David B. Vail & Associates v. Employment Security Department
| Decision Date | 11 December 2012 |
| Docket Number | 42164-0-II |
| Court | Court of Appeals of Washington |
| Parties | DAVID B. VAIL & ASSOCIATES, Respondent, v. EMPLOYMENT SECURITY DEPARTMENT, Appellant, CHALMERS JOHNSON, Appellant. |
UNPUBLISHED OPINION
The Employment Security Department (ESD) awarded unemployment benefits to Chalmers Johnson, a former employee of David B Vail & Associates. An administrative law judge (ALJ) and the ESD commissioner affirmed the approval of benefits. Vail now challenges the award of benefits. Vail argues substantial evidence does not support six of the commissioner's findings of fact.[1] Vail also challenges three of the commissioner's conclusions of law. Vail argues the commissioner erred in (1) not finding statutory misconduct that would exclude Johnson from receiving unemployment benefits, (2) finding that Johnson adequately refuted Vail's allegations, and (3) not considering evidence of alleged misconduct discovered after Vail terminated Johnson. We affirm the commissioner's decision because (1) substantial evidence supports the findings of fact, (2) Johnson did not engage in statutory misconduct, (3) Johnson adequately refuted Vail's allegations, and (4) the ALJ properly excluded post termination evidence.
On July 15, 2008, Chalmers Johnson began working for the David B Vail & Associates law firm (Vail) as a full time labor and industries and personal injury attorney. In his first year of employment, Johnson helped build Vail's personal injury litigation department and felt successful in his work at Vail.
Vail's attorneys, including Johnson, were paid on a 40-hour a week basis and were discouraged from working overtime. Vail required its attorneys to record any time worked in excess of 40 hours a week. Johnson's first yearly report showed he reported between 800 and 1, 000 overtime hours that year, but Vail did not pay him for these extra hours. Johnson expressed concerns about the firm's overtime policy to David B. Vail (David)[2] and Bridgette Lind, Vail's office manager, because he felt Vail violated existing wage and hour laws by failing to pay hourly workers overtime wages.
In the spring of 2009, David called a meeting with Johnson and asked Johnson to evaluate himself as an attorney. David tape recorded Johnson's monologue and afterwards asked Johnson to file the tape with Lind for his personnel file. Later, David asked Lind to review the tape. David remembered telling Johnson on tape not to work anymore overtime hours, but when Lind reviewed the tape, she did not find that discussion on it. David concluded that Johnson must have tampered with and deleted part of the tape. Johnson denied doing so.
Also in the spring of 2009, David directed Lind to begin a surveillance of Johnson's computer and e-mails because of concerns regarding Johnson's honesty and ethics. The firm had a computer software program that allowed Lind to remotely access Johnson's computer periodically and without his knowledge.
In general, Johnson described Vail's office environment as hostile and filled with sexual content and derisive commentary about men. Johnson reported some female co-workers' conduct to Lind as sexual harassment. Lind took no action. Johnson was one of few men in the office, but he became close friends with one of the female attorneys, Martha Boden. On September 25, 2009, Johnson and Boden exchanged e-mails using their personal e-mail accounts. One of Boden's e-mails referred to an intimate relationship Johnson had years earlier in South Carolina with the ex-wife of a former client.
Lind discovered the e-mail while survelliancing Johnson's computer on September 25. Lind gave the e-mail to David. David met with Johnson and terminated him. According to Lind's notes from the meeting, David told Johnson three reasons for the termination: (1) co-workers' reports that Johnson was going to sue Vail for improper wage policies; (2) co-workers' reports that Johnson was going to leave Vail and start his own law practice; and (3) allegations that Johnson deleted portions of the taped conversation regarding Johnson's work performance. Johnson asked if the e-mail had anything to do with the termination, and David said that it did not but that he was investigating some other allegations. Vail did not give Johnson a letter of termination or any other written explanation.
Johnson left the office with his backpack that he often carried between work and home. Inside his backpack was a flash drive belonging to Vail.[3] David demanded that Johnson return the flash drive and Johnson did so the following week. Shortly after the termination, David instructed Yumi Nagasaki-Taylor, an office assistant, to search Johnson's work computer and the flash drive. Nagasaki-Taylor found pornographic material and sexually explicit e-mail messages, some of which were in Johnson's work e-mail.
Johnson applied for unemployment benefits. The ESD approved Johnson's application, reasoning that (1) Vail fired Johnson because it feared that he would file a lawsuit, and (2) Vail had not established willful intent to disregard Vail's interests.
Vail appealed to an ALJ. At the administrative hearing, Johnson made an initial motion to restrict the hearing to evidence related to the three causes of termination that Vail gave Johnson. Vail, however, sought to introduce the pornography and sexually explicit e-mails as additional evidence of misconduct that it discovered after termination. The ALJ ruled that he would only consider evidence known to Vail at the time of termination to determine whether Johnson had engaged in misconduct. The ALJ found that anything discovered after the termination was not the reason for the termination and thus was not admissible to determine misconduct.
David, Lind, and Nagasaki-Taylor testified for Vail. Johnson also testified. The ALJ affirmed the ESD's decision and Vail appealed to the ESD commissioner, who affirmed the ALJ's order. Vail petitioned for judicial review from superior court, which reversed the commissioner's decision. The superior court's order stated that it need not reach a decision about whether the commissioner erroneously interpreted or applied the law in failing to consider the post-termination discovered evidence because it found sufficient other evidence of misconduct to support the termination for statutory misconduct.
Vail assigns error to the commissioner's findings of fact 4, 5, 6, 7, 9, and 10.[4] But Vail does not argue that substantial evidence does not support each finding. Instead, Vail argues that the commissioner should have found misconduct. Because substantial evidence supports each finding of fact, the commissioner did not err.
The Washington Administrative Procedure Act (APA), chapter 34.05 RCW, governs judicial review of a final decision by the ESD commissioner. Verizon Nw., Inc. v. Emp't Sec. Dep't, 164 Wn.2d 909, 915, 194 P.3d 255 (2008). We sit in the same position as the superior court and apply the APA standards directly to the administrative record. Verizon, 164 Wn.2d at 915. We review the decision of the commissioner, not the ALJ's underlying decision. Verizon, 164 Wn.2d at 915.
We review the commissioner's findings of fact for substantial evidence in light of the whole record. RCW 34.05.570(3)(e); King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000); Lee's Drywall Co. v. Dep't of Labor & Indus., 141 Wn.App. 859, 864, 173 P.3d 934 (2007). Substantial evidence is evidence that would persuade a fair-minded person of the truth or correctness of the matter. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d at 553. We neither weigh creditability of witnesses nor substitute our judgment for the agency's. Brighton v. Dep't of Transp., 109 Wn.App. 855, 862, 38 P.3d 344 (2001). Our review of disputed issues of fact is limited to the agency record. RCW 34.05.558.
For the purposes of unemployment benefits, whether an employee's behavior constitutes misconduct is a mixed question of law and fact. Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). Analytically, resolving a mixed question of law and fact requires establishing the relevant facts, determining the applicable law, and then applying that law to the facts. Tapper, 122 Wn.2d at 403. But the characterization of misconduct as a mixed question does not allow us to substitute our judgment for the agency's judgment as to the facts; instead the agency's factual findings are entitled to the same level of deference that we would accord under any other circumstance. Tapper, 122 Wn.2d at 403.
We examine each of the challenged findings to determine whether substantial evidence supports it such that it would persuade a fair minded person of the truth or correctness of the finding.
Vail challenges finding of fact 4, which stated that Vail concluded that the allegation of the personal relationship with the ex-wife of a former client could subject the firm to liability, thus it warranted immediate termination without the need for an investigation or a lesser form of discipline. Vail argues the commissioner "erred in finding that the e[-]mail [referring to a relationship with a wife of a former client] was the sole reason" Vail terminated Johnson. Br. of Vail at 1. But the commissioner did not find that the e-mail was the "sole reason." Instead, the commissioner found the e-mail to be "the straw that broke the camel's back" for the termination. Administrative Record (AR) at 110.[5] At the hearing, David testified that the private e-mail between Boden and...
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