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

• Court: Court of Appeals of Washington
• Decided: July 13, 2015
• Docket: 71991-2
• Status: Unpublished

Opinion

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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UNPUBLISHED OPINION STATE OF WASHINGTON DEPARTMENT OF EMPLOYMENT SECURITY, FILED: July 13, 2015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 No. 71991-2-1

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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