Sarah Christner, Appellant V. Dept Of Employment Security, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SARAH CHRISTNER,
No. 73024-0-!

Appellant,
DIVISION ONE

Vv.
UNPUBLISHED OPINION

STATE OF WASHINGTON,
DEPARTMENT OF EMPLOYMENT
SECURITY,

Nene” “meet” “mye Set “eget” eet eet” “meet” Some” “one” “meee”

Respondent. FILED: June 6, 2016

TRICKEY, J. — Sarah Christner appeals the superior court's order affirming=
the decision of the Commissioner of the Washington State Employment Security
Department to deny her claim for unemployment compensation benefits. The
Commissioner properly concluded that Christner’s conduct evinced a deliberate
violation of standards of behavior that her employer had the right to expect of
her. Because this constitutes disqualifying misconduct under RCW
50.04.294(1)(b), we affirm.

FACTS
In November 2012, Christner began working as a full-time receptionist for
the Washington Center for Pain Management (WCPM) in Bellevue, Washington.
WCPM operates multiple clinics and requires a receptionist at each clinic
location. A policy at WCPM requires that all requests for time off be submitted in
writing at least two weeks in advance in order to “ensure that absences will be

scheduled in advance whenever possible.”’

Over the course of her employment, Christner made several requests for

* Clerk’s Papers (CP) at 132.

3- NAP 9392

No. 73024-0-1 / 2
time off. 	Many of these requests were made with short notice. 	Christner's
supervisor, Sarah Bundy, testified that Christner's requests were very difficult to
accommodate because WCPM 	would 	have to "scramble" to find 	coverage.2
Bundy believed that Christner's requests were due to medical appointments.
On September 26, 2013, Bundy e-mailed Christner. 	She acknowledged
that Christner had health conditions requiring her to go to the doctor often. 	But
she stated that this was "becoming very difficult with scheduling, especially when
there is not adequate time given prior to the request."3 	She requested that
Christner provide a doctor's note projecting the number of anticipated future
doctor appointments. 	She also stated that it would be preferable if Christner
could schedule doctors' appointments without missing work.
Following this e-mail, Christner continued to request time off on short
notice. 	On October 10, 2013, Christner requested time off on October 23, 2013
for personal reasons. 	She did not receive a response.
On October 18, 2013, Christner e-mailed Bundy. 	She acknowledged that
it had "been increasingly difficult to accommodate as many time off requests as
[she] ha[s] requested in such short notice."4 	She disclosed that her long-term
career objective was to pursue employment in law enforcement. 	She stated that
most of her time off requests were for medical appointments but, more recently,
she had been requesting time off "for personal matters regarding appointments
for other employment."5 She stated that she would make requests for time offfor
2 CP at 102.
3 CP at 188.
4 CP at 155.
5 CP at 155.

No. 73024-0-1 / 3
medical appointments at least two weeks in advance. 	But she explained that the
jobs for which she was applying involved exams that were scheduled with short
notice and that this was beyond her control.
Bundy responded by requesting that Christner give two weeks' notice and
resign. 	She stated, "We can accommodate during those two weeks and find a
replacement. 	However, we cannot continue to accommodate these short notice
time off requests beyond the two weeks as we need a reliable full time front desk
receptionist."6 	That same day, Christner tendered her resignation by e-mail.
Christner continued to work at WCPM for two more weeks. 	Her last day of
employment was Friday, November 1, 2013.
Christner subsequently applied for unemployment compensation benefits.
She reported 	that she was discharged because her employer was 	unable to
accommodate short notice time off requests any further. 	In contrast, WCPM
reported that Christner voluntarily resigned 	to pursue a position with another
employer and required time offto do preliminary tests for the new employer.
The Employment Security Department adjudicated the job separation as a
discharge and granted Christner benefits on the basis that she was discharged
for reasons that did not constitute misconduct. 	An administrative law judge (ALJ)
reversed the Department's decision. 	The ALJ concluded that Christner was not
entitled to 	unemployment benefits because she was discharged for reasons
constituting misconduct.
The 	Commissioner 	affirmed 	the 	ALJ's 	order. 	In 	doing 	so, 	the
Commissioner adopted the ALJ's findings of fact and conclusions of law and
6 CP at 156.

No. 73024-0-1/4
clarified 	that 	Christner 	committed 	disqualifying 	misconduct 	under 	RCW
50.04.294(1 )(b). 	Christner subsequently petitioned for judicial 	review to the
Snohomish 	County 	Superior 	Court. 	The 	superior 	court 	affirmed 	the
Commissioner's decision. 	This appeal followed.
ANALYSIS
Judicial review of a decision made by the Commissioner is governed by
Washington's Administrative Procedure Act (APA), chapter 34.05 RCW. 	Tapper
v. Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). 	This court sits in
the same position as the superior court and applies the standards of the APA
directly to the administrative record before the agency. 	Tapper, 122 Wn.2d at
402. 	This court reviews the Commissioner's decision, not the decision of the
ALJ, except to the extent that the Commissioner adopts the ALJ's findings of fact.
Verizon Nw.. Inc. v. Emp't Sec. Dep't. 164 Wn.2d 909, 915, 194 P.3d 255 (2008).
The 	Commissioner's decision is prima facie 	correct. 	RCW 50.32.150.
The party challenging the agency's action bears the burden of demonstrating its
invalidity. 	RCW 34.05.570(1 )(a). 	The APA provides nine bases for overturning
agency orders in adjudicative proceedings. 	RCW 34.05.570(3)(a)-(i). 	These
include when the reviewing court determines that the Commissioner erroneously
interpreted or applied the law, the order is not supported by substantial evidence,
or the order is arbitrary or capricious. 	RCW 34.05.570(3)(d), (e), (i).
We review findings of fact to determine whether they are supported by
substantial evidence. 	Barker v. Emp't Sec. Dep't. 127 Wn. App. 588, 592, 112
P.3d 536 (2005). 	Evidence is substantial if it is "sufficient ... to persuade a

No. 73024-0-1 / 5
reasonable person ofthe truth ofthe declared premise." 	Barker. 127 Wn. App. at
592. 	Unchallenged findings are verities on appeal. Fuller v. Emp't Sec. Dep't. 52
Wn. App. 603, 605, 762 P.2d 367 (1988). 	We view the evidence and reasonable
inferences therefrom in the light most favorable to the party who prevailed at the
administrative proceeding below. 	Kirbv v. Emp't Sec. Dep't. 185 Wn. App. 706,
713, 342 P.3d 1151 	(2014), 	review denied, 183 Wn.2d 	1010, 352 P.3d 188
(2015).
We review de novo questions of law. 	Tapper. 122 Wn.2d at 403. We give
substantial weight to the agency's interpretation of the statute it administers.
Smith v. Emp't Sec. Dep't. 155 Wn. App. 24, 32, 266 P.3d 263 (2010).
Whether a claimant engaged in misconduct is a mixed question of law and
fact. 	Tapper. 	122 Wn.2d at 402. 	Accordingly, this court determines the law
independently and then applies the law to the facts as found by the agency.
Hamel v. Emp't Sec. Dep't. 93 Wn. App. 140, 145, 966 P.2d 1282 (1998).
Denial of Unemployment Benefits
Christner argues that the Commissioner erroneously concluded that she is
disqualified 	from 	receiving 	unemployment 	benefits 	because 	she 	committed
disqualifying misconduct under RCW 50.04.294(1 )(b). We disagree.
The 	Employment 	Security 	Act, 	Title 	50 	RCW, 	exists 	to 	provide
compensation to individuals who are involuntarily unemployed "through no fault
of their own." 	RCW 50.01.010. 	An individual 	is disqualified from 	receiving
unemployment benefits if he or she is discharged for misconduct connected with
his or her work. 	RCW 50.20.066(1).

No. 73024-0-1 / 6
RCW 	50.04.294(1) 	provides 	a 	non-exhaustive 	list 	of "[mjisconduct."
Under RCW 50.04.294(1 )(b), 	misconduct 	includes 	"[deliberate 	violations 	or
disregard of standards of behavior which the employer has the right to expect of
an employee."
The Commissioner concluded that Christner committed misconduct under
this 	subsection 	because 	her 	conduct 	"evinced 	a 	deliberate 	violation 	and
disregard of standards of behavior which an employer has the right to expect of
an employee."7 	Adopted findings of fact 5, 6, and 7 support the Commissioner's
conclusion.8
In finding of fact 5, the Commissioner found:
On September 26, 2013, [Christner] received a final warning for
repeatedly requesting time off on short or no notice. 	The claimant
did not disclose to the employer that she was requesting time off to
participate 	in 	interviews 	for 	other 	employers 	in 	addition 	to
requesting time off due to illness. 	The employer believed that all of
the requests for time off were due to illness.[9]
This finding of fact is supported by Bundy's and Christner's testimony.
Bundy testified that WCPM's policy required two weeks' advance notice for time
off requests. 	She testified that Christner would generally give about one week's
notice, which was 	not adequate when the requests were on a regular basis.
Bundy believed that Christner's requests were only for medical reasons. 	Bundy
testified that she had conversations with Christner about needing at least two
weeks' notice, that she gave Christner verbal and written warnings, and that she
made it "very clear that these accommodations were becoming very, very difficult
7 CP at 178.
8 Christner assigns error to these findings of fact, but they are supported by substantial
evidence in the record.
9 CP at 162.

No. 73024-0-1 / 7
. . . that this was becoming an issue."10
Christner confirmed that she received a final warning11 from Bundy by e-
mail on September 26. 	In relevant part, the e-mail stated: "I realize you have
some health 	conditions 	currently and 	are 	needing to go to the doctor often;
however, this is becoming very difficult with scheduling, especially when there is
not adequate time given priorto the request."12
Overall, Bundy's and Christner's testimony reveals that WCPM made it
clear to Christner that her repeated requests for time off on short notice posed
difficulties for WCPM. 	Their testimony also reveals that WCPM made it clear that
it expected Christner would not repeatedly request time off on short notice while
she was on notice of the hardships it created.
In finding of fact 6, the Commissioner found:
[Christner's] repeated requests for time off created a hardship on
the employer and staff because the employer would have to find
someone to cover [Christner's] position on short or no notice from
the claimant.1131
This finding of fact is supported by the September 26 e-mail and testimony
from 	WCPM 	employees. 	The 	September 26 	e-mail stated 	that 	Christner's
requests 	were 	"very difficult 	with scheduling, 	especially 	when 	there 	is 	not
adequate time given prior to the request."14 	Bundy testified that a request on
10 CP at 97, 99.
11 Christner argues that the Commissioner "erroneously mischaracterized" this e-mail as
a "'final warning,'" because WCPM did not put her on notice that her job was in jeopardy.
Appellant's Opening Br. at 3, 38. 	But RCW 50.04.294(1)(b) does not require the
employer to have issued a "final warning" in order to establish misconduct. 	Thus, the
Commissioner's characterization of the communication is not material to the analysis.
12 CP at 120.
13 CP at 162.
14 CP at 188.

No. 73024-0-1 / 8
short 	notice would 	require her to "scramble to find 	another receptionist for
coverage" or that she would have to provide coverage herself.15 	Similarly, the
Chief Executive Officer, Jae Lee, testified that short notice requests were difficult
to accommodate because WCPM has six different sites and they would have to
shift all of their front desk coverage.
Finally, in finding of fact 7, the Commissioner found:
Following 	the 	final 	warning, 	[Christner] requested 	time 	off on
approximately five separate occasions in a 5-week period.[16]
Christner's testimony supports this finding. 	Christner testified before the
ALJ that between September 26 and November 1, she requested time off on five
or six occasions. 	It is clear from the record that this finding was in reference to
five occasions 	where 	Christner did 	not 	provide 	adequate 	notice. 	Christner
testified 	that some of these 	requests 	concerned 	medical 	issues and 	others
concerned potential future employment.
Taken 	together, 	these 	findings 	of fact 	support 	the 	Commissioner's
conclusion that Christner deliberately violated a standard of behavior that WCPM
had the right to expect from 	Christner. 	WCPM 	had the 	right to expect that
Christner would not repeatedly request time off on short notice while she was on
notice 	that 	such 	requests 	created 	a 	hardship 	for 	her 	employer. 	WCPM
communicated this expectation to Christner by informing her of the difficulties it
encountered 	when 	she 	requested 	time 	off on 	short 	notice. 	Following 	this
communication, 	Christner 	continued 	to 	request 	time 	off 	without 	providing
adequate notice. 	Based on this conduct, the Commissioner properly concluded
15 CP at 102.
16 CP at 162.
8

No. 73024-0-1 / 9
that Christner committed disqualifying misconduct under RCW 50.04.294(1 )(b).
Christner argues that WCPM cannot show a standard of behavior it had
the right to expect "[w]ithout documentary evidence of an existing 	policy."17
Because she fails to cite any authority that documentary evidence is necessary
to establish a "standard[] of behavior which the employer has a right to expect of
an employee" under RCW 50.04.294(1 )(b), we reject this argument.
Christner asserts that WCPM did not have the right to expect that she
would 	not repeatedly request time off on short notice, 	because it routinely
approved and accommodated her multiple short notice requests. 	This argument
is 	not 	convincing. 	Notwithstanding 	the 	fact 	that 	WCPM 	accommodated
Christner's requests, WCPM made it clear to Christner that it expected that she
would 	not repeatedly request time off on short 	notice. 	Moreover, 	WCPM
accommodated 	Christner's 	requests 	because 	it was 	under 	the 	mistaken
impression that they were for medical appointments. 	WCPM only later found out
that some of these requests were for job seeking activities. 	Christner cites no
relevant authority that, under these circumstances, WCPM waived its objection to
Christner's behavior.18
Christner argues that the Commissioner improperly concluded that she
committed 	misconduct 	because WCPM failed 	to 	demonstrate that her short
notice requests were detrimental to its operations. 	She contends that WCPM
17 App. Op. Br. at 31.
18 Christner also asserts that WCPM waived its argument that Christner committed
misconduct, because it kept her employed for two weeks after the discharge. 	Because
she similarly fails to cite any relevant authority to support this argument, we reject it.

No. 73024-0-1/10
established only that it was "becoming difficult"19 to accommodate her requests
and acted preemptively by discharging her for "anticipated future conduct."20
Christner's argument is not well taken. 	Bundy's e-mail, Bundy's testimony, and
Lee's testimony make it abundantly clear that Christner's repeated requests for
time off on short notice caused scheduling difficulties and were detrimental to
WCPM's operations.
Christner argues that the Commissioner committed legal error when the
Commissioner failed 	to address exceptions to misconduct contained in RCW
50.04.294(3)(a). 	Under 	RCW 50.04.294(3)(a), 	misconduct does 	not 	include
"[inefficiency, unsatisfactory conduct, or failure to perform well as a result of
inability or incapacity." 	Christner argues that because most of her absences
were due to medical issues, her conduct was excused because of "inability."21
She 	cites 	no 	relevant 	authority 	to 	support this 	argument. 	Thus, 	it is 	not
persuasive.
Christner next argues that the Commissioner overlooked three procedural
errors 	that constituted 	arbitrary 	and 	capricious 	action 	and 	violated 	her due
process rights. 	Even if these arguments are properly raised, they have no merit.
First, Christner asserts that the Notice of Hearing was deficient and did not
give notice of the specific statute she would have to defend against. As Christner
points out, the notice did not identify RCW 50.04.294, the definitional statute that
sets forth specific examples 	of misconduct. 	But the 	notice 	identified RCW
50.20.066, the misconduct statute. This citation was sufficient to put Christner on
19 Appellant's Opening Br. at 36.
20 Appellant's Opening Br. at 31, 35; Appellant's Reply Br. at 6.
21 Appellant's Opening Br. at 42.
10

No. 73024-0-1 /11
notice that she was to defend against allegations of misconduct.
Second, Christner asserts that she was not offered the opportunity to
cross-examine 	two 	witnesses. 	But 	this 	is 	not 	borne 	out 	by 	the 	record.
Accordingly, we reject this argument.
Third, Christner asserts that two items of documentary evidence were not
properly admitted and that the Commissioner should have reopened the record
after receiving this evidence. 	Because Christner fails to support this assertion
with any persuasive authority or argument, we reject it.
Finally, 	Christner 	argues 	that 	the 	Commissioner 	misinterpreted 	and
misapplied the law to the facts of this case when the Commissioner concluded
that she committed misconduct under RCW 50.04.294(1 )(b).22 	She relies on the
Department's 	Unemployment 	Insurance 	Resource 	Manual,22, 	which 	she
submitted as supplemental authority in this appeal.24 	Because this court must
give substantial weight to the agency's interpretation of the statute it administers,
Christner asserts that this court should give substantial weight to this manual.
This 	manual 	contains 	illustrative 	examples 	from 	court 	rulings 	and
decisions of the Commissioner regarding statutes the Department administers.
Relevant to this case, the manual provides the following examples of misconduct
under RCW 50.04.294(1 )(b): coming to work under the influence of illegal drugs
22 Christner also presents arguments about other subsections of RCW 50.04.294. 	But
because the 	Commissioner relied only on RCW 50.04.294(1 )(b) when 	making the
misconduct determination, we do not address these other statutory provisions.
23 Appellant's Statement of Add'l Auth. at 2.
24 The Department urges this court to disregard the supplemental document, asserting
that it is evidence not properly before this court. 	For purposes of analysis, we will
assume that this document is properly before us.
11

No. 73024-0-1/12
or alcohol; 	stealing from the employer; 	disrupting 	the employer's 	operations
without being provoked; "impudence, insolence, disrespectfulness, or rudeness
to one's supervisor"; and discrimination or conduct that is "improper, disruptive or
unwanted," such as assault and sexual attention.25 	Based on these examples,
Christner 	asserts 	that 	misconduct 	under 	this 	subsection 	involves 	universal
standards of behavior for which no warning or notice is required. 	She further
contends that her behavior is not comparable to the examples in the manual and
"simply does not rise to that level."26
We are not persuaded by this argument. 	The examples of misconduct in
the manual are 	illustrative, 	not exhaustive. 	As 	we discussed earlier in this
opinion, WCPM 	had the 	right to expect that Christner would 	not repeatedly
request time off on short notice while she was on notice that this created a
hardship for her employer. 	A deliberate violation and disregard of that standard
of 	behavior 	constitutes 	misconduct 	under 	RCW 	50.04.294(1 )(b) 	and 	is 	not
inconsistent with the other examples provided in the manual. 	The Commissioner
did not misinterpret or misapply the law to the facts of this case.
Attorney Fees
Christner 	requests 	attorney 	fees 	based 	on 	RCW 	50.32.160, 	RCW
50.32.100, 	and 	RCW 	4.84.010. 	Because 	we 	affirm 	the 	decision 	of 	the
Commissioner and Christner is not the prevailing party, we decline Christner's
request for fees under these statutes.
25 Appellant's Statement of Additional Auth. at 4 (Emp't Sec. 	Dep't, Unemployment
Insurance Resource Manual sec. 5440).
26 Appellant's Supp. Br. on Limited Issues at 9.
12

No. 73024-0-1 / 13
Affirmed.
Trickey, AC5
WE CONCUR:
Speciman J.
COX. J.
13