James Craven v. Employment Security ( 2013 )

FILED
OOORT OF APPEALS
DIVISION 11
2013 APR -2 AM 8``49
STATE OF WASIIHGTON
BY
UTY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
JAMES M.CRAVEN, No. 42955 1 II
- -
Appellant,
V.
STATE OF WASHINGTON DEPARTMENT UNPUBLISHED OPINION
OF EMPLOYMENT SECURITY,
BRINTNALL,
QuiNN- J. — After meting out progressive levels of discipline for past
misconduct, Clark College (College) suspended Professor James Craven for two academic
quarters for his frequent and repeated use of College resources to send unprofessional, harassing,
and offensive e mails to other faculty members at the College. During his period of suspension,
-
Craven applied for and received unemployment benefits from the Washington State Employment
Security Department (ESD).The College appealed the benefit award and following a hearing, an
administrative law judge (ALJ) ruled that Craven's misconduct rendered him ineligible to
receive unemployment benefits, thereby requiring that he repay the benefits he had already
RCW 50. 0.RCW
received. Former RCW 50. 0.2007);
190 (
2 066;
2 50. 4. Craven
b).
294(
1)(
0
appealed, and the ESD Commissioner confirmed the ALJ's decision. Craven, appearing pro se,
now appeals the commissioner's decision. Because substantial evidence supports the
No. 42955 1 II
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commissioner's factual findings and Craven deliberately violated standards of behavior and use
of school resources that the College had the right to require of its employees, we affirm.
FACTS
BACKGROUND
The College suspended Craven, a tenured economics professor, for two academic
quarters (108 days) in 2010 after concluding that Craven violated school policy on multiple
occasions by using school resources to send unprofessional and offensive .e mails to colleagues.
-
Although all of the incidences precipitating the disciplinary action involved valid professional
concerns the election of a new division chair to replace Craven when Craven was on extended
—
medical leave, the denial of tenure for another faculty member, and intra union faculty
-
concerns — Craven offended a number of his colleagues with the bellicose and offensive ways in
which he expressed his concerns. And although some of these communications occurred in
electronic forums not monitored by the College, offended faculty members brought the
communications to the College's attention.
On February 6, 2009, Craven wrote an e mail to five College faculty members, including
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Professor Adnan Hamideh who had recently replaced Craven as the division chair of their
academic division. Craven explained that he deeply resented being replaced as chair while on
medical leave and stated that Hamideh was not fit to hold the job, "
not even close."
1
Craven's briefs fall well below the standards envisioned by RAP 10.3 as he fails to cite any
legal authority for his arguments. Nevertheless, it is clear that ``Craven challenges the
commissioner's decision denying him unemployment benefits, a decision ESD agrees is properly
before us.
z
The College had disciplined Craven multiple times (with increasing severity) in the past for
similar policy violations.
2
No. 42955 1 II
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Administrative Record (AR)at 497. Two days later, in another e mail sent to the same group,
-
Craven stated that Hamideh did "
not even qualify as an amateur in this job"and that "you will
never in your life know the economics I know." AR at 496. In April, Craven sent another
message addressed to Hamideh (
sent also to six others) entitled, This is What REAL Division
"
Chairs and ``Educators' Do,"
stating, in part,
Please notice date sent and my status title
/ on that date. There is no question
whatsoever as to when my Division Chair term started and is to end. Thus those
who continue to deny it are liars, and those who continue to act upon what they
themselves have called known lies and misrepresentations are what?What would
you call such persons? Fit to be called " colleagues ", educators ", leaders" —
" " of
anything? And for any kind of educators to be undermining their own contracts
and seniority rights, as well as the rights of students to the best qualified teachers
we have available and for whom they signed up reminds me of those Palestinians
covertly working in the occupied territories building illegal settlements on the
historical lands oftheir families for invading settlers.
AR at 503 (emphasis added).
Hamideh reported this last e mail to the College administration, explaining that "as
-
Craven] well knows, the Palestinian issue is deeply rooted in my soul, being and culture. To
compare me to the sell outs and culprits is far too big of an insult to swallow realizing that as he
knows, from our talks in the past, this is one of the biggest insults that anyone from my cultural
background can take."
AR at 502.
In a separate incident from March involving the denial of tenure for some faculty
members, Craven sent an e mail to his union's entire faculty and adjunct e- distribution
- mail
lists. This e mail stated, in part,
-
Well I sleep well at night because they know that I will never back down, I cannot
be schmoozed, bullied, co- opted, bought or taken out without a fight and I have
tried to call the warning about abuses of human and employee rights over and
3 The Association of Higher Education is the faculty union at Clark College.
3
No. 42955 1 II
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over....
I have no doubt that in the case of the Journalism teacher, it was certain
articles in The Independent that led to her not getting tenure. For the life of me I
cannot figure what Professor "Chemical Ali"who was told to ignore all my
(
emails when he first came here) could have done. But just as in the case of Nazi
Germany, you can also add, to the list of those responsible for these abuses, all
those faculty and staffwho are spineless, two- faced and opportunistic and willing
to trade away their own rights and those ofothers to protect their sweet gigs, little
turfs andprograms, etc.
AR at 505 (emphasis added).
Although Professor Ali Aliabadi—
referred to by Craven as " Chemical Ali" —
was
initially upset with being compared to "a notorious mass murderer of Kurds,"
Aliabadi did not
formally complain to administration after Craven.apologized. AR at 504. However, other
faculty members did make the administration aware of the offensive e-
mail.
Last, on April 27, Craven sent an e mail to the same faculty list serve groups discussing a
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faculty petition of support for their union representative, Marcia Roi. Craven entitled the e mail
-
High Noon"and stated, in part,
Gerry Smith dropped in with a petition to support Marcia Roi and said he could
not make the Board meeting would I drop it off.... only 41 then 42
So why
names on [ the petition]? Here, I believe we have the " High Noon"
phenomenon/ etaphor [of]the "townspeople"who very quietly, covertly and in
m
some cases spinelessly and opportunistically, cheered on the Sheriff while
covertly making alliances and playing it safe with the invading thugs....
I was
genuinely worried that not having more names would further undercut Marcia
whose own guts, despite our differences, I respect as much as I have contempt for
the spineless and petit-
bourgeois, especially the ones that talk and sound so
the lowest of the low.
radical" --
This happened before with [other initiatives] that threatened cutbacks and layoffs
initially. Union membership went up, the entrepreneural [sic] types jockyed [sic]
for close proximity and face time with the administrators, supposed friends
-
betrayed supposed friends, and GI Joe's [ ic] did a booming business on
s
kneepads and chapstick.
AR at 511 (emphasis added). Professor David-Reed was offended by this e mail and reported it
-
to College administration.
11
No. 42955 1 II
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Because Craven was on medical leave in the spring and then he and the College
administration were unable to meet during the summer, a hearing concerning potential discipline
related to these e mails did not occur until November 20, 2009. Following this hearing, at which
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Craven was represented by union counsel, the College notified Craven of his pending 108 day
-
suspension.
PROCEDURE
Following his suspension, Craven applied for unemployment benefits. Although the
benefits were initially granted on the grounds that "the delay between the discovery of the
incident and the imposition of [ raven's]
C suspension [was] longer than reasonably expected of a
serious offense, " the College appealed the benefits determination. AR at 301. A hearing before
an ALJ occurred on June 28, 2010.
Both parties presented witness testimony at the hearing and extensive documentary
evidence. Additionally, the College submitted its faculty and computing policies as part of the
administrative record. The College argued that all of Craven's above cited e mails violated the
- -
College's policies and procedures. For instance, article VI AA of the College's policies states
that when a faculty member "speaks or writes as a citizen, he or she should be free from
institutional censorship or discipline" but that "[ ] a person of learning and an educational
as
officer, he or she should remember that the public may judge the profession and the institution
by his or her utterances." AR at 600. Accordingly, faculty members "should at all times be
accurate, exercise appropriate restraint, and] show respect for the opinions of others." AR at
[
11
4
The record indicates that at the time of this initial determination, ESD was. unaware of why
such a long delay occurred between the misconduct and the suspension. .
5
No. 42955 1 II
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In addition, article VI A. states that "[ ll members of the College community are to be
5 a]
treated with respect and with sensitivity to the impact of words and opinions:" AR at 600.
Finally, the College's Faculty Job Description"states that faculty members must "[
" d] emonstrate
respect for others," and "[ e]
ffectively use computer applications for instruction and
communication where appropriate."AR at 600. Craven never denied authorship of the e mails
-
and mostly argued about due process, the First Amendment, and conspiracies perpetrated by the
College— not properly before the ALJ.
issues
Following the hearing, the ALJ issued an initial order reversing ESD's benefit
determination. The order explained that the only "issue in the appeal is whether [Craven] was
suspended from employment for deliberate violations or 'disregard of standards of behavior
which the employer has the right to expect of an employee as defined in RCW 50. 4.
b).
294(
1)(
0
AR at 864. The ALJ's factual findings pointed out that Craven had previously been disciplined
for similar incidences of misconduct, including an eight day suspension for "inappropriate
-
behavior through e mail that was threatening, intimidating, retaliatory and created a hostile work
-
environment." AR at 865. The ALJ also found that despite Craven's assertions that he was not
5
The ALJ repeatedly attempted to explain to Craven the limited scope of review. See, e. .,
g AR
at 106 ( "[ hat I am dealing with is whether or not misconduct has been shown by what you
W]
did. And if it' a matter of the judges have judged you at the school, having some biased, still
s
comes back to whether or not I agree with their decision, the fact that what you did was
misconduct. "). While it is true that " he state may not abuse its position as employer to stifle `` he
t t
First Amendment rights [ its employees] would otherwise enjoy as citizens to comment on
matters of public interest, "' Eng v. Cooley, 552 F. d 1062, 1070 ( 9th Cir. 2009) ( uoting
3 q
Pickering v. Board of Education of Township High School District 205, Will County, Illinois,
391 U. . 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 ( 1968)), denied, 130 S. Ct. 1047S cert.
2010), only question before the ALJand this court— whether ESD erred in denying
the — is
Craven unemployment benefits. If Craven seeks to vindicate a claim related to violation of his
First Amendment rights, rather than his right to unemployment compensation, he must bring the
First Amendment claim in the appropriate forum.
C
No. 42955 1 II
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given sufficient opportunity to respond to the College's proposed disciplinary action, Craven
did get sufficient and appropriate chances to respond to the disciplinary action prior to its
imposition."AR at 868.
And in his conclusions of law,the ALJ explained that
t] rude comments, innuendos, sexual reference, and derogatory analogies used
he
by the claimant through the e mails giving rise to his suspension [were] totally
-
inappropriate. The claimant had been repeatedly warned of using this type of
language and approach to voice his complaints over whatever issue he was upset
about....is
It held that the claimant's actions were willful and inappropriate
under the overall rules of both the college policies and the union contract. It is
held his actions were harmful to the College. It is held that the claimant was
suspended for misconduct under RCW 50. 4. RCW 50. 0.
b) 066.
294(
1)(
0 and 2
AR at 868.
Craven appealed this decision to the ESD Commissioner. After reviewing the entire
record before the ALJ, the commissioner adopted the ALJ's findings of fact and conclusions of
law. The commissioner concluded that Craven "was afforded a full and fair opportunity to
present his case before the Office of Administrative Hearings" and that ultimately Craven's
discharge precipitating conduct has been shown, by a preponderance of substantial and credible
evidence of record, to have been in deliberate violation or disregard of standards of behavior
which an employer has the right to expect of an employee." AR at 882. Craven now appeals
this decision.
6
Craven also appealed, unsuccessfully, to Thurston County Superior Court. Because this court
sits "in the same position as the superior court,"
reviews "the decision of the Commissioner, not
the underlying decision of the ALJ," applies "the [ dministrative Procedure Act ( PA),
and A A ch.
34. 5
0 RCW,]standards directly to discussion
of the superior court
the administrative record, ".
ruling is unnecessary. Smith v. Emp't Sec. Dep't, Wn. App.24, 32, 226 P. d 263 (2010).
155 3
7
No. 42955 1 II
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DISCUSSION
DISQUALIFYING MISCONDUCT
Craven asserts that his e mail exchanges to other faculty members at the College did not
-
constitute misconduct disqualifying him from receiving unemployment benefits for the duration
of his suspension. ESD argues that Craven engaged in disqualifying misconduct and was
properly disqualified from receiving unemployment benefits while suspended. Specifically, ESD
contends that Craven's e mails constituted conduct that "willfully disregarded his employer's
-
interests and deliberately disregarded his employer's standards of behavior" and, accordingly,
the commissioner did not err in denying benefits. Br. of Resp't at 13. We agree. Because
substantial evidence supports the commissioner's findings of fact and Craven's violation of the
College's reasonable policies constituted misconduct, we affirm the commissioner.
A. STANDARD OF REVIEW
The Washington Administrative Procedure Act ( PA), 34. 5 RCW, governs judicial
A ch. 0
review of a final decision by the ESD Commissioner. Verizon Nw.,
Inc. v. Emp't Sec. Dep't,
164
Wn. d 909, 915, 194 P. d 255 (2008).We sit in the same position as the superior court, apply
2 3
the APA standards directly to the administrative record, and review the decision of the
commissioner, not the underlying decision of the ALJ. Verizon, 164 Wn. d at 915 ( citing
2
Tapper v. Emp't Sec. Dep't,122 2 - 2 We treat the
Wn. d 397, 405 06, 858 P. d 494 ( 1993)).
commissioner's decision as being prima facie correct and the "burden of demonstrating the.
invalidity of agency action is on the party asserting invalidity," here Craven. RCW
a);t Sec. Dep't, Wn. App. 887, 893, 146 P. d 475 (2006).
570(
34. 5.
1)( v. Emp'
0 Anderson 135 3
But we will reverse the commissioner's decision if that decision is based on an error of law, if
H .,
No. 42955 1 II
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substantial evidence does not support the decision, or if the decision is arbitrary or capricious.
RCW 34. 5. i).
d),
570(
3)(
0 e), ( (
We review questions of law de novo, giving substantial weight to an agency's
interpretation of the statutes it administers. Everett Concrete Prods.,Inc. v. Dep't of Labor &
Indus.,109 Wn. d 819, 823, 748 P. d 1112 (1988).We review findings of fact for substantial
2 2
evidence in light of the whole record. RCW 34. 5. s Drywall Co.,
e); Inc. v. Dep't of
570(
3)(
0 Lee'
Labor & Indus.,141 Wn. App. 859, 864, 173 P. d 934 (2007).Substantial evidence is evidence
3
that would persuade a fair -
minded person of the truth or correctness of the matter. King County
v. Cent. Puget Sound Growth Mgmt. Hearings Bd., Wn. d 543, 553, 14 P. d 133 (2000).
142 2 3
The determination of whether an employee has committed misconduct is a mixed
question of law and fact in that it requires the application of legal precepts (defining misconduct)
to factual circumstances (the circumstances surrounding the disciplinary action). Tapper, 122.
Wn. d at 402. As our Supreme Court explained in Tapper,
2
Analytically, resolving a mixed question of law and fact requires establishing the
relevant facts, determining the applicable law, and then applying that law to the
facts. The characterization of misconduct" as a mixed question of law and fact
"
does not mean that we are free to substitute our judgment for that of the agency as
to the facts; instead, the factual findings of the agency are entitled to the same
level of deference which would be accorded under any other circumstance. See
Franklin Cy. Sheriffs Office v. Sellers],97 Wn. d [ 17,] 30[646 P. d 113
[ 2 3 329 - 2
1982), cent. denied, 459 U. . 1106 (1983)]. process of applying the law to
S The
the facts, however, is a question of law and is subject to de novo review. Henson
v.Emp't Sec. Dep't], 2d [ 74,]
113 Wn. 3 377, 779 P. d 715 [( 989)];
2 1 Johnson v.
Dep't of Emp't Sec.,112 Wn. d 172, 175, 769 P. d 305 (1989).The findings of
2 2
fact made by the agency below are therefore critical to our resolution of the
question of whether [the defendant] engaged in misconduct connected with her
work.
0
No. 42955 1 II
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122 Wn. d at 403.
2 Accordingly, we must initially determine whether substantial evidence
supports the commissioner's factual findings and, if so, whether these facts constitute
disqualifying misconduct under the Employment Security Act, Title 50 RCW.
B. FACTUAL FINDINGS
Craven does not deny authoring any of the e mails in question or that the College
-
previously disciplined him for prior inappropriate behavior, including inappropriate e mail
-
exchanges. Accordingly, substantial evidence supports the commissioner's findings relaying
the content of the inappropriate e mails described above and, further, the finding that "[ efore
- b]
the incidences giving rise to his suspension, prior disciplinary actions were taken against
Craven] based on similar factors giving rise to the suspension in this case."' at 864.
AR
C. DISQUALIFYING MISCONDUCT
Whether the commissioner's factual findings support its conclusion that Craven's actions
constituted misconduct disqualifying him from receiving unemployment benefits during his
suspension is a legal issue we review de novo. Haney v. Emp't Sec. Dep't, Wn. App. 129,
96
138 39,978 P. d 543 (1999).
- 2
The Washington Legislature enacted the Employment Security Act to provide benefits to
individuals who are " involuntarily'' unemployed " through no fault of their own." RCW
7
The findings are technically the ALPS findings explicitly adopted by the commissioner.
8
Craven's brief appears to challenge finding of fact 10that he was given "sufficient and
appropriate chances to respond to the disciplinary action prior to its imposition," at 868 by
AR —
frequently asserting that he was denied due process prior to the suspension occurring. Although
a government employee who possesses a constitutionally protected property interest in his or her
employment is entitled to a predeprivation opportunity to be heard pursuant to Cleveland Board
of Education v. Loudermill, 470 U. . 532, 542 45, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985),
S -
Craven has failed to adequately brief this issue or explain why the hearing he received in this
instance, a hearing at which he had legal representation, was legally inadequate. Accordingly,
we do not address his bald assertion. RAP 10.
a)(
6).
3(
10
No. 42955 1 II
- -
010.
50. 1. Accordingly, where any fault of unemployment lies with the claimant, the claimant
0 "
is disqualified from receipt of unemployment benefits." Cowles Pub. Co. v. Emp't See. Dep't,
15 Wn. App. 590, 595, 550 P. d 712 (1976),
2 review denied, 88 Wn. d 1001 (1977). The Act
2
specifies that when a claimant " as been discharged or suspended for misconduct connected with
h
his or her work,"he or she is disqualified from benefits, RCW 50. 0.and that
066(
1
2 ),
disqualifying " misconduct" includes "[d]
eliberate violations or disregard of standards of
behavior which the employer has the right to expect of an employee." RCW 50. 4.
b).
294(
1)(
0
The Act provides a number of examples of per se disqualifying' misconduct, including
v] of a company rule if the rule is reasonable and if the claimant knew or should have
iolation
known of the existence of the rule."
RCW 50. 4.
f).
294(
2)(
0
Here, Craven engaged in disqualifying misconduct by disregarding his employer's
reasonable policies to ensure a nonhostile work environment—
policies he was well aware of
having been disciplined on multiple occasions in the past for having violated them —concerning
treating colleagues in a respectful manner. The College's rules are reasonable since they relate
to employee job duties and are a normal business requirement. See WAC 192-150- 4)A "
210( (
company rule is reasonable if it is related to your job. duties, [or] it is a normal business
requirement or practice for your occupation or industry. "). Moreover; Craven's a mails clearly
-
fall beyond the pale of acceptable workplace communications. While an isolated error in
judgment is understandable, Craven's inappropriate conduct was pervasive and recurring:
Craven analogized his colleagues' behavior to that of Nazi sympathizers, implied that a
Palestinian colleague (Hamideh) was the type of person who would betray his own country, off-
handedly referenced a mass murderer in naming another colleague (Aliabadi),
referred to fellow
staff as "spineless, two -faced, and opportunistic," at 505, and employed inappropriate sexual
AR
11
No. 42955 1 II
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innuendo, referencing "kneepads and chapstick."AR at 511. These comments clearly evince a
complete disregard for the College's reasonable policies concerning inappropriate work place
behavior. It is not unreasonable for an employer to expect a certain level of civility from its
employees.
Craven flouted the College's reasonable company rules concerning employee decorum
and appropriate use of e mail.
- On appeal, Craven had the "burden of demonstrating the
invalidity of agency action." RCW 34. 5. Having refrained from arguing why the
a).
570(
1)(
0
College's policies are unreasonable or that he did not violate these reasonable policies, Craven
fails to meet this burden. Accordingly, we hold that the commissioner did not err in ruling that
Craven's actions constituted misconduct disqualifying him from receiving unemployment
benefits while suspended. Further, to the extent Craven received benefits in error, he was not
entitled to those benefits and is liable for repayment pursuant to RCW 50. 0. All
066(
5
2 ): "
benefits that are paid in error ... are recoverable."
OTHER ISSUES
Although Craven raises issues related to union contracts, civil and criminal conspiracy,
judicial misconduct, employer harassment, and the First Amendment, none of these issues are
appropriately before this court or properly briefed. Pro se litigants, like Craven, 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. d 527 (1993).Accordingly, we refrain from addressing
2
them. RAP 10. ( also Cowiche Canyon Conservancy v. Bosley, 118 Wn. d 801, 809,
a)( See
6).
3 2
828 P. d 549 ( 1992). Craven also requests attorney fees.
2 Attorney fees, however, are not
available on appeal to a nonlawyer, pro se litigant. In re Marriage ofBrown, 159 Wn. App. 931,
938, 247 P. d 466 (2011).Moreover, Craven has not prevailed in this appeal.
3
12
No. 42955 1 II
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Because substantial evidence supports the commissioner's factual findings and Craven
deliberately violated standards of behavior the College had the right to expect of its employees,
we affirm the commissioner's decision.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
0
INN-
BRINTNALL, J.
We concur:
bJ /
f
HANSON,
J.
A. .
l
C
BXO N,J.
13