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Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 22458-9-III
Title of Case: Donald W. Bauer v. State of Washington, Employment
Security Dept.
File Date: 03/17/2005
SOURCE OF APPEAL
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Appeal from Superior Court of Spokane County
Docket No: 03-2-03620-4
Judgment or order under review
Date filed: 10/03/2003
Judge signing: Hon. Salvatore F Cozza
JUDGES
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Authored by John A. Schultheis
Concurring: Frank L. Kurtz
Dissenting: Stephen M Brown
COUNSEL OF RECORD
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Counsel for Appellant(s)
Stanley Allan Jr Kempner
Attorney at Law
901 E Nora Ave
Spokane, WA 99207-2459
Counsel for Respondent(s)
Jacqueline Bolden
Office of Attorney
900 4th Ave Ste 2000
Seattle, WA 98164
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DONALD W. BAUER, ) No. 22458-9-III
)
Appellant, )
)
v. ) Division Three
) Panel Five
STATE OF WASHINGTON EMPLOYMENT )
SECURITY DEPARTMENT, )
)
Respondent. ) PUBLISHED OPINION
)
SCHULTHEIS, J. -- In Washington, unemployment compensation benefits
may be denied to an employee who voluntarily leaves work without cause.
RCW 50.20.050. Donald Bauer was terminated from his employment when he
lost his commercial driver's license due to his commission of two serious
traffic offenses. That does not constitute a 'voluntary quit' under the
statute. The statute does not provide for disqualification from benefits
for a 'constructive voluntary quit.' We therefore reverse the decision of
the commissioner of the Employment Security Department and the superior
court to the contrary.
FACTS1
Mr. Bauer started work as a commercial truck driver on November 22,
1989. He knew his job required him to have a commercial driver's license
(CDL). He generally drove 40 to 50 hours per week and 60,000 miles a year
for work. Mr. Bauer was discharged on November 20, 2002, when his CDL was
suspended by the Department of Licensing and his employer had no other work
for him.
The CDL suspension was for 60 days, pursuant to RCW 46.25.090, because
of two serious traffic offenses within a three-year period while driving a
commercial motor vehicle. The first offense was for speeding on February
28, 2001. While driving on Interstate 90 near Moses Lake, Mr. Bauer was
under the impression that the speed limit was 65 mph. Mr. Bauer did not
intend to speed; he had been following another truck and was not aware that
the speed limit was lowered to 45 mph on that stretch of the highway. The
second offense occurred on April 8, 2002. Mr. Bauer was driving a company
vehicle in a residential area looking for a particular side street on which
he needed to turn. While looking for the side street, Mr. Bauer ran a red
light and hit a vehicle. He was cited for running a red light. Mr. Bauer
acknowledged that both citations were his own fault, but he did not feel
his actions were purposeful.
Mr. Bauer sought unemployment benefits on December 9, 2002. On
December 19, the Employment Security Department issued a decision allowing
benefits. The employer appealed. An administrative law judge (ALJ) upheld
the department's decision on March 26, 2003.
On April 17, 2003, the employer sought review of the decision in a
petition to the commissioner of the department. On May 9, the commissioner
modified the ALJ's order, holding that by Mr. Bauer's failure to maintain
his license, a requisite of his job, he 'effectively quit his employment'
and his termination was deemed a 'constructive quit.' Comm'n Record (CR)
at 69. Because he did not demonstrate good cause for 'voluntarily
quitting,' Mr. Bauer was disqualified from benefits. CR at 69. The
commissioner's decision was affirmed by the superior court on October 3,
2003. Mr. Bauer appeals.
DISCUSSION
Standard/Scope of Review
This review is governed by the Administrative Procedure Act (APA),
chapter 34.05 RCW. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402,
858 P.2d 494 (1993). Under the APA, the commissioner of the department is
empowered to review the ALJ's decision. Id. at 404; RCW 50.32.080. The
commissioner is the final authority for the agency's determinations on
unemployment compensation. Tapper, 122 Wn.2d at 404. Therefore, we review
the commissioner's decision modifying the ALJ's decision. Id. We sit in
the same position as the superior court and apply the APA standards
directly to the record. Id. at 402.
We review the commissioner's conclusions of law under the error of law
standard. Cascade Nursing Servs., Ltd. v. Employment Sec. Dep't, 71 Wn.
App. 23, 29, 856 P.2d 421 (1993). The case also involves the
commissioner's interpretation of RCW 50.20.050. Interpreting the meaning
of a statute is a question of law subject to de novo review. Dep't of
Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002).
Only when the court is reviewing an agency's interpretation of an ambiguous
statute is the agency's interpretation of the statute afforded deference.
Postema v. Pollution Control Hearings Bd., 142 Wn.2d 68, 77, 11 P.3d 726
(2000). No deference is accorded if the agency's interpretation conflicts
with the statute. Id. This court retains the ultimate authority to
interpret a statute. City of Pasco v. Pub. Employment Relations Comm'n,
119 Wn.2d 504, 507, 883 P.2d 381 (1992). Therefore, 'we may substitute our
interpretation of the law for that of the agency.' Port of Seattle v.
Pollution Control Hearings Bd., 151 Wn.2d 568, 593, 90 P.3d 659 (2004).
Statutory Interpretation
''{T}he fundamental object of statutory interpretation is to ascertain
and give effect to the intent of the legislature' which is done by 'first
look{ing} to the plain meaning of words used in a statute.'' Enter.
Leasing, Inc. v. City of Tacoma, Fin. Dep't, 139 Wn.2d 546, 552, 988 P.2d
961 (1999) (alterations in original) (quoting State v. Sweet, 138 Wn.2d
466, 477-78, 980 P.2d 1223 (1999)). 'When words in a statute are plain and
unambiguous, statutory construction is not necessary, and this court must
apply the statute as written unless the statute evidences an intent to the
contrary.' Enter. Leasing, 139 Wn.2d at 552. 'The meaning of a plain and
unambiguous statute must be derived from the wording of the statute
itself.' State v. Tili, 139 Wn.2d 107, 115, 985 P.2d 365 (1999). All of
the language in the statute must be given effect so that no portion is
rendered meaningless or superfluous. Davis v. Dep't of Licensing, 137
Wn.2d 957, 963, 977 P.2d 554 (1999).
Related statutory provisions must be harmonized to effectuate a
consistent statutory scheme that maintains the integrity of the respective
statutes. State v. Chapman, 140 Wn.2d 436, 448, 998 P.2d 282 (2000).
Statutes relating to the same subject matter will be read as complimentary.
State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974). Finally, statutes
should be construed to avoid unlikely, absurd, or strained consequences.
State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990).
The commissioner held:
In failing to maintain his license, which was a requisite of his
employment, the claimant effectively quit his employment. See, e.g., In re
Peters, Empl. Sec. Comm'r Dec.2d 377 (1978). Such is akin to a
constructive quit and is properly adjudicated pursuant to RCW 50.20.050.
See In re Harden, Empl. Sec. Comm'r Dec.2d 843 (1994); In re Morris, Empl.
Sec. Comm'r Dec. 801 (1969). The claimant has not demonstrated good cause
for voluntarily quitting. Accordingly, he is subject to disqualification
pursuant to RCW 50.20.050(1).
CR at 69 (emphasis added). The statute cited by the commissioner
relevantly provides:
An individual shall be disqualified from benefits beginning with the first
day of the calendar week in which he or she has left work voluntarily
without good cause and thereafter for seven calendar weeks and until he or
she has obtained bona fide work in employment covered by this title and
earned wages in that employment equal to seven times his or her weekly
benefit amount.
Former RCW 50.20.050(1) (2002). The statute does not expressly provide for
a 'constructive quit.'
We first examine the plain language of former RCW 50.20.050(1). The
statute disqualifies a claimant if he leaves work voluntarily without good
cause.2 Our courts have already addressed the plain meaning of leaving
voluntarily:
'{T}he phrase 'due to leaving work voluntarily' has a plain, definite and
sensible meaning, free of ambiguity; it expresses a clear legislative
intent that to disqualify a claimant from benefits the evidence must
establish that the claimant, by his or her own choice, intentionally, of
his or her own free will, terminated the employment.'
Vergeyle v. Dep't of Employment Sec., 28 Wn. App. 399, 402, 623 P.2d 736
(1981) (emphasis added) (quoting Allen v. CORE Target City Youth Program,
275 Md. 69, 79, 338 A.2d 237 (1975)), overruled on other grounds by Davis
v. Employment Sec. Dep't, 108 Wn.2d 272, 737 P.2d 1262 (1987).3 In other
words, '{a} voluntary termination requires a showing that an employee
intentionally terminated her own employment.' Safeco Ins. Cos. v.
Meyering, 102 Wn.2d 385, 393, 687 P.2d 195 (1984).
The department relies on Vergeyle to emphasize its argument that Mr.
Bauer's poor driving habits were voluntary and of his own free will. But
the Vergeyle court required a showing of intent to terminate the
employment. Vergeyle, 28 Wn. App. at 402. No intent was evident here. In
fact, the ALJ specifically found that one of the violations was not
intentional. CR at 52 (finding of fact 4). That finding was not modified
by the commissioner or challenged by the department.
The department implicitly argues that the legislature's use of the
words 'left work voluntarily' can be reasonably interpreted to include a
work separation due to termination-triggering conduct. However, other
statutes address benefit disqualification for work related acts or
omissions in willful disregard of the employer's interest that harms the
employer's business. See RCW 50.20.060 (disqualifying employees discharged
or suspended for misconduct connected with his or her work); RCW 50.04.293
(defining 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). If
the legislature intended to disqualify employees who unintentionally commit
traffic infractions, it could have. 'If a statute is plain and clear, we
will not read into it things that are not there.' In re Det. of Pugh, 68
Wn. App. 687, 691, 845 P.2d 1034 (1993) (citing In re Pers. Restraint of
Taylor, 105 Wn.2d 67, 69, 711 P.2d 345 (1985)).
The Supreme Court of Maine addressed an almost identical statute4 and
held:
{A}n individual leaves work 'voluntarily' only when freely making an
affirmative choice to do so. The clear import of the statute is that it is
the intentional act of leaving employment rather than the deliberate
commission of an antecedent act which disqualifies an individual from
eligibility for benefits. To read the doctrine of constructive voluntary
quit or constructive resignation into {the statute} is to overstep the
bounds of administrative construction and usurp the legislative function.
Brousseau v. Me. Employment Sec. Comm'n, 470 A.2d 327, 330 (Me. 1984)
(footnote omitted). That view is consistent with the jurisprudence of
Washington. We cannot substitute our judgment or usurp the prerogative of
the legislature. State v. Bunting, 115 Wn. App. 135, 139, 61 P.3d 375
(2003).
The department's interpretation is a narrow construction of the
statute that would disqualify a greater number of employees. This is
contrary to the statute's history of liberal construction. Penick v.
Employment Sec. Dep't, 82 Wn. App. 30, 36, 917 P.2d 136 (1996). But see
Laws of 2003, 2nd Sp. Sess., ch. 4, sec. 1 (omitting from RCW 50.01.010
'that this title shall be liberally construed for the purpose of reducing
involuntary unemployment and the suffering caused thereby to the minimum').
Relying on Haney v. Employment Security Department, 96 Wn. App. 129,
137, 978 P.2d 543 (1999), the department argues, '{u}nder the 'no fault'
principle, neither the employer nor the Unemployment Trust Fund
administered by the Department for the benefits of persons unemployed
through no fault of their own should bear the monetary consequences of
action that is the fault of the claimant.' Resp't's Br. at 12-13. This
argument is not well taken for two reasons. First, the cited portion of
Haney does not support the proposition directly attributed to it. Haney
does not address monetary consequences bearing on fault at all. Second,
Haney dealt with claimant misconduct under RCW 50.20.060. Haney, 96 Wn.
App. at 134. Further, even Haney recognized that ''{m}ere incompetence,
inefficiency, erroneous judgment, or ordinary negligence does not
constitute misconduct for purposes of denying unemployment compensation.''
Haney, 96 Wn. App. at 139-40 (quoting Dermond v. Employment Sec. Dep't, 89
Wn. App. 128, 133, 947 P.2d 1271 (1997)).
Finally, the cases cited by the commissioner to justify the decision
are inapposite. In In re Peters, Empl. Sec. Comm'r Dec.2d 377 (1978), the
claimant was held to have voluntarily quit because she would not join a
union, which was a condition of employment. She thought it would not help
her economically and she had other avenues for grievances. In In re
Harden, Empl. Sec. Comm'r Dec.2d 843 (1994), the claimant agreed to take a
drug test. He did not appear for the test although he was informed that a
failure to respond to the request would be deemed a voluntary quit. In In
re Morris, Empl. Sec. Comm'r Dec. 801 (1969), the claimant was enrolled in
a college course and was also employed part time as a utility man. When
classes recessed, his employer offered him full-time work. The claimant
refused the offer because he had another offer for work with a bus company
and because he did not like the job of utility man. The commissioner held:
'We view the actions of the claimant as being tantamount to a constructive
voluntary quit as, only because of the free exercise of choosing not to
accept full-time employment, did he ultimately become unemployed.'
Resp't's Br. Ex. 1 (Morris, Comm'r Dec.). All of these cases involve
affirmative and/or intentional acts with the knowledge of the consequences.
That was not the case here.
Constructive Voluntary Quit/Leaving
The department urges us to implement the 'constructive voluntary quit'
doctrine--also referred to as 'constructive voluntary leaving'--adopted by
some jurisdictions,5 which, the department recognizes, is applied under
'narrow circumstances.' Resp't's Br. at 10. See, e.g., Steinberg v. Cal.
Unemployment Ins. Appeals. Bd., 87 Cal. App. 3d 582, 151 Cal. Rptr. 133
(1978); Yardville Supply Co. v. Bd. of Review, Dep't of Labor, 114 N.J.
371, 377, 554 A.2d 1337 (1989). Under the doctrine, if an employee acts in
a manner that might result in his discharge, and the employee is in fact
discharged, the employee is deemed to have constructively quit or left his
employment without good cause, and is not entitled to unemployment
benefits. Steinberg, 87 Cal. App. 3d at 585-87.
The department does not analyze the similarities between Washington
and California's unemployment benefits statutory scheme. Nor does it
provide any compelling argument for accepting extrajurisdictional
authority.
In an attempt to show that the doctrine had previously been accepted
and implemented by the commissioner, the department cited one department
case in which the term 'constructive voluntary quit' was used. Resp't's
Br. Ex. 1 (Morris, Comm'r Dec.). See Martini v. Employment Sec. Dep't, 98
Wn. App. 791, 795, 990 P.2d 981 (2000) (noting that the commission has
authority under RCW 50.32.095 'to designate certain unemployment benefits
decisions as precedents and to publish those precedents. Such precedents
are persuasive authority in this court' (footnoted omitted)). However, in
Morris, as previously noted, the claimant refused his employer's offer to
increase his job from a part-time to a full-time position. There, the
commissioner held:
In refusing this offer of increased employment, the claimant placed himself
in the position (through his voluntary choice) of being replaced as soon as
an appropriate replacement could be located. . . . We view the actions of
the claimant as being tantamount to a constructive voluntary quit as, only
because of the free exercise of choosing not to accept full-time
employment, did he ultimately become unemployed.
Resp't's Br. Ex. 1 (Morris, Comm'r Dec.) Morris is distinguishable. The
claimant's free exercise of choice, intentionally made, caused the
separation of his work. The commissioner also went on to engage in a 'good
cause' analysis.6
As Mr. Bauer points out, the department's strained good cause analysis
in this case demonstrates the inapplicability of the constructive voluntary
quit doctrine to the legislative scheme. See Terry v. Employment Sec.
Dep't, 82 Wn. App. 745, 750, 919 P.2d 111 (1996); WAC 192-16-009(1)
(setting forth elements claimant must prove for good cause: (1) he left
due to work-connected factors; (2) the work-connected factors were
sufficiently compelling to cause a reasonably prudent person to leave the
employment; and (3) the employee exhausted all reasonable alternatives
prior to quitting, unless exhaustion would have been futile). Mr. Bauer
cannot show good cause for quitting because he did not quit. The fact that
the claimant has a safety valve if he can show good cause reflects the
legislature's intent to grant unemployment benefits to a claimant even if
he, as a practical matter, caused his own unemployment by quitting, as long
as he has a good reason for doing so.
Misconduct
The department asks that, in the alternative to adopting the
constructive voluntary quit doctrine, we affirm by finding that Mr. Bauer
engaged in misconduct under RCW 50.20.060. That is beyond the scope of our
review.
Normally, the appellate court may sustain the trial court's judgment
on any theory within the pleadings and proof. Int'l Bhd. of Pulp, Sulphite
& Paper Mill Workers, AFL-CIO v. Delaney, 73 Wn.2d 956, 971-72, 442 P.2d
250 (1968); see RAP 12.2. But this appeal is governed by the APA. See RCW
50.32.120 ('Judicial review of a decision of the commissioner involving the
review of an appeals tribunal decision may be had only in accordance with
the procedural requirements of RCW 34.05.570'). Our review is limited.
Except in very narrow circumstances not applicable here, the APA provides
the exclusive means and standards for review of the department's action.
RCW 34.05.510; Purse Seine Vessel Owners Ass'n v. State, 92 Wn. App. 381,
388, 966 P.2d 928 (1998). There is no provision in the APA that allows a
court sitting in review to affirm on any ground. See RCW 34.05.570
(setting forth APA judicial review provisions).
Attorney Fees
Mr. Bauer has properly requested reasonable attorney fees pursuant to
RCW 50.32.160, which provides that 'if the decision of the commissioner
shall be reversed or modified, {the claimant's attorney} fee and the costs
shall be payable out of the unemployment compensation administration fund.'
He is entitled to reasonable attorney fees provided he complies with RAP
18.1(d). Gibson v. Dep't of Employment Sec., 52 Wn. App. 211, 220-21, 758
P.2d 547 (1988).
CONCLUSION
Mr. Bauer did not voluntarily quit his employment. The voluntary
constructive quit doctrine has not been adopted by Washington courts or the
legislature. The doctrine does not fit within the current statutory scheme
or interpretive cases. To adopt the doctrine
would usurp the legislative function. We therefore reverse the
commissioner and superior court and award Mr. Bauer reasonable attorney
fees.
Schultheis, J.
I CONCUR:
Kurtz, J.
1 These facts are based on the findings of fact made by the administrative
law judge and adopted by the commissioner of the Employment Security
Department. As unchallenged findings, they are verities on appeal. Lawter
v. Employment Sec. Dep't, 73 Wn. App. 327, 332-33, 869 P.2d 102 (1994).
2 As noted infra pages 12-13, good cause is not an issue here.
Nonetheless, the statute goes on to clarify that in order to show good
cause, the reason for leaving must be attributable to the employment, i.e.,
the employee's health, safety, morals, physical ability, and fitness to do
the work, and 'such other work connected factors.' Former RCW 50.20.050(3)
(2002). The statute also sets forth specific scenarios in which an
employee will not be found to have left work voluntarily without good
cause. They include (1) leaving to accept a bona fide offer of other
employment, (2) death, illness, or disability of the employee's immediate
family, (3) relocation of the worker's husband or wife due to a mandatory
employment transfer, or (4) when leaving is necessary to protect against
domestic violence. Former RCW 50.20.050(2) (2002).
3 The decision goes on to state, ''If an employee is discharged for any
reason, other than perhaps for the commission of an act which the employee
knowingly intended to result in his discharge, it cannot be said that his
or her unemployment was due to 'leaving work voluntarily.''' Vergeyle, 28
Wn. App. at 402 (emphasis omitted) (quoting Allen, 275 Md. at 79). This
statement is dictum--unnecessary to decide the case--and therefore not
controlling. DCR, Inc. v. Pierce County, 92 Wn. App. 660, 683 n.16, 964
P.2d 380 (1998). This and other statements in which the Allen court had
pontificated on the constructive voluntary leaving doctrine was later found
to be dictum. Dep't of Econ. & Employment Dev. v. Taylor, 108 Md. App.
250, 265, 270, 671 A.2d 523 (1996), aff'd, 344 Md. 687, 690 A.2d 508
(1997).
4 The statute provided, '{An individual shall be disqualified from
benefits} {f}or the week in which he left his regular employment
voluntarily without good cause attributable to such employment.' Brousseau
v. Me. Employment Sec. Comm'n, 470 A.2d 327, 328 n.1 (Me. 1984)
(alterations in original) (quoting 26 M.R.S.A. sec. 1193(1)(A)).
5 In 1997, the states that recognize the 'constructive voluntary leaving'
doctrine were California, Michigan, New Jersey, New York, and
Massachusetts. Keanini v. Akiba, 84 Haw. 407, 411 n.6, 935 P.2d 122 (Ct.
App. 1997). Those that have expressly rejected the doctrine include
Maryland, Maine, Connecticut, Vermont, and Hawaii. Id.
6 'Having concluded that the claimant voluntarily quit work as a matter of
law, . . . {t}he sole question for disposition . . . is whether or not the
claimant has established 'good cause' for failing to accept continued
employment on a full-time basis.' Resp't's Br. Ex. 1 (Morris, Comm'n
Dec.).
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