DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 23701-6-II
Title of Case: Diane E. Stocks, Appellant
v.
Employment Security
File Date: 01/14/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Grays Harbor County
Docket No: 96-2-01301-0
Judgment or order under review
Date filed: 07/07/1998
Judge signing: Hon. F. M. McCauley
JUDGES
------
Authored by Elaine M. Houghton
Concurring: Karen G. Seinfeld
Carroll C. Bridgewater
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
John Stocks
Van Siclen Stocks & Firkins
Ste A100
4508 Auburn Way N
Auburn, WA 98002-1381
Counsel for Respondent(s)
Steve Victor
Attorney At Law
640 N Aurora Ave
Tacoma, WA 98406
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DIANE E. STOCKS, No. 23701-6-II
Appellant,
v.
EMPLOYMENT SECURITY DEPARTMENT UNPUBLISHED OPINION
OF THE STATE OF WASHINGTON,
Respondent. Filed:
HOUGHTON, J. -- Diane E. Stocks appeals a superior court order
affirming a decision of the Employment Security Department (Department)
denying Stocks unemployment benefits based on a finding of misconduct under
RCW 50.20.060. We affirm.
FACTS
Diane Stocks worked at the Safeway store in Aberdeen from 1988 until
she resigned on May 5, 1996. She was working as a deli clerk when she
resigned.
Included in Safeway's list of working rules and regulations is one stating
that reporting to work under the influence of alcohol will be grounds for
immediate discharge. On January 24, 1996, the store's assistant manager,
Patricia Kennedy, met with Stocks privately regarding reports of her
drinking on breaks. Kennedy mentioned a local alcohol rehabilitation
clinic and offered help but reminded Stocks that working under the
influence of alcohol would not be tolerated and could result in her
immediate suspension or discharge. In early February, Safeway store manager
David Steele spoke with Stocks and voiced concern about her drinking. He
encouraged Stocks to seek help and told her that she would be discharged if
she reported to work with alcohol on her breath. Soon thereafter, Stocks
told Steele that she was voluntarily entering an alcohol rehabilitation
program. Steele was supportive.
Stocks reported to work at 3:00 p.m. on April 23 with her tie askew and the
top button of her blouse unbuttoned. Both Kennedy and Stocks detected a
noticeable odor of alcohol on her breath. Steele called Stocks into his
office, where she signed a document to acknowledge receipt of certain
instructions. Her signature was sloppy, her speech was slow and
controlled, and her walk was slow and deliberate. Stocks admitted to both
Kennedy and Steele that she had been drinking before reporting to work.
Kennedy drove Stocks home, believing that she was not fit to drive. Stocks
was suspended on April 23.
Stocks met with Steele on April 29 and was given the choice of resigning or
being fired. She chose to resign. Stocks then sought unemployment
compensation, which the Department denied on the basis that she was
discharged pursuant to RCW 50.20.060, which bars a claimant discharged for
work-related misconduct from receiving unemployment benefits. Stocks
appealed, arguing that she had never been told that her job was in
jeopardy. Following an evidentiary hearing, an administrative law judge
(ALJ) from the Office of Administrative Hearings affirmed the denial of
benefits under RCW 50.20.060, and the Employment Security Department
Commissioner affirmed that decision, subject to a few modifications.
Stocks then filed a petition for review in the superior court, which
affirmed the Commissioner's order denying Stocks unemployment benefits.
Stocks appeals.
ANALYSIS
Judicial review of a final administrative decision of a Commissioner
of the Employment Security Department (Commissioner) is governed by the
Washington Administrative Procedure Act (APA). Tapper v. Employment Sec.
Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). In reviewing
administrative actions, we apply the APA standards directly to the record
before the agency. Valentine v. Department of Licensing, 77 Wn. App. 838,
843-44, 894 P.2d 1352 (citing Tapper, 122 Wn.2d at 402), review denied, 127
Wn.2d 1020 (1995). An agency head reviewing an adjudicative decision of an
administrative hearing officer may substitute his or her findings for those
made by the hearing officer. RCW 34.05.464. Thus, to the extent the
Commissioner modified the ALJ's findings, we review the Commissioner's
findings. Valentine, 77 Wn. App. at 844 (citing Tapper, 122 Wn.2d at 406).
Relief from an agency order will be granted only when an agency
erroneously interpreted the law or the decision is not supported by
substantial evidence. RCW 34.05.570(3). Substantial evidence is
''evidence in sufficient quantum to persuade a fair-minded person of the
truth of the declared premises.'' Olmstead v. Department of Health, 61 Wn.
App. 888, 893, 812 P.2d 527 (1991) (quoting Green Thumb, Inc. v. Tiegs, 45
Wn. App. 672, 676, 726 P.2d 1024 (1986)). The burden of proving that an
agency action was invalid lies with the party challenging the action. RCW
50.32.150; RCW 34.05.570(1)(a).
On issues of law, the court may substitute its judgment for that of
the administrative body; however, the court must give substantial weight to
the agency's interpretation of the law. Valentine, 77 Wn. App. at 844. On
mixed questions of law and fact, the court determines the law independently
and then applies the law to the facts as found by the agency. Valentine,
77 Wn. App. at 845 (citing Peter M. Black Real Estate Co. v. Department of
Labor and Indus., 70 Wn. App. 482, 487, 854 P.2d 46 (1993)).
Under the Employment Security Act, an individual who is discharged
'for misconduct connected with his or her work' is disqualified from
receiving unemployment benefits. RCW 50.20.060; Hamel v. Employment Sec.
Dep't, 93 Wn. App. 140, 145, 966 P.2d 1282 (1998), review denied, 137 Wn.2d
1036 (1999). In 1993, the Legislature enacted RCW 50.04.293, which 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.' The Legislature's
intent in enacting RCW 50.04.293 was to ensure that the Department not deny
benefits unless the employee's conduct was both willful and harmful to the
employer. Hamel, 93 Wn. App. at 145. Once misconduct is found, RCW
50.20.060 further provides that alcoholism is not a defense to the
resulting disqualification from benefits.
The Commissioner concluded that Stocks acted in willful disregard of
her employer's interests by reporting to work under the influence of
alcohol. Stocks' arguments notwithstanding, the Commissioner found that
she was discharged not for being an alcoholic but for reporting to work
under the influence of alcohol, which the evidence established was
misconduct. The Commissioner thus reasoned that Stocks was precluded by
statute from using her alcoholism as a defense.
Stocks contends that the Commissioner erred in finding that she
reported to work under the influence of alcohol on April 23. As noted
above, both the store manager and the assistant manager observed that
Stocks smelled of alcohol and acted as though she was under the influence
when she came to work. More conclusive, however, is Stocks' admission that
she was affected by the three drinks she consumed at home before reporting
to work. She acknowledged that as an alcoholic, her tolerance to alcohol
is low, and that while she once could have consumed three drinks without
adverse effect, she could no longer do so. She answered '{y}es' when
asked whether she was definitely feeling what she had had to drink when she
arrived at work on April 23. Clerk's Papers at 81-82. The Commissioner
found that Stocks knew her actions were 'wrong' and thus was nervous when
asked to meet with the store manager upon her arrival at work because she
realized she had been 'caught.' Clerk's Papers at 146. There is
substantial evidence to support the finding that Stocks reported to work
under the influence of alcohol on April 23, 1996.
Stocks further contends that even if she did report under the
influence of alcohol, that action does not satisfy the 'willful disregard'
element of the statutory misconduct definition.
An 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, erroneous judgment or ordinary negligence
does not constitute misconduct for purposes of denying unemployment
compensation. Tapper, 122 Wn.2d at 409; Hamel, 93 Wn. App. at 146.
Stocks asserts that her actions were not intentional, but were at most
negligent or a result of poor judgment resulting from her alcoholism. She
maintains that her conduct resembles that of the claimant in Wilson v.
Employment Sec. Dep't, 87 Wn. App. 197, 940 P.2d 269 (1997). Wilson was a
jewelry store manager fired after his failure to properly log and store
inventory resulted in the loss of two diamonds. In analyzing whether that
failure constituted willful disregard, Division One noted that there was no
rule or policy requiring that a loose diamond be logged or placed in the
safe within a certain number of minutes after its receipt.
Had such a policy existed and Wilson deliberately chosen not to act within
the time specified because, for example, he disputed the necessity of so
acting, then a finding of misconduct under the statute would be easier to
make. Rather, it appears that Wilson's employer's policy required only
that a loose diamond be placed in the safe within an unspecified time after
receipt. . . . We find nothing in the record to show that Wilson made a
deliberate decision to act in defiance of the policy. Rather, it appears
that Wilson fully intended to comply with the policy, but simply failed to
do so in time to prevent the losses.
Wilson, 87 Wn. App. at 203.
The court was careful to distinguish between conduct that would
justify discharge and conduct that would support a denial of unemployment
compensation on misconduct grounds. Although Wilson's conduct justified
his discharge, it did not rise to the level of statutory misconduct because
there was no evidence that he was motivated by defiance, bad faith, or
indifference to the consequences of his actions. Wilson, 87 Wn. App. at
204-05; but see Hamel, 93 Wn. App. at 146 (employee's specific motivations
for voluntarily disregarding employer's interests are irrelevant).
Here, Stocks acknowledged being aware of Safeway's rule regarding the
consequence of reporting to work under the influence. There was a policy
in place of which Stocks was aware, and she defied that policy by reporting
to work under the influence of alcohol. Although she contends that her
actions were not willful because of her alcoholism, she also contends that
the disease did not render her incapable of performing her job. Thus, the
disease did not rob her of all volition in reporting to work. Thus, there
was an acknowledgement and disregard of company policy here that was absent
in Wilson.
Stocks also contends that a finding of willful disregard cannot be
made absent evidence of prior transgressions and repeated warnings. The
Commissioner found that Stocks 'received ample warning regarding the
consequences of reporting to work while under the influence of alcohol and,
consequently, was given unmistakable notice that such conduct would be
adverse to the employer's expressly stated interest of maintaining an
alcohol free workplace.' Clerk's Papers at 147. Stock maintains, however,
that her conversations with the store managers did not constitute genuine
warnings because they did not follow actual incidents of misconduct and
were not in writing. She points to other cases in which discharge for drug
and alcohol abuse resulted only after repeated warnings and violations of
reentry contracts and employer-initiated treatment opportunities. See
Henson v. Employment Sec. Dep't, 113 Wn.2d 374, 779 P.2d 715 (1989); see
also Crain v. Employment Sec. Dep't, 65 Wn. App. 51, 827 P.2d 344 (1992).
Stocks also bases her argument regarding the need for repeated
warnings on the common-law definition of misconduct set forth in Tapper.
As the court noted in Hamel, the decision in Tapper is not controlling
because the court did not review RCW 50.04.293. Hamel, 93 Wn. App. at 147.
Moreover, the element of the Tapper misconduct test that Stocks relies upon
provides that for misconduct to be found, '{t}he violations must be
intentional, grossly negligent, or continue to take place after notice or
warnings.' Tapper, 122 Wn.2d at 409 (emphasis added).1 Thus, even under
Tapper, the presence of notice or warnings is not essential to a finding of
misconduct if the violation is intentional.
We contrast the circumstances compelling disqualification from
benefits set forth in RCW 50.20.060 with the statutory language at issue in
Jones v. Brown and Root Corporate Servs., 607 So.2d 258 (Ala. Civ. App.),
cert. denied (1992), one of many out-of-jurisdiction cases that Stocks
cites to support her claim. Jones concerned the application of a section
of the federal Drug-Free Workplace Act of 1988 that provides for total
disqualification from unemployment compensation for work-related misconduct
'repeated after previous warning.' Jones, 607 So.2d at 259. The court
held that the purpose of this section is to give a worker another chance,
and that total disqualification may not result unless a worker commits a
second act of misconduct for which there has been a previous warning.
Jones, 607 So.2d at 260. There is no provision in the Washington statutes
concerning disqualification from unemployment compensation that compels a
similar result. Thus, even if we agreed with Stocks that she did not
receive a second chance, we would not agree that an award of unemployment
compensation necessarily follows.
Stocks' arguments regarding the need for employer accommodation of an
employee's disability might be better received in an action brought under
the Americans with Disabilities Act, 42 USC sec.12101. Stocks' attempt to
argue that the Act applies here fails, as the Act does not speak to
entitlement or disentitlement to unemployment compensation. As the ALJ
recognized, this action is governed by RCW 50.20.060.
Stocks also contends that the Commissioner erred in concluding that
her actions were harmful to her employer. To satisfy this element of the
statutory definition of misconduct, there must be evidence showing that the
harm suffered was more than imaginary or theoretical. Dermond v.
Employment Sec. Dep't, 89 Wn. App. 128, 135, 947 P.2d 1271 (1997). Stocks
contends that her conduct caused no harm to Safeway.
The Commissioner disagreed, concluding that the risks to which Stocks
exposed Safeway satisfied RCW 50.20.060.
As deli clerk, the claimant risked loss of the employer's customers by
reporting to work while visibly inebriated; as meat slicer, the claimant
risked injury to herself. In turn, the employer would bear the affiliated
liabilities. In addition, the evidence indicates the claimant's conduct
disrupted the workforce and, presumably, the staffing of the deli.
Clerk's Papers at 146. We see no error in this finding. The harm
resulting from a deli clerk working under the influence of alcohol is more
real than imaginary, and we find that the evidence supports the conclusion
that Stocks' conduct in reporting to work on April 23 was harmful to her
employer.
Stocks cites case law from several other jurisdictions in arguing that
a different result is required. We note that none of these cases discusses
statutory language providing, as does RCW 50.20.060, that alcoholism is not
a defense to a charge of misconduct. Indeed, one case refers to a
claimant's ability to raise 'the defense of his alcoholism.' Gardner v.
State, Unemployment Appeals Comm'n, 682 So. 2d 1222, 1224 (Fla. App. 1996).
Another points to a statute containing a chemical dependency exception to
disqualification from unemployment benefits. Umlauf v. Gresen Mfg., 393
N.W.2d 198, 64 A.L.R. 4th 1145 (Minn. App. 1986). These cases are not
persuasive authority for Stocks' contention that she deserves unemployment
compensation despite the language in RCW 50.20.060.
Stocks insists that the bar to alcoholism as a defense in RCW
50.20.060 is inapplicable because she was fired for her alcoholism and not
for any other misconduct. We agree with the Commissioner that Stocks was
discharged not because of her disease but because she reported to work
under the influence, and that such action was misconduct for which
alcoholism is no excuse. RCW 50.20.060 states plainly that '{a}lcoholism
shall not constitute a defense to disqualification from benefits due to
misconduct.' This language is not open to interpretation and Stocks'
attempt to use her alcoholism to explain her misconduct fails. See State
v. Hutchinson, 111 Wn.2d 872, 877, 766 P.2d 447 (1989) (statutory language
that is clear does not require or permit any construction).
Affirmed.
A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, J.
We concur:
Seinfeld, J.
Bridgewater, C.J.
1 In Hamel, this court disagreed with opinions that have used the Tapper
test to conclude that the presence of warnings alone can constitute willful
disregard. This court held that although an employer's previous warnings
to avoid certain behavior may provide strong evidence of the employee's
knowledge that the conduct is inconsistent with the employer's interest,
such warnings are not in and of themselves sufficient to support a finding
of willful disregard. Hamel, 93 Wn. App. at 148; Haney v. Employment Sec.
Dep't, 96 Wn. App. 129, 139 n.5, 978 P.2d 543 (1999).