Whitehall v. Wash. State Emp't Sec. Dep't

• Decision Date: 30 January 2023
• Docket Number: 83299-9-I
• Citation: 523 P.3d 835
• Parties: Emma WHITEHALL, Appellant/ Cross-Respondent, v. WASHINGTON STATE EMPLOYMENT SECURITY DEPARTMENT, Respondent/ Cross-Appellant.
• Court: Washington Court of Appeals

523 P.3d 835

Emma WHITEHALL, Appellant/ Cross-Respondent,

v.WASHINGTON STATE EMPLOYMENT SECURITY DEPARTMENT, Respondent/ Cross-Appellant.

No. 83299-9-I

Court of Appeals of Washington, Division 1.

Filed January 30, 2023

Patricia Sue Rose, Law Office of Patricia S. Rose, 1455 Nw Leary Way Ste. 400, Seattle, WA, 98107-5138, for Appellant/ Cross-Respondent.

Licensing & Administrative Law Atty. General, Attorney at Law, 800 Fifth Ave., Suite 2000, Ms-tb-14, Seattle, WA, 98104, Jacob William Dishion, Washington Attorney General's Office, 800 Fifth Ave. Ste. 2000, Seattle, WA, 98104-3188, for Respondent/ Cross-Appellant.

PUBLISHED OPINION

Coburn, J.

¶1 A Washington Employment Security Department (Department) commissioner denied Emma Whitehall unemployment benefits. The commissioner determined that she voluntarily quit her position without good cause when she refused to comply with an employment policy knowing it would result in her job separation, and also that she was unavailable to accept work while she was seeking unemployment benefits because she did not have prearranged childcare. Snohomish County Superior Court disagreed that Whitehall voluntarily quit and that she was unavailable to accept work. The court nonetheless upheld the denial of benefits finding that Whitehall was disqualified because she was discharged for misconduct. Whitehall appeals and the Department cross-appeals the court's ruling reversing the commissioner's finding that Whitehall voluntarily quit and that she was unavailable to accept work. Substantial evidence supports the commissioner's ruling that Whitehall voluntarily quit but did not support the ruling that she was unavailable to accept work. Thus, we affirm in part and reverse in part.

FACTS

¶2 Emma Whitehall began full-time employment at Sprouts Preschool and Childcare (Sprouts) in February 2017. At the time of Whitehall's separation from Sprouts, she was a "lead infant teacher." Throughout her employment, she was assigned to care for infants.

¶3 Sprouts only hired nonsmoking teachers and Whitehall did not smoke when she was hired. The staff handbook, which all teachers initial, sign, and date each year, contained a tobacco use policy stating the following:

Cigarettes and smokeless tobacco products are prohibited on Sprouts premises by Staff, Parents, or workers of any kind, including parking lots and outdoor play areas. Smoking and the use of smokeless tobacco products is also prohibited while on off-site Sprouts field trips. Sprouts hires only non-smoking employees due to asthma

/allergies for staff and children.

According to Jennifer Gifford, owner of Sprouts, this policy was based on Snohomish County Health District's (SCHD) guidelines.¹ Gifford testified that SCHD recommended that she not hire teachers who smoke, vape,² or chew tobacco because of the third-hand risk of exposure from residue on clothes and hair. Gifford explained that she understood the information from SCHD to mean that vaping or e-cigarette liquid "juice" might not specify that it contains tobacco, but it might still contain trace amounts of tobacco.

¶4 In July 2019, Gifford learned from Whitehall's social media post that she was smoking e-cigarettes. Whitehall had just started using e-cigarettes the prior week. On July 11, Gifford and the program supervisor had a meeting with Whitehall to inform her that because Sprouts only employs non-smoking teachers, per its tobacco use policy, she would have to quit to remain working there. Whitehall explained that she did not think that e-cigarettes qualified as smoking under the policy, and Gifford informed her that they did. Gifford explained that even though Whitehall was vaping on her lunch breaks or in the morning and not on the premises, there was still a risk of potential harm to the children, which was why Sprouts only hired non-smoking teachers. Gifford informed Whitehall that she would need to stop vaping in order to stay on staff.

¶5 Shortly after the meeting, Whitehall text messaged Gifford purporting that she would quit vaping. Whitehall stated that it would take a week for her to quit, and Gifford agreed that she could have a week to do so. In the administrative hearing, Whitehall explained that she initially agreed to quit out of fear of losing her job.

¶6 That same night Whitehall called Gifford informing her that she was not going to be able to quit vaping. "It wasn't so much that I couldn't stop, just that I did not think she had the right to expect me to stop. With the policy not mentioning vaping, I did not think I had to stop. Vaping on my breaks, I would have been fine, but [Gifford] does not have the right to tell me what to do with my personal time." After Whitehall notified Gifford that she changed her mind, Gifford acknowledged that Whitehall was scheduled for work the next day, but Gifford did not have a replacement. The two agreed that Whitehall would not vape before coming into work the next day, July 12, and that Gifford would work on a plan to get staffing covered. Gifford was able to arrange coverage and emailed Whitehall on July 12 informing her that it would be her last day. Whitehall finished her full shift. Though she did not vape that day before work or during lunch, Whitehall testified that she had not quit vaping as of her last day.

¶7 The Department denied Whitehall's application for unemployment compensation benefits. Whitehall appealed that decision.

¶8 At the administrative hearing, Whitehall testified that "vaping juice, uh, contains tobacco when you have a tobacco-flavored product ... nicotine salt, which [has] low traces." She thought that the smoke it emits dissipates four times faster than smoking, and although it does not have an odor, it might contain microscopic traces of tobacco, but she was not sure. She stated she was not hiding it from her coworkers because she did not think it would lead to her firing. Sprouts updated their policy for the next school year to be more specific to include e-cigarettes.

¶9 The administrative law judge (ALJ) issued an initial order disqualifying Whitehall from receiving unemployment benefits because she had been discharged for misconduct and was not available for work. Whitehall petitioned the commissioner of the Department to review the initial order.

¶10 The commissioner adopted all of the ALJ's findings of fact and made augmented findings. The commissioner rejected the ALJ's legal conclusions that Whitehall was discharged for misconduct, and instead concluded that she voluntarily quit without good cause, which disqualified her from receiving benefits under RCW 50.20.050(2)(a) for the period beginning July 7, 2019, and thereafter for seven calendar weeks and until she had obtained bona fide work in covered employment and earned wages in that employment equal to seven times her weekly benefit amount. The commissioner affirmed the ALJ's conclusion on the issue of availability and held that Whitehall was ineligible under RCW 50.20.010(1)(c) for the weeks at issue.

¶11 Whitehall appealed the commissioner's decision to Snohomish County Superior Court, which affirmed on different grounds. It reversed as an error of law the commissioner's ruling that Whitehall voluntarily quit her employment. The court concluded that substantial evidence supported that Sprouts discharged Whitehall for misconduct, which disqualified her from receiving unemployment compensation benefits. The court also concluded that substantial evidence did not support the commissioner's finding that Whitehall was unavailable to accept work.

¶12 Whitehall appeals the court's order denying unemployment compensation benefits. The Department cross-appeals the court's reversal of the commissioner's conclusions that Whitehall voluntarily quit and that she was unavailable to accept work.³

DISCUSSION

Standard of Review

¶13 Washington's Administrative Procedure Act (APA), chapter 34.05 RCW, governs judicial review of employment benefits decisions. Michaelson v. Emp't Sec. Dep't, 187 Wash. App. 293, 298, 349 P.3d 896 (2015). We review only the commissioner's decision, not the administrative law judge's decision or the superior court's ruling. Courtney v. Emp't Sec. Dep't, 171 Wash. App. 655, 660, 287 P.3d 596 (2012) (citing Verizon Nw., Inc. v. Emp't Sec. Dep't, 164 Wash.2d 909, 915, 194 P.3d 255 (2008) ).

¶14 When reviewing the commissioner's decision, we sit in the same position as the superior court and apply the APA standards directly to the administrative record. Courtney, 171 Wash. App. at 660, 287 P.3d 596. This court reviews the commissioner's legal determinations using the APA's "error of law" standard, which allows us to substitute our view of the law for the commissioner's. Id. (citing Verizon, 164 Wash.2d at 915, 194 P.3d 255 ); See RCW 34.05.570(3)(d).

¶15 This court reviews an agency's interpretation or application of the law de novo. Courtney, 171 Wash. App. at 660, 287 P.3d 596 (citing Honesty in Env't Analysis & Legis. (HEAL) v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 96 Wash. App. 522, 526, 979 P.2d 864 (1999) ). The APA allows reversal of an administrative decision if it is based on an error of law, if it is not based on substantial evidence, or if it is arbitrary or capricious. RCW 34.05.570(3)(d), (e), (i) ; Michaelson, 187 Wash. App. at 298, 349 P.3d 896.

¶16 This court considers the commissioner's decision as prima facie correct, and Whitehall bears the burden of establishing its invalidity. Smith v. Emp't Sec. Dep't, 155 Wash. App. 24, 32, 226 P.3d 263 (2010). This court gives substantial weight to the agency's interpretation of the statutes it administers. Kirby v. Emp't Sec. Dep't, 179 Wash. App. 834, 843, 320 P.3d 123 (2014) (citing Everett Concrete Prods. Inc. v. Dep't of Labor & Indus., 109 Wash.2d 819, 823, 748 P.2d 1112 (1988) ).

Challenged Findings of Fact

¶17 The commissioner's findings of fact are reviewed for substantial evidence in light of the entire record. Kirby, 179 Wash. App. at 843, 320 P.3d 123 (citing...