Harvey v. Department of Employment Sec.

• Decision Date: 22 November 1988
• Docket Number: No. 8767-1-III,8767-1-III
• Citation: 53 Wn.App. 333,766 P.2d 460
• Parties: Patricia A. HARVEY, Appellant, v. DEPARTMENT OF EMPLOYMENT SECURITY, Respondent.
• Court: Washington Court of Appeals

Page 333

53 Wn.App. 333

766 P.2d 460

Patricia A. HARVEY, Appellant, v. DEPARTMENT OF EMPLOYMENT SECURITY, Respondent.

No. 8767-1-III.

Court of Appeals of Washington,

Division 3, Panel Two.

Nov. 22, 1988.

Kenneth Isserlis, Norman McNulty, James Bamberger, Spokane Legal Services Center, Spokane, for appellant.

Thomas Anderson, Asst. Atty. Gen., Labor & Industries, Lacey, for respondent.

GREEN, Judge.

Patricia Harvey appeals the denial of her claim for unemployment compensation benefits under the Employment Security Act. The issue presented is whether Ms. Harvey's refusal to obey her employer's order to fold linens constituted "misconduct" within RCW 50.20.060.

Ms. Harvey was employed by Camlu Retirement Apartments as a kitchen aide from early 1982 until her discharge on November 15, 1986. On that date, she was scheduled to work the 6:30 a.m. to 3 p.m. shift. At 6:15 a.m. her mother called and informed the manager Ms. Harvey would be unable to work due to a "family emergency". When asked, Ms. Harvey agreed to work the 4 p.m. to 7 p.m. shift.

Ms. Harvey's duties at Camlu included cooking, carrying and cleaning trays, as well as folding linens. The linens were routinely folded during her morning shift. On November 15, when instructed by her immediate supervisor to assist the supervisor in folding linens, Ms. Harvey responded: "No, I can't now, I'm busy with my job." Under the belief she misunderstood the directive, the supervisor contacted the manager who approached Ms. Harvey and repeated the instruction. Ms. Harvey again refused. She was discharged at the completion of her work shift.

Ms. Harvey's application for unemployment benefits was denied on the basis she was "discharged ... for misconduct connected with her work ..." RCW 50.20.060. At the administrative hearing held January 15, 1987, she testified she did not refuse to fold the linens "absolutely," but rather refused to do so until she cleared her trays. The administrative law judge (ALJ) concluded Camlu met its burden to establish the discharge was the result of misconduct and found no evidence Ms. Harvey offered any explanation for her conduct:

[W]e conclude that interested employer has demonstrated, as its affirmative burden of proof, that discharge herein was result of misconduct as specified in RCW 50.20.060, in that claimant did willfully and intentionally refuse to obey a reasonable order. There has been no evidence of any health or safety factor with respect to the disobedience, and we further conclude that the consequences of disobedience were not "trivial" as the work responsibilities were to be accomplished within the work shift and it [was] necessary for the operations of [the] interested employer's business. We do not find any substance to claimant's claim that she did not "intend" to refuse the order with respect to the folding of linen, but merely to delay same, as claimant never asserted that, insofar as the evidence shows, to interested employer. Claimant was given the order on two separate occasions by two levels of management, and claimant did willfully and intentionally refuse to do same, even if for that period of time. It is clear that, at the time of giving said refusal same was intentional and willfull.

The Commissioner of the Department of Employment Security affirmed the ALJ's denial of benefits, as did the superior court. This appeal followed.

Our review is governed by the Administrative Procedure Act (APA), RCW 34.04.130(6). ¹ Under the APA, this court reviews factual determinations under the clearly erroneous standard. A finding is clearly erroneous " 'when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 324, 646 P.2d 113 (1982) (quoting Ancheta v. Daly, 77 Wash.2d 255, 259-60, 461 P.2d 531 (1969)), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983); Gibson v. Department of Empl. Sec., 52 Wash.App. 211, 216, 758 P.2d 547 (1988). The APA does not authorize the reviewing court to substitute its judgment for that of the administrative agency in factual matters. This court may not try facts de novo on review. Franklin Cy., 97 Wash.2d at 325, 646 P.2d 113. A review of the entire record before the ALJ does not leave us with a firm conviction a mistake was made in the findings of fact entered by the administrative agency. To do otherwise would require this court to substitute its judgment for that of the agency in a factual matter. Thus, we accept the factual findings of the ALJ.

As to issues of law, a reviewing court applies the error of law standard. Franklin Cy., at 325, 646 P.2d 113; RCW 34.04.130(6)(d). Although the court is allowed to "essentially substitute its judgment for that of the administrative body," substantial weight is accorded the agency's view of the law. Franklin Cy., at 325, 646 P.2d 113. Here, the determination of whether Ms. Harvey's refusal to fold the linens qualifies as misconduct is a question of law, to which we apply the error of law standard.

Although we recognize the unemployment compensation statute is to be "liberally construed", the legislative intent of the Employment Security Act is to provide for those who become unemployed through no fault of their own. RCW 50.01.010. RCW 50.20.060(1) disqualifies an individual from receiving unemployment compensation if terminated "for misconduct connected with his or her work ..."

Recently, the court in Macey v. Department of Empl. Sec., 110 Wash.2d 308, 752 P.2d 372 (1988) addressed the issue of what constitutes statutory misconduct under the Employment Security Act. ² The court directed that in determining whether misconduct had occurred, initial emphasis is focused on the conduct of the employee, that is, there must be "involuntary unemployment through no fault of the employee." Macey, at 318, 752 P.2d 372. The employer's interest is relevant only to the question of "the effect of the employee's conduct upon his work performance in particular and upon the work force in general." Macey, at 319, 752 P.2d 372.

The court in Macey, at 319, 752 P.2d 372, outlined three general criteria for establishing disqualifying misconduct:

(1) The rule must be reasonable under the circumstances of the employment; (2) the conduct of the employee must be connected with the work as described above; and (3) the conduct of the employee must in fact violate the rule.

According to the court in Macey, intentional conduct which satisfies the criteria would constitute misconduct. Macey, at 318, 752 P.2d 372. The court also stated "errors of judgment or ordinary negligence, at least in isolated instances, ..." do not constitute misconduct. (Italics omitted.) Macey, at 318, 752 P.2d 372.

We conclude Ms. Harvey's refusal to fold the linens was an intentional violation of the employer's reasonable rule. Our review of the record does not indicate her conduct was an error of judgment. We agree with the ALJ that the employer's request for Ms. Harvey to assist the supervisor in folding the linens was reasonable, thus satisfying the first criterion of Macey. The ALJ correctly concluded "the work responsibilities were to be accomplished within the work shift and it [was] necessary for the operations of [the] interested employer's business." Thus, Ms. Harvey's failure to fold the linens was of significance to her employer.

Ms. Harvey's reliance on Nelson v. Department of Empl. Sec., 31 Wash.App. 621, 644 P.2d 145, rev'd on other grounds, 98 Wash.2d 370, 655 P.2d 242 (1982), to support her contention the employer's request was unreasonable is misplaced. She argues:

To suggest that this requirement was reasonable is to suggest that it was somehow foreseeable to Ms. Harvey that she could be fired for failing to comply, i.e., that her conduct was "volitional ... [that she] acted knowing [her] conduct might result in dismissal."

The first criterion requires only that the employer's order be reasonable under the circumstances of employment. Macey, 110 Wash.2d at 319, 752 P.2d 372. The guideline does not impose a foreseeability standard. Moreover, Nelson involved off-the-job misconduct, whereas the instant action involves on-the-job misconduct.

The second criterion of Macey requires the employee's conduct to be connected with the work, i.e., have some nexus with the employment. Macey, at 319, 752 P.2d 372. It is evident Ms. Harvey's refusal to fold the linens was so connected. As found by the ALJ, her work responsibility was not trivial and was necessary to the operation of her employer's business.

Ms. Harvey's argument her conduct was not "fundamental to her employment", and in "no way harmed her employer" must be rejected. Macey does not require any showing the conduct be fundamentally related to the employee's work. Nor did Macey require harm to the employer. The court stated at 318-19, 752 P.2d 372:

Consideration of the employer's interest is relevant only in determining that the employee's conduct is connected with the work and is of sufficient magnitude that it leads to unemployment through the fault of the employee and is thus equivalent to voluntary unemployment. Put another way, the inquiry should be what is the effect of the employee's conduct upon his work performance in particular and upon the work force in general.... Of course, both of these effects involve an employee's disregard of the employer's legitimate interests and expectations, and are necessarily connected with the work.

Here, Ms. Harvey's refusal to fold the linens--an intentional disobeyance of her employer's order--was connected to her work. Moreover, an employee's refusal to follow an employer's reasonable work request, made twice, directly impacts upon that employee's work performance. Camlu Retirement Apartment's legitimate interest and expectation that its employees perform work-related duties to...