DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 51457-1-I
Title of Case: Esperanza Wardach, Appellant v. Department
of Employment Security, Respondent
File Date: 11/10/2003
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 02-2-10146-1
Judgment or order under review
Date filed: 10/30/2002
JUDGES
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Authored by Ann Schindler
Concurring: Anne L Ellington
Ronald E. Cox
COUNSEL OF RECORD
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Counsel for Appellant(s)
Deanna Jill Hawkins
Attorney at Law
710 2nd Ave Ste 700
Seattle, WA 98104-1724
Counsel for Respondent(s)
Erika G.S. Uhl
Washington Attorney General's Office
900 4th Ave Ste 2000
Seattle, WA 98164-1012
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ESPERANZA WARDACH, )
) No. 51457-1-I
)
Appellant, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
EMPLOYMENT SECURITY )
DEPARTMENT OF THE STATE OF )
WASHINGTON, ) FILED:
)
)
Respondent. )
SCHINDLER, J. -- Esperanza Wardach appeals a decision of the Washington
Employment Security Department (the Department) that she was ineligible for
unemployment compensation. The Department Commissioner (the Commissioner)
determined that her persistent tardiness was disqualifying misconduct.
Wardach asserts this decision is not supported by substantial evidence and
it is the result of an erroneous interpretation or misapplication of the
law because her employer condoned her tardiness. Wardach also contends
that because the Commissioner did not reverse any of the Administrative Law
Judge's (ALJ) findings and did not give a reason for reaching a different
conclusion, the Commissioner's additional finding and decision that
Wardach's employer did not condone her conduct is arbitrary and capricious.
We affirm the Commissioner's ruling.
FACTS
Wardach worked as an optometric technician for Restore Vision Centers
(Restore), a lasik eye surgery provider, from September 2000 through July
6, 2001, when she was fired for excess tardiness. By July 6 she had
arrived at work late thirty out of the last thirty-three work days.1
In November 2000 Wardach received an employment manual from Restore which
set out information about its attendance policy. That policy stated that
employees were required to be at work at the start of the shift and if an
employee was unable to get to work on time, he or she was to call the
Operations Manager before the shift began.
As a technician in Restore's clinic, Wardach was responsible for
taking and recording information from the patients and administering
diagnostic tests. Because patients were scheduled in back-to-back half
hour appointments, it was important to stay on schedule. In Wardach's
January 2001 evaluation, Restore warned her that she needed to arrive at
work on time.
In April 2001, Restore hired Dr. Carrie Svanda to manage the office and
improve its efficiency. Within a couple of weeks Dr. Svanda identified
problems with Wardach's work. Dr. Svanda believed that because Wardach
arrived at work late, she fell behind and tried to catch up by not
thoroughly completing the paperwork for each patient. Dr. Svanda also
believed that Wardach's tardiness slowed the clinic's work and delayed the
clinic's ability to serve its patients. Dr. Svanda told Armandina Smith,
Wardach's supervisor, about these concerns and asked Ms. Smith to discuss
them with Wardach. On May 17, 2001, Ms. Smith met with Wardach to discuss
these concerns and told her that her tardiness was causing problems and she
needed to arrive at work on time.
Ms. Smith knew from prior conversations that Wardach was having problems
with her teenage son. Wardach was concerned that her son was using drugs
and skipping school, so she stayed home each morning until he got to
school, called his teachers to make sure he was actually there and then
left for work. Wardach asked Restore to change her hours so that she could
start work later in the day, but Restore was unable to accommodate her
request because of the clinic's scheduling needs.
After the May 17 warning, Wardach continued to arrive late and Dr. Svanda
spoke to her on several occasions about her failure to complete patients'
paperwork on time. Ms. Smith kept track of Wardach's arrival times for
several weeks. Because Wardach continued to be late and the doctors
complained that she was persistently behind schedule and delayed their
work, on July 6, 2001, Restore fired her.
Wardach filed a claim for unemployment compensation benefits. The
Department denied her claim when Restore responded that she had been fired
for misconduct. Wardach appealed, and there was a hearing before an ALJ.
The ALJ concluded that Restore condoned her behavior and reversed the
denial of benefits. Restore appealed the ALJ's determination and the
Commissioner modified the ALJ's decision and denied benefits. The
Commissioner concluded Restore did not condone Wardach's tardiness and had
discharged her for misconduct. Wardach appealed the Commissioner's
decision to superior court. The court affirmed the Commissioner's decision
and she appeals.2
DISCUSSION
The Washington Administrative Procedure Act (WAPA) governs judicial review
of a final administrative decision of the Commissioner of the Employment
Security Department. Tapper v. Employment Sec. Dep't., 122 Wn.2d 397, 402,
858 P.2d 494 (1993). A reviewing court may reverse an administrative
decision when: (1) the administrative decision is based on an error of law;
(2) the decision is not based on substantial evidence; or (3) the decision
is arbitrary or capricious. Tapper, 122 Wn.2d at 402; RCW 34.05.570(3).
When reviewing an agency action, this court "sits in the same position as
the superior court, applying the standards of the {WAPA} directly to the
record before the agency." Tapper, 122 Wn.2d at 402. We must affirm the
Commissioner's decision unless the appellant demonstrates error. RCW
34.05.570(1)(a).
A. Substantial Evidence
Wardach argues that the Commissioner's decision is not supported by
substantial evidence. Substantial evidence exists if the record contains a
sufficient quantity of evidence "to persuade a fair-minded person of the
truth of the declared premises." William Dickson Co. v. Puget Sound Air
Pollution Control Agency, 81 Wn. App. 403, 411, 914 P.2d 750 (1996).
Wardach does not specify which of the findings of fact she challenges as
not supported by substantial evidence.3 We do not review assignments of
error that are not supported by citations to the record and authority.
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 529
(1992).
The Commissioner adopted all of the ALJ's findings of fact and added one
new finding.4 The additional finding states:
After the May 17, 2002 {sic} meeting, although the claimant's continuous
tardiness was not specifically mentioned, the claimant was informed by the
employer that she was not completing her work in a timely fashion. She
would at times not complete some of her tasks at all. The claimant
requested several times to have her hours changed so that she could come in
later in the morning, but the employer was unable to accommodate her
wishes. The claimant continued to be consistently late on an almost daily
basis. There was no evidence in the record to demonstrate that she
attempted to resolve her personal problems in a manner which would have
enabled her to arrive at work on time.5
Dr. Svanda testified that she talked to Wardach several times after the May
17 warning about her continued failure to complete patients' charts and
running behind schedule.6 Ms. Smith and Dr. Svanda both testified that
Wardach repeatedly requested a later start time, but Restore responded that
because of the demand for appointments between 9 a.m. and 6 p.m., they were
unable to accommodate her request.7 At the hearing, Wardach did not
present evidence that she made any efforts to resolve the problem with her
son and arrive at work on time. When the ALJ asked whether she considered
calling her son's school from work, arranging to have someone else help
ensure her son was in school, or driving her son to school and making sure
he went in before she left for work, she said none of these alternatives
were feasible.8 Even if we assume that Wardach is challenging the
Commissioner's additional finding, it is supported by substantial evidence.
B. Misapplication of the Law
Wardach argues that the Commissioner misinterpreted or misapplied the law
when she decided Wardach was discharged for misconduct.
Whether an employee's actions are misconduct and whether an employer
condoned these actions are mixed questions of law and fact. We review
questions of law de novo, according substantial weight to the agency's
interpretation of the law it administers. William Dickson, 81 Wn. App. at
407. We review the agency's findings of fact for substantial evidence.
William Dickson, 81 Wn. App. at 411. "In the unemployment benefits
context, what constitutes willful misconduct that actually harms an
employer's business is a question of law; whether a particular claimant
engaged in willful misconduct that actually harmed his or her employer's
business is a question of fact." Haney v. Employment Sec. Dep't, 96 Wn.
App. 129, 138-39, 978 P.2d 543 (1999).
1. Misconduct
Under RCW 50.20.060 a claimant does not qualify for unemployment benefits
if she has been discharged for misconduct connected with her work. RCW
50.04.293 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." An
employee willfully disregards her employer's interest when she (1) is aware
of the 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." In re
Griswold, 102 Wn. App. 29, 36-7, 15 P.3d 153 (2000).
The Commissioner found that Smith told Wardach her tardiness was causing
Restore problems. That finding establishes both that Wardach was aware
Restore needed to have her arrive on time and she knew her continued
tardiness was contrary to that interest. Wardach also continued to arrive
late even after being warned and did not try to resolve her personal
problems so she could get to work on time. Based on these facts the
Commissioner properly found that Wardach's persistent tardiness was
intentional and that she willfully disregarded her employer's interest.
The Commissioner also found that Wardach's tardiness delayed clinic
procedures resulting in harm to the employer.
Wardach argues that her tardiness does not demonstrate willful disregard of
her employer's interest because her situation is analogous to Shaw v.
Employment Sec. Dep't, 46 Wn. App. 610, 731 P.2d 1121 (1987). In Shaw, the
court concluded that an employee's 14 absences in 15 months was not
misconduct, especially where the last two absences were caused by power
outage and thus were not willful. Id. at 615. While the court noted that
there are no general guidelines as to how many times an employee must be
late to constitute misconduct, it cited American Process Lettering, Inc. v.
Unemployment Comp. Bd., 50 Pa. Commw. Ct. 272, 412 A.2d 1123 (1980) and
Langlois v. Administrator, Unempl. Comp. Act, 24 Conn.Sup. 177, 188 A.2d
507 (1963), as examples of tardiness that established misconduct. Shaw, 46
Wn. App. at 615. In American Process Lettering, the employee was late 24
times in 12 weeks. In Langlois, the employee was late approximately 50% of
the time over the course of two months.
Shaw is not analogous here. First, Wardach argues that, as in Shaw, her
tardiness was due to circumstances beyond her control, namely, her son's
drug and truancy problems. But other than asking Restore if she could
start work later in the day, she did not do anything to try to resolve her
personal problems in a way that would enable her to arrive at work on time.
Second, Wardach arrived late on all of the last 30 days she worked. Her
tardiness was far more excessive than in Shaw, American Process Lettering
and Langlois.
The findings of fact establish misconduct according to the statutory
definition and support the conclusion that Wardach was discharged for
misconduct.
2. Condoned Conduct
Wardach also argues the Commissioner erred by disregarding Department
precedent that when the employer condones a discharged employee's behavior,
the Department should not find misconduct. The Commissioner rejected the
ALJ's two conclusions that the employer condoned Wardach's persistent
tardiness, but did not add any conclusions addressing this issue.
The ALJ concluded Restore condoned Wardach's tardiness because Smith warned
her only once about her tardiness and never said it could result in
dismissal.9 The ALJ also relied on Restore's failure to take any action
for two months after the warning to establish that Restore condoned
Wardach's behavior.
The Commissioner rejected the ALJ's conclusion and added a finding of fact
that the employer's continued warnings about Wardach's failure to keep up
with the clinic's schedule effectively reiterated the May 17 warning that
her tardiness was causing problems.
To establish that an employer condoned the employee's conduct, the
employee must show that the employer knew about the unsatisfactory conduct,
that it occurred with sufficient frequency or to such a degree that it
would cause a reasonable employer under the circumstances to attempt to
remedy it, and the employer did not attempt to remedy it. In re Houghton,
Empl. Sec. Comm'r Dec.2d 851 (1996).10 The only question is whether the
employer's May 17 warning and its follow up complaints about Wardach's
failure to complete her work on time precludes Wardach from establishing
that Restore condoned her tardiness.
In this case, it is clear that the employer knew of Wardach's tardiness and
that the problem was so persistent that a reasonable employer would attempt
to remedy it. We conclude that Restore's warnings were sufficient to
preclude the conclusion that Restore condoned her tardiness. Restore's
failure to explicitly inform her that continued tardiness would result in
discharge is not relevant to whether Restore condoned Wardach's conduct.
Because Restore tried to remedy the problem and fired Wardach after those
efforts failed, it did not condone her tardiness.
C. Arbitrary and Capricious Decision
Wardach argues the Commissioner disregarded the ALJ's conclusion that
Restore condoned Wardach's tardiness without any explanation and the
decision was therefore arbitrary and capricious. "Arbitrary and capricious
action has been defined as willful and unreasoning action, without
consideration and in disregard of facts and circumstances." Heinmiller v.
Dept. of Health, 127 Wn.2d 595, 609, 903 P.2d 433 (1995).
Wardach specifically contends that the Commissioner's decision reversing
the ALJ was arbitrary and capricious on two grounds. First, the
Commissioner, "without pointing to any support in the record, arbitrarily
made a factual finding that the claimant made no effort to `{attempt} to
resolve her personal problems in a manner which would have enabled her to
arrive at work on time.'"11 Second, the Commissioner offered no analysis
explaining why her application of the law to the facts resulted in the
opposite conclusion from that of the ALJ.
RCW 34.05.464(4) describes the authority of an agency official reviewing
administrative decisions:
The reviewing officer shall exercise all the decision-making power that the
reviewing officer would have had to decide and enter the final order had
the reviewing officer presided over the hearing.. In reviewing findings of
fact by presiding officers, the reviewing officers shall give due regard to
the presiding officer's opportunity to observe the witnesses.
As the reviewing officer, the Commissioner exercises "all the decision-
making power" she would have had if she had presided over the hearing.12
Since the ALJ had the power to make findings of fact, the Commissioner has
that same power and may make her own findings of fact. Tapper, 122 Wn.2d
at 404. While the reviewing officer must give due regard to the ALJ's
opportunity to observe the witnesses, the reviewing officer is not bound by
the ALJ's findings of fact, or even the ALJ's credibility determination.
Tapper, 122 Wn.2d at 405.
Wardach challenges the portion of the Commissioner's additional finding
that states: "There was no evidence in the record to demonstrate that she
attempted to resolve her personal problems in a manner which would have
enabled her to arrive at work on time."13 She asserts this finding was
arbitrary, but does not point to any evidence in the record to refute it.
Furthermore, while Wardach argues that the Commissioner's conclusions of
law were arbitrary and capricious because they reached the opposite result
from the ALJ's, she fails to acknowledge that the Commissioner is not bound
by the ALJ's conclusions of law. Northwest Steelhead and Salmon Council of
Trout Unlimited v. Washington State Dep't. of Fisheries, 78 Wn. App. 778,
786, 896 P.2d 1292 (1995) (an agency head may substitute her own
conclusions of law for those made by a hearing officer). Accordingly, the
Commissioner's additional finding and conclusions were neither willful and
unreasoning nor in disregard of facts and circumstances. The decision was
not arbitrary and capricious.
D. Attorney Fees
Wardach requests reasonable attorney fees and costs under RCW
50.32.160. That statute provides that an unemployment compensation
claimant is entitled to reasonable attorney fees and costs if the
Commissioner's decision is modified or reversed. Because we affirm the
Commissioner's decision, we deny Wardach's attorney fee request.
The Commissioner's decision to modify the ALJ's decision and deny benefits
is affirmed.
WE CONCUR
1 According to the employer's records, Wardach was late an average of 14
minutes each day for her last 30 days. On the three days she was not late,
Wardach was either ill or out of the office on a personal day.
2 Appellate review of administrative decisions is on the record of the
administrative tribunal. Franklin County Sheriff's Office v. Sellers, 97
Wn.2d 317, 323-24, 646 P.2d 113 (1982).
3 The only specific challenge to a factual finding in Wardach's brief is
that the Commissioner's finding that "There was no evidence in the record
to demonstrate that she attempted to resolve her personal problems in a
manner which would have enabled her to arrive at work on time," was
arbitrary and capricious. Commissioner's Record (RP) at 133.
4 The Commissioner modified an erroneous statement regarding Wardach's
hourly wage contained in one of the ALJ's findings.
5 See RP at 133.
6 See RP at 45-47.
7 See RP at 36-38, 73, 76-79.
8 RP at 60-69.
9 The ALJ's conclusions stated:
2. The claimant's problem with tardiness was serious. It was serious
enough that many situations, probably most situations that would result in
dismissal and, with proper warnings and employer policies, a holding on
misconduct under RCW 50.20.060. In this case, the employer did show that
there was harm because of the claimant's tardiness. However, the record
also establishes that the employer in effect condoned the claimant's
tardiness. They gave her one small warning type comment in May that her
tardiness had to cease. Beyond that, they accepted claimant's frequent
comment that she was having family problems and made no further comments or
warnings to her about her attendance.
3. Considering that her tardiness was consistent over the last two month of
her employment, it is held that the employer condoned the tardiness and
then decided that it had gone too far and terminated her. It is held under
the circumstances misconduct has not been established under RCW 50.20.060.
CP at 119.
10 Under RCW 50.32.095, the Commissioner is permitted to designate certain
adjudicative decisions as "precedential" and to publish those decisions.
"Such precedents are persuasive authority" for appellate courts. Martini
v. Employment Security Dept., 98 Wn. App. 791, 795, 990 P.2d 981 (2000).
11 App. Br. at 27.
12 RCW 50.32.080 provides that the Commissioner of the Department of
Employment Security has the power to review ALJ decisions and is the final
authority for departmental determinations about unemployment compensation.
The Commissioner is therefore a "reviewing officer" for the purposes of RCW
34.05.464(4). Tapper, 122 Wn.2d at 404.
13 RP at 133.