Becker v. Employment Sec. Dept. of State

• Decision Date: 31 December 1991
• Docket Number: No. 11240-3-III,11240-3-III
• Citation: 821 P.2d 81,63 Wn.App. 673
• Parties: Sherry E. BECKER, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT OF the STATE of Washington, Respondent.
• Court: Washington Court of Appeals

Page 673

63 Wn.App. 673

821 P.2d 81

Sherry E. BECKER, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT OF the STATE of Washington, Respondent.

No. 11240-3-III.

Court of Appeals of Washington,

Division 3.

Dec. 31, 1991.

Steven Vlcko, Cowan, Walker Law Firm, Richland, for appellant.

M. Geoffrey G. Jones, Asst. Atty. Gen., Olympia, for respondent.

THOMPSON, Judge.

Claimant challenges the denial of unemployment compensation benefits by the Commissioner of the Employment Security Department (Department). Benefits were denied on the basis she had been discharged from employment for misconduct connected with her work. We reverse.

In its initial determination, the Department granted benefits to claimant. The administrative law judge (ALJ) affirmed the initial determination, holding the employer failed to establish disqualifying misconduct by claimant. The ALJ's decision was reversed by the Commissioner of the Department, and the Commissioner's decision was upheld by the Superior Court.

The facts as found by the ALJ were adopted by the Commissioner. They are not in dispute. Claimant was employed as a cashier at an automobile supply store in Pasco from November 24, 1989 to March 3, 1990. At the time of her discharge, she was making $4.25 per hour and worked 20 to 30 hours per week.

Claimant was discharged from her job because of errors she made while operating a cash register and as a result of complaints regarding what was perceived as a rude attitude. Between January 22, 1990 and February 11, 1990, claimant received several written and verbal warnings from the store manager regarding cash register errors which included misringing transactions, cash overages, and cash shortages. She was given a 2-day suspension in February. Claimant's employer did not contend any of the cash register errors were deliberate.

On March 2, the store manager received complaints from fellow employees that claimant had been rude to customers on the telephone. ¹ That same day, claimant made another entry error on the cash register and the store manager testified he told her he "was going to do a write up on her, and this [would] consist of a suspension from the company, till further notice from Personnel". Claimant testified the manager told her she was "going to be put on indefinite suspension [and] he'd wait for Personnel to ... fire" her. In any case, claimant testified she decided it would be best to quit. ² Her employment was terminated March 3.

The sole issue presented is whether the Commissioner erred in concluding claimant was discharged for misconduct connected with her work and therefore disqualified from unemployment compensation pursuant to RCW 50.20.060(1). ³

Claimant contends the Commissioner's decision is based upon an erroneous interpretation or application of the law, is not supported by substantial evidence, and is arbitrary and capricious. She argues she may have been negligent, but an employee who fails to perform to her employer's satisfaction because of negligence cannot be denied benefits based on work-connected misconduct.

The Commissioner contends work-connected misconduct includes unexcused acts of negligence after notice or warnings and there was substantial evidence to support the decision.

Judicial review of a final administrative decision rendered by the Commissioner of the Department is governed by the procedural requirements of RCW 34.05.570. ⁴ Therefore, relief will be granted claimant only if:

(d) The agency has erroneously interpreted or applied the law; [or]

(e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter; [or]

....

(i) The order is arbitrary or capricious.

RCW 34.05.570(3).

The decision of the Commissioner is deemed prima facie correct and the burden of demonstrating its invalidity is on the party asserting its invalidity. RCW 50.32.150; RCW 34.05.570(1)(a); Henson v. Employment Sec. Dep't, 113 Wash.2d 374, 779 P.2d 715 (1989).

The term "misconduct" is not defined by statute, although misconduct has been a disqualifying factor under Washington's unemployment compensation laws since 1935. Laws of 1935, ch. 145, § 7(6); Laws of 1937, ch. 162, § 5(b); Laws of 1945, ch. 35, § 74; RCW 50.20.060; Macey v. Department of Empl. Sec., 110 Wash.2d 308, 313, 752 P.2d 372 (1988).

Macey acknowledged that differing and conflicting judicial standards for determining disqualifying misconduct had developed over the years. Several of the earlier cases were analyzed, including Darneille v. Department of Empl. Sec., 49 Wash.App. 575, 744 P.2d 1091 (1987), upon which claimant relies, in part. Macey, 110 Wash.2d at 318, 752 P.2d 372, determined the Darneille requirement that only intentional conduct could be misconduct, was "too stringent" and that "repeated, but unexcused acts, especially after notice or warnings or in violation of established rules" could be of sufficient magnitude to constitute misconduct. However, the court also cautioned that "unsatisfactory job performance whether stemming from inability to perform, errors of judgment or ordinary negligence does not constitute misconduct".

We agree with claimant's contention the Commissioner failed to take into account the following undisputed findings of fact made by the ALJ and supported by...