 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SARAH CHRISTNER,
                                                   No. 73024-0-1
                      Appellant,
                                                   DIVISION ONE
              v.
                                                   UNPUBLISHED OPINION
STATE OF WASHINGTON,
DEPARTMENT OF EMPLOYMENT
SECURITY,

                      Respondent.                  FILED: June 6, 2016                <~   n7*:»

                                                                                  en       ..- i>   .'

       Trickey, J. —Sarah Christner appeals the superior court's order affirming 2
                                                                                 ^r1
                                                                                   ^0

the decision of the Commissioner of the Washington State Employment Security, -^o
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."1

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


1 Clerk's Papers (CP) at 132.
 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 off to 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 ifthese 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.




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WE CONCUR:




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