Leibbrand v. EMPLOYMENT SEC. DEPT.

• Decision Date: 23 July 2001
• Docket Number: No. 47149-0-I.,47149-0-I.
• Citation: 107 Wash.App. 411,27 P.3d 1186
• Parties: Craig LEIBBRAND, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT of the State of Washington, Respondent.
• Court: Washington Court of Appeals

27 P.3d 1186

107 Wash.App. 411

Craig LEIBBRAND, Appellant, v. EMPLOYMENT SECURITY DEPARTMENT of the State of Washington, Respondent.

No. 47149-0-I.

Court of Appeals of Washington, Division 1.

July 23, 2001.

Deanna J. Hawkins, Kent, for Appellant.

Laura J. Watson, Olympia, for Respondent.

COX, J.

Craig Leibbrand appeals the Employment Security Department's (Department) decision denying him unemployment benefits based on disqualifying misconduct. The final sentence of RCW 50.20.060, which precludes a claimant from arguing as a defense to disqualification that alcoholism caused the alleged misconduct, is constitutional. Substantial evidence supports the Department's determination that Leibbrand committed disqualifying misconduct. We affirm.

Leibbrand worked for Boeing as an assembler/installer from 1978 until December 1998. Under Boeing's written attendance policy, "[u]nreported absences of four or more consecutive workdays and/or six consecutive days of reported but unexcused consecutive workdays, may result in dismissal...." Boeing provides a copy of its written attendance policy to all employees.

In the fall of 1998, Leibbrand was struggling with alcohol dependency and accumulated more than one hundred hours of unexcused absences. As a result, Boeing counseled Leibbrand about his attendance problems and issued a corrective action memo warning that his "failure to demonstrate and maintain satisfactory attendance will result in additional disciplinary action to include suspension or dismissal."

That December, Leibbrand was absent for six consecutive workdays due to problems associated with his alcoholism. He was scheduled to work on December 9 through December 11, and December 14 through December 16 of 1998. He failed to appear for work or contact Boeing between December 9 and December 11. He failed to go to work again on Monday the 14th, but called Boeing and left a voice message asking that he be allowed sick leave for the prior three days. However, he had no accrued sick or vacation leave available to him at that time. Leibbrand missed work again the next day, and did not contact his employer. When he failed to report for work again on the 16th, he attempted to call his supervisor but was unable to get through. Effective that day, Boeing discharged him for violating its attendance policy.

After his discharge, Leibbrand applied for unemployment benefits. The Department denied benefits on the ground that his absences constituted work-related misconduct. Leibbrand requested a hearing, and the administrative law judge (ALJ) affirmed the Department's decision based on RCW 50.20.060. The last sentence of that statute precludes a claimant from arguing as a defense to disqualification that alcoholism caused the alleged misconduct.

The Commissioner affirmed the ALJ's order, and Leibbrand appealed to the trial court, which affirmed the Department's final decision.

Leibbrand appeals.

Constitutionality of Statute

Leibbrand argues that RCW 50.20.060, which precludes a claimant from arguing as a defense to disqualification that alcoholism caused the alleged misconduct, is unconstitutional. He asserts that the Department thus erred by relying on that statute in denying his application for benefits. We hold that the statute is constitutional.

The Administrative Procedure Act (APA) governs our review of the Commissioner's final decision.¹ We may reverse such an administrative decision if "[t]he order, or the statute or rule on which the order is based, is in violation of constitutional provisions on its face or as applied," or "[t]he order is not supported by evidence that is substantial when viewed in light of the whole record before the court....."² In reviewing the Department's actions, we sit "in the same position as the superior court, applying the standards of the []APA directly to the record before the agency."³ The Commissioner's decision is prima facie correct, and Leibbrand bears the burden of establishing his right to benefits.⁴

We review constitutional challenges to a statute de novo.⁵ A "statute is presumed constitutional and the burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt."⁶

The Department denied Leibbrand's application for benefits on the basis that his absences constituted disqualifying misconduct. RCW 50.20.060 disqualifies an individual from receiving unemployment benefits when he or she is discharged from employment for work-related misconduct. The statute states that:

An individual shall be disqualified from benefits beginning with the first day of the calendar week in which he or she has been discharged or suspended for misconduct connected with his or her work and thereafter for seven calendar weeks and until he or she has obtained bona fide work in employment covered by this title and earned wages in that employment equal to seven times his or her weekly benefit amount. Alcoholism shall not constitute a defense to disqualification from benefits due to misconduct.⁷

Leibbrand argues that the last sentence of this statute is unconstitutional because it violates the equal protection provisions of the state and federal constitutions. He contends that the Legislature had no rational basis for distinguishing between alcoholics and non-alcoholics, and that the statute thus cannot pass constitutional muster.

We need not separately analyze Leibbrand's equal protection challenge under the state and federal constitutions.⁸ When a party challenges a statute on equal protection grounds, courts apply a rational basis test if the challenged classification "neither involves a suspect or semisuspect class nor threatens a fundamental or important right."⁹ Leibbrand does not argue that the statutory classification between alcoholics and non-alcoholics involves a suspect or semi-suspect class. Such an argument would appear to have no case authority to support it.¹⁰ Thus, we apply the rational basis test.

The rational basis test "is the most relaxed and tolerant form of judicial scrutiny under the equal protection clause."¹¹ Under this test, a statute is constitutional if (1) the classification applies alike to all members within the designated class; (2) some rational basis exists for reasonably distinguishing between those within the class and those outside the class; and (3) the challenged classification bears a rational relation to the purpose of the challenged statute.¹² We will uphold a legislative classification "unless it rests on grounds wholly irrelevant to the achievement of legitimate state objectives."¹³

In determining whether a rational relationship exists, we "may assume the existence of any necessary state of facts of which we can reasonably conceive."¹⁴ Moreover, we may uphold the validity of such a classification based on "rational speculation unsupported by evidence or empirical data."¹⁵ "The party challenging the legislation `must show, beyond a reasonable doubt, that no state of facts exists or can be conceived sufficient to justify the challenged classification, or that the facts have so far changed as to render the classification arbitrary or obsolete.'"¹⁶

Here, Leibbrand correctly concedes that the statute satisfies the first prong of the rational basis test: the classification applies alike to all members within the designated class of alcoholics. Turning to the second prong, however, he argues that the Legislature had no rational basis for distinguishing between alcoholics and non-alcoholics. He notes that RCW 50.20.060 allows a person suffering from a disease such as epilepsy or Tourette's syndrome to present evidence of that disease as a defense to disqualification from benefits for misconduct, but prevents a person suffering from alcoholism from doing the same. He argues that the Legislature could have had no rational basis for singling out alcoholics in such a manner.

Significantly, RCW 50.20.060 does not disqualify individuals from benefits based on their status as alcoholics. The statute simply eliminates evidence of alcoholism as a defense to disqualification based on misconduct, thereby allowing an employer to hold an alcoholic employee to the same performance and behavior standards as other employees.

When the Legislature enacted the final sentence of RCW 50.20.060 in 1982, it could well have decided to follow the rationale behind the Federal Rehabilitation Act, which excluded certain alcoholics from its definition of a handicapped individual. As amended in 1978, the Rehabilitation Act provided that the term "handicapped individual"

does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.¹⁷

The more recent Americans with Disabilities Act (ADA) similarly distinguishes misconduct caused by alcoholism from that caused by other diseases. Although the ADA recognizes alcoholism as a disability, it does not protect unsatisfactory conduct caused by the disease.¹⁸ In addition, a 1996 amendment to the Social Security Act eliminated alcoholism as a basis for disability awards.¹⁹

The Legislature could also have rationally distinguished between alcoholics and persons suffering from other diseases on the basis that alcoholics may be responsible, at least to some extent, for triggering the symptoms of their disease by taking the initial, affirmative step of drinking. The Legislature may also have decided that work-related misconduct arising from alcoholism is potentially more disruptive and detrimental than misconduct arising from other diseases. In light of such possible distinctions, as well as the federal legislation discussed above, we conclude that the Legislature had a rational basis for the distinction suggested by the statute.

With respect to...