Opinion
No. 60639-5-I.
August 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-2-05479-1, Andrea A. Darvas, J., entered September 11, 2007.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Dwyer, A.C.J., and Leach, J.
April Winkler contends she is eligible for unemployment compensation benefits, even though she voluntarily quit her job at S S Shell Oil, because her employer failed to reasonably accommodate her disability. An administrative agency is limited to only those powers conferred by the legislature. Given this limitation, the Employment Security Department (ESD) correctly concluded that it lacks the authority to evaluate a claim for reasonable accommodation under the Washington Law Against Discrimination (WLAD) and the Americans with Disabilities Act. (ADA) We affirm.
FACTS
On September 22, 2003, S S Shell Oil hired April Winkler to work as a sales associate at their Bothell, Washington store. Due to health limitations, Winkler can lift only five to ten pounds. She is totally prevented from lifting items overhead. Winkler provided her manager at S S Shell Oil with a note from her physician describing these physical limitations.
S S Shell Oil required every sales associate at the end of their shift to count unsold packs of cigarettes. The Bothell store is small and cigarette cartons are kept overhead. In order to count the unsold cigarette packs, employees must be able to reach overhead and bring them down. After receiving the doctor's note, Winkler's manager exempted her from the policy and asked another employee who worked a later shift to perform the count.
Sometime between February 2005 and August 2006, the Bothell store received a new manager, who required all employees, including Winkler, to adhere to the cigarette counting policy. On August 21, 2006, Winkler presented a doctor's note to S S Shell Oil management again describing her physical limitations and inability to lift overhead. Approximately a week later, management informed Winkler that in order to accommodate her physical limitations yet enforce the cigarette counting policy, she would be transferred to a different store. The Bellevue store did not require overhead lifting in order to count the cigarettes. S S Shell Oil believed this was an appropriate accommodation.
According to Winkler, the commute from her home to Bellevue was 14 miles each way, 22 miles more roundtrip than her current commute to the Bothell store. On three different occasions, she expressed concerns to management that her car was unable to make the longer commute and that she believed gas would be too expensive. She did not discuss potential problems with riding the bus to Bellevue, the potential need for a different shift, or options to remain at the Bothell store.
On September 22, 2006, Winker worked her last shift at the Bothell store. Winkler did not report to her scheduled shift at the Bellevue store on September 25, 2006. She provided no notice to her employer.
Winkler filed a claim for unemployment compensation benefits. ESD denied the claim. Winkler appealed the determination on October 11, 2006. An administrative law judge (ALJ) found that under RCW 50.20.050 Winkler failed to establish she quit her job for good cause. It held a commute of 14 miles was not shown to be a material increase in distance or difficulty of travel, that Winkler did not take reasonable efforts to preserve her job, and that her decision to quit was not medically necessary.
Winkler appealed the ALJ order to the ESD commissioner. The commissioner affirmed the ALJ order, holding it was supported by sufficient evidence and that Winkler failed to show that she had good cause to quit. Specifically, the commissioner held:
Claimant invites us to consider the issue of the employer's efforts to accommodate claimant's documented medical restrictions in determining good cause for quitting. Unfortunately, the above statute [RCW 50.20.050] does not take into consideration whether or how an employer provides accommodation to an employee with a disability.
The commissioner held that the preponderance of the evidence shows "claimant quit primarily due to the difficulties with transportation."
On July 25, 2007, Winkler appealed the ESD commissioner's order to King County Superior Court. The superior court judge affirmed the order, finding it was supported by substantial evidence. Additionally, the court held that Winkler failed to ask for an accommodation of her disability or for a more convenient shift that would enable her to take mass transit to the Bellevue location.
On September 25, 2007, Winkler filed her notice of appeal.
DISCUSSION
Winkler is claiming unemployment benefits under the Washington Employment Security Act (Act). Specifically, she claims benefits under the good cause exception to the "disqualification for voluntary quit" rule, which states in part:
In Spain v. Employment Security Department, the Washington Supreme Court held that the statutory list of nondisqualifying reasons to leave a job and remain eligible for unemployment benefits contained in RCW 50.20.050 is not an exclusive list. 2008 Wash. LEXIS 606 (June 19, 2008). Winkler does not argue that her cause for quitting is not enumerated in RCW 50.20.050. Additionally, Spain does not address the authority of ESD to decide Winkler's claims under the ADA and WLAD. Spain has no application here.
An individual shall be disqualified from benefits beginning with the first day of the calendar week in which he or she has left work voluntarily without good cause.
RCW 50.20.050. By the provisions of this statute, the employee who voluntarily quits her job for "good cause" is entitled to receive unemployment benefits. Since the purpose of unemployment compensation is to reduce involuntary unemployment and ease suffering, the Act is construed liberally in favor of the unemployed worker. RCW 50.01.010; W. Ports Transp., Inc. v. Employment Sec. Dep't, 110 Wn. App. 440, 450, 41 P.3d 510 (2002). This liberal construction "requires the courts to view with caution any construction that would narrow the Act's coverage." W. Ports, 110 Wn. App. at 450.
Under the Employment Security Act, "the decision of the commissioner shall be prima facie correct, and the burden of proof shall be upon the party attacking the same." RCW 50.32.150. An appellate court reviews the decision of the superior court de novo and applies the standards of the Washington Administrative Procedures Act directly to the record before the agency. RCW 50.32.120; W. Ports, 110 Wn. App. at 449; Martini v. Employment Sec. Dep't, 98 Wn. App. 791, 795, 990 P.2d 981 (2000). As the appellant, Winkler has the burden of demonstrating the invalidity of the agency's decision. RCW 34.05.570(1)(a). We review the administrative findings of fact for substantial evidence; questions of law are reviewed de novo under the error of law standard. W. Ports, 110 Wn. App. at 449. The application of the law to the facts is a question of law reviewed de novo. Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 403, 858 P.2d 494 (1993).
First, Winkler argues the ESD commissioner erred in concluding that the agency lacked statutory authority to determine whether S S Shell Oil reasonably accommodated her disability. Winkler claims she quit with good cause when her employer failed to engage in an interactive process to accommodate her disability. She argues this was a violation of state law, which constitutes good cause for voluntary separation under RCW 50.20.050(2)(ix).
Under RCW 50.20.050(2)(ix) an individual is not disqualified for voluntarily quitting his or her employment if:
The individual left work because of illegal activities in the individual's worksite, the individual reported such activities to the employer, and the employer failed to end such activities within a reasonable period of time.
According to WAC 192-150-135(1), the term "illegal activities" in the statute includes "violations of both civil and criminal law." Additionally, the administrative code requires that:
To establish good cause for quitting work under this section, you must notify your employer of the illegal activity and give your employer a reasonable period of time to correct the situation. You are not required to notify your employer before quitting when your employer is conducting the illegal activity and notifying your employer could jeopardize your safety or is contrary to other federal and state laws (for example, whistleblower protection laws).
The trial court concluded it lacked the statutory authority to evaluate Winkler's accommodation claims, including whether she was disabled under ADA or WLAD.
The plain language of RCW 50.20.050(2)(ix) allows an individual to quit with good cause and potentially receive benefits if the employer is engaged in illegal activities and the employee reported these activities. The statute does not clearly describe if ESD may make the determination of whether the activity was illegal. However, an administrative agency is limited to those powers expressly conferred by the legislature. Washington Water Power Co v. Wash. State Human Rights Comm'n, 91 Wn.2d 62, 65, 586 P.2d 1149 (1978). ESD is established under the Employment Security Act and charged with implementing the Act, including making rules to adjudicate unemployment benefit claims. RCW 50.08.010; 50.08.020; 50.12.010-110. Nothing in the Act grants ESD the authority to evaluate disability discrimination claims. Likewise, the Human Rights Commission is charged with implementing the WLAD. RCW 49.60.050; 49.60.240. That statute does not authorize any other agency to determine if a violation has occurred. There is no statutory basis for the ESD commisioner to evaluate whether an employer has reasonably accommodated a worker pursuant to the ADA or WLAD.
But, Winkler argues that her claim is analogous toMartini, 98 Wn. App. at 795. In that case, this Court reversed a commisioner's order, and held that an employee had per se good cause to leave when there existed a clear violation of the State Minimum Wage Act and the employer had knowledge of the factual circumstances that gave rise to the violation.Id. at 792. Unlike the present claim, inMartini, the employer admitted that the employee was not guaranteed a minimum wage, as required by state law.Id. at 798. Thus, given this admission, the commissioner did not need to determine whether the employer's activities were illegal.
Likewise, in Sweitzer v. Employment Security Department, this Court reversed a commissioner's order and held an employee has good cause to quite and is eligible for unemployment benefits when she is subject to sexual harassment and that she was not required to complain to management because it would have been futile. In that case, the employer conceded that the employee was subjected to sexual harassment in the workplace. 43 Wn. App. 511, 516, 718 P.2d 3 (1986).
Here, the employer, S S Shell Oil, did not admit to any statutory violations. Instead, the testimony indicates management believed they complied with state and federal laws regarding disability accommodation. Winkler did not notify the employer of her belief that they had participated in an illegal activity by failing to engage in an interactive process to accommodate disability. Counsel asserted at oral argument that Winkler was not aware of such a requirement. Even if there is a violation of the disability law that could be reached by the Human Rights Commission, it is clear that Winkler did not give her employer the required notice for an unemployment claim. Likewise, Winkler did not pursue a discrimination claim with the Human Rights Commission. Had she done so and obtained a ruling, the commissioner could have considered the outcome. In order to review Winkler's claim without such a determination, the commissioner would have had to make an original determination, on the issue of failure to accommodate under the WLAD, which is reserved to the Human Rights Commission. It lacked authority to do so.
Winkler argues that such a determination is subject to delays which make it unavailable as a practical matter in an unemployment proceeding. Nonetheless, we are not free to confer jurisdiction on the ESD that the legislature has placed with the Human Rights Commission.
We affirm the commissioner's interpretation of the statute that without an admission by the employer, it lacked the authority to determine if a statutory violation under the WLAD or ADA occurred.
Despite the statutory limitations on the authority of the ESD to review claims for accommodation, Winkler claims the commissioner erred in not entering findings of fact about the reasonableness of the accommodation. But, the commissioner concluded that as a matter of law, it could not consider Winkler's WLAD and ADA claims. There was no need for findings of fact because the factual inquiry was foreclosed by limits on its authority.
Winkler also argues the transfer to another store required she add 22-miles roundtrip to her commute. She contends this is a material change in her work conditions and thus constituted good cause to quit.
Winkler argues the ALJ erred in concluding the transfer to a different store did not constitute good cause to quit her job at S S Shell Oil. The ALJ determined Winkler did not have good cause under RCW 50.20.050(2)(b)(vii), but the issue was not addressed by the ESD commissioner.
Under RCW 50.20.050(2)(b), an individual is not disqualified from receiving unemployment benefits if the voluntary termination is because "[t]he individual's worksite changed, such change caused a material increase in distance or difficulty of travel, and, after the change, the commute was greater than is customary for workers in the individual's job classification and labor market." RCW 50.20.050(2)(b)(vii). WAC 192-150-125(1) requires the change to have "substantially increased the distance you travel to the new worksite or increased the difficulty or inconvenience of travel" and "[r]esulted in a commute distance or time that is greater than is customary for workers in your job classification and labor market area." WAC 192-150-125(1)(a), (b).
Winkler commuted 3 miles each way from her home to the Bothell store. According to Winkler's testimony, her transfer to the Bellevue store would be 14 miles from her home each way. Winkler never knew exactly where the Bellevue store was located. She argues the transfer is a material hardship due to the increased distance and increased travel cost.
Winkler contends that for her and other unskilled workers, this distance is a tremendous strain on household budgets due to gas prices. But, the statute requires the unemployed individual to show the commute distance is greater than customary in the job class. RCW 50.20.050(2)(b)(vii). Individual hardship, alone, is insufficient. Here, the record contains no evidence that a 22-mile roundtrip commute is greater than is customary for sales associate positions. The record demonstrates that Winkler believed her car too old to make the journey, gas too expensive, and the bus not in operation by the end of her shift. Winkler does not provide any proof her commute is greater than customary for workers in her job classification and market.
We affirm the ALJ order because Winkler failed to establish the transfer materially increased her commute beyond the customary commute for sales associates.
Winkler seeks attorney fees. An award of attorney fees should be paid "if the decision of the commissioner shall be reversed or modified." RCW 50.32.160. Because we affirm the ESD commissioner's order, Winkler is not awarded fees.
We affirm.