 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

KATHERINE CANNING,
                                              No. 70163-1-1
                    Respondent,
                                              DIVISION ONE
             v.
                                                                                        u" Vs • r
                                              UNPUBLISHED OPINION             ^
WASHINGTON STATE
DEPARTMENT OF EMPLOYMENT
                                                                                  cr.
SECURITY,

                   Appellant.                  FILED: April 14, 2014

      Grosse, J.P.T.1 — An employee who violates an employer's drug free

workplace policy commits misconduct disqualifying the employee from
unemployment benefits. Here, an employee brought marijuana-laced candy to the
workplace. This was in direct contravention ofthe employer's written policy and as
such constituted misconduct. It is immaterial that the employee brought the drugs

in for someone who had a medical marijuana prescription.         We reverse the

superior court's decision and affirm the commissioner's decision denying
unemployment benefits.

                                      FACTS

       Katherine Canning worked as a meat cutter for Puget Sound Consumer Co-
Op (PCC) from July 27, 2011 through March 3, 2012. Canning was suspended by
the store director for bringing candy laced with marijuana to the store. That
suspension was converted to a termination for violating the company's drug and
alcohol policy.




1Judge C. Kenneth Grosse was a member of the Court of Appeals atthe time oral
argument was heard on this matter. He is now serving as a judge pro tempore of
the court pursuant to RCW 2.06.150.
No. 70163-1-1/2

      Shortly before Canning's dismissal, she had a conversation with her co

worker, Shawn, and the then acting meat manager, Jeffrey.              Shawn was

discussing with supervisor Jeffrey, the fact that he had received a prescription for

medical marijuana.    Canning interjected that she had made candy containing

marijuana and offered to bring it to Shawn. Canning testified that she told the

manager and Shawn that she used the marijuana-laced candy to resolve her

anxiety and that it aided her sleep. She offered to bring candy into the workplace

for Shawn. Canning testified that "nobody at the time, including the meat manager

or Shawn, said, "No, don't do that. That's against the drug and alcohol policy."

       Canning brought the "candy" to the workplace. She left the candy in her car

until the end of her shift. Canning's shift ended one hour before Shawn's. At the

end of her shift, she went to her car to retrieve the candy and gave it to Shawn in

the workplace. When Canning returned to work her regularly scheduled shift, she
was sent home, and then was fired the next day for violating the company's drug

and alcohol policy.

        Following her discharge, Canning applied to the Washington State
Employment Security Department (Department) for unemployment benefits. On
March 20, 2012, the Department issued a Determination Notice denying her

request for benefits because she was fired for work misconduct and therefore did
not qualify for benefits. The Department concluded that Canning's bringing the
marijuana for someone who claimed to have a medical prescription was an act of
misconduct because she failed to comply with a reasonable rule or direction of her

employer.
No. 70163-1-1/3

       Canning, pro se, appealed this determination. On April 30, 2012, after a

hearing,    the administrative law judge (ALJ) set aside the Department's

determination. The ALJ's decision concluded that Canning did not commit

misconduct, but an error of judgment, and therefore was not disqualified to receive

benefits.    In conclusion of law 5, the ALJ concluded that Canning was not

discharged due to willful or wanton disregard of the employer's interests and that,

because Canning "did not intend to harm the employer and thought it was okay

because the co-worker had a prescription," she was not disqualified for

unemployment benefits.

       On May 7, 2012, PCC petitioned the commissioner of the Department for

review of the ALJ's decision. The commissioner issued an order overturning the

ALJ's decision. The commissioner adopted the ALJ's findings of fact, except for

conclusion of law 5 and entered an additional finding, noting that PCC had a drug

and alcohol free workplace policy in its employee handbook that Canning was

given at orientation.2
       Canning appealed the commissioner's order to the superior court and the
superior court reversed the commissioner, finding that Canning's conduct
amounted to a good faith error in judgment and thus, Canning was not disqualified
from receiving benefits. The Department now appeals the superior court's order.
                                    ANALYSIS

       On an appeal of a final decision by the Employment Security Department
commissioner, this court reviews the decision of the commissioner, rather than the


2The handbook provided that "PCC staff are not to have alcohol, or illegal or illicit
drugs in their possession while on the premises. . . . Violation of this policy will
result in termination of employment."
                                         3
No. 70163-1-1/4

underlying decision of the ALJ, except to the extent that the commissioner adopts

the ALJ's findings of fact.3 This court considers a commissioner's decision to be
prima facie correct and the burden of demonstrating the invalidity of the agency

action is on the party asserting the invalidity.4 This court may reverse the
commissioner's decision if it is based on an error of law, substantial evidence does

not support the decision, or it was arbitrary or capricious.5 Questions of law are
reviewed de novo, with substantial weight given to the agency's interpretation of

the statutes it administers.6 Findings of fact are reviewed for substantial evidence

in light of the whole record.7
         The Employment Security Act exists to provide compensation to individuals

who are "involuntarily] . . . unemployed though no fault of their own."8             RCW
50.20.066(1) provides: "An individual shall be disqualified from benefits ... [if] he
or she has been discharged or suspended for misconduct connected with his or

her work . . . ."     The statute provides a non-exclusive list of conduct that

constitutes misconduct. RCW 50.04.294 defines "misconduct" as follows:

               (1) "Misconduct" includes, but is not limited to, the following
         conduct by a claimant:
               (a) Willful or wanton disregard of the rights, title, and interests
         of the employer or a fellow employee;
               (b) Deliberate violations or disregard of standards of behavior
         which the employer has the right to expect of an employee;

3
    Verizon N.W.. Inc. v. Employment Sec. Dep't, 164 Wn.2d 909, 915, 194 P.3d 255
(2008); Griffith v. State. Dep't of Employ. Sec, 163 Wn. App. 1, 6, 259 P.3d 1111
    2011).
4 RCW 34.05.570(1 )(a); Kirbv v. State. Dep't of Employ. Sec, No. 69807-9, 2014
WL 943099 *4 (Wash. Mar. 10, 2014).
5 RCW 34.05.570(3)(d),(e),(i).
6 Everett Concrete Prods. Inc. v. Dep't of Labor & Indus.. 109 Wn.2d 819, 823, 748
P.2d 1112(1988).
7 RCW 34.05.570(3)(e); Smith v. Employment Sec Dep't. 155 Wn. App. 24, 32,
226 P.3d 263 (2010).
8 RCW 50.01.010.
                                            4
No. 70163-1-1/5

            (c) Carelessness or negligence that causes or would likely
      cause serious bodily harm to the employer or a fellow employee; or
            (d) Carelessness or negligence of such degree or recurrence
      to show an intentional or substantial disregard of the employer's
      interest.


In addition, certain types of conduct are defined as misconduct per se.9 Among
these are 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."10

      Canning does not dispute that PCC maintained a policy of no drugs in the

workplace. Nor does she dispute that the rule was reasonable and that she was

aware of the rule. Instead, she argues that she did not believe she was violating

9RCW 50.04.294(2) provides:
      The following acts are considered misconduct because the acts
      signify a willful or wanton disregard of the rights, title, and interests of
      the employer or a fellow employee. These acts include, but are not
      limited to:

               (a) Insubordination showing a deliberate, willful, or purposeful
      refusal to follow the reasonable directions or instructions of the
      employer;
               (b) Repeated inexcusable tardiness following warnings by the
      employer;
            (c) Dishonesty related to employment, including but not limited
      to deliberate falsification of company records, theft, deliberate
      deception, or lying;
             (d) Repeated and inexcusable absences, including absences
      for which the employee was able to give advance notice and failed to
      do so;
              (e) Deliberate acts that are illegal, provoke violence or
      violation of laws, or violate the collective bargaining agreement.
      However, an employee who engages in lawful union activity may not
      be disqualified due to misconduct;
               (f) Violation of a company rule if the rule is reasonable and if
      the claimant knew or should have known of the existence of the rule;
      or
            (g) Violations of law by the claimant while acting within the
      scope of employment that substantially affect the claimant's job
      performance or that substantially harm the employer's ability to do
       business.
{Emphasis added.)
10 RCW 50.04.294(2)(f).
No. 70163-1-1/6

the rule and therefore her conduct was nothing more than a good faith error in

judgment and excluded from misconduct under RCW 50.04.294(3).11
         The commissioner adopted the ALJ's finding that Canning believed the co

worker's prescription made it legal, but concluded that it was not reasonable for

Canning to believe the co-worker's prescription made it acceptable under the law

and company policy for the co-worker to be in possession of the marijuana-laced

candy.

         Our appellate courts have held that an employee acts with willful disregard

of an employer's interest when the employee "(1) is aware of his employer's

interest; (2) knows or should have known that certain conduct jeopardizes that

interest; but (3) nonetheless intentionally performs the act, willfully disregarding its

consequences."12 The fact that Canning acted out of compassion is immaterial.
This is in accord with rules promulgated by the Department. WAC 192-150-205

describes "willful" as "intentional behavior done deliberately or knowingly, where

you are aware that you are violating or disregarding the rights of your employer or
a co-worker." The evidence was undisputed that Canning was aware of the

company's zero tolerance for drugs in the workplace.




11
     RCW 50.04.294(3) excludes the following from the definition of "misconduct":
              (a) Inefficiency, unsatisfactory conduct, or failure to perform
         well as the result of inability or incapacity;
                (b) Inadvertence or ordinary negligence in isolated instances;
         or
                (c) Good faith errors in judgment or discretion.
12 Hamel v. Employment Sec Dep't, 93 Wn. App. 140, 146-47, 966 P.2d 1282
(1998), rev, denied, 137Wn.2d 1036, 980 P.2d 1283 (1999).
                                              6
No. 70163-1-1/7



      Violation of a reasonable policy of the employer is specifically defined in

the statute as misconduct per se. The evidence in the record was sufficient to

support the commissioner's conclusion that Canning committed misconduct

because she violated a reasonable company rule of which she was aware. We

reverse and remand to the superior court to reinstate the commissioner's

decision.   Because Canning is not the prevailing party, it is unnecessary to

address her request for an award of attorney fees and costs.




WE CONCUR:




       ^L^Mr
