Wash. Court of Appeals published opinion — 723448.pdf

7 For the first time at oral argument, the City claimed the definition of "retaliatory action" under
former SMC 4.20.850(D) included hostile actions encouraged by a supervisor. We do not consider
arguments raised for the first time at oral argument. RAP 12.1(a). In any event, the plain and
unambiguous definition under former SMC 4.20.850(D) addressed only "adverse change in an
employee's employment status or the terms and conditions of employment" and not hostile actions as
defined by state law.

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did not retaliate by demoting him to battalion chief, Woodbury filed an administrative

appeal and a lawsuit against the City. Woodbury. 172 Wn. App. at 749.

We held that because the procedures the City adopted allowing a whistleblower

to file a complaint and report improper governmental conduct with the City and request

an administrative hearing were consistent with state law, Chief Woodbury did not have

the right to file a cause of action in superior court. Woodbury. 172 Wn. App. at 751-52.

RCW 42.41.040(9) explicitly contemplates that the superior court sits in an
appellate role .... Read as a whole, it is clear that RCW 42.41.040 does
not grant local government employees a cause of action in superior court.

Woodbury. 172 Wn. App. at 752. The opinion in Woodbury does not address whether

the SMC met the intent of state law to provide a remedy for a whistleblower subjected to

"retaliatory action" as defined by state law. See Berschauer/Phillips Constr. Co. v.
Seattle Sch. Dist. No. 1. 124 Wn.2d 816, 824, 881 P.2d 986 (1994) ("In cases where a