tacoma      v.   William Rogers Co., 148 Wn.2d
they   are supported    by     substantial evidence.




169, 191, 60 P. 3d 79 ( 2002) (            quoting Fred Hutchinson Cancer Research Ctr. V. Holman, 107

Wn. 2d 693, 712, 732 P. 2d 974 ( 1987)).                  Substantial evidence is evidence sufficient to persuade a


fair -
     minded     person       of   the truth   of    the   matter    asserted.        City of Tacoma, 148 Wn.2d at 191

                                Research Or., 107 Wn.2d                                     at   712).   As long as substantial
 quoting Fred Hutchinson Cancer

                                         it does                        that   other   evidence      may   contradict   it.     In re
evidence     supports    a   finding,                not    matter




Marriage of Burrill, 113 Wn.                         863, 868, 56 P. 3d 993 ( 2002).                 Here, there is substantial
                                              App.

evidence to support the trial court' s findings regarding the similarities among the positions.

         PSNs' duties         are similar     to LPN4s'       duties.       According to DSHS' s position descriptions

and testimony from Western State Hospital' s nurse executive, PSNs and LPN4s have similar
 education and experience requirements and similar                         nursing   responsibilities.     The State points out


that LPN4s are designated as lead workers and perform certain administrative tasks, such as

              registered     nurses (   RNs)       with    assigning       work.       However, PSNs testified that they
 assisting


 perform many of the same tasks as LPN4s, and they too act as lead workers when there is no RN
 present.




          Likewise, PSAs'            duties   are    similar to     MHT3s'         duties.       Again, according to DSHS' s

 position descriptions and testimony from a nurse executive, PSAs and MHT3s require similar

 education and skills and           have   similar responsibilities.            Although the State argues that there was


 some    testimony contradicting           the     similarities —    there are multiple PSNs per shift and only one

                                                                    7
42332 - -II
      4




LPN4, PSNs and PSAs have increased security concerns, and the daily needs of the patients vary

by   ward —   as long as there is substantial evidence to support a finding, we will affirm it despite

contradictory evidence.

         Because PSNs and PSAs do the same work as LPN4s and MHT3s but are paid less, we

agree with      the   employees    that the designated     class consists of        PSNs       and   PSAs.      In Washington


Public Employees Association, we held that the designated class was defined by those employees

who receive      disparate treatment.         127 Wn.   App.     at   264.   Here, the PSNs and PSAs are receiving


disparate treatment—         they are paid at a lower salary range than the LPN4s and MHT3s even
though their duties are comparable.


         B.           Reasonable Grounds and Rational Relationship

         The next issue is whether there are reasonable grounds to distinguish between those

                              class —PSNs             PSAs —and those           without— LPN4s            and     MHT3s.       The
within   the designated                         and




State   gives   two     reasons   why it is   reasonable   to pay the forensic           and civil nurses       differently: ( 1)


they are in separate job classifications and ( 2) the employees bargained for their wages.
         The State' s first argument fails because historical rate setting practices are not reasonable

                                                                                               the   designated      class.        In
 grounds      for distinguishing between those              within       and    without




 Washington Public Employees Association, we held that the State violated employees' equal

 protection rights by paying certain employees in general government less than similarly situated
 employees      in higher    education and vice versa.         127 Wn.       App.   at   257, 268. The State argued that,


 because general government and higher education employees have historically been treated

                 this                    basis for paying them differently.                   Wash. Pub. Emps. Ass' n, 127
 differently,           was a rational




                      267.   We               this   analysis,   reasoning that          no    rational   basis   existed     to   set
 Wn.    App.     at                rejected
42332 - -II
       4




different salaries for state employees doing the same work where the disparities are based on

historical   practice rather       than job differences.               Wash. Pub. Emps. Ass' n, 127 Wn. App. at 268.

         Similarly, here, the State' s argument for paying PSNs and PSAs less than LPN4s and

MHT3s is based on historical rate setting practices and not an evaluation of their job differences.

Personnel'    s classification and compensation program                                director testified that "[     t]he salary ranges

that [ PSNs     and      PSAs      are]       paid   are   based       on    the    actions     that   occurred      over   time [ such as



comparable worth and collective                      bargaining], .:.            so I guess the fact that they' ve ended up this

             fact                                how ...         it                 5 Report      of   Proceedings ( RP)       at   493.   We
way is   a          of   the   system and                             works."




rejected a similar explanation in Washington Public Employees Association, and we do so here.

         However, the State'              s   second       argument         is   persuasive.      A    classification   that   is "`   neither




capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy "'
does   not violate equal protection.                  Forbes v. City of Seattle, 113 Wn.2d 929, 944, 785 P. 2d 431

 1990) (   quoting Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 527, 79 S. Ct. 437, 3 L. Ed.
2d 480 ( 1959)).           Here, the State' s actions are not arbitrary; they are based on the collective

bargaining     agreement         between the           employees         and       the State.     The employees have collectively

bargained for their            wages since       2004, three          years      before they filed this      suit.    It is reasonable for


the State to pay the employees the rates their union negotiated for them during collective
bargaining.

           Additionally, the State' s actions are rationally related to its interest in abiding by
                                                           The    purpose         of    chapter   41. 56 RCW is " to promote the
 collective    bargaining          agreements.




 continued improvement of the relationship between public employers and their employees by

 providing a uniform basis for implementing the right of public employees to join labor
                     of    their    own                      and      to be       represented      by    such   organizations."            RCW
 organizations                                 choosing

                                                                            0
42332 -4 -II




41. 56. 010.      The purpose of the act is not served if the State ignores a collectively bargained
                                                                       9
agreement and        unilaterally   sets   the   employees'   rates.




           The employees do not provide any authority stating that collective bargaining is not a

rational    basis for      determining     salary   rates.    At oral argument, the employees compared their


situation to one where the State uses a racially discriminatory collective bargaining agreement to

justify its discriminatory        actions.       However, this hypothetical involves a suspect classification,


and the State' s actions would be subject to strict scrutiny, not rational review. Am. Legion Post

                                                             192 P. 3d 306 ( 2008).               Further, although we
No. 149     v.   Dep' t   of Health, 164 Wn.2d 570, 608 -09,


did not find any Washington case law directly on point, case law from other jurisdictions
supports our       decision.    See Collins v. County of Monroe, 531 F. Supp. 2d 522, 527 ( W.D.N.Y.

2008) (    dismissing employee' s equal protection complaint, in part, because employer' s conduct
conformed         to the   collective   bargaining    agreement);          St. Cloud Police Relief Ass' n v. City of St.

Cloud, 555 N.W. 2d 318, 321 ( Minn. Ct.                App.   1996) ( " The     guarantee of equal protection does not

require equal outcomes in labor- management negotiations. ").

           It is reasonable for the State to pay the employees what their union has bargained for
them to      be    paid.    Therefore, we reverse the trial court' s conclusion that the employees have

 proven an equal protection claim.



 II.       COMPARABLE WORTH


           The State next argues that the trial court erred by granting the employees relief under the

 comparable worth statutes.             Specifically, they argue that ( 1) the comparable worth statutes did
 not create a private cause of action, (            2) the employees cannot show that the conditions within the


 9 Moreover, as the State points out, it is unlawful for an employer to increase wages outside of
 the collective bargaining process. Nat' l Labor Relations Bd. v. Katz, 369 U.S. 736, 743, 745 -46,
 82 S. Ct. 1107, 8 L. Ed. 2d 230 ( 1962).
                                                                10
42332 -4 -II




statutes   have been     met, and (   3) the trial   court cannot "        subjectively determine" the comparable


worth of positions.       Appellant'   s    Reply   Br.   at   28.    Because legislative intent does not support a


remedy in this case and implying a remedy would be inconsistent with the underlying purpose of

the legislation, we agree that the comparable worth statutes did not create a private cause of

action.     And, even if there was a cause of action, the employees cannot show that they are

entitled to relief under the statutes.


           Former RCW 41. 06. 020( 5) defines comparable worth as " the provision of similar salaries


for positions that require or impose similar responsibilities, judgments, knowledge, skills, and

working     conditions."    The employees argue that the State violated its duty to achieve comparable

worth compensation for PSNs and PSAs.

           The   employees   base their      argument on        two    statutes,   former RCW 41. 06. 133( 10) ( 2002)


and RCW 41. 06. 155. Former RCW 41. 06. 133( 10) states,

           The director [   of   Personnel] shall adopt rules, consistent with the purposes and
           provisions of this chapter and with the best standards of personnel administration,
                                                          to be followed for ... [      a] doption and revision
           regarding the basis     and procedures


           of a state salary schedule to reflect the prevailing rates in Washington state private
           industries and other governmental units. The rates in the salary schedules or plans
                                                                                                     under   an
           shall    be   increased     if necessary to   attain              comparable      worth


           implementation     plan    under RCW 41. 06. 155 ....               Such adoption and revision is
           subject to approval by the director of financial management in accordance with
           chapter 43. 88 RCW.


 RCW 41. 06. 155 states,


           Salary changes necessary to achieve comparable worth shall be implemented
           during the 1983 -85 biennium under a schedule developed by the department.
           Increases in salaries and compensation solely for the purpose of achieving
           comparable worth shall          be   made at   least annually. Comparable worth for the jobs
           of all employees under this chapter shall be fully achieved not later than June 30,
            1993.




                                                                 11
42332 -4 -II




          A.         Private Cause of Action


          First, the State argues that the comparable worth statutes do not create a private cause of

action.     The     statutes   do   not   explicitly   create a cause           of action,   but "   a cause of action may be

implied from a statutory provision when the legislature creates a right or obligation without a

corresponding remedy."              Ducote    v.   Dep' t   of Soc. & Health Servs., 167 Wn.2d 697, 703, 222 P. 3d


785 ( 2009).        To determine whether a cause of action exists, we consider ( 1) whether the plaintiffs

are within     the   class of persons       for    whose     benefit the       statute was enacted, (    2) whether legislative


intent supports, creating or denying a remedy, and ( 3) whether implying a remedy is consistent
with   the underlying          purpose of     the legislation.          Wash. State Coal. for the Homeless v. Dep' t of

Soc. &      Health Servs., 133 Wn.2d 894, 912 -13, 949 P. 2d 1291 ( 1997) (                           citing Bennett v. Hardy,

 113 Wn.2d 912, 920 -21, 784 P. 2d 1258 ( 1990)).

            The employees are within the class of persons for whose benefit the comparable worth

 statutes    were     enacted.      Courts look to statutory language to determine whether plaintiffs are

 members       of   the   protected class.         Tyner    v.   Dep' t   of Soc. &   Health Servs., 141 Wn.2d 68, 78, 1


 P. 3d 1148 ( 2000) ( quoting             Schooley    v.   Pinch'   s   Deli Mkt., Inc.,     134 Wn.2d 468, 475, 951 P. 2d


 749 ( 1998)).        RCW 41. 06. 155 requires achievement of comparable worth for the " jobs of all

 employees under           this   chapter."    RCW 41. 06. 070( 1)             lists employees who are not subject to the


 provisions        of chapter     41. 06 RCW.         This list does not include PSNs and PSAs; thus, they are

  employees under this chapter" and within the class of persons for whose benefit the comparable

 worth statutes were enacted.



            However, legislative intent does not support the remedy the employees seek here and

                                                                             the underlying               of   the   statutes.   The
 implying      a    judicial remedy is inconsistent                with                        purpose




 legislature enacted the comparable worth statutes to protect its prerogative in setting state
                                                                        12
42332 -4 -II




employees' compensation. The legislature enacted RCW 41. 06. 155, providing a 10 -year process

for achieving comparable worth, subsequent to a 1982 Title VII suit by a group of state
employees.        LAWS of 1983, 1st Ex. Sess.,                 ch.   75, §   6; see Am. Fed' n of State, Cnty., and Mun.

Emps.     v.   Wash., 578 F.      Supp.    846 ( W. D. Wash. 1983).. The litigation continued, so, in 1985, the


legislature      provided         more    than $    40 million for settlement of the Title VII                          suit and

implementation          of               comparable worth.            LAWS    of   1985, 1st Ex. Sess.,   ch.   6, § 702. Thus,
                             statutory


the   legislature        enacted     the     comparable          worth       statute   and   appropriated       funds    for   its


implementation in order to settle and avoid, not encourage, litigation.

           Moreover, the legislature limited the time frame for implementing comparable worth,

                 that    it did          intend to        provide      an    ongoing remedy.       RCW 41. 06. 155         states
indicating                         not



                                             be                              later than June 30, 1993."         Since 1993, the
  c] omparable worth ...             shall        fully   achieved not




State has not made any comparable worth adjustments.

           Because the legislature enacted the comparable worth statutes to avoid litigation and

because it limited the time frame for implementing comparable worth, legislative intent does not

 support an ongoing private cause of action under the comparable worth statutes.

           B.           Relief


           Even if the comparable worth statutes did create a private cause of action, the employees

 cannot show that they are entitled to relief. In Washington Public Employees Ass' n, we denied
 employees relief under a civil service statute because they failed to prove that all the conditions

 in the   statute were met.         127 Wn.       App.    at   262.     There, the employees argued that they had been

 deprived of equal pay for equal work and sought an order requiring the Personnel Resources
 Board to adopt a single salary schedule for employees in general government and higher


                                                                      13
42332 -4 -II




education under           former RCW 41. 06. 150( 14) ( 2002). 10              Wash. Pub. Emps. Ass' n, 127 Wn. App.

at   261.    But, to      attain   that   relief,   the   employees      had to   show (   1)   what schedule the Personnel


Resources Board           would     have    adopted, (     2) that the director of financial management would have

approved      the   adopted schedule, (        3) that the governor would have sent the adopted schedule to the


legislature,    and ( 4)    that the legislature          would   have implemented it. Wash. Pub. Emps. Ass' n, 127


Wn.    App.    261 -62.      The employees could not prove that any of those conditions would have been

met; accordingly, this court denied them relief under former RCW 41. 06. 150( 14).
            Similarly, here, the employees cannot show that all of the conditions necessary to adopt

     increased salary        schedule under          former RCW 41. 06. 133( 10)           would   have been   met. .   In order
an




to receive increased compensation under the comparable worth increase under former RCW

41. 06. 133( 10), the        employees must show             that ( 1)    the director of Personnel"      would have found


the increase necessary, ( 2)                the director of financial management would have approved the

increase,     and (   3) the legislature       would       have funded the increase.            See Wash. Pub. Emps. Ass' n,


 127 Wn.                    262; Teamsters, Chauffers, Warehouse, &                     Helpers Union Local No. 313 v.
               App.    at




                                              478, 479 -80, 81 P. 3d 875 ( 2003).               The employees have not done
Dep' t      of Corr., 119 Wn.         App.

 so here.




 10 " Adoption and revision of a state salary schedule to reflect the prevailing rates in Washington
 state private industries and other governmental units but the rates in the salary schedules or plans
 shall be increased if necessary to attain comparable worth under an implementation plan under
 RCW 41. 06. 155 ... '             such adoption and revision subject to approval by the director of financial
 management          in    accordance       with    the   provisions      of chapter   43. 88 RCW."        Wash. Pub. Emps.

 Ass' n, 127 Wn. App. at 261 n. 1.

 11 Since this complaint was filed, the director of human resources in the office of financial
 management          has    replaced      the director of Personnel.          LAWS     of 2011,     1st Spec. Sess., ch. 43, §

 401 ( 10).
                                                                     14
42332 -4 -II




          The dissent argues that Washington Public Employees Ass' n is partially distinguishable

because the director of Personnel does not have flexibility in setting pay under the comparable

worth scheme. But, the statute at issue in Washington Public Employees Ass' n contains the same

language     as   former RCW 41. 06. 133( 10): "               the rates in the salary schedules or plans shall be

increased if necessary to attain comparable worth under an implementation plan under RCW
41. 06. 155."      127 Wn.       App.   at   261   n. l.    In both cases, the employees argued that this language

means the Personnel Resources Board or the directors of Personnel and financial management

had to     adopt    equal    pay    scales     for    comparable         work.     But, we rejected this contention in

                                                                                                     12
Washington Public Employees Ass'                   n and we uphold        that   precedent   here.


III.      COLLATERAL ESTOPPEL


          The State also argues that the trial court erred by concluding that the State was

collaterally estopped from relitigating the issues from a previous case involving classification of
PSNs      and   PSAs.     Because both cases involved issues regarding the employees' duties and work

environment, we hold that the trial court did not err.

           The trial    court concluded "[         t]hat the findings of fact and conclusions of law entered in the

 action    brought in Thurston               County        Superior Court Cause Number                    80- 2- 00966 -1 . . .   are




 established as a matter of law and the State is collaterally estopped from relitigating those issues

 based    upon    the   record   therein."    XI CP at 2170 -71 ( CL 25).




 12 The employees in Washington Public Employees Ass' n did not specifically invoke the
 comparable worth scheme,               but they did       seek " equal    pay for   equal work,"         which arguably fits the
 definition     of comparable worth.           127' Wn.      App.   at   261. But    even if the dissent is correct that the
 comparable worth statutes provide a private cause of action and Washington Public Employees
 Ass' n is distinguishable here, the employees here have still failed to show that the legislature
 would adopt the new schedule or that we may compel an employer to unilaterally increase wages
 outside of the bargaining process.
                                                                    15
42332 -4 -II




           In its 1983 decision, the Thurston County Superior Court reversed the Personnel Board

and ordered the forensic nurses and attendants reallocated back to PSN and PSA job

classifications.         The court found that the " duties and responsibilities of the staff of the mentally

ill offender programs are enhanced and are more onerous and exacting" and that the mentally ill

offender units " can          be best described       as ` mini prisons, "'    requiring greater levels of security. Ex.

27 at 4.


            Collateral estoppel works to prevent relitigation of issues that were resolved in a prior

proceeding."        City   of Aberdeen       v.   Regan, 170 Wn. 2d 103, 108, 239 P. 3d 1102 ( 2010). " Collateral


estoppel ...       requires `(      1) identical issues; ( 2)   a   final judgment      on   the   merits; (    3) the party against

whom the plea is asserted must have been a party to or in privity with a party to the prior

adjudication; and ( 4) application of the doctrine must not work an injustice on the party against

whom       the doctrine        is to be   applied. "'      City of Arlington v. Cent. Puget Sound Growth Mgmt.

Hearings Bd., 164 Wn.2d 768,                       792,   193 P. 3d 1077 ( 2008) (           quoting Shoemaker v. City of

Bremerton, 109 Wn.2d 504,                  5075    745 P. 2d 858 ( 1987) (      quoting Malland v. Dep' t of Ret. Sys.,

 103 Wn.2d 484, 489, 694 P. 2d 16 ( 1985)).

           The State argues that the first requirement is not met here because the prior litigation

involved " the appropriate classification of positions within the State' s classification system" and

   n] either party to the instant case is arguing that the positions should be reallocated."
Appellant'     s   Br.   at   47.   Although the State is correct that neither party is challenging PSNs' and

 PSAs'     classifications,         some of   the underlying        issues in both      cases are     identical.     In both cases,


 the PSNs'         and   PSAs' duties        and    the   nature    of   the forensic   ward       were   at'   issue.   One of the


 employees who had worked in the forensic ward since before the first litigation testified that her

 duties have not changed since the time of the first litigation. Thus, the first requirement is met.
                                                                    16
42332 - -II
      4




        The    other collateral estoppel requirements are also met.                          The prior litigation resulted in a


final judgment         on   the   merits.      The parties for both actions are the same: nurses and attendants in

the   forensic    wards           at   the    state   psychiatric      hospitals     and    Personnel     and   DSHS.   Finally,

application      of    collateral          estoppel   to the issues          of   PSNs'    and   PSAs'   duties and their work


environment would not work an injustice on the State. The State does not argue that an injustice

would result, and it does not contest the employees' characterization of their duties or work
                  13
environment.           Therefore, the trial court did not err by finding that collateral estoppel applied to

the facts of the previous litigation.


IV.      ATTORNEY FEES


         The State argues that the trial court erred by awarding attorney fees under both the

common       fund doctrine             and   fee -shifting   statutes.       Because the employees sought fees under the


common       fund doctrine, RCW 49. 48. 030,                 and    42 U. S. C. § 1988 — all       of which require the party to

prevail, and     the    employees            have   not prevailed —     we reverse the trial court' s attorney fee award.

         The employees seek attorney fees on appeal under RAP 18. 1, RCW 49. 48. 030, RCW
49. 52. 070,   and      42 U. S. C. §         1988.     We   deny      the   employees'     request.     RCW 49. 48. 030 and 42


                                                                       the                  did   not prevail on appeal.   RCW
U. S. C. §    1988     require         a   party to   prevail,   and          employees




49. 52. 070 does not apply because the State did not act willfully.




 13 Rather, the State argues that the PSNs' and PSAs' duties and work environment justify treating
 them differently from LPNs and MHTs.
                                                                        17
42332 - -II
      4




        We reverse the trial court' s verdict for the employees and its award to them of attorney

fees.




I concur:




                                                18
42332 -4 -II




        BJORGEN, J. (   dissenting) — Although I join in the majority' s thoughtful disposition of the

other issues in this appeal, I dissent from its determination that the plaintiffs do not have an

implied right of action under Washington' s comparable worth statutes and could not recover


even if they had such a right. Because I believe that such an implied right of action exists, I
would remand this case to allow the trial court to determine whether the case law supplies a

remedy for the violation of the comparable worth statutes.

                                                  I. ANALYSIS


A.         An implied right of action exists to enforce the comparable worth statute


           Where the legislature imposes a statutory duty without a corresponding cause of action to

enforce the duty, we recognize an implied cause of action if (1) the plaintiff is within the class
the legislature passed the statute to benefit, (2) the legislature' s explicit or implicit intent

supports the creation of a cause of action, and ( 3) the implied remedy is consistent with the

underlying purposes of the legislation. Bennett v. Hardy, 113 Wn.2d 912, 920 -21, 784 P. 2d 1258
  1990).    The majority does not dispute that the plaintiffs here satisfied the first element of this
test. However, it determines that legislative intent does not support the implication of a cause of

 action and that implying a judicial remedy is inconsistent with the underlying purpose of the

 statutes. Consequently, the majority holds that the plaintiffs' suit fails on the Bennett test' s
 second and third prongs. See Bennett, 113 Wn.2d at 920 -21.

           An analysis of the majority' s conclusion must begin with the well anchored presumption

 which that conclusion must overcome. The Supreme Court has repeatedly directed that we

 should presume     that "` the   legislature would not enact a remedial statute granting rights to an

 identifiable   class without                members of   that   class   to   enforce   those   rights, "'   and that we
                                  enabling


 should therefore recognize an implied right of action. Bennett, 113 Wn.2d at 919 -20 ( quoting
                                                          19
42332 -4 -II



McNeal    v.   Allen, 95 Wn.2d 265, 277, 621 P. 2d 1285 ( 1980) ( Brachtenbach, J.                         dissenting)).    The


Supreme Court itself has repeatedly relied on this presumption to assume that plaintiffs have met

the second prong      of   the Bennett test. See, e. g., M.W.             v.   Dep' t of Soc. &    Health Servs., 149


Wn.2d 589, 596 -97, 70 P. 3d 954 ( 2003); Wingert                    v.   Yellow Freight Sys., Inc., 146 Wn.2d 841,


850, 50 P. 3d 256 ( 2002) ( citing Wingert             v.   Yellow Freight Sys., Inc.,       104 Wn. App. 583, 591 -92,

13 P. 3d 677 ( 2000)); Tyner          v.   Dep' t   of Soc. & Health Servs., 141 Wn.Zd 68, 80, 1 P. 3d 1148


 2000).


          Despite this presumption that the legislature has implicitly created a right of action, the

majority finds that none exists under the Bennett test for two reasons. First, the majority
determines that the legislature enacted the comparable worth statute in order to preempt a class

action suit seeking to compel a comparable worth system. However, the State began studying
comparable worth in 1974, nearly a decade before the class action suit and the legislature' s
                                                                                                       244 ( Wash. 1983).    In
adoption of      RCW 41. 06. 155. FINAL LEGISLATIVE REPORT, 48th                         Leg.,    at




fact, former Governor Daniel Evans ordered action to redress. wage discrimination as far back as

 1973 and included funds for comparable worth raises in his 1976 budget, although his successor,

 former Governor Dixie Lee Ray, took the appropriation out the next year. Am. Fed' n ofState,

 County,   and   Mun. Emps.      v.    Wash., 578 F.        Supp.   846, 862 ( W.D. Wash. 1983).             Governor Ray

 later reversed her stance on the issue and sought funding for comparable worth raises. Am.

 Fed' n of Emps.,    578 F. Supp. at 862. Given the awareness on the part of state officials about

 existing wage disparities, and repeated attempts to take action against these disparities, we
 should view the comparable worth statute as an attempt to redress wage discrimination, rather

 than an attempt to protect the legislature' s prerogative in setting compensation from judicial

 infringement. An implied cause of action is consistent with this view of RCW 41. 06. 155.
                                                                    20
42332 -4 -II




          The majority also reasons that no implied cause of action exists for RCW 41. 06. 155
because the statute calls for the complete implementation of comparable worth by June 30, 1993.

In support, the majority notes that the legislature has not made any adjustments to the

comparable worth statute        since 1993.      While true, this history is incomplete.

          In the first instance, legislative intent is gathered from the plain meaning of the

enactment, "    but that meaning is discerned from all that the legislature has said in the statute and

related statutes, which      disclose legislative intent     about   the   provision   in   question."     Dep' t of

Ecology    v.   Campbell &     Gwinn, LLC, 146 Wn.2d 1, 11- 12, 43 P. 3d 4 ( 2002).

          RCW 41. 06. 155 states in its entirety:

          Salary changes necessary to achieve comparable worth shall be implemented
          during the 1983 -85 biennium under a .schedule developed by the department.
          Increases in salaries and compensation solely for the purpose of achieving
          comparable worth shall be made at least annually. Comparable worth for the jobs
          of all employees under this chapter shall be fully achieved not later than June 30,
          1993.


The requirement of annual increases to achieve comparable worth has never been repealed,

despite repeated amendments of chapter 41. 06 RCW. Strikingly, the legislature amended this

provision in 1993 with an effective date just after the June 30 deadline for achieving comparable

          but did   not   touch the   requirement   for   annual   increases. LAWS      of   1993,   ch.   281, §§ 28, 74
 worth,




  amending RCW 41. 06. 155 effective July 1, 1993).

           Most revealing, though,        under   Campbell & Gwinn, is the definition of comparable worth


 in RCW 41. 06. 020( 6):

            Comparable       worth"    means the provision of similar salaries for positions that
           require   or    impose     similar   responsibilities,   judgments, knowledge,            skills,   and


           working conditions.




                                                             21
42332 - -II
      4




By its nature, the problem this addresses is not a sort of static landscape that can be fixed one
time for all. The landscape moves. Job descriptions change; some jobs go extinct while other

new jobs unthought of in 1993 come into being. The marketplace changes, whether from wage

pressures in some sectors or economic transformation, like the demise of industries or the rise of

others. By its nature, comparable worth is not a steady state once achieved, always preserved.

Therefore, reading RCW 41. 06. 155 to impose a continuing obligation to serve comparable worth

is most in keeping with its purposes and its definition.

           The sweeping language of the duty imposed by RCW 41. 06. 155, the legislature' s

preservation of that duty after the 1993 deadline, and above all the nature of the definition of
comparable worth show a legislative intent that the comparable worth statute retain ongoing


vitality. This meets the second and third prongs of the Bennett test. Under Bennett, the plaintiffs
have an implied right of action to bring their claim under RCW 41. 06. 155. An implied right of

action allows employees to compel pay parity where the legislature has declared it should exist.

B.         Our past precedent does not necessarily preclude all remedies here.

                                                               for                       our past precedent.   We
           The majority denies the       plaintiffs   relief         a second reason:




have on two occasions set out the criteria that plaintiffs must meet to obtain relief under statutes

 similar   to former RCW 41. 06. 133( 10) ( 2002).             Wash. Pub. Emps. Ass'     n v.   Pers. Res. Bd., 127


 Wn.   App.     254, 261 -62, 110 P. 3d 1154 ( 2005) ( WPEA); Teamsters, Chauffeurs, Warehouse &


 Helpers Union Local No. 313 v. Dep' t of Corr. 119 Wn. App. 478, 479 -80, 81 P. 3d 875 ( 2003).

 Essentially, the plaintiffs must prove that the Director of Finance or the Personnel Resources
 Board ( PRB) would adopt the pay schedule they seek, the governor would submit it to the
 legislature,    and   the legislature   would   fund the       schedule.    WPEA,      127 Wn. App. at 261 -62;

 Teamsters, 119 Wn. App. at 479 -80.
                                                           22
42332 - -II
      4




           Some of the reasoning in those cases does not apply here because RCW 41. 06. 155 does

not give the Director of Finance or PRB flexibility in setting pay. See WPEA, 127 Wn. App. at

261 ( plaintiffs in that case needed to prove the PRB would adopt the higher wage scale to obtain

relief).   14 RCW 41. 06. 155' s comparable worth mandate requires the State to raise the wages in

job classifications receiving less than similar benchmarked jobs up to the wage level of the

benchmarked job. See H. B. REP.               on   S. B. 3248,    at   1, 48th   Leg.,   1st Ex. Sess. ( Wash. 1983).


Thus, the plaintiffs here do not face any difficulties in identifying the appropriate pay scale or

demonstrating that the PRB or Director of Finance would adopt this scale. The comparable
worth statutes compel this adoption.


           However, as with the statutes at issue in WPEA and Teamsters, the legislature would have

needed to fund the appropriation to achieve comparable worth. We found the need for legislative

appropriation precluded relief              in Teamsters   and    WPEA.       Our decisions recognized the holding of

Pannell       v.   Thompson, 91 Wn.2d 591, 598 -99, 589 P. 2d 1235 ( 1979), that courts cannot compel


the legislature to fund programs unless constitutionally mandated, although we may compel the

executive to ask the legislature to appropriate funds for these programs. Whether a remedy

 14
      In WPEA, the plaintiffs had sought relief based on a portion of former RCW 41. 06. 150( 14)
  2002) that        required a            schedule   based   on   the " prevailing       rates   in Washington."     127 Wn.
                                 salary
 App.    at   261. Although former RCW 41. 06. 150( 14) required consideration of comparable worth,

 WPEA itself only mentions comparable worth when quoting the language of former RCW
 41. 06. 15 0( 14) in a footnote. See WPEA, 127 Wn. App. at 261 n. 14. We did not discuss, and
 there is no evidence that the plaintiffs raised, the legislature' s mandate that salaries increase to
 achieve comparable worth.                See H.B. REP.    on   S. B. 3248,      at   1, 48th   Leg.,   1st Ex. Sess. ( Wash.

 1983). Because WPEA did not consider the way that RCW 41. 06. 155 constrained the State' s
 discretion in setting wage scales, it is not precedential for the question we consider today.
 Cazzinigi         v.   Gen. Elec. Credit   Corp.,   132 Wn.2d 433, 443, 938 P. 2d 819 ( 1997) ( "[ T] he court

 clearly did not address the issue or arguments like those presented here, and we do not find [a
 prior case said  be binding precedent] controlling. "); Cont' l Mut. Say. Bank v. Elliott, 166
                          to

 Wash. 283, 300, 6 P. 2d 638 ( 1932) ( " An opinion is not authority for what is not mentioned
 therein and what does not appear to have been suggested to the court by which the opinion was
 rendered. ").

                                                                  23
42332 -4 -II




exists within these confines for the violation alleged by plaintiffs is a question best answered by
                                15
the trial   court on remand.



                                                   II. CONCLUSION


            By determining that no implied right of action exists, the majority effectively renders the
comparable worth statutes irrelevant, despite evidence that the legislature considers them as

possessing continuing vitality. While there are limits to the judiciary' s ability to fashion an
appropriate remedy, the question of whether an implied right of action allows the plaintiffs to

enforce their right to comparable worth under RCW 41. 06. 155 is a separate question from

whether there are appropriate remedies associated with that right of action in this case. Under

Bennett, the plaintiffs have an implied right of action to enforce this statute. We should remand

this case to the trial court so that it can determine whether, under the circumstances of this case,

an appropriate remedy exists under applicable case law restrictions.


                                                         Bi .    GEN.




 is
      As the State    notes,   the   parties   now   bargain collectively for      wages.       This imposes another

 constraint on our      ability to   provide an appropriate        remedy.    See RCW 41. 56. 030 ( definition of
                                          limits         ability to force    one   side   or   another   to " agree to a
  collective     bargaining,"    which             our

 proposal"      or " make a concession ");     Brown     v.   Pro Football, Inc., 50 F. 3d 1041, 1051 ( D. C. Cir.
 1995) (     analogous National Labor Relations Act " leaves the outcome of the negotiations to the
 parties, with government    intervention largely proscribed "). Again, the trial court should consider

 whether it can fashion a remedy consistent with this limitation.
                                                              24
