Tapper v. State Employment Sec. Dept.

• Citation: 122 Wn.2d 397,858 P.2d 494
• Decision Date: 16 September 1993
• Docket Number: No. 59802-9,59802-9
• Court: United States State Supreme Court of Washington
• Parties: Karen Y. TAPPER, Respondent, v. STATE of Washington, EMPLOYMENT SECURITY DEPARTMENT, Petitioner. En Banc

Page 397

122 Wn.2d 397

858 P.2d 494

Karen Y. TAPPER, Respondent, v. STATE of Washington, EMPLOYMENT SECURITY DEPARTMENT, Petitioner.

No. 59802-9.

Supreme Court of Washington,

En Banc.

Sept. 16, 1993.

Christine O. Gregoire, Atty. Gen., Karl F. Hausmann, Asst., Olympia, for petitioner.

Maltman, Reed, North, Ahrens & Malnati, P.S., Douglass A. North, Seattle, for respondent.

UTTER, Justice.

Under the Employment Security Act (Act), a worker who is discharged due to "misconduct connected with his or her work" is disqualified from receiving unemployment compensation benefits. RCW 50.20.060(1). In this case, the Employment Security Department (Department) determined that Karen Tapper, a claimant for unemployment compensation, had been discharged for misconduct and therefore denied benefits. The Superior Court for Stevens County affirmed the denial of benefits, but Division Three of the Court of Appeals reversed, holding that there had been no misconduct. The Department petitioned for review. We reverse and reinstate the decision of the Superior Court.

I

Karen Tapper began her employment as a clerk at the Boeing Company in 1984. In June of 1989, while still employed as a clerk, Tapper was briefly suspended for insubordination and disruptive behavior. When she returned to work, Tapper and her supervisor, Gary "Charlie" Brown, executed a document known as a "Notice of Remedial Action". See Clerk's Papers, at 77. This document outlined a number of behavioral goals for Tapper and indicated that a failure to achieve these goals could trigger further suspension or even termination. The Notice required Tapper to:

1. FOLLOW STEP BY STEP SET PROCEDURAL GUIDELINES IN PREPARING WORK PACKAGES.

2. COORDINATE EACH DAY'S ACTIVITIES WITH YOUR PEERS AND WORK TOGETHER TOWARD COMMON GOALS.

3. LIMIT YOUR TIME AWAY FROM YOUR WORK AREA TO REASONABLE AMOUNTS OF TIME.

4. INCREASE YOUR OUTPUT TO AN ACCEPTABLE LEVEL.

....

1. LISTEN TO YOUR SUPERVISOR AND NOT DEVIATE FROM HIS INSTRUCTION[S].

2. CEASE DISRUPTIVE CONVERSATIONS WITH PERSONS FROM OTHER ORGANIZATIONS.

3. ELIMINATE SCREAMING OUT-BURSTS DISRUPTIVE TO THE PERSONS IN THE AREA.

Clerk's Papers (Notice of Remedial Action), at 77.

Soon after, Tapper was discharged from Boeing. The specific cause of the discharge has been disputed by the parties from the start. For his part, Brown felt that Tapper was insubordinate, was refusing to follow proper office procedures, was spending excessive time away from her work station, and was interfering with the activities of other workers; in sum, was failing to comply with the Notice of Remedial Action. Tapper, however, has contended that the firing was in retaliation for certain charges of work-related mistreatment which she had filed with the Equal Employment Opportunity Commission.

The day after she was discharged, Tapper applied for unemployment compensation. After a brief initial investigation the Department allowed the claim. Boeing requested a hearing asserting that Tapper was disqualified from receiving unemployment benefits because she had been discharged for "misconduct". A hearing on the appeal was held before an administrative law judge (ALJ), at which Brown and Tapper provided the only testimony with regard to the issue of misconduct.

The ALJ affirmed the Department's initial determination, finding that Tapper had been discharged for "perceived deficiencies" in her work performance, not for misconduct. He concluded that whatever problems Tapper had experienced at Boeing related to her ability (or inability) to relate to others and to follow directions and that these inabilities did not rise to the level of misconduct. See generally Clerk's Papers (Decision of ALJ), at 82.

Boeing petitioned the Commissioner of the Department for review of the ALJ's decision, and, after review of the record, the Commissioner reversed. The Commissioner found that Tapper had failed to pay heed to her supervisor's orders, indeed, had "ignored" these orders, and that this failure was more than a mere deficiency in performance. The Commissioner therefore denied benefits pursuant to the disqualification in RCW 50.20.060(1). See generally Clerk's Papers (Commissioner's Decision), at 89-90.

Tapper appealed to the Superior Court for Stevens County where she continued to argue that the actual motivation for her discharge was retaliation for her employment complaints. The Superior Court affirmed the decision of the Commissioner on the grounds that the Commissioner's decision violated none of the standards of judicial review contained within the Washington Administrative Procedure Act. The court did not make a finding or holding with respect to whether Tapper's behavior amounted to misconduct.

Division Three of the Court of Appeals reversed, holding that the ALJ's decision had been correct. Tapper v. Employment Sec. Dep't, 66 Wash.App. 448, 453, 832 P.2d 136 (1992), review granted, 120 Wash.2d 1024, 847 P.2d 480 (1993). The court reasoned that, under the standards set out in Macey v. Department of Empl. Sec., 110 Wash.2d 308, 752 P.2d 372 (1988), Tapper's behavior was not misconduct in that it was only an "inability" to get along with others and to follow directions. Tapper, 66 Wash.App. at 453, 832 P.2d 136. Like the ALJ, the Court of Appeals concluded that this mere "inability" was insufficient to constitute misconduct.

The Department petitioned for review, and we reverse.

II

Judicial review of a final administrative decision of the Commissioner of the Employment Security Department is governed by the Washington Administrative Procedure Act (WAPA). Macey, 110 Wash.2d at 312, 752 P.2d 372; Safeco Ins. Cos. v. Meyering, 102 Wash.2d 385, 389, 687 P.2d 195 (1984); Becker v. Employment Sec. Dep't, 63 Wash.App. 673, 675, 821 P.2d 81 (1991). The WAPA allows a reviewing court to reverse an administrative decision when, inter alia: (1) the administrative decision is based on an error of law; (2) the decision is not based on substantial evidence; or (3) the decision is arbitrary or capricious. RCW 34.05.570(3). In reviewing administrative action, this court sits in the same position as the superior court, applying the standards of the WAPA directly to the record before the agency. See Macey, 110 Wash.2d at 312, 752 P.2d 372 (citing Farm Supply Distribs., Inc. v. State Utils. & Transp. Comm'n, 83 Wash.2d 446, 448, 518 P.2d 1237 (1974)); Shaw v. Department of Empl. Sec., 46 Wash.App. 610, 613, 731 P.2d 1121 (1987).

A

The first issue raised by this appeal is the appropriate set of factual findings which are to be employed by this court in exercising review. Under our case law, the determination of whether a particular employee's behavior constitutes "misconduct connected with his or her work" is a mixed question of law and fact, in that it requires the application of legal precepts (the definition of "misconduct connected with his or her work") to factual circumstances (the details of the employee's discharge). See Henson v. Employment Sec. Dep't 113 Wash.2d 374, 377, 779 P.2d 715 (1989); Macey, 110 Wash.2d at 312, 752 P.2d 372; Harvey v. Department of Empl. Sec., 53 Wash.App. 333, 336-37, 766 P.2d 460 (1988); see also Franklin Cy. Sheriff's Office v. Sellers, 97 Wash.2d 317, 330, 646 P.2d 113 (1982), cert. denied, 459 U.S. 1106, 74 L.Ed.2d 954, 103 S.Ct. 730 (1983). 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. The characterization of "misconduct" as a mixed question of law and fact does not mean that we are free to substitute our judgment for that of the agency as to the facts; instead, the factual findings of the agency are entitled to the same level of deference which would be accorded under any other circumstance. See Franklin Cy., 97 Wash.2d at 329-30, 646 P.2d 113. The process of applying the law to the facts, however, is a question of law and is subject to de novo review. Henson, 113 Wash.2d at 377, 779 P.2d 715; Johnson v. Department of Empl. Sec., 112 Wash.2d 172, 175, 769 P.2d 305 (1989). The findings of fact made by the agency below are therefore critical to our resolution of the question of whether Tapper engaged in misconduct connected with her work.

Throughout these proceedings, the facts surrounding Tapper's discharge from Boeing have been bitterly contested. At this stage, the dispute has been reduced to a disagreement over whether the Commissioner properly and authoritatively modified the findings of fact made by the ALJ. ¹ Tapper has not argued that the Commissioner's findings of fact were not supported by substantial evidence under RCW 34.05.570(3)(e); instead, she has essentially contended that the Commissioner was legally bound by the factual findings of the ALJ who presided over the initial hearing. The Department argues that the Commissioner is the final authority on findings of fact regarding disputes over unemployment compensation and therefore appropriately modified the ALJ's findings.

The WAPA describes the procedures by which subject agencies are to conduct internal review of the adjudicative decisions of lower officials. RCW 34.05.464(4) states, in part:

(4) The officer reviewing the initial order (including the agency head reviewing an initial order) is, for the purposes of this chapter, termed the reviewing officer. The reviewing officer shall exercise all the decision-making power that the reviewing officer would have had to decide and enter the final order had the reviewing officer presided over the hearing,.... In reviewing findings of fact by presiding officers, the reviewing officers shall give due regard to the presiding officer's opportunity to observe the witnesses.

(Italics ours.) Under RCW 50.32.080, the Commissioner has the power to review ALJ decisions and is the final authority for Departmental determinations as regards unemployment compensation. He or she is therefore a ...