IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
Christina Abgarian, )
) No. 59844-9-I
Appellant, )
)
)
v. )
) UNPUBLISHED OPINION
STATE OF WASHINGTON, )
Employment Security department, )
)
Respondent. ) FILED: June 9, 2008
_______________________________
_ )
)
Schindler, C.J. -- Christina Abgarian (Abgarian) appeals the decision of the
Washington State, Employment Security Department (the Department) to deny
unemployment benefits. Based on the undisputed facts, the guidelines adopted in In
re Amie, Empl. Sec. Comm'r Dec.2d 593 (1980), and the requirement to liberally
construe the Employment Security Act, chapter 50.01 RCW, the Commissioner
erroneously concluded that when Abgarian took a maternity leave of absence, she
voluntarily quit without good cause. We reverse the decision of the Commissioner
denying Abgarian unemployment benefits and reinstate the decision of the
Administrative Law Judge (ALJ).
The facts are undisputed. Joanne Zwickert owns and operates "Joanne
Zwickert Electrolysis," a small business with approximately six employees. On March
No. 59844-9-I/2
27, 2002, Zwickert and Christina Abgarian entered into a written employment
agreement (the Agreement). Zwickert agreed to hire and train Abgarian as an
electrologist and pay her on commission. The commission was calculated based on a
percentage of the gross revenue from the clients Abgarian provided services to.
Abgarian agreed to work full time, which was defined as a minimum of three days per
week and every other Saturday. Under the Agreement, Zwickert was entitled to
terminate Abgarian with a one week written notice during the 90 day probationary
period. Thereafter, Zwickert had to give Abgarian a two week notice of termination.
Abgarian agreed to give Zwickert a 90 day written notice of her intent to terminate
employment. The Agreement also states that all clients, including those acquired by
Abgarian, were clients of the business and in the event that Abgarian left, she could
not contact any of the clients or provide electrolysis services within 35 miles of
Zwickert's business for a period of two years. The Agreement does not address
maternity leave or a leave of absence.
Abgarian started working as an electrologist on June 27, 2002. In early 2005,
Abgarian told Zwickert that she was pregnant with her second child and planned to
work until her August 26 due date. But during the third trimester, Abgarian told
Zwickert her pregnancy was making it difficult for her to work. In a May 16
memorandum to Zwickert, Abgarian said that she had planned to begin her maternity
leave on June 15 and return in March 2006. "Effective 6/15/05 I will be beginning my
maternity leave. Barring any unforeseen complications I plan on returning on or about
March of 2006."
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After receiving the memorandum, Zwickert discussed Abgarian's maternity
leave with her. According to Abgarian, she told Zwickert that she planned to begin
her maternity leave in June and return in March when business picked up. Abgarian
said that Zwickert's only response was to tell her that "she can't guarantee me clients.
She said when you come back I can't guarantee you clients." Abgarian told Zwickert
"that's okay, because if my customers will be back I will be back, they know that I'm
back and they will be back to me." Zwickert also testified that Abgarian told her she
wanted to begin her maternity leave in June, and return in March 2006. Zwickert also
acknowledged that her only response to Abgarian's maternity leave request was to tell
her that she couldn't guarantee clients.
Abgarian stopped working on June 15. She gave birth to her son on August
22. While on maternity leave she kept in touch with Zwickert. In March 2006,
Abgarian called Zwickert to tell her she was ready to return to work. At first, Zwickert
said "okay, well let me see what I can do and get back to you." However, when
pressed, Zwickert told Abgarian that "it will be better if you find a better-or different
job."
On March 17, 2006, Abgarian applied for unemployment benefits. In April, the
Department denied her request on the ground that she voluntarily quit without good
cause. Abgarian filed an appeal of the Department's decision with the Department's
Office of Administrative Hearings.
Abgarian and Zwickert testified at the hearing. Zwickert admitted that her only
response to Abgarian's request to take maternity leave was to tell her that she
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No. 59844-9-I/4
"couldn't guarantee her clients." But Zwickert explained that she "thought that's a
polite way of saying I can't guarantee her a job because there is nothing to do if there
aren't any clients." Abgarian testified that if Zwickert had told her that her request to
take the maternity leave would jeopardize her job, she would have returned to work
much sooner.
And when we started talking I see that she didn't say anything to
me, she never answered me. So I asked her did you think about
when you want to start me back to work. And she said well, this is a
little slow time right now, and, um, I don't know, Eve wants to work a
little more time because there's no school, summer time. So she
kind of said stuff like that, and I was just shocked, I said - and she
said it will be better if you find a better -- or different job. So I was
like are you trying to tell me that you don't want me back? Well,
why didn't you tell me before so I know what I was going to do? If I
knew, you know, you don't want me leave that long, I may be back
in two months, I may be back in six weeks, whatever we would
agree in between, but she never said anything else. And I felt
backstabbed. And I just (unintelligible). And everybody else was
shocked. Everybody who heard the story they were all like why
would she do that. I was a loyal employee, I've never done
anything, to harm her or do anything, you know. Yeah, people
make mistakes, it happens during work. I don't know if I've done
anything that she didn't like but we always worked everything out,
there was no tension, nothing bad. The customers loved me, I did
my job. I've never done anything, you know, to cause a problem.
And she was nice to me, too. So I have no idea what happened.
And now I heard that she's hiring, she's training someone else to
hire. Well, she already had me there. If she needs an employee
she already had me and I was already trained.
The ALJ concluded that because Abgarian did not voluntarily quit, she was
entitled to unemployment benefits. While the ALJ found that Zwickert "never
specifically said that she would hold the job open for her," the ALJ also found that
Zwickert "did not tell the claimant that her job would not be held open for her." The
ALJ also found that Abgarian "credibly discussed her situation with Ms. Zwickert, and
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No. 59844-9-I/5
was not told that there would be no leave of absence. Had her employer been clear
with her, it is entirely possible that the claimant would not have taken such an
extensive leave."
Zwickert filed a petition to review the ALJ's decision. On review, the
Commissioner decided that because Abgarian voluntarily quit without good cause,
she was disqualified from receiving unemployment benefits. The Commissioner's
decision adopts all of the ALJ's findings of fact with an additional finding and
comments. The additional finding states that when Abgarian discussed her leave of
absence with Zwickert, "the employer told [Abgarian] that there was no guarantee that
there would be clients for [Abgarian] when she wished to return." The Commissioner
relied on prior Commissioner decisions, In re Amie, Empl. Sec. Comm'r Dec.2d 593
(1980), and In re Dorman, Empl. Sec. Comm'r Dec.2d 736 (1983), to conclude that
because Abgarian did not have a guarantee of a job or a specific return date, she
"was not on a leave of absence for purposes of the Employment Security Act."
Abgarian appealed to superior court. The court affirmed the Department's decision.
Abgarian appeals.
The Washington Administrative Procedures Act (WAPA), chapter 34.05 RCW,
governs judicial review of the Department's decision. RCW 50.32.120; RCW
34.05.510; W. Ports Transp., Inc. v. Employment Sec. Dep't, 110 Wn. App. 440, 449,
41 P.3d 510 (2002). The scope of our review on appeal is restricted to the record of
the administrative tribunal. Franklin Cy. Sheriff's Office v. Sellers, 97 Wn.2d 317, 323-
24, 646 P.2d 113 (1982). In reviewing the Department's decision, this court sits in the
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No. 59844-9-I/6
same position as the superior court and applies the WAPA standard of review to the
record before the agency. As the party challenging the Department's decision,
Abgarian bears the burden of demonstrating the invalidity of the decision. RCW
50.32.150; RCW 34.05.570(1)(a); Robinson v. Employment Sec. Dep't, 84 Wn. App.
774, 777, 930 P.2d 926 (1996).
Abgarian contends the Department erroneously interpreted or applied the law
in violation of the WAPA, RCW 34.05.570(3)(d). Whether Abgarian was on an
approved leave of absence or voluntarily quit is a mixed question of law and fact. The
court can treat factual statements in the Department's conclusions of law as findings
of fact. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 406, 858 P.2d 494 (1993).
Because here, the facts are undisputed, they are verities on appeal.1 Tapper, 122
Wn.2d at 407. Applying the law to the undisputed facts is a question of law that we
review de novo. Tapper, 122 Wn.2d at 403. We accord substantial weight to the
agency's interpretation of the law it administers, but we are not bound by it. William
Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wn. App. 403, 407, 914
P.2d 750 (1996). The agency's interpretation and application of the law is reviewed
de novo. City of Redmond v. Central Puget Sound Growth Mgmt. Hearings Bd., 136
Wn.2d 38, 46, 959 P.2d 1091 (1988). The court can reverse an administrative
decision that is based on an error of law. Tapper, 122 Wn.2d at 402; RCW
34.05.570(3).
1 In addition, because Abgarian did not assign error to the findings as required by RAP 10.3,
the Department's findings of fact are verities on appeal. Shoreline Community College Dist. 7 v.
Employment Sec. Dep't, 120 Wn.2d 394, 404, 842 P.2d 938 (1992).
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No. 59844-9-I/7
The purpose of the Employment Security Act (ESA), chapter 50.01 RCW, is to
provide benefits to "persons unemployed through no fault of their own." The
legislature specifically states that the ESA shall be "liberally construed for the purpose
of reducing involuntary unemployment." RCW 50.01.010. However, a person who
leaves work "voluntarily without good cause" is disqualified from receiving benefits.
RCW 50.20.050(1)(b).
The dispositive question in this case is whether under the ESA and the
guidelines adopted by the Commissioner in In re Amie, Empl. Sec. Comm'r Dec.2d
593 (1980), Abgarian voluntarily quit without good cause and was disqualified from
receiving unemployment benefits. The disqualification provisions of the ESA are
based on principles of fault and focus on the worker's actions. Safeco Ins. Cos. v.
Meyering, 102 Wn.2d 385, 393, 687 P.2d 195 (1984). Thus, the Department must
analyze each case to determine whether the employee intended to voluntarily quit or
was on a leave of absence. Safeco Ins., 102 Wn.2d at 393. "An individual leaves
work 'voluntarily' only when freely making an affirmative choice to do so." Bauer v.
State Employment Sec. Dep't, 126 Wn. App. 468, 476, 108 P.3d 1240 (2005) (quoting
Brousseau v. Me. Employment Sec. Comm'n, 470 A.2d 327, 330 (Me. 1984)).
A leave of absence is not defined by the ESA. The Commissioner in In re Amie
adopted guidelines to determine whether an employee has voluntarily quit or is on a
leave of absence under the ESA.2
1. For purposes of the Employment Security Act, the question
of whether an employer-employee agreement is a leave of
2 Under RCW 50.32.095, the Commissioner can designate certain unemployment benefits decisions
as precedent. Designated precedential decisions are persuasive authority in this court. Martini v.
Employment Sec. Dep't, 98 Wn. App. 791, 795, 990 P.2d 981 (2000).
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No. 59844-9-I/8
absence is a matter of fact to be determined from the terms of the
agreement rather than by the parties' characterization of the
agreement. An agreement described by either or both of the
parties as a 'leave of absence' may actually be a separation or
termination.
2. A leave of absence is an agreed temporary release of an
employee from his or her assigned work, during which the
employment status continues, but no work is performed and no
remuneration paid.
3. An agreement is not a leave of absence if continuity of the
employment status terminates with the cessation of work, and the
employee is left with no more than a promise of reemployment if a
job is available upon the expiration of the "leave."
In In re Amie, an employee who worked for the Employment Security
Department wanted to transfer from the Port Angeles office to the office in Vancouver
because her husband's employer was transferring him to Vancouver. Because the
Department did not have a job opening in Vancouver, Amie took a leave of absence
from her Port Angeles job. The leave of absence allowed Amie to maintain her
benefits as an employee and gave her preferential status for appointment elsewhere.
After Amie moved to Vancouver, she applied for unemployment benefits while still on
the leave of absence from the Port Angeles position. Because the continuity of
Amie's employment at Port Angeles ended and she only had the promise of a work
assignment in Vancouver when one was available, the Commissioner ruled that Amie
was not on a leave of absence but rather voluntarily quit.
[T]he purpose of the agreement was not to maintain continuity of the
employment status, . . . it being understood that she was moving to
another city . . . . [T]he continuity of her employment status in [Port
Angeles] was terminated, and she was left with only a promise of a
work assignment elsewhere if and when such an assignment
became available. [The agreement] was not a leave of absence, but
a leaving, or voluntary quit . . . ."
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In reaching the conclusion that Abgarian's leave of absence was a decision to
voluntarily quit, the Commissioner erroneously applied the guidelines adopted in In re
Amie, to the undisputed testimony. Relying on the guidelines, the Commissioner
concluded that Abgarian's decision to take maternity leave was a decision to
voluntarily quit. The Commissioner relied on Zwickert's testimony that there was no
guarantee there would be clients when Abgarian returned, to conclude Abgarian did
not have "a guarantee that there would be a job to return to."3
Here, unlike in In re Amie, Abgarian's employment status continued during her
maternity leave of absence and Zwickert did not tell Abgarian that she had "no more
than a promise of reemployment if a job is available upon the expiration of the 'leave'."
In re Amie, Employ.Sec.Comm'r Dec.2d 593, CLIII. The Agreement between Zwickert
and Abgarian allowed Abgarian to work full time and required a written notice in order
to terminate employment. Abgarian was paid exclusively on commission. According
to the Agreement, the commission was calculated based on an agreed percentage of
gross revenues that she generated from the clients she provided services to. The
Agreement contained no provisions related to either maternity leave or a leave of
absence.
Zwickert admits that her only reply to Abgarian's request to take a maternity
leave, was to tell Abgarian "[t]here was no guarantee that there would be clients for
[Abgarian] when she wished to return." In the context of the terms of the Agreement,
telling Abgarian there was no guarantee that when she returned she would have
3 Emphasis added.
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No. 59844-9-I/10
clients is not the same as telling Abgarian that she would not have a job. In addition,
Zwickert admits that she never told Abgarian that she would not have the opportunity
to return to her job. Under the terms of the Agreement, unless she was terminated,
Abgarian's job as an electrologist continued but she would only receive a commission-
based salary from the money generated by the clients she served.
The Commissioner's reliance on the decision in In re Dorman, Empl. Sec.
Comm'r Dec.2d 736 (1983), to conclude that Abgarian voluntarily quit, is misplaced.
In In re Dorman, Dorman was given a "non-service" leave of absence to stay home
with her baby for a year. When Dorman was hired, the employee handbook expressly
stated that a non-service leave was "granted with the understanding that the
employee was guaranteed no particular job, and was to have work only if it were
available, upon his or her return." Two weeks after taking her leave, Dorman tried to
return to work, but there was no work available. Dorman then applied for
unemployment benefits. Following the guidelines in In re Amie, the Commissioner
held that Dorman voluntarily quit because the employer clearly informed her that if
she took a non-service leave, there was no guarantee to a particular job and she
would only have work if it was available. Here, unlike in In re Dorman, there was no
policy that taking a leave of absence meant the employee had no guarantee of a job.
To the contrary, under the Agreement, absent termination, Abgarian had a continuing
right to work as an electrologist.
The Commissioner also concluded that Abgarian voluntarily quit because the
written memorandum concerning her maternity leave did not provide a definite return
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No. 59844-9-I/11
date. The Department cites In re Dorman and In re Amie to argue that Abgarian did
not provide an end date that was specific enough. The record does not support the
Commissioner's conclusion and In re Dorman and In re Amie do not support the
Department's argument. Neither In re Dorman nor In re Amie address the need for a
specific end date. In In re Dorman Dorman was granted leave of "up to one year," but
she wanted to return to work two weeks after beginning her leave. In In re Amie, Amie
was granted a leave from June 13, 1978, through March 31, 1979, but started working
in Vancouver for the Department in January 1979 before her leave was over.
Abgarian told Zwickert that she planned to stay home for six months after the
baby was born. The baby was due on August 26. In the memorandum, Abgarian said
she planned to leave on June 15, 2005 and return in March 2006. Abgarian kept in
touch with Zwickert while on leave, and reiterated that she planned to return to work.
Abgarian contacted Zwickert in early March to tell her she was ready to return to work.
On this record, we conclude Abgarian's return date in March provided a sufficiently
specific end date.
We conclude the Commissioner erred in deciding Abgarian voluntarily quit
without good cause. We reverse the decision of the Commissioner, reinstate the
decision of the ALJ, and remand. Because RCW 50.32.160 provides that an
unemployment compensation claimant is entitled to reasonable attorney fees and
costs if the Commissioner's decision is modified or reversed, we award Abgarian
attorney fees and costs upon compliance with RAP 18.1.4
4 "[I]f the decision of the commissioner shall be reversed or modified, such [attorney] fee and the
costs shall be payable out of the unemployment compensation administration fund." RCW 50.32.160
(emphasis added).
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No. 59844-9-I/12
WE CONCUR:
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