Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 47149-0-I
Title of Case: Craig Leibbrand, Appellant
v.
Employment Security Dept., Respondent
File Date: 07/23/2001
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Snohomish County
Docket No: 99-2-06422-2
Judgment or order under review
Date filed: 07/19/2000
Judge signing: Hon. Linda Krese
JUDGES
------
Authored by Ronald E. Cox
Concurring: Susan R. Agid
William W. Baker
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Deanna J. Hawkins
555 W Smith St
PO Box 140
Kent, WA 98035-0140
Counsel for Respondent(s)
Laura J. Watson
PO Box 40110
1125 Washington St SE
Olympia, WA 98504-0110
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
CRAIG LEIBBRAND, ) No. 47149-0-I
)
Appellant, ) DIVISION ONE
)
v. )
)
EMPLOYMENT SECURITY )
DEPARTMENT OF THE STATE OF )
WASHINGTON, ) PUBLISHED
)
Respondent. ) FILED:
)
COX, J. -- Craig Leibbrand appeals the Employment Security
Department's (Department) decision denying him unemployment benefits based
on disqualifying misconduct. The final sentence of RCW 50.20.060, which
precludes a claimant from arguing as a defense to disqualification that
alcoholism caused the alleged misconduct, is constitutional. Substantial
evidence supports the Department's determination that Leibbrand committed
disqualifying misconduct. We affirm.
Leibbrand worked for Boeing as an assembler/installer from 1978 until
December 1998. Under Boeing's written attendance policy, '{u}nreported
absences of four or more consecutive workdays and/or six consecutive days
of reported but unexcused consecutive workdays, may result in dismissal '
Boeing provides a copy of its written attendance policy to all employees.
In the fall of 1998, Leibbrand was struggling with alcohol dependency and
accumulated more than one hundred hours of unexcused absences. As a
result, Boeing counseled Leibbrand about his attendance problems and issued
a corrective action memo warning that his 'failure to demonstrate and
maintain satisfactory attendance will result in additional disciplinary
action to include suspension or dismissal.'
That December, Leibbrand was absent for six consecutive workdays due to
problems associated with his alcoholism. He was scheduled to work on
December 9 through December 11, and December 14 through December 16 of
1998. He failed to appear for work or contact Boeing between December 9
and December 11. He failed to go to work again on Monday the 14th, but
called Boeing and left a voice message asking that he be allowed sick leave
for the prior three days. However, he had no accrued sick or vacation
leave available to him at that time. Leibbrand missed work again the next
day, and did not contact his employer. When he failed to report for work
again on the 16th, he attempted to call his supervisor but was unable to
get through. Effective that day, Boeing discharged him for violating its
attendance policy.
After his discharge, Leibbrand applied for unemployment benefits. The
Department denied benefits on the ground that his absences constituted work-
related misconduct. Leibbrand requested a hearing, and the administrative
law judge (ALJ) affirmed the Department's decision based on RCW 50.20.060.
The last sentence of that statute precludes a claimant from arguing as a
defense to disqualification that alcoholism caused the alleged misconduct.
The Commissioner affirmed the ALJ's order, and Leibbrand appealed to the
trial court, which affirmed the Department's final decision.
Leibbrand appeals.
Constitutionality of Statute
Leibbrand argues that RCW 50.20.060, which precludes a claimant from
arguing as a defense to disqualification that alcoholism caused the alleged
misconduct, is unconstitutional. He asserts that the Department thus erred
by relying on that statute in denying his application for benefits. We
hold that the statute is constitutional.
The Administrative Procedure Act (APA) governs our review of the
Commissioner's final decision.1 We may reverse such an administrative
decision if '{t}he order, or the statute or rule on which the order is
based, is in violation of constitutional provisions on its face or as
applied,' or '{t}he order is not supported by evidence that is substantial
when viewed in light of the whole record before the court .'2 In reviewing
the Department's actions, we sit 'in the same position as the superior
court, applying the standards of the {}APA directly to the record before
the agency.'3 The Commissioner's decision is prima facie correct, and
Leibbrand bears the burden of establishing his right to benefits.4
We review constitutional challenges to a statute de novo.5 A 'statute is
presumed constitutional and the burden is on the party challenging the
statute to prove its unconstitutionality beyond a reasonable doubt.'6
The Department denied Leibbrand's application for benefits on the basis
that his absences constituted disqualifying misconduct. RCW 50.20.060
disqualifies an individual from receiving unemployment benefits when he or
she is discharged from employment for work-related misconduct. The statute
states that:
An individual shall be disqualified from benefits beginning with the first
day of the calendar week in which he or she has been discharged or
suspended for misconduct connected with his or her work 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. Alcoholism shall not
constitute a defense to disqualification from benefits due to
misconduct.{7}
Leibbrand argues that the last sentence of this statute is unconstitutional
because it violates the equal protection provisions of the state and
federal constitutions. He contends that the Legislature had no rational
basis for distinguishing between alcoholics and non-alcoholics, and that
the statute thus cannot pass constitutional muster.
We need not separately analyze Leibbrand's equal protection challenge under
the state and federal constitutions.8 When a party challenges a statute on
equal protection grounds, courts apply a rational basis test if the
challenged classification 'neither involves a suspect or semisuspect class
nor threatens a fundamental or important right.'9 Leibbrand does not argue
that the statutory classification between alcoholics and non-alcoholics
involves a suspect or semi-suspect class. Such an argument would appear to
have no case authority to support it. 10 Thus, we apply the rational basis
test.
The rational basis test 'is the most relaxed and tolerant form of judicial
scrutiny under the equal protection clause.'11 Under this test, a statute
is constitutional if (1) the classification applies alike to all members
within the designated class; (2) some rational basis exists for reasonably
distinguishing between those within the class and those outside the class;
and (3) the challenged classification bears a rational relation to the
purpose of the challenged statute.12 We will uphold a legislative
classification 'unless it rests on grounds wholly irrelevant to the
achievement of legitimate state objectives.'13
In determining whether a rational relationship exists, we 'may assume the
existence of any necessary state of facts of which we can reasonably
conceive.'14 Moreover, we may uphold the validity of such a classification
based on 'rational speculation unsupported by evidence or empirical data.'15
'The party challenging the legislation 'must show, beyond a reasonable
doubt, that no state of facts exists or can be conceived sufficient to
justify the challenged classification, or that the facts have so far
changed as to render the classification arbitrary or obsolete.''16
Here, Leibbrand correctly concedes that the statute satisfies the first
prong of the rational basis test: the classification applies alike to all
members within the designated class of alcoholics. Turning to the second
prong, however, he argues that the Legislature had no rational basis for
distinguishing between alcoholics and non-alcoholics. He notes that RCW
50.20.060 allows a person suffering from a disease such as epilepsy or
Tourette's syndrome to present evidence of that disease as a defense to
disqualification from benefits for misconduct, but prevents a person
suffering from alcoholism from doing the same. He argues that the
Legislature could have had no rational basis for singling out alcoholics in
such a manner.
Significantly, RCW 50.20.060 does not disqualify individuals from benefits
based on their status as alcoholics. The statute simply eliminates
evidence of alcoholism as a defense to disqualification based on
misconduct, thereby allowing an employer to hold an alcoholic employee to
the same performance and behavior standards as other employees.
When the Legislature enacted the final sentence of RCW 50.20.060 in 1982,
it could well have decided to follow the rationale behind the Federal
Rehabilitation Act, which excluded certain alcoholics from its definition
of a handicapped individual. As amended in 1978, the Rehabilitation Act
provided that the term 'handicapped individual'
does not include any individual who is an alcoholic or drug abuser whose
current use of alcohol or drugs prevents such individual from performing
the duties of the job in question or whose employment, by reason of such
current alcohol or drug abuse, would constitute a direct threat to property
or the safety of others.17
The more recent Americans with Disabilities Act (ADA) similarly
distinguishes misconduct caused by alcoholism from that caused by other
diseases. Although the ADA recognizes alcoholism as a disability, it does
not protect unsatisfactory conduct caused by the disease. 18 In addition, a
1996 amendment to the Social Security Act eliminated alcoholism as a basis
for disability awards.19
The Legislature could also have rationally distinguished between alcoholics
and persons suffering from other diseases on the basis that alcoholics may
be responsible, at least to some extent, for triggering the symptoms of
their disease by taking the initial, affirmative step of drinking. The
Legislature may also have decided that work-related misconduct arising from
alcoholism is potentially more disruptive and detrimental than misconduct
arising from other diseases. In light of such possible distinctions, as
well as the federal legislation discussed above, we conclude that the
Legislature had a rational basis for the distinction suggested by the
statute.
With respect to the third prong of the rational basis test, Leibbrand
argues that the challenged classification bears no rational relation to the
purpose of the statute. He argues that disallowing evidence of alcoholism
as a defense to an accusation of willful misconduct directly conflicts with
the purpose of RCW 50.20.060, which is to disqualify from benefits only
those individuals who are at fault for their own unemployment.
For support, Leibbrand relies on Steele v. Employment Dep't, in which the
Oregon Court of Appeals concluded that an administrative regulation making
absences due to alcohol use a per se basis for disqualification from
benefits conflicted with a state statute disqualifying employees discharged
for misconduct.20 But the issue in that case was not, as it is here,
whether the Legislature has the constitutional authority to statutorily
exclude certain categories of individuals from receiving unemployment
benefits. Rather, the issue before the Oregon court was whether the rule's
per se disqualification
standard conflicted with the statute, and was thus 'outside the permissible
range of agency discretion .'21 The court ultimately determined that the
department had indeed exceeded the scope of its delegated authority by
enacting such a rule, and reversed on that basis.22
The purpose of the Employment Security Act is to provide unemployment
benefits for 'persons unemployed through no fault of their own...'23
Similarly, 'the operative principle behind the disqualification for
misconduct is the fault of the employee.'24 As discussed above, the
Legislature could rationally have concluded that alcoholics are, to some
extent, responsible for the onset of the symptoms of their disease, and
should bear more responsibility for their workplace conduct than
individuals suffering from other diseases.
Leibbrand also argues that RCW 50.20.060's elimination of alcoholism as a
defense to disqualifying misconduct is unconstitutional because it
contradicts specific legislative findings regarding alcoholism. He points
specifically to RCW 70.96A.011, which states, in part, that: '{t}he
legislature agrees with the 1987 resolution of the American Medical
Association that endorses the proposition that all chemical dependencies,
including alcoholism, are diseases.' He also relies on RCW 70.96A.020(1),
which defines an alcoholic as one 'who suffers from the disease of
alcoholism.' Leibbrand simply argues that '{t}hese expressions of
legislative intent and understanding of the disease of alcoholism are
contradictory to the intent expressed in RCW 50.20.060.'25
But these statutes are not a part of the Employment Security Act, and are
unrelated to the distribution of unemployment compensation benefits.
Moreover, Leibbrand has not shown how the Legislature's recognition of
alcoholism as a disease conflicts with its decision to hold alcoholics to
the same standards as non-alcoholics when determining eligibility for
unemployment benefits. As discussed above, Congress has similarly
recognized alcoholism as a disease in both the ADA and Rehabilitation Act,
yet declined to protect workplace conduct arising from the disease.26 Even
assuming the presence of such a conflict, Leibbrand has cited to no
authority to support his argument that this Court should invalidate RCW
50.20.060 because it conflicts with the legislative findings and intent
portion of a wholly unrelated statute.
We hold that the final sentence of RCW 50.20.060, which precludes a
claimant from arguing as a defense to disqualification that alcoholism
caused the alleged misconduct, satisfies rational basis review.
Substantial Evidence
Leibbrand argues that the record lacks substantial evidence to support the
Department's determination that he committed disqualifying misconduct.
There was substantial evidence to support the decision below.
The Legislature has defined 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.'27 In adopting that definition, the Legislature intended to
ensure that the Department not deny benefits unless the employee's conduct
was both willful and harmful to the employer.28
Whether an employee's actions constitute misconduct is a mixed question of
law and fact.29 On such questions, this Court determines the law
independently and then applies the law to the facts as found by the agency.30
Leibbrand has not challenged the Commissioner's findings of fact, which are
deemed verities on appeal.31
Leibbrand first asserts that the record does not support the Department's
determination that he acted in willful disregard of his employer's
interests. He argues that he did not act willfully, or with the requisite
level of intent, because his absences were due to alcoholism and were
therefore beyond his control.
In support of this argument, Leibbrand submits authority indicating that
alcoholism is a medically recognized disease, and that a person suffering
from this disease may not have control of his own free will in order to
deliberately commit the degree of misconduct that would serve to deprive
him of unemployment compensation benefits. But because he failed to
present these documents below or otherwise made them a part of the agency
record, we do not consider them.32
This Court must presume that, when the Legislature defined misconduct in
1993 by enacting RCW 50.04.293, it was aware of RCW 50.20.060's elimination
of alcoholism as a defense to disqualification for misconduct.33 By
retaining the final sentence of RCW 50.20.060, the Legislature effectively
determined that an employee whose misconduct arises from alcoholism may
nevertheless be acting in willful disregard of his or her employer's
interests. The current statutory scheme effectively holds alcoholic
employees to the same standards as non-alcoholic employees.
Here, the law required that the Commissioner determine whether Leibbrand
committed misconduct without regard to the effect that his alcoholism may
have had on his behavior. An employee acts with 'willful disregard when he
{or she} (1) is aware of his {or her} 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.'34 Such willful disregard may be present when an
employee violates a reasonable work-related rule, and violation of the rule
was intentional, grossly negligent, or took place after notice or warnings.35
In Galvin, the claimant's employer warned and counseled her about her
excessive absences.36 The employer also informed her that she needed to
obtain advance approval before taking vacation leave.37 The claimant later
took vacation without securing the requisite approval, and her employer
discharged her.38 This Court held that the claimant had acted with willful
disregard of her employer's interest.39
Here, as in Galvin, Leibbrand's employer warned him about his excessive,
unexcused absences and informed him that he could be discharged if his
attendance did not improve. Within three weeks of receiving a written
warning to that effect, Leibbrand missed six consecutive workdays. He made
little attempt to contact his employer and gave Boeing no advance notice
that he would not work as scheduled. He disregarded Boeing's written
attendance policy and the prior warnings he had received. Such behavior
constituted substantial evidence of willful misconduct.
Leibbrand next argues that the record contains insufficient evidence that
his actions harmed his employer's business. We disagree.
To constitute misconduct, an employee's conduct must be harmful to the
employer.40 '{T}o establish that an employee's conduct had the effect of
causing harm to the employer's business, actual detriment to the employer's
operations must be objectively demonstrated.'41 Although the 'harm suffered
need not be tangible or economic, ... the Legislature intended that it be
more than imaginary or theoretical.'42 In making that determination, this
Court will examine each case on its own facts.43 In Galvin, this Court
recognized that excessive absences clearly affect an employer's interests.44
Here, the ALJ specifically found that:
{t}he claimant was employed in a time-sensitive, production environment.
The employer has a schedule of work to be completed each day. The
claimant's absence from work from December 9, 1998 through December 16,
1998, negatively impacted the employer's ability to complete the work
scheduled to be completed each day.
A Boeing representative testified at the hearing that Leibbrand worked:
in a production environment {in which} everything is scheduled so that the
work to be performed is done in a specific amount of time. Variations can
occur, and then we would use overtime when necessary, but everyone we have
on the payroll has a specific job, and it's important that they be there.
Otherwise, it could impact schedules or their coworkers, who may end up
having to work overtime to cover the work for the absent employee, which in
turn, of course, would be a cost factor for the company, having to pay
premium overtime.
This testimony established that Leibbrand's presence on the job was
important to meet production deadlines. His repeated absences adversely
affected Boeing's interest in having a predictable workforce. Substantial
evidence supports the determination that his absences were harmful to his
employer.
We affirm the decision denying Leibbrand's claim for unemployment benefits.
WE CONCUR:
1 Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).
2 RCW 34.05.570(3)(a) & (e).
3 Tapper, 122 Wn.2d at 402.
4 RCW 50.32.150. See also RCW 34.05.570(1)(a) ('The burden of
demonstrating the invalidity of agency action is on the party asserting
invalidity{.}')
5 State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm., 135 Wn.2d
618, 623, 957 P.2d 691 (1998).
6 Tunstall ex rel. Tunstall v. Bergeson, 141 Wn.2d 201, 220, 5 P.3d 691
(2000) (citations omitted); cert. denied, U.S. , 121 S. Ct. 1356, 149
L. Ed. 2d 286 (2001).
7 (Italics ours.)
8 In re Detention of Turay, 139 Wn.2d 379, 412, 986 P.2d 790 (1999), cert.
denied, U.S. , 121 S. Ct. 880, 148 L. Ed. 2d 789 (2001).
9 Merseal v. State Dept. of Licensing, 99 Wn. App. 414, 420, 994 P.2d 262,
review denied, 141 Wn.2d 1021 (2000).
10 City of Richland v. Michel, 89 Wn. App. 764, 771-72, 950 P.2d 10 (1998)
(noting that, '{a}lthough no Washington case has specifically ruled on the
subject, it is doubtful that alcoholics would be considered a suspect
class' because '{t}here is no history of 'invidious discrimination' against
alcoholics that must be rigorously prevented.'). See also Mitchell v.
Commissioner of the Social Security Administration, 182 F.3d 272, 274 (4th
Cir.), cert. denied, 528 U.S. 944, 120 S. Ct. 358 (1999) (concluding
'{a}lcoholics are neither a suspect nor a quasi-suspect class for purposes
of equal protection analysis.'); Gazette v. City of Pontiac, 41 F.3d 1061,
1067 (6th Cir. 1994) (concluding that '{t}he status of being an alcoholic,
or a recovering alcoholic, is not a suspect class for equal protection
analysis, and so the lowest level of scrutiny applies .').
11 State v. Shawn P., 122 Wn.2d 553, 561, 859 P.2d 1220 (1993) (citing
Dallas v. Stanglin, 490 U.S. 19, 26, 109 S. Ct. 1591, 104 L. Ed. 2d 18
(1989)).
12 Campos v. Department of Labor and Indus., 75 Wn. App. 379, 385-86, 880
P.2d 543 (1994), review denied, 126 Wn.2d 1004 (1995).
13 State v. Coria, 120 Wn.2d 156, 171, 839 P.2d 890 (1992); Seeley v. State,
132 Wn.2d 776, 795, 940 P.2d 604 (1997).
14 In re Detention of Brooks, 94 Wn. App. 716, 721, 973 P.2d 486 (1999).
15 In re Brooks, 94 Wn. App. at 721 (citing Heller v. Doe, 509 U.S. 312,
320, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993)).
16 Seeley, 132 Wn.2d at 795-96 (quoting State v. Smith, 93 Wn.2d 329, 337,
610 P.2d 869 (1980)).
17 See Pub. L. No. 95-602 sec. 122, 92 Stat. 2955 (1978) (then codified at
29 U.S.C. sec. 706(7)(B)). See now, 29 U.S.C. sec. 705(20)(C)(v) (1998)
(stating that the term ' 'individual with a disability' does not include
any individual who is an alcoholic whose current use of alcohol prevents
such individual from performing the duties of the job in question or whose
employment, by reason of such current alcohol abuse, would constitute a
direct threat to property or the safety of others.').
18 See 42 U.S.C. sec.12114(c)(4) (an employer 'may hold an employee who
engages in the illegal use of drugs or who is an alcoholic to the same
qualification standards for employment or job performance and behavior that
such entity holds other employees, even if any unsatisfactory performance
or behavior is related to the drug use or alcoholism of such employee ');
See Nielsen v. Moroni Feed Company, 162 F.3d 604, 609 (10th Cir. 1998).
19 42 U.S.C. sec. 423(d)(2)(C) ('An individual shall not be considered to be
disabled for purposes of this subchapter if alcoholism or drug addiction
would ... be a contributing factor material to the Commissioner's
determination that the individual is disabled.").
20 143 Or. App. 105, 923 P.2d 1252 (1996).
21 Steele, 923 P.2d at 1255.
22 Steele, 923 P.2d at 1258.
23 RCW 50.01.010.
24 Tapper, 122 Wn.2d at 409.
25 Brief of Appellant at 22.
26 See 42 U.S.C. sec. 12114(c)(4); 29 U.S.C. sec. 705(20)(C)(v).
27 RCW 50.04.293.
28 Hamel v. Employment Sec. Dep't, 93 Wn. App. 140, 145, 966 P.2d 1282
(1998), review denied, 137 Wn.2d 1036 (1999).
29 Dermond v. Employment Sec. Dep't, 89 Wn. App. 128, 132, 947 P.2d 1271
(1997).
30 Hamel, 93 Wn. App. at 145.
31 RAP 10.3(g); Tapper, 122 Wn.2d at 407.
32 RCW 34.05.558 (judicial review must be confined to the agency record).
Under RCW 34.05.562, this Court may receive additional evidence 'only if it
relates to the validity of the agency action at the time it was taken and
is needed to decide disputed issues regarding: (a) {i}mproper constitution
as a decision-making body or grounds for disqualification of those taking
the agency action; (b) {u}nlawfulness of procedure or of decision-making
process; or (c) {m}aterial facts not required to be determined on the
agency record.' None of these exceptions apply here.
33 Elford v. City of Battle Ground, 87 Wn. App. 229, 235, 941 P.2d 678
(1997), review denied, 135 Wn.2d 1001 (1998) (when the Legislature amends a
statute, this Court will presume that it considered earlier enactments
dealing with the same subject matter).
34 Haney v. Employment Sec. Dep't, 96 Wn. App. 129, 139, 978 P.2d 543 (1999)
(alterations in original) (quoting Hamel, 93 Wn. App. at 146-47).
35 Galvin v. Employment Sec. Dep't, 87 Wn. App. 634, 643, 942 P.2d 1040
(1997), review denied, 134 Wn.2d 1004 (1998).
36 Galvin, 87 Wn. App. at 636-37.
37 Galvin, 87 Wn. App. at 637.
38 Galvin, 87 Wn. App. at 638.
39 Galvin, 87 Wn. App. at 646-47.
40 Dermond, 89 Wn. App. at 133.
41 Haney, 96 Wn. App. at 134 (quoting Dermond, 89 Wn. App. at 135-36).
42 Haney, 96 Wn. App. at 134 (quoting Dermond, 89 Wn. App. at 135).
43 Dermond, 89 Wn. App. at 136.
44 Galvin, 87 Wn. App. at 646.