Carrell v. Glacier Nw.

• Decision Date: 04 October 2022
• Docket Number: 56084-4-II
• Parties: NATALEE A. CARRELL, Appellant, v. GLACIER NORTHWEST, INC., CALPORTLAND CO., Respondents.
• Court: Washington Court of Appeals

NATALEE A. CARRELL, Appellant, v. GLACIER NORTHWEST, INC., CALPORTLAND CO., Respondents.

No. 56084-4-II

Court of Appeals of Washington, Division 2

October 4, 2022

UNPUBLISHED OPINION

Worswick, J.

Natalee Carrell sustained an industrial injury while working at CalPortland. Carrell's industrial insurance claim was allowed. She returned to a modified light duty position with CalPortland, but was later terminated from her position after her supervisor discovered her using a company vehicle for personal shopping. Following her termination, the Department of Labor and Industries (Department) issued an order denying Carrell time loss benefits. Carrell appealed to the Board of Industrial Insurance Appeals (BIIA). An Industrial Appeals Judge (IAJ) reversed the Department's order. CalPortland petitioned for review, and the BIIA reversed the IAJ's decision. Carrell appealed to the superior court, which issued an order affirming the BIIA's decision.

Carrell appeals the trial court's order. We hold that (1) the trial court did not err when it took judicial notice of the route Carrell took to conduct personal shopping, (2) substantial evidence supports the trial court's findings of fact that Carrell deviated from the most direct route between CalPortland's two plants to conduct her shopping (3) substantial evidence supports the trial court's finding that Carrell was legitimately terminated for reasons unrelated to her industrial injury, (4) the trial court's conclusions of law flow from its findings of fact, and (5) Carrell is not entitled to reasonable attorney fees. Accordingly, we affirm.

FACTS

In October 2018, Carrell sustained an industrial injury to her shoulder while employed as a concrete mixer truck driver at CalPortland, previously known as Glacier Northwest. The Department allowed Carrell's injury claim for benefits and Carrell had surgery on her shoulder in December.

Carrell returned to a light duty role at CalPortland in February 2019. Carrell's medical provider restricted her from lifting greater than 5 pounds, lifting items over her head and instructed her to avoid repetitive motions with her left arm. For her light duty role, Carrell's supervisor, Mike Fields, assigned Carrell to driving a CalPortland pickup truck, and to travel between its two plants on opposite ends of Vancouver, Washington, where she did paperwork and coordinated truck schedules between the two plants. Carrell would also run errands for her employer's different job sites, picking up work supplies or lunch for crew.

On April 24, Carrell clocked in on time, at 7 AM, at the plant on the west side of Vancouver and did paperwork during the morning hours. Carrell needed to go to Kinko's for paper supplies for the plant on the east side. She informed a coworker that she was going to Kinko's, and that she was then going to take her lunch break and go the east plant.

Carrell left CalPortland's west Vancouver plant in the company supplied pickup truck and went to Kinko's. From there instead of proceeding by a southerly route on State Route 14 to the east Vancouver plant, Carrell turned north on Interstate 5, then proceeded east on State Route 500, which was a slightly longer route between the plants. Carrell then stopped at a bulk foods grocery store to conduct personal shopping, but not to get her lunch meal. Because she was unable to clock out while out of the office, Carrell made a note on a notepad that she went into the grocery store at 12:15 PM.

While Carrell was in the store, Fields arrived there to shop for a company event. It is unclear from the record what time Fields arrived at the store. Fields noticed that a truck like the one CalPortland assigned Carrell was in the parking lot. Fields waited in the parking lot for approximately ten minutes before going into the store. Fields then went into the store and found Carrell pushing a wooden flatbed cart with bulk groceries on it.

Fields asked Carrell what she was doing, and she told him she was doing personal shopping. Fields told Carrell that she was not supposed to be using the company vehicle for personal shopping and asked her if she had clocked out at the plant. She responded that she had not, and told Fields that she wrote her time down and would calculate it at the end of the day. Fields then told Carrell that she needed to put the groceries back, leave, and return to the plant. Carrell returned to the truck and made a note that it was 12:30 PM. At the end of the day, Carrell filled in her time sheet and added five minutes to the break, recording that she clocked out at 12:15 and back in at 12:35 PM.

The next day, Fields had a meeting with Carrell in which they talked about the route she had taken the day before. Carrell told Fields that taking State Route 500, and not State Route 14, was her preferred route. Fields then terminated Carrell's employment, and provided her with a corrective action form detailing the reasons for her dismissal. It stated, in pertinent part:

On 4/24/19, you told the batch man that you had errands to run. At 12:17pm the yard truck was seen by two plant managers parked at Smart Foods in Vancouver, WA. The plant managers waited until 12:30pm before entering the store where you were found to have a shopping cart with personal items. You stated you went to Kinko's for work and then were taking your lunch, when asked by your manager if you logged it you stated no, you would do that when you returned. Your manager instructed you to put everything back and head back to the yard. Kinko's is a two-minute drive from the plant, Kinko's to Smart Foods is a fifteen-minute drive and Smart Foods to the plant is a fifteen-minute drive, your manager waited out front of the store [for] ten-minutes, you spent time shopping and you needed time to put your times back. This would equate to approximately an hour of personal time and is considered time theft as you noted on your time card that you took a twentyminute lunch.

You may not use company property, vehicles or equipment for personal gain without permission. You also may not make unauthorized stops. You have violated the following Work Rules and Standards of Employment:

Work Rule #12, Misusing or removing from company premises-without proper written authorization-company property, records or other materials or theft from another employee.

Work Rule # 17, Changing time punched in or out on your own timecard, deliberately falsifying your own time sheet or punching in another employee's timecard.

Work Rule # 23, Conducting personal business during working hours or on company premises Work Rule #27, Drivers shall not make unauthorized stops.

Work Rule # 28, Employees shall not use company vehicles for personal business or transportation, including driving to and from meals.

Standards of Employment #8, Abuse, destruction, waste or unauthorized use of company equipment, facilities or materials.

Administrative Record (AR) at 261. Fields signed the document.

Carrell wrote on the corrective action form: "This is not accurate as its not exactly what happened. The person who wrote it never even spoke to me for accurate info." AR at 262.

Following her termination, the Department issued an order denying Carrell time loss benefits from April 26 to June 7, 2019. Carrell appealed to the BIIA on July 11. An IAJ held a hearing in January 2020. Fields and Carrell testified as above.

When asked why Carrell wrote on the corrective action form that the statement provided was not accurate, she testified,

I don't agree with this 15 and 10 minute stuff because I was on my way to another plant to do their job and I was stopping, clocking out for that time period, getting back in, clocking back in, heading to the job just like I would have. It was no time - I should have not - according to what I understood, my lunch stop was in the middle of my day and I clocked out for it.

In my eyes and what I was doing was not what they say here, which is shopping and driving the car in this two minute and five minute, all the stuff they have written in here about the time and drive, none of that should have ever counted because I was on my way to the other plant.

I was not on my way to lunch, I was on my way to the other plant and I stopped and took my lunch, clocking out in my - like on paperwork and then continuing to the other plant, that was what was supposed to happen.

AR at 140-41.

Fields testified that State Route 14 would have been the quickest route between west and east plants and, as stated above, testified as to how long he waited in the store parking lot for Carrell before going in to find her on April 24. Fields testified it did not look as though Carrell was simply grabbing a quick bite for lunch. Carrell's counsel asked Fields whether he was more concerned with the route Carrell took or her activities along the way:

Q. So the point of your concern, if I may, is that she was not going to lunch, she was doing some shopping on her own, correct?

A. The point of my concern was the route and what she was doing, during that time she should have been going to east Vancouver to do work.

Q. Okay. And not stop along the way?

A. It depends, it depends.

Q. Well, could she have stopped for lunch?

A. If she drove by a minute mart and swung in to get a corndog, if she had done the drive-thru at McDonald's, that would be fine, I would not object to that. Going in and shopping, personal business in a company vehicle outside of the route she should have been on, I would object to that.

AR at 248-49. Carrell's counsel then asked Fields if he was concerned about the shopping she was doing: Q. So this is what struck you about this whole situation, correct? A. What she had on her cart and the route she took. Q. Well you're saying it wasn't so much...