Opinion
No. 57514-7-I.
November 13, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-2-05779-1, Michael T. Downes, J., entered November 30, 2005.
Counsel for Appellant(s), Marcus Robert Lampson, Unemployment Law Project, Seattle, WA.
Counsel for Respondent(s), Jacqueline Db Walker, Office of Attorney General, Seattle, WA.
Affirmed by unpublished opinion per Coleman, J., concurred in by Appelwick, C.J., and Baker, J.
Brian Hughes appeals the trial court's order affirming the Employment Security Department's denial of unemployment benefits. The Department denied Hughes benefits because it found that he was discharged for employee misconduct under RCW 50.04.294(2)(a) and (f). We conclude that Hughes's actions on the day he was discharged constituted employee misconduct under RCW 50.04.294(2)(a) and (f) because he deliberately refused his supervisor's reasonable order to stay at work and knowingly violated a reasonable company rule by taking leave without giving 24 hours' advance notice.
FACTS
Hughes worked as a fabricator at Pacific Coast Marine from December 5, 2002, until he was discharged on August 25, 2004. He worked from 7:30 a.m. until 3:30 p.m., Monday through Friday. Hughes is a single parent and a diabetic. On August 25, 2004, he arrived for work at approximately 5 a.m. At approximately 9:30 a.m., he filled out a leave slip requesting permission to leave early in order to enroll his son for high school. He had known for two days that he needed to enroll his son but he failed to request leave in advance because, as he explained at the administrative hearing, "sometimes things get lost." Hughes did not indicate why he felt it necessary to personally register his son for high school. Pacific Coast Marine required employees to give 24 hours' notice prior to requesting time off.
Hughes's supervisor denied the request to leave early because Hughes had not given the requisite 24 hours' notice and the company was busy that day. His supervisor also informed him that he would have to work overtime. Hughes then spoke to the human resources manager about leaving early, and she also denied his request.
At about 10:50 a.m., Hughes filled out a second form requesting to leave early, this time for medical reasons. Hughes believed that he was entitled to intermittent leave under the Family Medical Leave Act (FMLA) because of his diabetes. His employer, however, did not believe he was entitled to intermittent leave under the FMLA. Hughes did not state that he was having a medical emergency or otherwise in need of immediate medical attention. When asked at the administrative hearing to explain why he changed his reason for requesting leave, Hughes explained that he decided to "seek a medical interdiction" and that it appeared that his health "was of no concern" to his employer. Hughes's supervisors asked him if leaving work early was worth losing his job. Hughes put the form on his supervisor's desk and left the jobsite. Shortly thereafter, his supervisors decided to discharge him for job abandonment and insubordination.
Though the commissioner did not include it in her findings of fact, the production manager at Pacific Coast Marine apparently had agreed that Hughes could leave at 12:30 p.m. but Hughes was allegedly never told this. In any event, Hughes did not wait until 12:30 p.m. to leave, but left the jobsite at around 10:50 a.m.
After leaving work, Hughes registered his son for high school and also went to the doctor. His doctor wrote a short note indicating that Hughes should not work overtime because of his diabetes. Hughes did not work the next day — August 26. He left a phone message with his employer indicating that he was taking the day off for family medical reasons. He reported for work on August 27 and was informed that he had been discharged.
The Department denied Hughes unemployment benefits. Hughes appealed the decision to an administrative law judge (ALJ), who decided that Hughes was entitled to unemployment benefits. The ALJ determined that Hughes' conduct did not amount to "misconduct" because his absence on August 25 was the sole reason for his discharge. He reasoned that one unexcused absence was not sufficient to constitute misconduct because the definition of misconduct at RCW 50.04.294(2)(d) lists only "repeated and inexcusable absences" as an example of misconduct per se. Hughes's employer petitioned the Department commissioner to review the ALJ's decision.
The Department commissioner modified the ALJ's decision by determining that Hughes had committed misconduct and therefore did not qualify for unemployment benefits. Based on RCW 50.04.294(2)(a) and (f), the commissioner found Hughes had committed misconduct because he (1) violated a reasonable and known rule of the employer, which had the right to have its employees working according to schedule and (2) was insubordinate in that he deliberately and willfully refused to follow his employer's reasonable direction to stay at work. Hughes appealed the modification to the superior court, which affirmed. Hughes now appeals for the reason stated below.
ANALYSIS "Misconduct" Under RCW 50.04.294
Hughes argues that his conduct on the day he was discharged was not egregious enough to qualify as misconduct under the Employment Security Act (ESA). In reply, the Department argues that the new definition of "misconduct" in the ESA, as well as cases decided before the new definition, make clear that Hughes's behavior constituted misconduct.
Hughes does not challenge any of the findings of fact made by the ALJ or the Department commissioner and assigns error only to the commissioner's determination that he was discharged for misconduct under RCW 50.04.294(2)(a) and (f). The appellate court applies the error of law, standard to questions of law, but accords substantial weight to the agency's interpretation when the law is in the area of the agency's expertise. Wilson v. Employment Sec. Dep't, 87 Wn. App. 197, 201, 940 P.2d 269 (1997). "[I]t is the Commissioner's findings of fact, to the extent they modify or replace the findings of the ALJ, which are relevant on appeal." Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 406, 858 P.2d 494 (1993).
The ESA was enacted to help alleviate the financial burden on individuals due to unemployment by setting aside funds for an unemployment reserve. RCW 50.01.010. It is to be used for the benefit of persons unemployed through no fault of their own and liberally construed for the purpose of reducing involuntary unemployment. RCW 50.01.010. Employees discharged for misconduct are disqualified from receiving unemployment benefits. RCW 50.20.066. Prior to 1993, there was no statutory definition of misconduct. Washington courts developed their own definitions and tests for determining misconduct. See, e.g., Willard v. Employment Sec. Dep't, 10 Wn. App. 437, 517 P.2d 973 (1974) (adopting definition of misconduct from a Wisconsin case); Durham v. Employment Sec. Dep't, 31 Wn. App. 675, 644 P.2d 154 (1982) (using a different test for misconduct than that adopted in Willard); Macey v. Employment Sec. Dep't, 110 Wn.2d 308, 752 P.2d 372 (1988) (adopting another definition of misconduct to resolve confusion caused by competing definitions used in court of appeals). In 1993, the legislature defined misconduct as "an employee's act or failure to act in willful disregard of his or her employer's interest where the effect of the employee's act or failure to act is to harm the employer's business." RCW 50.04.293. In 2003, the legislature redefined employee misconduct. RCW 50.04.294. The new definition of employee misconduct is as follows:
With respect to claims that have an effective date on or after January 4, 2004:
(1) "Misconduct" includes, but is not limited to, the following conduct by a claimant:
(a) Willful or wanton disregard of the rights, title, and interests of the employer or a fellow employee;
(b) Deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee;
(c) Carelessness or negligence that causes or would likely cause serious bodily harm to the employer or a fellow employee; or
(d) Carelessness or negligence of such degree or recurrence to show an intentional or substantial disregard of the employer's interest.
RCW 50.04.294(1). The statute also provides examples of actions that constitute misconduct per se:
(2) The following acts are considered misconduct because the acts signify a willful or wanton disregard of the rights, title, and interests of the employer or a fellow employee. These acts include, but are not limited to:
(a) Insubordination showing a deliberate, willful, or purposeful refusal to follow the reasonable directions or instructions of the employer;
(b) Repeated inexcusable tardiness following warnings by the employer;
(c) Dishonesty related to employment, including but not limited to deliberate falsification of company records, theft, deliberate deception, or lying;
(d) Repeated and inexcusable absences, including absences for which the employee was able to give advance notice and failed to do so;
(e) Deliberate acts that are illegal, provoke violence or violation of laws, or violate the collective bargaining agreement. However, an employee who engages in lawful union activity may not be disqualified due to misconduct;
(f) Violation of a company rule if the rule is reasonable and if the claimant knew or should have known of the existence of the rule; or
(g) Violations of law by the claimant while acting within the scope of employment that substantially affect the claimant's job performance or that substantially harm the employer's ability to do business.
RCW 50.04.294(2) (emphasis added). There are currently no reported cases interpreting this new definition of employee misconduct.
We affirm the superior court's order denying Hughes unemployment benefits because his actions on the day he was discharged qualify as misconduct per se under the statute in two ways Hughes deliberately refused to follow the reasonable direction of his employer to remain at work, and he knew of but violated his employer's reasonable rule that employees give 24 hours' notice before taking leave. See RCW 50.04.294(2)(a), (f). The plain language of the new definition of misconduct directs the court to conclude that Hughes be denied unemployment benefits. Hughes left work in direct defiance of his supervisors' reasonable orders even though he was not experiencing a medical emergency, failed to give 24 hours' notice before taking leave even though he had known for two days that he needed to register his son for high school, and knew that by leaving the work site without permission, he put his employment at risk.
Case law also supports our interpretation of "misconduct." Prior to the adoption of the new definition of misconduct, Washington courts repeatedly held that an employee committed misconduct by refusing to comply with a reasonable order from a supervisor. See, e.g., Harvey v. Employment Sec. Dep't, 53 Wn. App. 333, 766 P.2d 460 (1988) (refusal to obey supervisor's order to fold linen prior to moving on to other work constituted misconduct); Peterson v. Employment Sec. Dep't, 42. Wn. App. 364, 711 P.2d 1071 (1985) (refusing to answer supervisor's questions and leaving premises after being told to stay constituted misconduct); Durham, 31 Wn. App. 675 (refusing to obey supervisor's order to work overtime to finish a job constituted misconduct); Willard, 10 Wn. App. 437 (disobeying reasonable order of employer constituted misconduct). Hughes likely would have been found to have committed misconduct under the previous definitions because, just like the employees in these cases, he defied the reasonable order of his supervisor.
Hughes analogizes to a number of cases where the employee was found to not have committed misconduct. These cases do not support Hughes's argument because they predate the current statutory definition of misconduct and none involves a person directly defying the order of a superior. See Wilson, 87 Wn. App. 197 (jewelry store manager did not commit misconduct after twice neglecting to follow store procedures for logging in new jewelry, resulting in the loss of six diamonds); Gibson v. Employment Sec. Dep't, 52 Wn. App. 211, 758 P.2d 547 (1988) (union workers did not commit misconduct after failing to appear at work because they mistakenly believed they had a duty to stand in another union's picket line); Shaw v. Employment Sec. Dep't, 46 Wn. App. 610, 731 P.2d 1121 (1987) (truck driver did not commit misconduct by arriving late for work 14 times in a 15-month period); Ciskie v. Employment Sec. Dep't, 35 Wn. App. 72, 664 P.2d 1318 (1983) (employee did not commit misconduct by failing to notify superiors prior to missing work for family emergency). These cases do not address the issue of whether directly defying a supervisor's reasonable order constitutes misconduct. Instead, they involve competency issues, good faith mistakes, tardiness, and emergency situations that are not present in Hughes's case.
Hughes also cites three cases where the court found that the discharged employee did commit misconduct: Leibbrand v. Employment Sec. Dep't, 107 Wn. App. 411, 27 P.3d 1186 (2001) (Boeing worker struggling with alcoholism committed misconduct by accumulating over 100 hours of unexcused absences and then being absent for six consecutive work days a few months later); Hamel v. Employment Sec. Dep't, 93 Wn. App. 140, 966 P.2d 1282 (1998) (waiter committed misconduct by making a total of three offensive comments to co-workers and customers, two of them after being warned in writing); and Galvin v. Employment Sec. Dep't, 87 Wn. App. 634, 942 P.2d 1040 (1997) (Seattle Parks Department worker committed misconduct by frequently missing work, including taking a vacation without advanced approval). Hughes argues that he could not have committed employee misconduct because his actions on August 25 were not as egregious as those of the employees in Galvin, Hamel, and Liebbrand. These cases do not support Hughes's argument because they do not involve an employee directly defying a superior's order to remain at work. Additionally, the Galvin, Hamel, and Leibbrand courts did not hold that an employee's actions must be at least as egregious as Galvin's, Hamel's or Leibbrand's in order to constitute misconduct. Even assuming Hughes' actions on August 25 were less egregious than Galvin's, Hamel's or Leibbrand's, his actions still constituted misconduct under RCW 50.04.294(2)(f). Unlike the employees in Galvin, Hamel, and Leibbrand, Hughes openly defied his employer's reasonable direction to remain at work, even after being told that he risked losing his job by doing so.
We affirm the order of the superior court because Hughes' actions on August 25 qualify as employee misconduct under the new definition in the ESA. Specifically, Hughes committed misconduct because he knowingly violated a reasonable and known rule of the employer which has the right to have its employees working according to schedule. Additionally, Hughes was insubordinate in that he deliberately and willfully refused to follow the employer's reasonable direction to stay at work. RCW 50.04.294(2)(a), (f). Even in cases decided under the previous definitions of misconduct, employees were found to have committed misconduct after directly refusing to obey a supervisor's reasonable orders. None of the cases Hughes relies on concerns an employee that directly defied a superior's orders by leaving the work site.
For the foregoing reasons, we affirm.
APPELWICK, and BAKER, JJ., concur.