DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 19116-8-III
Title of Case: Adrienne A. Zimny (LS)
v.
Employment Security Department
File Date: 01/02/2001
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Kittitas County
Docket No: 99-2-00058-0
Judgment or order under review
Date filed: 01/26/2000
Judge signing: Hon. Michael E. Cooper
JUDGES
------
Authored by Stephen M. Brown
Concurring: Frank L. Kurtz
Kenneth H Kato
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Matthew J. Bean
Law Offices of William B. Knowles P.S.
2505 2nd Ave Ste 620
Seattle, WA 98121-1483
William B. Knowles
Attorney At Law
2505 2nd Ave Ste 620
Seattle, WA 98121-1483
Counsel for Respondent(s)
Timothy S. Hamill
120 S 3rd St Ste 100
Yakima, WA 98901-2869
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ADRIENNE A. ZIMNY, ) No. 19116-8-III
)
Appellant, ) Division Three
) Panel Ten
v. )
) UNPUBLISHED OPINION
EMPLOYMENT SECURITY )
DEPT. OF THE STATE OF )
WASHINGTON, )
)
Respondent. ) FILED
BROWN, J.--Appellant, Adrienne Zimny, at the request of a state
agency, provided foster care for the child of a family served by her social
service employer. Ms. Zimny's employer fired her after she refused to find
alternative placement for the child. After her discharge, the
Employment Security Department refused Ms. Zimny unemployment benefits on
the grounds she voluntarily quit her employment without good cause. We
disagree and reverse.
FACTS
Kittitas County Action Council (KCAC) employed Adrienne Zimny as a family
support case manager. KCAC is a community action agency that provides a
variety of social services. Ms. Zimny's work entailed home visits and
parenting support for client families. Ms. Zimny also worked on the
outside as a guardian ad litem (GAL), court appointed special advocate
(CASA), and licensed foster parent.
Citing conflict of interest concerns, KCAC asked Ms. Zimny to remove
herself from GAL and foster care cases involving clients of KCAC's family
support division. Ms. Zimny agreed not to take the children of clients on
her caseload as a GAL or foster parent, but would not agree to have a child
removed from her house.
Ms. Zimny did resign as GAL for a child whose parent was a client of
KCAC's family support division and who complained about Ms. Zimny's dual
role. Later, the Department of Social and Health Services (DSHS) asked Ms.
Zimny to take the same child into her home as a foster child. Ms. Zimny
did without informing KCAC. Again, the foster-child's mother complained to
KCAC.
KCAC then placed Ms. Zimny on probation and demanded she find alternative
placement for the child within one week. Ms. Zimny refused to comply and
wrote a grievance letter to KCAC's board contesting the probation and
asserting no conflict of interest existed in continuing foster care because
the child's family was not part of her caseload. Ms. Zimny wrote: 'I see
my work as a foster parent a continuation of KCAC's mission in the
community, not a conflict.' After hearing, KCAC's executive committee
denied Ms. Zimny's grievance. KCAC fired Ms. Zimny the next day.
Employment Security Department (Department) denied Ms. Zimny's claim
for unemployment benefits, reasoning she quit KCAC voluntarily without good
cause. Ms. Zimny appealed the denial of benefits, asserting: 'I did not
voluntarily leave my position. I was asked to do something that went
against my beliefs and despite my efforts to resolve this issue through the
grievance process, I was terminated anyway.'
Ms. Zimny represented herself in the subsequent appeal to an Administrative
Law Judge (ALJ) who affirmed the Department with consistent findings of
fact and conclusions of law. A Department Commissioner's Delegate affirmed
the ALJ's initial order. Ms. Zimny, pro se, then unsuccessfully appealed
the Department's final order to the superior court. Ms. Zimny appealed.
ANALYSIS
The issue is whether the Department erred by denying unemployment
benefits to Ms. Zimny on the basis that she voluntarily left her employer
without good cause.
The Washington Administrative Procedures Act (WAPA) governs the standard of
review. RCW 50.32.120; RCW 34.05.570; Tapper v. Employment Sec. Dep't, 122
Wn.2d 397, 402, 858 P.2d 494 (1993). We sit in the same position as the
trial court and apply the WAPA standard of review directly to the record
before the agency. Tapper, 122 Wn.2d at 402. Ms. Zimny bears the burden
of demonstrating the invalidity of the Department's action. RCW
34.05.570(1)(a); City of Redmond v. Central Puget Sound Growth Mgmt.
Hearings Board, 136 Wn.2d 38, 45, 959 P.2d 1091 (1998). A reviewing court
will grant relief from an agency's final order in a statutorily limited set
of circumstances. RCW 34.05.570(3)(a)-(i).
Ms. Zimny argues the Department engaged in unlawful procedure or decision-
making process, RCW 34.05.570(3)(c); the Department erroneously interpreted
or applied the law, RCW 34.05.570(3)(d); and the Department's final order
was not supported by substantial evidence, RCW 34.05.570(3)(e). The
Department asserts Ms. Zimny has not assigned error to the ALJ's findings
of fact, rendering them verities on appeal. Tapper, 122 Wn.2d at 407.
But, as Ms. Zimny's petition for review before the superior court included
allegations that the Department's final order was not supported by
substantial evidence, we review the entire record before the agency for
substantial evidence. RCW 34.05.570(3)(e). Evidence is substantial if it
is of sufficient quantity ''to persuade a fair-minded person of the truth
or correctness of the {agency} order.'' City of Redmond, 136 Wn.2d at 46
(quoting Callecod v. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510
(1997)).
We review the agency's interpretation and application of law de novo.
Redmond, 136 Wn.2d at 46. We defer to the agency's interpretation of the
law when the agency has specialized expertise in the relevant field, but
are not bound by it. Id.
Finally, we view 'the evidence and any reasonable inferences in the
light most favorable to the party that prevailed in the highest forum
exercising fact-finding authority.' Scholfield v. Spokane County, 96 Wn.
App. 581, 586-87, 980 P.2d 277 (1999) (citing Davidson v. Kitsap County, 86
Wn. App. 673, 680, 937 P.2d 1309 (1997)).
'RCW 50.20.050(1) disqualifies a person from receiving benefits if he
or she left work voluntarily without good cause.' Korte v. Employment Sec.
Dep't, 47 Wn. App. 296, 301, 734 P.2d 939 (1987). And, RCW 50.20.060
disqualifies a person discharged from employment for misconduct connected
with his or her work. See Lawter v. Employment Sec. Dep't, 73 Wn. App.
327, 331, 869 P.2d 102, review denied, 124 Wn.2d 1019 (1994).
'A voluntary termination requires a showing that an employee intentionally
terminated her own employment.' Safeco Ins. Companies v. Meyering, 102
Wn.2d 385, 393, 687 P.2d 195 (1984) (citing Vergeyle v. Dep't of Employment
Sec., 28 Wn. App. 399, 402, 623 P.2d 736 (1981), overruled on other grounds
by Davis v. Employment Sec. Dep't, 108 Wn.2d 272, 737 P.2d 1262 (1987)).
'As we see it, the 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. 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 (quoting Allen v. CORE Target City Youth
Progam, 275 Md. 69, 79, 338 A.2d 237 (1975)).
The question here is whether Ms. Zimny 'knowingly intended' to terminate
her employment. We are not persuaded that she did.
'The act requires that the Department analyze the facts of each case to
determine what actually caused the employee's separation.' Safeco, 102
Wn.2d at 392-93. A review of the facts underlying voluntary termination
cases shows that an employee terminates his or her employment voluntarily
when he or she acts in a manner that manifests the intent to quit.
In Safeco, the employee 'unilaterally and voluntarily' tendered her
resignation. Safeco, 102 Wn.2d at 393. In Vergeyle, the employee took an
unauthorized vacation and acknowledged in writing, 'I understand
termination of employment will result.' Vergeyle, 28 Wn. App. at 402. In
Cowles Publ'g v. Dep't of Employment Sec., 15 Wn. App. 590, 591, 550 P.2d
712 (1976), the employee voluntarily quit her job because of 'low wages and
lack of promotional opportunity.'
In Korte, 47 Wn. App. 296, the employee could not reach agreement with the
employer over a new employment contract. The employer told the employee
'that if she did not sign the contract, she should leave her keys on her
desk at 4 o'clock that afternoon.' Id. at 298. The employee did not sign
the contract and left her keys on her desk at the end of the workday. Id.
In Smith v. Dep't of Employment Sec., 55 Wn. App. 800, 801, 780 P.2d 1335
(1989), the employee 'wanted to be fired' so he could obtain unemployment
benefits during an expected strike. To become unemployed, the employee
contrived to have his position downgraded to where he was automatically
subject to layoff. Id.
In the published employment security commissioner's decision, In re Boyse,
Empl. Sec. Comm'r Dec. 694 (1967), the employee 'summarily' quit because of
unfair treatment by a supervisor. In another commissioner's decision, a
nurse 'resigned' because of her moral objection to abortions performed in
her ward. In re Medlin, Empl. Sec. Comm'r Dec.2d 666 (1981).
The Department relies on a third administrative precedent, where the
Department denied benefits for an employee who was discharged for failure
to obtain required immigration paperwork. In re Barber, Empl. Sec. Comm'r
Dec.2d 803 (1989). But Barber contains few facts pertaining to the actual
termination and engages in a minimal and summary analysis. Thus, we do not
find Barber persuasive in light of the above-cited authorities, where the
affected employees manifested the intent to quit.
Korte is somewhat similar to Ms. Zimny's case; the employee was forced to
choose between accepting an undesirable employment contract or quitting.
Korte, 47 Wn. App. at 298. Nonetheless, the employee in Korte
intentionally quit - she rejected the contract, left her keys on her desk,
and walked out the door. Id. at 301. Here, nothing in the record
indicates that Ms. Zimny intended to leave employment.
As noted earlier, the voluntariness determination depends on the facts of
each case. Safeco, 102 Wn.2d at 392-93. Under the facts of this case, we
cannot say that Ms. Zimny 'knowingly intended' to terminate her own
employment when she insisted on keeping the child under her care as
requested by DSHS but contrary to the wishes of her employer. Rather, once
Ms. Zimny was placed on probation, she tried without success to persuade
KCAC that taking the child was not inconsistent with her work and did not
warrant termination. Once fired, she filed a grievance and continued to
argue that the discharge was unjustified.
Without condoning Ms. Zimny's professional conduct, we hold her termination
was not voluntary. Because her termination was not voluntary, Ms. Zimny is
eligible for benefits unless the discharge was the result of misconduct
connected with her job. RCW 50.20.060. As the Department has never
alleged that Ms. Zimny was discharged for misconduct, we must necessarily
conclude that she is eligible for benefits. Accordingly, the Department
erroneously interpreted and applied the law in denying her unemployment
benefits on the basis of a voluntary quit. RCW 34.05.570(3)(d).
As this issue is dispositive, we need not consider the issue of good
cause or Ms. Zimny's alternative theories of recovery.
Ms. Zimny has properly requested reasonable attorney fees pursuant to
RCW 50.32.160. Because we reverse the superior court's decision affirming
the commissioner's decision, Ms. Zimny is entitled to reasonable attorney
fees provided she complies with RAP 18.1(d). Gibson v. Employment Sec.
Dep't, 52 Wn. App. 211, 220-21, 758 P.2d 547 (1988).
Reversed.
A majority of the panel has determined this opinion will not be
printed in the Washington Appellate Reports, but it will be filed for
public record pursuant to RCW 2.06.040.
Brown, J.
WE CONCUR:
Kurtz, C.J.
Kato, J.