      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



JEFF KIRBY and PUGET SOUND                            No. 70738-8-1
SECURITY PATROL, INC.,
                                                      DIVISION ONE
                      Appellants,



WASHINGTON STATE DEPARTMENT                           UNPUBLISHED
OF EMPLOYMENT SECURITY,
                                                      FILED: December 22, 2014
                      Respondent.




      Cox, J. — An employee who is discharged for "misconduct connected with

his or her work" is disqualified from receiving unemployment compensation

benefits.1 The Commissioner of the Employment Security Department affirmed

the award to Sarah Black of unemployment compensation benefits following her

discharge by Puget Sound Security Patrol (PSSP) for a post she made on

Facebook. The superior court affirmed. Because PSSP fails in its burden to

show that the Commissioner's action was invalid, we affirm.

      The material facts are established by the findings of fact. Black worked as

a full-time, permanent, nonunion security officer for PSSP from December 2010

to February 2012. She worked the graveyard shift at the Tacoma Public Utilities

(TPU) building. In the course of her duties, Black routinely interacted with a wide

range of people, including police officers.




       1 RCW 50.20.066(1).
No. 70738-8-1/2


       In February 2012, Black "posted" the following message on Facebook:

       u kno wat, I do not give a f[***] about a police officer that got shot, if
       they quit fu[*]kin wit ppl, ppl prolly quit shootin em all the goddamn
       time       karmas a bitch[2]

       "Generally speaking, a post from an individual's profile will appear in

another user's news feed if that user has connected with the individual on

Facebook by creating a 'friend' relationship, generally referred to as 'friending'

another user."3 The words "post," "friend," and "friending" used in this context

merely refer to individuals communicating with those listed on a social networking

website and does not, necessarily, imply any more significant relationship

between those individuals.

       Black posted this message on Facebook while she was at home, not on

duty. She had set her Facebook privacy level so that her posts were only

accessible to the approximately 100 people designated as her "friends" on

Facebook. Members of the public and others not listed as "friends" could not

view her posts.

       One of Black's Facebook "friends," a TPU employee, disagreed with the

post but did not tell Black that he was going to tell anyone else about it. He sent

a copy of the message to TPU's customer service department who then notified

Black's supervisor. Black's supervisor notified PSSP's CEO and Executive Vice

President for Employee Relations.



       2 Administrative Record at 306.

       3Andy Taylor, Friending and Following: Applying the Rules of Professional
Conduct to Social Media, 34 U. Ark. Little Rock L. Rev. 551, 556 (2012).
No. 70738-8-1/3


      When confronted, Black told her supervisor that she had the right to

express an opinion when she was not at work and that her Facebook settings

were private. PSSP did not then have any specific social media policies or

guidelines with respect to Facebook or other social media sites. And the

company had not given Black or other employees instructions regarding

communications on such channels of communication. PSSP discharged Black.

       Black applied for, and received, unemployment compensation benefits.

The Employment Security Department determined that there was no disqualifying

misconduct by Black.

       PSSP appealed, and an administrative law judge (ALJ) entered an order

affirming the Department's decision. PSSP petitioned the Department's

Commissioner for review. The Commissioner adopted the ALJ's findings of fact

and conclusions of law and affirmed the initial order.

       PSSP appealed to King County Superior Court. The court affirmed the

Commissioner's decision and denied PSSP's motion for reconsideration.

       PSSP appeals.

                         DISQUALIFYING MISCONDUCT

       PSSP argues that the Commissioner erred in concluding that Black did not

commit disqualifying misconduct. We hold that PSSP fails in its burden to show

that the Commissioner's action was invalid.

       The Employment Security Act exists to provide compensation to

individuals who are involuntarily unemployed "through no fault of their own."4 An



       4 RCW 50.01.010.
No. 70738-8-1/4



individual is disqualified from receiving unemployment benefits if he or she is

discharged "for misconduct connected with his or her work."5

      Judicial review of a decision made by the Commissioner of the

Employment Security Department is governed by the Washington Administrative

Procedure Act (WAPA).6 This court sits in the same position as the superior

court and applies the standards of WAPA directly to the administrative record

before the agency.7 This court reviews the Commissioner's decision.8
       The Commissioner's decision is prima facie correct.9 The party

challenging the agency's action bears the burden of demonstrating its invalidity.10
Relief from an agency decision is granted if 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.11
       This court reviews findings of fact to determine whether they are

supported by substantial evidence.12 An appellate court views the evidence and


       5 RCW 50.20.066(1).

       e Tapper v. Emp't Sec. Dep't. 122 Wn.2d 397, 402, 858 P.2d 494 (1993).

       7kL

       s Verizon Nw.. Inc. v. Emp't Sec. Dep't, 164 Wn.2d 909, 915, 194 P.3d
255 (2008).

       9 RCW 50.32.150.

       10 Id; RCW 34.05.570(1 )(a).

       11 RCW 34.05.570(3)(d), (e), (i).

       12 Barker v. Emp't Sec. Dep't, 127 Wn. App. 588, 592, 112P.3d536
(2005).
                                             4
No. 70738-8-1/5


reasonable inferences therefrom in the light most favorable to the party who

prevailed at the administrative proceeding below.13 Unchallenged findings are

verities on appeal.14

       The application of law to the facts is a question of law that this court

reviews de novo.15 This court gives substantial weight to the agency's

interpretation of the statutes it administers.16

       Whether a claimant engaged in misconduct connected with work is a

mixed question of law and fact.17 Accordingly, this court determines the law

independently and then applies the law to the facts as found by the agency.18

                                   Work-Connected


       PSSP argues that the Commissioner erred when it concluded that Black's

conduct was not connected to work. We disagree.

       Whether off-duty conduct is work-connected for purposes of qualifying for

unemployment compensation benefits was first addressed by the supreme court




       13 William Dickson Co. v. Puget Sound Air Pollution Control Agency. 81
Wn. App. 403, 411, 914 P.2d 750 (1996).

       14 Fuller v. Emp't Sec. Dep't, 52 Wn. App. 603, 605, 762 P.2d 367 (1988).

       15 Terry v. Emp't Sec. Dep't, 82 Wn. App. 745, 748-49, 919 P.2d 111
(1996).

       16 Smith v. Emp't Sec. Dep't, 155 Wn. App. 24, 32, 226 P.3d 263 (2010).

       17 Tapper, 122 Wn.2d at 402.

       18 Hamel v. Emp't Sec. Dep't, 93 Wn. App. 140, 145, 966 P.2d 1282
(1998), review denied. 137 Wn.2d 1036 (1999).
No. 70738-8-1/6


in Nelson v. Department of Employment Security.19 There, the claimant was a

cashier for a publishing company.20 She notified her supervisor that she recently

had been arrested for shoplifting.21 The crime occurred off her employer's

premises and after working hours.22 Nothing during her appearance in court or at

the time of her arrest identified her employer.23 She pled guilty to the charge and

the court imposed a $50 fine, a 10-day suspended jail sentence, and a 3-month

deferred sentence.24

       Her employer discharged her based on concern about her trustworthiness

in handling cash and a fear her conviction would adversely affect her relationship

with other employees of the publishing company.25 The court noted that she did

not contest the propriety of her discharge.26

      The supreme court concluded that the claimant in Nelson was entitled to

unemployment compensation benefits.27 In doing so, the supreme court adopted




       19 98 Wn.2d 370, 372, 655 P.2d 242 (1982).

      20 ]d at 371.

      21 id

      22 id

      23 \±

      24 id

       25 Id at 371-72.

      26 id at 372.

       27 Id. at 375.
No. 70738-8-1/7


a three part test in order to establish misconduct connected with an employee's

work.28 Specifically, the employer must show by a preponderance of the

evidence that a reasonable person would find the employee's conduct: "(1) had

some nexus with the employee's work; (2) resulted in some harm to the

employer's interest; and (3) was in fact conduct which was (a) violative of some

code of behavior contracted for between employer and employee, and (b) done

with intent or knowledge that the employer's interest would suffer."29

       For the third element, the court held that the conduct cannot be impliedly

contracted between employer and employee. Rather, it "must be the subject of a

contractual agreement between employer and employee" though it need not be a

formal written contract.30 It "may be reasonable rules and regulations of the

employer ofwhich the employee has knowledge and is expected to follow."31 In
so holding, the court expressly rejected as far too broad this court's formulation

of the rule, prior to review by the supreme court in that case, that violation of a

code of behavior impliedly contracted was sufficient.32 Rather, it at least

requires a reasonable rule or regulation known to the employee.33



       28
            id at 373-75.

       29
            id at 375.

       30
            id. at 374.

       31
            id

       32
            id

       33
            Id.
No. 70738-8-1/8


       Importantly, the question before this court is not whether Black should

have been terminated from her job. Rather, the question is whether the

Commissioner properly concluded that Black was eligible to receive

unemployment compensation benefits under the Employment Security Act.34

       As counsel for the Department conceded during oral argument at the

superior court when asked whether Black's post was defensible:

              [DEPARTMENT COUNSEL]: No, Your Honor. And I agree,
       it was offensive and despicable. The problem is, it wasn't
       sufficiently connected with her work to constitute misconduct that
       should disqualify her from receiving unemployment benefits. And
       as Your Honor has correctly indicated, the question isn't: Did this
       employer have the right to fire her? Absolutely, they did. The
       question is: Did they fire her for misconduct as it's defined by the
       Employment Security Act such that she should not get
       unemployment benefits? And the statute for misconduct says
       you're disqualified if you're discharged for misconduct that's
       connected with your work. And that's also what it says in the
       Department's regulations.t35]

       Here, adopted findings of fact 3, 4, 5, and 8 establish the factual basis to

determine whether Black's post was work-connected.

       In finding of fact 3, the Commissioner found, in relevant part, that "[Black]

posted the message from home, when she was not on duty."36 PSSP challenges

this finding, but it is supported by substantial evidence. Black testified that she

was at home and not at work when she made the post.37



       34 See Tapper, 122 Wn.2d at 412; Johnson v. Emp't Sec. Dep't, 64 Wn.
App. 311, 314-15, 824 P.2d 505 (1992).

       35 Report of Proceedings (June 25, 2013) at 16 (emphasis added).

       36 Administrative Record at 306.

       37 Id. at 133, see also 235.

                                              8
No. 70738-8-1/9



       In finding of fact 4, the Commissioner found, in relevant part, that Black

"had set her Facebook privacy level so that her. . . postings were only accessible

to the approximately 100 people designated as her friends on Facebook.

Members of the public and others not listed as friends could not view her

[post]."38 PSSP does not challenge this finding, and thus, it is a verity on appeal.

       In finding of fact 5, the Commissioner found, in relevant part:

       [Black's] message was an expression of a personal opinion that did
       not include any reference to [PSSP], to [TPU], or to her job as a
       security officer. She did not intend to communicate her opinion to
       [PSSP], to [TPU], or to anyone not on her list of friends. The
       person who reported her message to [TPU] had disagreed with
       [Black] in a blog posting but had not told [Black] that he was going
       to tell anyone else about it.[39]

       PSSP challenges this finding, but it, too, is supported by substantial

evidence. Black testified that she made the post because it was her "personal

feelings upon reading the news that day."40 She further testified, "I didn't say

anything about work or co-workers or clients or the company. My post had

absolutely nothing to do with my job."41 Additionally, she testified that she did not

intend to cause any harm or embarrassment to PSSP. And she testified that she

did not expect that the post would be known to PSSP. Moreover, the privacy




       38 id at 306.

       39 id

       40idat132.

       41 Id. at 133.
No. 70738-8-1/10


settings on Facebook and the undisclosed intent of one of the limited "friends" to

forward the post, with which he disagreed, amply support this finding.

       In finding of fact 8, the Commissioner found, in relevant part: "[PSSP] did

not have any specific social media policies or guidelines and had not given

[Black] and other employees instructions with respect to communications on

Facebook or similar channels of communication."42 PSSP does not challenge

this finding, and thus, it is also a verity on appeal.

       Based on the above findings, the Commissioner affirmed Conclusion 10 of

the ALJ's order, which stated in relevant part:

               10. Based on the above findings and pursuant to the above
       referenced authority, [PSSP] has not met its burden of proof with
       respect to misconduct. There is no evidence of a nexus between
       [Black's] blog post and her work. It was sent from her home
       when she was not at work. It made no reference to [PSSP], to
       TPU, to her job, or to her position as a security officer.. . . [Black]
       sent the message only to the individuals who were within the
       privacy settings she had established in Facebook. She did not
       intend to send the message to [PSSP] or to others. Further, none
       of [PSSP's] general policies, rules, or instructions addressed social
       media communications in any way, and the policies, rules, and
       instructions that were in place were very general and for the most
       part specifically govern conduct at the workplace or on the job. . . .
       [Black's] actions therefore do not violate a code of behavior
       contracted for between [PSSP] and [Black]. [PSSP] made
       numerous arguments for why [Black's] behavior impliedly violated
       their general policies, but implied behavior is not the standard that
       must be applied. Accordingly, [Black] is not subject to
       disqualification under RCW 50.20.066J43'




       42 id at 307.

       43 ]d at 310 (emphasis added).

                                               10
No. 70738-8-1/11


       First, consistent with the directive of Nelson, the Commissioner properly

concluded that there was "no evidence of a nexus between [Black's] [post] and

her work."44 The Commissioner affirmed the factual determination of the ALJ that

the post was made while Black was at home and not on duty, and the post made

no reference to PSSP, to TPU, or to Black's job or to her position of a security

officer. Further, Black made the post on her private Facebook page, which was

accessible only to her "friends." Consequently, PSSP fails to establish that the

first Nelson element is met—that the conduct had some nexus with Black's work.

      Second, again consistent with Nelson, the Commissioner properly

concluded that Black did "not violate a code of behavior contracted for between

[PSSP] and [Black]."45 The Commissioner affirmed the factual determination of

the ALJ that there was no policy of the company that dealt with posts on

Facebook or other social media sites. And the company did not direct its

employees in any respect with respect to communication using these media until

after Black's discharge. Thus, PSSP fails to establish that the first requirement of

the third Nelson element is met—that the conduct was "violative of some code of

behavior contracted for between employer and employee."46

       Further, the Commissioner also properly concluded that Black "did not

intend to send the message to [PSSP] or to others."47 In fact, the Commissioner



      44 ]d

      45 id

       46 See Nelson, 98 Wn.2d at 375.

       47 Administrative Record at 310.

                                            11
No. 70738-8-1/12


expressly found that Black "did not intend to communicate her opinion to [PSSP],

to [TPU], or to anyone not on her list of friends" and that Black's post was "an

expression of personal opinion."48 Accordingly, PSSP also fails to establish that

the other requirement of the third Nelson element is met—that the conduct was

"done with intent or knowledge that the employer's interest would suffer."49

       In sum, PSSP failed to establish the first and third required Nelson

elements. The Commissioner, whose decision is prima facie correct, properly

concluded that that Black's post on Facebook was not work-connected.

       PSSP makes several arguments that Black's conduct was work-

connected. None are persuasive.

       First, PSSP claims that the Commissioner erred in finding insufficient

nexus, because "[cjonduct is connected with one's work if it 'results in harm or

creates the potential for harm to [PSSP's] interest.'"50 For this, it relies on WAC

192-150-200(2). But in doing so, it misreads and misapplies both Nelson and

this administrative regulation. Under Nelson, the first of several elements of the

test to determine whether conduct is work-connected is that there be "some

nexus with the employee's work."51 The second, separate element is that the




       48 id at 306.

       49 See Nelson, 98 Wn.2d at 375.

       50 Brief of Appellant at 29 (emphasis omitted) (quoting WAC 192-150-
200(2)).

       51 Nelson, 98 Wn.2d at 375.


                                             12
No. 70738-8-1/13


conduct "resulted in some harm to the employer's interest."52 PSSP

impermissibly merges these separate elements—nexus and harm—in its

argument.

       PSSP also relies on the same administrative regulation to argue that harm

to the employer can include the potential for harm. Thus, it argues that it was an

error of law to require evidence of "specific harm." With this argument, PSSP

refers to a portion of Conclusion 10 where the Commissioner concluded, "While

the offensive content of the [post] had the potential to harm [PSSP's] relationship

with it's [sic] client, there is no evidence of specific harm here as [PSSP]

immediately discharged [Black]."53

       As the Department correctly concedes, this portion of Conclusion 10 was

erroneous. WAC 192-150-200(2) provides that "the action or behavior is

connected with [a person's] work if it results in harm or creates the potential for

harm to [the] employer's interests."54 And here, as the Commissioner properly

concluded, there was the potential for harm to PSSP. Thus, the second Nelson

element—harm to the employer—is satisfied. Nevertheless, this error is not

material, because it relates only to the second Nelson element. And as already

discussed, PSSP fails to establish both the first and third Nelson elements.




       52 id

       53 Administrative Record at 310.

       54 (Emphasis added.)

                                             13
No. 70738-8-1/14


       Next, PSSP argues that Black "violated a company rule requiring courtesy,

and the policies requiring positive relationships with law enforcement."55 And it

asserts that Black "knew about the rule requiring professionalism, courtesy, and

respect."56 In support, it points to policies detailing TPU's ethical conduct

requirements, general workplace policy, and TPU's policies about

professionalism. But PSSP fails to explain how the rule requiring

"professionalism, courtesy, and respect" reasonably extends to off-duty, off-site,

social media posts. As already discussed, implied behavior is not the standard.

       PSSP relies on WAC 192-150-210(4), which states that "[a] company rule

is reasonable if it is related to [the person's] job duties, is a normal business

requirement or practice for [the] occupation or industry, or is required by law or

regulation."57 And it argues that the rule requiring professionalism, courtesy and

respect "reasonably related to [Black's] job duties because the client whom she

was assigned to protect included law enforcement and because a security

guard's relationship with law enforcement is so important."58 But the

Commissioner did not make any findings to support this assertion, and PSSP

fails to persuasively explain how this rule is related to Black's job duties under

these facts.




       55 Brief of Appellant at 27.

       56 id at 28.

       57 WAC 192-150-210(4).

       58 Brief of Appellant at 28.
                                              14
No. 70738-8-1/15


       PSSP also argues that the following portion of Conclusion 10 is arbitrary

and capricious: "The fact that [PSSP] deemed it necessary to tell [Black's] co

workers after she was discharged that nothing they said on Facebook should be

considered private shows that this was not a rule or instruction that had been

contracted for with employees prior to her discharge."59 But even if we were to

disregard this portion of the court's conclusion, it does not materially affect the

outcome, because as just discussed, PSSP still fails to show that Black violated

an existing code of behavior or a reasonable rule. Likewise, it is clear that if such

a policy did not exist, Black could not have known of it. PSSP's suggestions to

the contrary are wholly unpersuasive and we reject them.

       PSSP next argues that the "law governing employment benefits does not

require a specific intent to harm."60 PSSP is again wrong. Nelson remains the

focus of our examination. And the third element to show that the conduct is

work-connected is that the conduct is "done with intent or knowledge that the

employer's interest would suffer'™ Thus, the plain words of the element

refute this argument.

       PSSP relies on Griffith v. State Department of Employment Security and

Hamel v. Employment Security Department to support this argument.62 But



       59 Reply Brief of Appellant at 12 (citing Administrative Record at 310).

       60 Brief of Appellant at 32.

       61 Nelson, 98 Wn.2d at 375 (emphasis added).

       62 Brief of Appellant at 32 (citing Griffith v. Emp't Sec. Dep't, 163 Wn. App.
1,259P.3d 1111 (2011): Hamel, 93 Wn. App. 140).

                                              15
No. 70738-8-1/16


PSSP's reliance on these cases is misplaced. Neither of these cases conducted

an analysis of work-connected misconduct under Nelson. And the third Nelson

element requires the employer to show that the employee's conduct was "done

with intent or knowledge that the employer's interest would suffer."63 Thus, while

specific intent to harm may not be relevant to the statutory definitions of

misconduct, it is relevant under Nelson.

       PSSP also argues that findings of fact 4 and 5 conflict. It alleges that the

fact that one of Black's Facebook friends, a TPU employee, saw the post,

contradicts the fact that Black did not intend to communicate her opinion to TPU.

But these findings do not necessarily conflict. Black could intend to communicate

the post to her Facebook friends and not intend for her Facebook friends to

communicate the post to TPU. The fact that one of her Facebook friends was a

TPU employee does not mean Black intended for that friend to communicate the

post to his employer.

       Finally, for the first time in its reply brief, PSSP argues that the

Department's regulation, WAC 192-150-200, "replaces or refines the Nelson

test." This argument is untenable.

       WAC 192-150-200(2) provides that an action or behavior is connected

with work "if it results in harm or creates the potential for harm to [the] employer's

interests." Thus, PSSP appears to argue that the first and third Nelson elements

are no longer part of the test. This reading is unpersuasive.




       63 Nelson, 98 Wn.2d at 375.


                                              16
No. 70738-8-1/17



      As the Department correctly argued at oral argument of this case, the

three elements of Nelson remain the law. The mere establishment of either harm

or potential for harm is insufficient to satisfy the other two elements of the Nelson

test. Any other reading conflicts with Nelson, which remains the law of this state.

       To summarize, because PSSP failed to establish the first and third Nelson

elements, the Commissioner properly concluded that Black's conduct was not

work-connected. Based on this threshold determination, the question of whether

the Facebook post constituted statutory misconduct is not material to the

outcome.


                                     Misconduct


       PSSP next argues in its briefing that the Commissioner erred when it

concluded that Black did not commit misconduct. It contends that Black

committed statutory misconduct under RCW 50.04.294. But at oral argument,

PSSP appeared to concede that misconduct would not be material to the

outcome of this case if it failed to establish that the conduct here was work-

connected. Nevertheless, we reach the issue of misconduct to be clear and

complete in this case.

       RCW 50.04.294(1) provides a non-exhaustive list of "misconduct":

       (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 fellow employee; or



                                              17
No. 70738-8-1/18


       (d) Carelessness or negligence of such degree or recurrence to
       show an intentional or substantial disregard of the employer's
       interest.


       Subsection (2) provides that certain acts are misconduct per se, because

they "signify a willful or wanton disregard of the rights, title, and interests of the

employer or a fellow employee."64 Among those is (2)(f), which is a "[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."65

       PSSP only places in issue in its briefing on appeal subsections (1)(b),

(1)(d), and (2)(f) of the above statute.

                                RCW 50.04.294(1)(b)

       First, PSSP argues that Black's conduct met the statutory definition of

misconduct under subsection (1)(b). Under this subsection, misconduct may

include "[deliberate violations or disregard of standards of behavior which the

employer has the right to expect of an employee."66

       As the Department points out, PSSP has a right to expect professionalism

and courtesy at the workplace. But PSSP does not explain why it has a right to

expect these standards of behavior when the employee is off-site and off-duty.

And PSSP fails to provide any support for this argument. Accordingly, it fails to

show misconduct under this subsection.




       64 RCW 50.04.294(2).

       65 RCW 50.04.294(2)(f).

       66 RCW 50.04.294(1 )(b).

                                               18
No. 70738-8-1/19


       PSSP cites RCW 18.170.170 and RCW 18.235.130(4), which provide

examples of "unprofessional conduct." PSSP cites to one subsection in

particular, which states that "[incompetence, negligence, or malpractice that

results in harm or damage to another or that creates an unreasonable risk of

harm or damage to another" constitutes unprofessional conduct.67 But it is not

clear how these statutes, which provide examples of "unprofessional conduct,"

relate to the inquiry before this court, whether the conduct was unprofessional

misconduct. More importantly, PSSP fails to explain how Black's conduct was

deliberate or created an "unreasonable risk of harm or damage to another." For

these reasons, reliance on these statutes is not helpful.

                               RCW 50.04.294(1)(d)

       Second, PSSP argues that Black's conduct met the statutory definition of

misconduct under subsection (1)(d). Under this subsection, misconduct may

include "[cjarelessness or negligence of such degree or recurrence to show an

intentional or substantial disregard of the employer's interest."68 "'Carelessness'

and 'negligence' mean failure to exercise the care that a reasonably prudent

person usually exercises."69 These are not established on this record.

       While Black's post was contrary to PSSP's interests, PSSP fails to

articulate how it was an "intentional or substantial disregard" of its interests. In




       67 RCW 18.235.130(4).

       68 RCW 50.04.294(1 )(d).

       69 WAC 192-150-205(3).
                                             19
No. 70738-8-1/20


fact, the Commissioner found that Black "did not intend to communicate her

opinion to [PSSP], to [TPU] or to anyone not on her list of friends."70

       Further, as the court also found, Black had set her Facebook privacy level

so that her post was accessible only to the approximately 100 people designated

as her friends. Members of the public and others could not view the post. And

Black did not refer to her employer, to TPU, or to her job as a security officer.

PSSP fails to explain how, in light of these facts, Black did not exercise the care

that a reasonably prudent person exercises.

       PSSP points out that Black's post was visible to a TPU employee and

argues that the post "caused embarrassment and damage to the business

relationship."71 But even if the post caused embarrassment and damage, PSSP

fails to establish that Black's conduct was intentional or in substantial disregard

to PSSP's interests. Thus, PSSP also fails to show misconduct under this

subsection.


                                RCW'50.04.294(2)(f)

       Third, PSSP argues that Black's conduct met the statutory definition of

misconduct under subsection (2)(f). Under this subsection, misconduct may

include "[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."72




       70 Administrative Record at 306.

       71 Brief of Appellant at 29.

       72 RCW 50.04.294(2)(f).

                                             20
No. 70738-8-1/21


       Black did not commit disqualifying misconduct under this subsection for

the same reasons that the court properly concluded that the third Nelson element

was not met. Specifically, unchallenged finding of fact 8 establishes that Black

did not violate any company rule related to social media posts. Further, PSSP

fails to show how the policies and rules requiring professionalism, courtesy, and

respect reasonably extend to off-site, off-duty social media posts.

       In sum, PSSP fails to show that Black committed misconduct.

       PSSP relies on Smith v. Employment Security Department.73 It appears to

argue that Black can commit misconduct in ways other than by violating a

specific policy. In Smith, Division Two concluded that even if there had not been

substantial evidence that David Smith was aware of the county policy that he

violated to support misconduct under (2)(f), he nonetheless committed

misconduct under (1)(d). We note that PSSP fails to establish misconduct under

any statutory subsections relevant to this case. Thus, this case is not helpful.

       In its reply brief, PSSP asserts for the first time that other jurisdictions

have denied benefits in similar circumstances.74 We do not generally address

arguments raised for the first time in a reply brief.75 And PSSP fails to articulate

why we should do so in this case. In any event, extra-jurisdictional cases are not




       73 Brief of Appellant at 35-36 (citing Smith, 155 Wn. App. at 35-36).

       74 Reply Brief of Appellant at 6-7 (citing Guevarra v. Seton Med. Ctr.. 2013
WL 6235352 (N.D. Cal. 2013)).

      75 Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828
P.2d 549 (1992)).


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helpful to the inquiry before this court—whether Black's conduct meets

Washington's statutory definition of misconduct.

                              EVIDENTIARY RULING

       PSSP argues that it was deprived of its due process right to cross-

examine Black. We hold there was no abuse of discretion in the evidentiary

ruling limiting the scope of cross-examination.

       PSSP fails to provide any authority to support the proposition that this

evidentiary decision rises to the constitutional magnitude of due process. In the

absence of such authority we assume there is none.

       Decisions regarding the scope of cross-examination are normally

evidentiary rulings left to the sound discretion ofthe trial court.76 Atrial court
abuses its discretion when its decision is unreasonable or based on untenable

grounds.77

       Here, the Commissioner properly concluded that the ALJ properly

sustained objections, based on relevancy on cross-examination questions about

the history of Facebook's privacy settings and the dissemination of information

on the Internet. The ALJ noted that Black testified that her Facebook privacy

settings were limited to her friends and there was no evidence that the
information came to anyone's attention other than through one of Black's

Facebook friends. Accordingly, the ALJ stated, there was "no basis for this




       76 Falkv.KeeneCorp., 53 Wn. App. 238, 247, 767 P.2d 576 (1989).

       77 id

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broad, somewhat academic discussion of the functioning of the Internet."78 For

the reasons identified by the ALJ, this was a proper exercise of discretion.

Arguments to the contrary have no basis.

       PSSP relies on Baxter v. Jones.79 But in Baxter, the court terminated the

trial and gave a ruling before the cross examination had been completed.80 It is

easily distinguishable from this case, where the court properly sustained

objections to a broad line of questioning during cross-examination, which

exceeded the scope of direct examination. Thus, reliance on Baxter is

misplaced.

       We affirm the superior court's decision affirming the Commissioner's

decision and denying PSSP's motion for reconsideration.

                                                          &*,T.
WE CONCUR:




  .l~JkJ.



       78 Administrative Record at 141.

       79 Brief of Appellant at 37-38 (citing Baxter v. Jones, 34 Wn. App. 1, 3, 658
P.2d 1274(1983)).

       80 Baxter, 34 Wn. App. at 3.


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