Tapper v. Employment Sec. Dept.

• Decision Date: 14 July 1992
• Docket Number: No. 11254-3-III,11254-3-III
• Citation: 832 P.2d 136,66 Wn.App. 448
• Parties: Karen Y. TAPPER, Appellant, v. The EMPLOYMENT SECURITY DEPARTMENT, Respondent.
• Court: Washington Court of Appeals

Page 448

66 Wn.App. 448

832 P.2d 136

Karen Y. TAPPER, Appellant, v. The EMPLOYMENT SECURITY DEPARTMENT, Respondent.

No. 11254-3-III.

Court of Appeals of Washington Division 3, Panel One.

July 14, 1992.

Douglass A. North, Maltman, Weber, Reed, North & Ahrens, Seattle, for appellant.

Kenneth O. Eikenberry, Atty. Gen., and Evelyn A. Fielding, Asst. Atty. Gen., Olympia, for respondent.

SWEENEY, Judge.

Following her discharge, Karen Y. Tapper was initially awarded compensation by the Employment Security Department. The award was upheld by an administrative law judge (ALJ). The Commissioner of Employment Security reversed the ALJ and denied compensation on the grounds of work-connected misconduct. The trial court affirmed the Commissioner. Ms. Tapper appeals. We reverse.

Facts

Ms. Tapper began working for the Boeing Company in 1984 as a nonunion clerk. In April 1989, Gary Brown became Ms. Tapper's direct supervisor. In June, Mr. Brown suspended Ms. Tapper for failure to follow rules and instructions. She returned to work on July 10, after signing a notice of remedial action prepared by Mr. Brown. This document stated that Ms. Tapper must: follow procedural guidelines in preparing work packages, coordinate activities and work together with peers, limit time away from work area, increase output, listen to her supervisor, cease disruptive conversations, and eliminate screaming outbursts.

Mr. Brown testified that Ms. Tapper violated the remedial action agreement several times. The violations included: yelling at a new employee, leaving her work area too often and for too long, yelling at people and bothering other employees, and arriving late for work but failing to mark it on her time card after being told to do so. Ms. Tapper testified that she did not scream at a new employee and when she was late for work, she made up the time during her lunch hour.

On July 27, Ms. Tapper's employment at Boeing was terminated. Ms. Tapper was initially awarded unemployment compensation by the Employment Security Department. Boeing appealed the award. The ALJ reviewed the award, found no misconduct and affirmed. Boeing then filed a petition for review with the Commissioner of Employment Security. The Commissioner ordered the findings of the ALJ set aside and denied compensation. The Commissioner concluded that Ms. Tapper's behavior was more than inability to follow directions and constituted disqualifying misconduct. Ms. Tapper appealed the Commissioner's decision to superior court and the decision was affirmed.

Ms. Tapper contends the Commissioner's decision improperly makes new factual findings different from those of the ALJ. The ALJ found that Ms. Tapper was discharged for inability to relate to others and follow instructions. This he concluded, did not amount to misconduct. Misconduct must be intentional or based on repeated but unexcused acts, after notice, to be disqualifying. Macey v. Department of Empl. Sec., 110 Wash.2d 308, 752 P.2d 372 (1988). Ms. Tapper contends "inability" is not misconduct, citing Becker v. Employment Sec. Dep't, 63 Wash.App. 673, 677, 821 P.2d 81 (1991). She takes issue with the commissioner's conclusion that inability to relate to others and follow instructions constitutes "misconduct" as required by RCW 50.20.060. The evidence here supports the findings of fact made by the commissioner. However, the determination of whether Ms. Tapper's behavior qualifies as misconduct is a question of law. Harvey v. Department of Empl. Sec., 53 Wash.App. 333, 336, 766 P.2d 460 (1988).

Standard of Review

Judicial review of a final administrative decision rendered by the commissioner is governed by procedural requirements set out in RCW 34.05.570. We grant relief when: (1) the agency has erroneously interpreted or applied the law; or (2) the order is not supported by substantial evidence; or (3) the order is arbitrary or capricious. RCW 34.05.570(3).

Issues of law are the responsibility of the judicial branch. Therefore, the error of law standard allows a reviewing court to essentially substitute its judgment for that of the administrative body, though substantial weight is accorded the agency's view of the law. Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 324-25, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 103 S.Ct. 730, 74 L.Ed.2d 954 (1983).

Here, the Commissioner adopted the ALJ's findings of fact but refused to adopt the following conclusion of law:

2. Mr. Brown fired the claimant on suspicion of workplace behavior which may be described as less than ideal, as well as on the basis of an undocumented record of minor work deficiencies. Even if he thought she spent too much time "goofing off" away from the document storage and retrieval area, I find that the evidence does not support a holding of misconduct. Hence, there have been no overpayments.

The Commissioner concluded:

Considering the overall evidence, we are satisfied that misconduct has been established. Claimant's behavior then was more than a simple failure or inability to follow directions dealing with the performance of her job duties. The directions the claimant received related rather than [sic ] to the functions of her assigned tasks, her attitude, promptness, and behavior at the workplace. Despite a warning, including a suspension, claimant continued to ignore...