Rochelle S. Cornwell v. Employment Security Dep't

• Court: Court of Appeals of Washington
• Decided: May 2, 2023
• Docket: 38996-1
• Status: Unpublished

Opinion

FILED MAY 2, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

ROCHELLE S. CORNWELL, ) ) No. 38996-1-III Appellant, ) ) v. ) ) STATE OF WASHINGTON, ) UNPUBLISHED OPINION EMPLOYMENT SECURITY ) DEPARTMENT, ) ) Respondent. )

FEARING,C. J. — Rochelle Cornwell appeals the decision of the Employment

Security Department’s denying her two applications for unemployment benefits. We

affirm both denials.

FACTS

We draw the facts from testimony and evidence presented during an

administrative hearing. We defer to the Employment Security Department’s (ESD’s)

findings of fact.

Beginning on June 9, 2020, Rochelle Cornwell worked for U-Haul as a customer

service representative. Cornwell’s late arrival to work shifts prompted manager Michael

Fenton to issue verbal warnings. For example, Cornwell was fifteen to twenty minutes

late to her shift on June 22, 2020. She arrived late again on July 1, 2020. On July 5, No. 38996-1-III, Cornwell v. Employment Security Department

Cornwell called in sick, while complaining of heat stroke. She appeared late to her shift

on July 6.

As a result of her tardinesses, Michael Fenton, on August 15, 2020, offered

Cornwell a housekeeper position for storage units, in which position timeliness was less

critical. Cornwell still arrived late to her scheduled shifts. Fenton issued verbal warnings

every time Cornwell was late or absent.

On August 17, Rochelle Cornwell texted Fenton saying she needed Family

Medical Leave Act (FMLA) leave for five weeks. Fenton doubted that she qualified for

the program since she had not worked at U-Haul long enough. Cornwell assured Fenton

that she qualified. Although Fenton asked Cornwell to provide paperwork showing her

approval for FMLA leave, Cornwell never provided any. Fenton decided he would not

schedule Cornwell for five weeks regardless of FMLA availability.

Rochelle Cornwell returned to work at U-Haul on September 22, 2020. After

Rochelle Cornwell’s return, Michael Fenton observed and warned Cornwell about

deficiencies in her work. On October 10, 2020, while working a closing shift, Cornwell

closed the office early and did not follow closing procedures. On October 27, Cornwell

texted Fenton that she would not be able to work either her ordinary shifts or the extra

shifts for a week because of travel. On October 29, Fenton noticed that, on an earlier

work day, Cornwell left a storage unit open, unlocked, and dirty. When asked about the

condition of the unit, Cornwell replied that she parked her car in the unit to check tire

2 No. 38996-1-III, Cornwell v. Employment Security Department

pressure, needed to leave suddenly, and lacked time to close the garage door. Fenton

terminated Cornwell’s employment on October 29, 2020.

Rochelle Cornwell applied for unemployment benefits for time on leave between

August 17, 2020 and September 21, 2020 and for dates after her termination from

employment on October 29, 2020. On February 5, 2021, ESD issued a letter denying

Cornwell unemployment benefits during her leave. ESD listed, as reasons for the denial,

that Cornwell was not available for work due to a personal medical condition and

Cornwell’s need to care for another person. ESD later issued a second letter denying

unemployment benefits after October 25, 2020 due to Cornwell’s discharge from U-Haul

resulting from her misconduct.

PROCEDURE

Rochelle Cornwell contested both denials of unemployment benefits. The ESD

consolidated both challenges. An Administrative Law Judge (ALJ) conducted an

evidentiary hearing.

During the administrative hearing, the ALJ asked Rochelle Cornwell whether she

had received and reviewed all documents related to the consolidated dockets. Cornwell

answered affirmatively. The document packets included all evidentiary exhibits.

Cornwell informed the ALJ she had no objection to admitting any exhibit.

3 No. 38996-1-III, Cornwell v. Employment Security Department

U-Haul manager Michael Fenton testified during the administrative hearing.

Following Fenton’s testimony, the ALJ inquired whether Rochelle Cornwell had any

questions to ask the U-Haul manager, and Cornwell declined.

Rochelle Cornwell testified. When asked whether she was first late to her shift on

June 22, 2020, Cornwell responded that Michael Fenton’s testimony was “[s]omewhat

accurate.” Administrative Record (AR) at 42. Cornwell testified that she did not know

what time she started work on the pertinent date. Cornwell explained she would

sometimes be late because she held a second job, cared for her grandfather, and a train

would sometimes interrupt traffic on her way to work.

Rochelle Cornwell testified she was “approved through the State and through their

[Human Resource Department] at U-Haul” for five weeks of FMLA leave beginning

August 17, 2020. AR at 43. According to Cornwell, she took the FMLA leave in order

to care for her son, who was newly diagnosed with Type I diabetes and hospitalized.

The ALJ asked Rochelle Cornwell about an exhibit she submitted in support of her

claim for five weeks of leave under FMLA:

THE COURT: . . . Mrs. Cornwell, I have a question with regards to the FMLA, and it looks like that’s on Exhibit 33 of the, uh, packet, uh for Docket Number 163611. Um, I’m trying to understand what dates this was and was—were you approved officially, and, if so, why is there not [a] signature. I mean, it’s just—it looks different. MS. CORNWELL: Uh, are you talking about the copy that I sent of my FMLA? THE COURT: Yes.

4 No. 38996-1-III, Cornwell v. Employment Security Department

MS. CORNWELL: Okay. Let me find it here real quick. . . . Okay. Um, this was a form that I had received—it’s really dark on here. I believe this was the one that was submitted—or that was, um, provided to me by the doctor— THE COURT: Uh-huh. MS. CORNWELL: —for my FMLA, and I hadn’t signed it yet. THE COURT: Okay. And is there a date that this was provided, too? Am I missing the date? I don’t see it. MS. CORNWELL: Um, the date is not on there.

AR at 62-63. Our copy of the exhibit is dark and illegible.

Rochelle Cornwell testified that, on October 29, 2020, she informed Michael

Fenton that she needed the next week off to help care for her daughter’s mental health.

Fenton fired her that day.

In a consolidated initial order, the ALJ entered findings of fact about instances in

which Rochelle Cornwell was either absent from or tardy to her work shifts:

5. On August 15, 2020, the Claimant’s job position changed to housekeeping and cleaning crew after she had several instances of tardiness and not adhering to her schedule. The Employer offered the Claimant to change positions so the Claimant could have an open flexible schedule. The Claimant accepted the change of positions. .... 7. On October 10, 2020, one of the employees passed away and the Employer asked if the Claimant would like to work additional hours. The Claimant agreed. The Claimant then informed the Employer that she would not be able to work at her regular shifts as well as the newly accepted extra time for one week because she will be traveling. 8. The Claimant was late to work on several occasions. (Exhibits 23 and 24). The Claimant’s tardiness started on June 22, 2020 when she was 15 to 30 minutes late for work and continued throughout her employment. .... 10. On July 1, 2020, the Claimant was late. The Claimant did not work on July 4, 2020 when she was scheduled to work.

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11. On July 5, 2020, the Claimant called in sick due to a heatstroke. (Exhibit 23). The Claimant was late for work on July 6, 2020. .... 14. On August 17, 2020, the Claimant went on Paid Family Medical Leave of Absences (hereafter “FMLA”) for the duration of 5 weeks until September 21, 2020 (there is no documentary evidence to prove the Claimant was approved for the program). The Employer accepted her leave of absence. The Claimant’s manager requested a copy of the approved FMLA but the Claimant failed to provide it to him. 15. After the Claimant returned from FMLA, the Claimant continued to be tardy and absent in several occasions and received numerous verbal warnings. In at least one occasion, on October 29, 2020, the Claimant did not finish her work and left the storage dirty. 16. On October 29, 2020, the Claimant requested another week off from work because her daughter had mental health issues and wanted to be admitted into the hospital. The Claimant was also not going to be in town during that week. .... 23. The Claimant was unavailable for work from October 29, 2020 through November 5, 2020 because she was out of town and caring for her daughter.

AR at 113-14.

On review, the ESD commissioner largely adopted the ALJ’s findings of fact and

conclusions of law. The commissioner, however, corrected findings 14 and 15 that

address Rochelle Cornwell’s claim that her five-week absence was taken under the

FMLA.

[W]e correct Findings of Fact Nos. 14 and 15 to reflect that claimant testified she took medical leave under the Family Medical Leave Act (“FMLA”) for the five-week period from August 17, 2020, through September 21, 2020. As claimant has been receiving unemployment insurance benefits while working for employer on a part-time basis, she cannot receive state Paid Family Medical Leave (“PFML”) benefits, as stated in Findings of Fact Nos. 14 and 15, in the same work week due to

6 No. 38996-1-III, Cornwell v. Employment Security Department

limitations in the PFML statute. See RCW 50A.15.100. That said, we find claimant’s contention that she was absent for work for five weeks pursuant to the FMLA suspect. The FMLA requires that an employee work for a covered employer for at least 1,250 hours during the twelve months prior to the start of leave. See 29 C.F.R. § 825.110(d). Here, claimant only worked for interested employer on a part-time basis from June 09, 2020, through August 17, 2020, prior to her five-week absence from work. Further, an employer is required to authorize and retain all FMLA paperwork and medical information. 29 C.F.R. § 825.500. Claimant refused to provide her employer with FMLA documentation.

AR at 173 (footnote omitted).

Based on its adopted and revised findings, the ESD commissioner denied Rochelle

Cornwell unemployment benefits. The commissioner concluded that Cornwell was not

entitled to unemployment benefits for the five weeks she claimed for FMLA leave

because she was not available for work during those weeks. The commissioner also

concluded that Cornwell’s firing on October 29, 2020 was for employee misconduct due

to tardiness and absence from scheduled work shifts.

Rochelle Cornwell appealed the denial of unemployment benefits to the Spokane

County Superior Court. The superior court affirmed ESD’s decision.

LAW AND ANALYSIS

Rochelle Cornwell forwards five principal contentions before this court. First,

ESD erred when consolidating her two challenges to the denial of unemployment

benefits. Second, the ALJ denied her the opportunity to cross-examine Michael Fenton.

Third, ESD erred in entering findings of fact 5, 7, 8, 10, 11, 15, 16, and 23. Fourth, ESD

7 No. 38996-1-III, Cornwell v. Employment Security Department

failed to recognize she took leave pursuant to the FMLA. Fifth, she did not engage in

misconduct. She asks that we order ESD to pay her unemployment benefits.

ESD urges this court to reject appellate review because of Rochelle Cornwell’s

failure to comply with the Rules of Appellate Procedure. ESD highlights that Cornwell’s

appellate brief fails to properly assign error to any finding or conclusion as required by

RAP 10.3(h), fails to properly outline the facts underlying her appeal in a statement of the

case as required by RAP 10.3(a)(5), and fails to provide legal authority or analysis to

support her arguments as required by RAP 10.3(a)(6). ESD also asks, because Cornwell

fails to assign error to any finding of fact, that this court accept all findings as verities on

appeal.

This court may refuse to consider an issue on appeal that lacks the support of

adequate, cogent argument and briefing. Satomi Owners Association v. Satomi, LLC, 167

Wn.2d 781, 808, 225 P.3d 213 (2009). Nevertheless, this court ultimately seeks to

promote justice and facilitate the resolution of appeals on the merits. “Cases and issues

will not be determined on the basis of compliance or noncompliance with [the Rules of

Appellate Procedure] except in compelling circumstances where justice demands.” RAP

1.2(a). Cornwell’s presentation of her claimed error suffices for ESD to meaningfully

respond to the issues she raises.

The Administrative Procedure Act, chapter 34.05 RCW, governs judicial review

of a decision by the ESD commissioner. RCW 50.32.120; RCW 34.05.570. On review,

8 No. 38996-1-III, Cornwell v. Employment Security Department

this court sits in the same position as the superior court and gives no deference to the

superior court’s rulings. Darkenwald v. Employment Security Department, 183 Wn.2d

237, 244, 350 P.3d 647 (2015). This court reviews the commissioner’s decision except to

the extent the commissioner adopted the ALJ’s findings. Darkenwald v. Employment

Security Department, 183 Wn.2d 237, 244 (2015).

Consolidation

Rochelle Cornwell contends ESD erred by considering both dockets together in a

consolidated review process. This court reviews the department proceedings for unlawful

procedure or failure to follow a prescribed procedure. RCW 34.05.570(3)(c). Under a

pertinent regulation, the department may consolidate separate unemployment insurance

claims “if there is a substantial identity of issues and the rights of no party will be

adversely affected thereby,” as long as the consolidated proceeding “provide[s] for the

hearing of additional or unique issues relating to individual cases.” WAC 192-04-140.

ESD committed no error by considering both of Rochelle Cornwell’s claims. The

issues shared an overlap of relevant facts. Consolidation saved time for ESD personnel

and the parties. Cornwell demonstrates no prejudice from consolidation. Despite

consolidation, both the ALJ and the commissioner issued separate legal conclusions

pertinent to each determination.

9 No. 38996-1-III, Cornwell v. Employment Security Department

Cross-Examination

Rochelle Cornwell argues she lacked the opportunity to cross-examine U-Haul

manager Michael Fenton during the administrative hearing. Nevertheless, when the ALJ

offered Cornwell a chance, she said “no.” AR at 41. A presiding officer to an

administrative hearing must “afford to all parties the opportunity to . . . conduct cross-

examination.” RCW 34.05.449(2). The ALJ afforded Cornwell an opportunity.

Rochelle Cornwell also argues she was not allowed to examine evidentiary

exhibits. The record, however, shows that, during the evidentiary hearing, Cornwell

explicitly acknowledged that she had reviewed all exhibits and that she had no objection

to any exhibit.

Findings of Fact

Rochelle Cornwell assigns error to findings of fact 5, 7, 8, 10, 11, 15, 16, and 23.

We review the commissioner’s findings of fact for substantial evidence.

RCW 34.05.570(3)(e). Evidence is substantial if it is sufficient to persuade a rational,

fair-minded person of the finding’s truth. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d

147 (2004). This court views all evidence and reasonable inferences in the light most

favorable to the prevailing party and does not reweigh evidence or determine witness

credibility. William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wn.

App. 403, 411, 914 P.2d 750 (1996).

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We detect a single unsupported finding. In finding 10, the ALJ found that

Cornwell did not work on July 4, 2020. But the only evidence in the record referencing

that date is the e-mail written by Michael Fenton, in which Fenton claimed “the 4th went

ok.” AR Supp. at 1. Fenton’s testimony and Cornwell’s testimony supports all other

challenged findings. The ALJ also found, in several unchallenged findings, other

instances of Cornwell’s tardiness. Those unchallenged findings are verities on appeal.

Darkenwald v. Emp’t Sec. Dep’t, 183 Wn.2d 237, 244 (2015).

FMLA Leave

Rochelle Cornwell argues that the department failed to recognize her FMLA leave

when denying her unemployment benefits. We conceptualize the issue of whether

Cornwell exercised FMLA leave as a mixed question of law and fact. We deem the

question of whether Cornwell ever applied for or obtained approval for FMLA leave to

involve a factual finding requiring support by substantial evidence in the record. The

question of whether Cornwell fulfilled the requirements to FMLA is a legal question

governed by federal law.

Resolving a mixed question of law and fact requires establishing the relevant facts,

determining the applicable law, and applying that law to the facts. Tapper v. Employment

Security Department, 122 Wn.2d 397, 402, 858 P.2d 494 (1993). We afford factual

findings deference. Tapper v. Employment Security Department, 122 Wn.2d 397, 402

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(1993). We review determinations of law and the application of law to the facts de novo.

Erwin v. Cotter Health Centers, 161 Wn.2d 676, 687, 167 P.3d 1112 (2007).

We defer to the commissioner’s suspicion that Rochelle Cornwell never exercised

FMLA leave despite Cornwell’s testimony to the contrary. Cornwell submitted an

unsigned, undated form that she claimed qualified her for FMLA leave. According to

Michael Fenton, U-Haul never received any documentation related to FMLA leave.

Fenton testified that he simply removed Cornwell from the work schedule for five weeks.

In any event, an employee is not eligible for FMLA leave until employed for at least

twelve months. 29 CFR § 825.110(a)(1). Cornwell was employed at U-Haul for less

than three months at the time she requested the leave.

The ESD commissioner properly concluded that Rochelle Cornwell was

unavailable for work during the five weeks she departed work to care for her son. An

individual must be able and available to work to qualify for unemployment benefits.

RCW 50.20.010(1)(c). The individual must be capable of reporting for suitable work and

available at least forty hours during the week. WAC 192-170-010(1)(b), (d). The

commissioner properly concluded that Cornwell did not meet these requirements.

Employee Misconduct

Even if we disregard the unsupported finding of Rochelle Cornwell’s absence

from work on July 4, 2020, the ESD commissioner’s findings substantiated the

conclusion that U-Haul terminated Cornwell’s employment for employee misconduct.

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An employee discharged for misconduct shall be disqualified from benefits.

RCW 50.20.066. Misconduct may include repeated inexcusable tardiness following

warnings by the employer as well as repeated and inexcusable absences.

RCW 50.04.294(2)(b), (d). Absences and tardiness are repeated and inexcusable when

they are unjustified or “would not cause a reasonably prudent person in the same

circumstances” to be tardy or absent. WAC 192-150-210(1), (3). The commissioner

found multiple instances of unexcused tardiness and absences. The commissioner found

Cornwell was warned about her tardiness on multiple occasions. The commissioner was

not required to accept Cornwell’s explanations for her tardiness.

CONCLUSION

We affirm the superior court’s affirmation of ESD’s denial of unemployment

benefits.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record pursuant to

RCW 2.06.040.

_________________________________ Fearing, C.J.

WE CONCUR:

______________________________ _________________________________ Siddoway, J. Lawrence-Berrey, J.