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DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 53792-0-I
Title of Case: SAMMY BARKER, Appellant VS WASHINGTON STATE
OF EMPLOYMENT SECURITY, Respondent
File Date: 04/25/2005
SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 03-2-26853-4
Judgment or order under review
Date filed: 01/12/2004
Judge signing: Hon. Patricia H Aitken
JUDGES
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Authored by Anne Ellington
Concurring: H Joseph Coleman
Marlin Appelwick
COUNSEL OF RECORD
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Counsel for Appellant(s)
Kim Krummeck
Attorney at Law
6211 26th Ave NE
Seattle, WA 98115-7109
Counsel for Respondent(s)
Masako Kanazawa
Attorney at Law
900 4th Ave Ste 2000
Seattle, WA 98164-1076
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE
SAMMY BARKER, ) No. 53792-0-I
)
Appellant, )
)
v. )
)
EMPLOYMENT SECURITY ) UNPUBLISHED OPINION
DEPARTMENT OF THE STATE OF )
WASHINGTON, )
)
Respondent. ) FILED: April 25, 2005
)
ELLINGTON, A.C.J. Sammy Barker did not commit misconduct
disqualifying him from unemployment benefits when he missed work because he
was incarcerated for violating a no-contact order of which he was unaware.
The Employment Security Department commissioner's decision to the contrary
is reversed, and this matter is remanded for reinstatement of benefits.
Background
Sammy Barker began working for QFC in February 2000. Barker was
transferred from a Mercer Island store to one in the University District in
July 2002. Both stores have a policy that failure to attend work without
first informing the store constitutes a voluntary quit. Shortly before his
transfer, Barker received an oral reprimand for violating this policy after
his girlfriend had thrown him out of the house and discarded his clothes in
the street.
About the time of his transfer, Barker was separating from his girlfriend.
On a Friday night, she gave him permission to come to her home and retrieve
his belongings. She indicated she was seeking a no-contact order. Barker
made one trip without incident, but after he returned for a second load, an
argument ensued. Barker's girlfriend called police. By that time, the no-
contact order had apparently been issued, and the police served Barker with
the no-contact order and arrested him for violating it. Barker was taken
to jail. He requested release on his own recognizance, but was
unsuccessful. His phone access was restricted to collect calls. Barker
attempted to call QFC to inform the store of his anticipated absence, but
his call was answered by an automated message stating that the number did
not accept collect phone calls. Barker spent 14 days in jail.1 He had no
visitors, and could not reach anyone who could call QFC on his behalf
because collect calls were blocked from his home phone and all of his
friends used cell phones that did not accept collect calls. Barker asked
to use a different phone, but was not permitted to do so.
Barker contacted QFC immediately upon his release from jail. He brought in
proof of the reason for his absence, and was told to call later in order to
be put on back on the schedule. But when he called, Barker was told his
employment had been terminated for failing to attend work or notify QFC of
his absence.
Barker applied for unemployment benefits. QFC contested Barker's
eligibility on grounds that his failure to attend work or notify the store
constituted a voluntary quit under its policy.2 The Employment Security
Department (ESD) denied Barker benefits on that basis. Barker appealed. A
hearing was conducted before an administrative law judge, at which Barker
and QFC store manager Dirk Heuser testified. The judge reversed the
department decision and granted benefits, finding that Barker`s absence and
termination was "attributable to unanticipated circumstances," and that
Barker "was not discharged for misconduct and is not disqualified from
benefits as a result." Commissioner's Record (CR) at 64.
QFC petitioned for review to the ESD commissioner's office. The
comissioner modified the administrative law judge's findings, set aside his
conclusion, and found instead that Barker's "chosen course of action . . .
caused his incarceration and rendered him unable to report for work as
scheduled which, for purposes of unemployment benefit eligibility,
constitutes misconduct." CR at 74. Barker appealed the commissioner's
order to the superior court, which affirmed the order. Barker appeals.
Discussion
Standard of Review. In reviewing an administrative decision, we stand
in the same position as the superior court and apply the appropriate
standard of review directly to the administrative record. Penick v.
Employment Security Dep't, 82 Wn. App. 30, 37, 917 P.2d 136 (1996);
Snohomish County v. State, 69 Wn. App. 655, 664, 850 P.2d 546 (1993).
Relief from an agency decision will be granted when the agency has
erroneously interpreted or applied the law, the order is not supported by
substantial evidence, or the order is arbitrary or capricious. RCW
34.05.570(3). Factual findings are reviewed under the substantial evidence
standard, under which there must be a sufficient quantum of evidence in the
record to persuade a reasonable person of the truth of the declared
premise. Penick, 82 Wn. App. at 37. To the extent the commissioner
modifies or replaces findings by the administrative law judge, it is the
commissioner's findings that are relevant for review. Albertson's Inc. v.
Employment Sec. Dep't., et al, 102 Wn. App. 29, 35, 15 P.3d 153 (2000).
Conclusions of law are reviewed under the error of law standard; we give
great deference to the commissioner's factual findings and substantial
weight to the agency's interpretation of the law. Penick, 82 Wn. App. at
37-38.
The determination of whether an employee's behavior constitutes misconduct
is a mixed question of law and fact. Tapper v. Employment Security Dep't,
122 Wn.2d 397, 402, 858 P.2d 494 (1993). In reaching this determination,
we give the agency's factual findings the same level of deference to which
they are entitled under any other circumstance, but the process of applying
the law to the facts is a question of law subject to de novo review.
Tapper, 122 Wn.2d at 403.
Under the Employment Security Act, an individual discharged "for
misconduct connected with his or her work" is disqualified from benefits.
RCW 50.20.060; Hamel v. Employment Sec. Dep't, 93 Wn. App. 140, 145, 966
P.2d 1282 (1998). The Act defines "misconduct" as "an employee's act or
failure to act in willful disregard of his or her employer's interest where
the effect of the employee's act or failure to act is to harm the
employer's business." RCW 50.04.293. Therefore, to constitute
"disqualifying misconduct," the employee's conduct must be both willful and
harmful to the employer. Dermond v. Employment Sec. Dep't, 89 Wn. App.
128, 133, 947 P.2d 1271 (1997) (citing Galvin v. Employment Sec. Dep't, 87
Wn. App. 634, 641-43, 942 P.2d 1040 (1997)).
Barker does not argue on appeal that his failure to report for work did not
harm QFC's business. The only issue is whether Barker willfully
disregarded QFC's interest. "{A}n employee acts with willful disregard
when he (1) is aware of his employer's interest; (2) knows or should have
known that certain conduct jeopardizes that interest; but (3) nonetheless
intentionally performs the act, willfully disregarding its probable
consequences." Hamel, 93 Wn. App. at 146-47. "Mere incompetence,
inefficiency, erroneous judgment, or ordinary negligence does not
constitute misconduct for purposes of denying unemployment compensation."
Dermond, 89 Wn. App. at 133.
There is no question that Barker was aware of his employer's interest and
that his unexpected absence was adverse to that interest. Barker contends,
however, the commissioner's finding that he should have known that going to
retrieve his belongings from his ex-girlfriend would lead to his
incarceration and inability to report for work is unsupported by
substantial evidence. We agree.
The State's argument in support of the commissioner's decision is based on
the proposition that "Barker acted in willful disregard of QFC's interest
by choosing to go to his girlfriend's house and fight with her on the day
he was scheduled to work." Resp. Br. at 10 (emphasis added). We note that
the commissioner's finding to that effect is not supported by evidence in
the record. Instead, the evidence shows that Barker went to his ex-
girlfriend's house on the night before his next scheduled shift. This
detail is contained in Barker's responses to questions posed in the
department's Factfinding Guide Sheet #D-1, which is part of the
administrative record, and is nowhere contradicted. There, Barker
explained, "I know I was scheduled to go to work on that Saturday, around
July 20, 2002, but on Friday July 19, 2002 I went to jail." CR at 53.
Even if Barker should have known that going to his ex-girlfriend's house
might spark an argument, Barker had no reason to assume this would
interfere with his ability to report for work the following day.
Barker fails to assign error to the commissioner's finding that he had gone
to his ex-girlfriend's home on the day of his shift, however, so we
therefore treat the finding as a verity. Tapper, 122 Wn.2d at 407.
Nevertheless, the commissioner's finding that Barker should have known this
would lead to his incarceration is unsupported by the record.
Although she mentioned something about a no-contact order, Barker's ex-
girlfriend did not say that an order had been issued. Rather, she told
Barker she was "going to get one," but invited him to come remove his
things from her home. CR at 19. Barker did not know an order had been
issued until he was served contemporaneous with his arrest for violating
it. Barker had no reason to expect he would be arrested for violating an
order of which he had no knowledge.3
The State argues, in a footnote, that Barker's failure to inform QFC of his
inability to report for work independently supports a finding of willful
disregard. We disagree. Barker attempted to comply with the store's
policy by calling QFC from jail, but was restricted to collect calls.
Although the store manager testified the store can accept collect calls, he
had never actually received one. Barker made reasonable efforts to comply
with QFC's policy.
Circumstances beyond an employee's control cannot form the basis for the
conclusion that the employee acted in willful disregard of the employer's
interests. Galvin, 87 Wn. App. at 644. The commissioner erred by
concluding Barker committed disqualifying misconduct.
Attorney Fees. Barker requests attorney fees under RCW 50.32.160,
which "plainly provides for fees on appeal if the commissioner's decision
is reversed." Albertson's, 102 Wn. App. at 47. Barker is entitled to
reasonable attorney fees on appeal and is directed to comply with RAP 18.1.
Reversed and remanded for reinstatement of benefits.
WE CONCUR:
1 Barker was released soon after consulting with a lawyer, but nothing in
the record indicates how the matter was ultimately resolved.
2 Barker's availability for work was uncontested.
3 For this reason, the parties' reliance upon Washington Employment
Security Department commissioner decisions and cases from other states
pertaining to absences due to intentional criminal activity is misplaced.
See In re Dahn, Empl. Sec. Comm'r Dec.2d 833 (1992) (benefits denied for
misconduct following incarceration for knowingly failing to comply with
conditions of suspended sentence for statutory rape); In re Sanchez, Empl.
Sec. Comm'r Dec.2d 801 (1988) (benefits denied for misconduct following
incarceration for violating court orders and failing to pay fine from
assault conviction); In re McCourry, Empl. Sec. Comm'r Dec. 894 (1972)
(benefits reinstated despite incarceration for DUI because unrelated to
work); Chamberlain v. Dep't of Employment Security, 136 Vt. 571, 396 A.2d
140 (1978) (benefits denied for misconduct following incarceration for
breaking and entering); Hunt v. Gen. Elec. Co., 84 A.D.2d 622, 444 N.Y.S.2d
492 (1981) (benefits granted despite incarceration for body stealing
because not connected to work); Medina v. Commonwealth Unemployment Comp.
Bd., 55 Pa. Cmwlth. 323, 423 A.2d 469, 471 (1980) (benefits denied for
misconduct following incarceration for assault because, "Certainly an
employee who engages in criminal activity punishable by incarceration
should realize that his ability to attend work may be jeopardized.");
Stanton v. Missouri Div. of Employment Sec., 799 S.W.2d 202, 204-05 (Mo.
Ct. App. 1990) (benefits denied for misconduct because "appellant's knowing
operation of an uninsured vehicle, with no driver's license, should have
made appellant aware that he faced the possibility of further penalty if
caught, which in turn could impact upon his employment"); Smith v. Am.
Indian Chem. Dep. Diversion Project, 343 N.W.2d 43, 45 (Minn. Ct. App.
1984) (illegal failure to pay speeding tickets held to constitute
misconduct because it could not be considered ordinary negligence or
inadvertence); Collins v. B & G Pie Co., 59 N.C. App. 341, 296 S.E.2d 809,
811 (1982) (willful probation violation causing incarceration constituted
misconduct).
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