Donald Baker, App. v. State Of Wa, Employment Security Dept., Resp. ( 2015 )

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2015JUL 13 AillhOb
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DONALD BAKER,
DIVISION ONE
Appellant,
No. 71991-2-1
v.
UNPUBLISHED OPINION
STATE OF WASHINGTON
DEPARTMENT OF EMPLOYMENT
SECURITY, FILED: July 13, 2015
Respondent.
Per Curiam — Donald Baker appeals an order affirming an administrative
decision disqualifying him from unemployment benefits. Because Baker
committed disqualifying misconduct when he missed three consecutive days of
work without properly notifying his employer, we affirm.
FACTS
Donald Baker worked for Maintech Acquisition LLC (Maintech) from
November 29, 2011 until his discharge on December 23, 2011. Maintech had a
written attendance policy that required employees to show up for work when
scheduled and to show up on time. The policy stated that three consecutive "no
call, no shows" would be considered a voluntary resignation by the employee and
would result in termination of employment. Baker was aware of Maintech's
policy.
No. 71991-2-1
On December 12 and 13, 2011, Maintech allowed Baker to work half days
so that he could attend to pending court matters. When he returned to work, he
informed his supervisor, Tyson Wittrock, that the court matters were resolved.
On the morning of December 20, 2011, Baker was arrested at his
apartment on suspicion of assault. He did not show up for his 7:00 a.m. shift or
notify Wittrock that he would be absent that day. Baker spent that night in jail,
and though he was released around 9:30 a.m. the next day, he again failed to
show up for work or contact Wittrock. He instead called a co-worker who told
Wittrock that Baker had been in jail.
The next day, December 22, 2011, Baker was once again absent from
work. He called Wittrock around noon and said he could not come to work
because he had legal issues to attend to. Wittrock told Baker to come into work
the next day to discuss his future with the company.
On December 23, 2011, Baker met with Wittrock, who told him his
employment was terminated due to his absences.
Baker subsequently applied for unemployment benefits for the week he
was incarcerated and missed three work days. In his application, Baker told the
Employment Security Department (Department) that he had been laid off due to
lack of work. The Department initially approved Baker's claims. But the
Department later learned that Baker had been discharged, not laid off. The
Department then issued a determination notice, notifying the parties that Baker
was disqualified from benefits because he had been discharged for misconduct
pursuant to RCW 50.20.066.
No. 71991-2-1
Baker appealed the Department's decision to the Office of Administrative
Hearings. The administrative law judge (ALJ) issued an initial order affirming the
Department's decision. The ALJ noted that the parties' testimony "conflicted on
material points," but found Baker's testimony not credible.
Baker petitioned the Department's commissioner for review of the Initial
Order. The commissioner adopted the ALJ's findings of fact and conclusions of
law and affirmed the initial order.
Baker appealed the commissioner's decision to Snohomish County
Superior Court and submitted new evidence. The court declined to consider the
new evidence and affirmed the commissioner's decision. The court also denied
Baker's untimely motion for reconsideration. He appeals.
DECISION
Standard of Review
The Washington Administrative Procedure Act (WAPA), chapter 34.05
RCW, governs judicial review of a decision of the commissioner of the
Employment Security Department. Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397,
402, 858 P.2d 494 (1993). We sit in the same position as the superior court and
apply the WAPA standards directly to the agency record. Tapper, 122 Wn.2d at
402. We review the decision of the commissioner, rather than the underlying
decision of the ALJ, except to the extent that the commissioner adopts the ALJ's
findings of fact. RCW 34.05.558; Verizon Nw.. Inc. v. Emp't Sec. Dep't. 164
Wn.2d 909, 915, 194 P.3d 255 (2008). The commissioner's decision is
considered prima facie correct, and the burden of demonstrating its invalidity is
No. 71991-2-1
on the challenging party. RCW 50.32.150; RCW 34.05.570(1 )(a); Griffith v.
Emp't Sec. Dep't. 163 Wn. App. 1,6, 259 P.3d 1111 (2011). We review the
comissioner's findings of fact for substantial evidence. King County Pub. Hosp.
Dist. No. 2 v. Dep't of Health. 178 Wn.2d 363, 372, 309 P.3d 416 (2013); RCW
34.05.570(3)(e). In doing so, we consider the evidence in the light most
favorable to the prevailing party and defer to the commissioner's credibility
determinations and resolution of conflicting testimony. William Dickson Co. v.
Puaet Sound Air Pollution Control Agency, 81 Wn. App. 403, 411, 914 P.2d 750(1996). Unchallenged findings offact are verities. Fuller v. Emp't Sec. Dep't. 52
Wn. App. 603, 605, 762 P.2d 367 (1988). We review conclusions of law de novo.
William Dickson Co.. 81 Wn. App. at 407.
Findings of Fact / Sufficiency of Evidence
As an initial matter, we note that Baker fails to comply with our rules on
appeal. Pro se litigants are held to the same standard as attorneys and must
comply with all procedural rules on appeal. In re Marriage of Olson. 69 Wn. App.
621, 626, 850 P.2d 527 (1993). An appellant must provide "argument in support
of the issues presented for review, together with citations to legal authority and
references to relevant parts of the record." RAP 10.3(a)(6). Arguments not
supported by references to the record, meaningful analysis, or citation to
pertinent authority need not be considered. Cowiche Canyon Conservancy v.
Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Baker does not assign error
to any factual finding or conclusion of law, cite to the administrative record, or
provide more than scant citation to legal authority. RAP 10.3(a)(4), (5), (6); RAP
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10.3(g), (h). These omissions preclude review. Olson, 69 Wn. App. at 626. But
even ignoring these deficiencies, his arguments are not persuasive.
The Employment Security Act (Act) provides compensation to individuals
who are "involuntarily" unemployed "through no fault of their own." RCW
50.01.010; Tapper. 122 Wn.2d at 407-408. Employees discharged for
"misconduct" cannot receive unemployment benefits. RCW 50.20.066(1); WAC
192-150-200(1). Under the Act, "misconduct" includes "[wjillful or wanton
disregard of the rights, title, and interests of the employer or a fellow employee."
RCW 50.04.294(1 )(a). Certain types of conduct constitute misconduct per se.
RCW 50.04.294(2); Daniels v. Dep't of Emp't Sec. 168 Wn. App. 721, 728, 281
P.3d 310 (2012). Among these are "[rjepeated and inexcusable absences,
including absences for which the employee was able to give advance notice and
failed to do so"; and "[vjiolation of a company rule if the rule is reasonable and if
the claimant knew or should have known of the existence of the rule." RCW
50.04.294(2)(d), (f).
Here, Baker does not dispute that he was aware of Maintech's attendance
policy. Nor does he contend that the policy is unreasonable. Rather, he argues,
as he did below, that he was discharged due to his arrest rather than his
absences, he was in jail for a different period than that found by the
commissioner,1 he attempted to contact Wittrock from jail, at least a portion of his
1 Baker's argument on appeal contradicts his testimony before the ALJ. At the
administrative hearing, Baker provided the dates of his incarceration: "I went in on 12/20, and Iwas
released 12/21." He reaffirmed this information several times throughout the hearing. To confirm
Baker's answer, the ALJ repeated the question: "Were you incarcerated for any amount of time in
the month of December 2011?" Baker responded, "Yes, ma'am. One day." The ALJ then said,
"Okay. And thatone daywas 12/20 to 12/21; isthat right?" towhich Baker answered, "Yes, ma'am."
No. 71991-2-1
absence was excused, and generally, that Maintech proffered false evidence.
These arguments fail for several reasons.
First, the weight, persuasiveness, and credibility of the evidence are
beyond the scope of our review. William Dickson Co.. 81 Wn. App. at 411. As
noted above, the commissioner found Baker's testimony to be "self-serving" and
"not credible."
Second, Baker has not assigned error to, or otherwise expressly
challenged, any of the commissioner's findings of fact. RAP 10.3(g), (h). The
unchallenged findings establish that Maintech's attendance policy authorized an
employee's discharge after three consecutive "no call, no shows," and that Baker
was aware of this policy. They further establish that Maintech discharged Baker
because he missed three consecutive work days without giving advance notice of
his absences. These unchallenged findings are verities.
Third, the findings are, in any event, supported by substantial evidence.
The finding that Maintech's policies authorized discharge after three consecutive
"no call, no shows" is supported by ample evidence. Maintech submitted a copy
of the written policy as an exhibit. The policy defined absenteeism as "three (3)
hours of work missed within a scheduled workday without properly notifying your
Supervisor irrespective of cause." (Emphasis added.) To give proper notice, an
employee was responsible for contacting his or her supervisor a minimum of one
hour prior to the start of the scheduled workday, either by e-mail or telephone. In
the absence of a supervisor, "notification must be made to the next reporting
relationship (i.e., Operations Manager, etc.)." The policy further provided,
No. 71991-2-1
"Failure to properly follow the notification process as stated will be classified as a
'no call, no show' as defined below." "No call, no show" meant "not reporting to
work and not calling to report the absence." Maintech's policy specifically stated
that three consecutive "no call, no shows" would be considered a voluntary
resignation by the employee and would result in discharge. Wittrock gave
testimony to the same effect.
The record also supports the finding that Maintech discharged Baker for
violating the "no call, no show" policy. On a written form submitted to the
Department in June 2012, Maintech indicated that the incident that caused
Baker's discharge was "no show no call 3 days." Similarly, an e-mail Wittrock
sent to a Maintech administrator explained that "[o]n December 20th, 21st, and
22nd Donald failed to call or show up for work and his employment was
terminated on the 23rd due to his attendance." Wittrock testified that Baker
neither called in nor came to work on December 20 or December 21. Though
Wittrock received a message from Baker on December 21, the message came
from one of Baker's co-workers—not Baker. And while Baker called the office
on December 22, it was not until 11:42 a.m., nearly five hours after the start of
his scheduled workday. Thus, substantial evidence supports the finding that
Baker was discharged due to his absence from work on three consecutive days
without notifying his employer.
Conclusions of Law
The above-mentioned findings, in turn, support the commissioner's
conclusion that Baker committed disqualifying misconduct on three independent
No. 71991-2-1
grounds: (1) failing to appear for work as scheduled without reasonable excuse,
(2) violating Maintech's attendance policy, and (3) acting with willful and wanton
disregard of his employer's interests. RCW 50.04.294(2)(d), (2)(f), and (1)(a).
Baker appears to argue that circumstances beyond his control—i.e., his
arrest—preclude a conclusion that he committed any disqualifying misconduct.
But the commissioner, citing In re Sanchez. Empl. Sec. Commr Dec.2d 801
(1988), ruled that "absence due to incarceration is misconduct under the Act if
the claimant should have reasonably expected his actions would lead to
incarceration." Baker does not challenge this authority or assign error to the
commissioner's conclusion that he "engaged in criminal activity on his own time
which he knew or should have known would lead to his being unable to appear
for work as scheduled." Baker's conclusory argument to the contrary is
insufficient to carry his burden on appeal. See State v. Marintorres. 93 Wn. App.
442, 452, 969 P.2d 501 (1999). The commissioner properly concluded that
Baker's actions constituted disqualifying misconduct.
Affirmed.
FOR THE COURT:
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