IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SUSAN R. KOPP, No. 71025-7-
Respondent, DIVISION ONE
v.
WASHINGTON STATE DEPARTMENT UNPUBLISHED OF EMPLOYMENT SECURITY, FILED: December 22. 2014 Appellant.
Cox, J. — An employee who is discharged for "misconduct connected with
his or her work" is disqualified from receiving unemployment compensation
benefits.1 The Commissioner of the Employment Security Department affirmed
the order denying Susan Kopp unemployment benefits. On judicial review, the
superior court reversed the Commissioner's decision and awarded Kopp
unemployment benefits and attorney fees. Because Kopp fails in her burden to
show that the Commissioner's decision was invalid, we reverse the decision of
the superior court.
RCW 50.20.066(1). No. 71025-7-1/2
Kopp worked as a plate shop mounter for Pliant Corporation. Pliant
required its employees to immediately report all fires to a supervisor. Pliant also
required its employees to "report all unsafe conditions." Kopp received training
on these rules and acknowledged in writing that she understood them.
In 2012, Kopp worked a night shift for Pliant. She took a break during her
shift and went outside. She noticed smoke and glowing embers on an "8 inch
square" of the bark covered ground. Kopp did not see any flames.
Kopp returned to the building and informed her co-worker, who was not
her supervisor, about the fire. She attempted to put out the fire by pouring water
on it. She filled a small trash can with water, carried it outside, and poured it on
the fire. She repeated this process several times. Kopp believed she had
extinguished the fire, and she returned to work. But her attempt to extinguish the
fire was unsuccessful.
About one hour later, the ground was smoldering. Kopp's co-workers
reported the fire and Kopp's supervisor called the fire department. The
firefighters extinguished the fire.
Following this incident, Pliant discharged Kopp for violating company and
safety rules by failing to report the fire.
Kopp applied for unemployment benefits. The Employment Security
Department initially determined that Kopp had not committed misconduct and
qualified for benefits. Pliant appealed.
After a hearing, an administrative law judge (ALJ) of the Office of
Administrative Hearings concluded that Kopp had committed misconduct and No. 71025-7-1/3
was therefore ineligible for benefits. The ALJ entered written findings of fact,
conclusions of law, and an order.
Kopp petitioned for review to the Commissioner of the Employment
Security Department. The Commissioner affirmed the ALJ's decision, adopting
all of the ALJ's findings of fact and conclusions of law.
Kopp then petitioned for judicial review to King County Superior Court.
The superior court held that the Commissioner erred by concluding that Kopp
committed misconduct. Instead, it concluded that Kopp committed ordinary
negligence or an error in judgment. Thus, the superior court held that Kopp was
eligible for unemployment benefits. It also awarded Kopp attorney fees and
costs.
The Department appeals.
AWARD OF UNEMPLOYMENT BENEFITS
The Department argues that the Commissioner correctly concluded that
Kopp was terminated for misconduct. We agree.
The Washington Administrative Procedure Act (WAPA) governs judicial
review of the state employment commissioner's decisions.2 Under WAPA, "[t]his
court sits in the same position as the superior court" and reviews the
commissioner's decision.3 The party seeking to overturn the commissioner's
2 RCW 50.32.120.
3 King County Pub. Hosp. Dist. No. 2 v. Dep't of Health, 178 Wn.2d 363, 372, 309 P.3d 416 (2013). No. 71025-7-1/4
decision, Kopp in this case, bears the burden of demonstrating that the decision
is invalid.4
This court reviews the commissioner's conclusions of law de novo, but
gives "substantial weight to the agency's interpretation of the statutes it
administers."5 "The court affirms [the commissioner's] factual findings unless
they are not supported by substantial evidence."6 This court accepts
unchallenged factual findings as true.7 Whether an employee committed
misconduct is "'a mixed question of law and fact.'"8 "On mixed questions of law
and fact, [the court] determine^] the law independently and then appl[ies] the law
to the facts as found by the agency."9
An individual discharged for misconduct cannot receive unemployment
benefits.10
4 RCW 34.05.570(1 )(a).
5 Kirbv v. Emp't Sec. Dep't. 179 Wn. App. 834, 843, 320 P.3d 123, review denied, 181 Wn.2d 1004 (2014).
6 King County Pub. Hosp. Dist. No. 2, 178 Wn.2d at 372.
7 Campbell v. Emp't Sec. Dep't, 180 Wn.2d 566, 573, 326 P.3d 713 (2014).
8 Kirbv, 179 Wn. App. at 845 (quoting Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993)).
9 Hamel v. Emp't Sec. Dep't. 93 Wn. App. 140, 145, 966 P.2d 1282 (1998).
10 RCW 50.20.066(1). No. 71025-7-1/5
Termination for Misconduct
The Department argues that the Commissioner correctly concluded that
RCW 50.04.294 defines misconduct in two ways. First, it gives a non-
exhaustive, general definition of misconduct.11 Second, RCW 50.04.294(2) lists
several acts that are misconduct per se because they "signify a willful or wanton
disregard of the rights, title, and interests of the employer or a fellow
employee."12 One act that is misconduct is violating "a company rule if the rule is
reasonable and if the claimant knew or should have known of the existence of
the rule."13 "A company rule is reasonable if it is related to [the employee's] job
duties, is a normal business requirement or practice for [the employee's]
occupation or industry, or is required by law or regulation."14
Under the Department's regulations, an employee "knew or should have
known about a company rule if [she] w[as] provided an employee orientation on
company rules, [or she] w[as] provided a copy or summary of the rule in
writing."15
11 RCW 50.04.294(1).
12 RCW 50.04.294(2).
13 RCW 50.04.294(2)(f).
14WAC 192-150-210(4).
15 WAC 192-150-210(5). No. 71025-7-1/6
Here, the Commissioner properly concluded that Kopp committed
misconduct under RCW 50.04.294(2)(f) by violating a reasonable company rule.
It is undisputed that Pliant required its employees to immediately report all
fires. Its fire policy states:
In the event of fire (regardless of size) immediately report it to your supervisor. The person discovering the fire may attempt to extinguish the fire with a fire extinguisher if the fire is small enough to be handled with a fire extinguisher. If the fire is beyond the incipient stage (too large to handle with a fire extinguisher) the Kent Fire Department must be summoned immediately.!161
This rule is reasonable. The policy merely requires employees to report
any fires that they encounter. And Kopp concedes that the company's fire policy
is reasonable, stating "the company policy that requires employees to report
unsafe conditions and events of fire to a supervisor is very likely a reasonable
company policy."17
Additionally, the Commissioner adopted the ALJ's finding that Kopp
acknowledged in writing that she received a copy of this rule and understood it.
Kopp does not challenge this finding, which is thus a verity. Accordingly, Kopp
was aware of her employer's rule under the Department's regulations.18
Finally, the adopted findings show that Kopp violated this rule:
4. On August 15, 2012, [Kopp] observed a small fire just outside the work building ....
16 Administrative Record at 101.
17 Response Brief of Respondent at 17.
18 WAC 192-150-210(5). No. 71025-7-1/7
5. [Kopp] attempted to put the fire out by filling a trash container with water. She was unsuccessful in extinguishing the fire.
6. [Kopp] did not report to her supervisor that there was a fire.[19]
Although Kopp contests these findings, substantial evidence supports
them. Kopp admitted that she saw smoke and glowing embers on the ground.
When the fire department arrived, it found a "small smoldering bark fire."20 Kopp
stated that she poured water over the embers to put them out. The fire
department noted that the fire had been partially extinguished with water, but an
area of about 3 feet by 6 inches was still smoldering. Kopp also admitted that
she never notified a supervisor about the fire.
In sum, Kopp's employer had a reasonable rule that all employees were
required to report fires. Kopp was aware of this rule. And the Commissioner's
adopted factual findings, supported by substantial evidence, show that Kopp did
not report the fire to her supervisor. Accordingly, Kopp committed misconduct
under RCW 50.04.294(2)(f).
Kopp argues that substantial evidence does not support the existence of a
fire, but rather shows that only a "smolder" existed. Specifically, Kopp asserts
that no witness "testified] that they personally observed any fire." This argument
makes no sense.
19 Administrative Record at 110.
20 Supplemental Administrative Record at 5. No. 71025-7-1/8
The record shows that witnesses described embers and smoking or
smoldering ground. This constitutes substantial circumstantial evidence that
there was a fire.
Moreover, Kopp conceded at the superior court that "[w]hether the incident
was an actual fire or a smolder is not at issue." The attempt to revive on appeal
an argument abandoned below is not well taken.
Kopp next argues that it was unreasonable for her employer to terminate
her for only one violation of the fire policy. To support this argument, she relies
on Henson v. Employment Security Department.21 That reliance is misplaced.
That case involved an employee who was discharged for misconduct.
The unemployment compensation statute in effect at the time did not list acts that
were misconduct per se.22 Rather case law established that violation of a
reasonable company rule was misconduct.23 In Henson, the employer gave its
employee numerous chances to correct his behavior before it discharged him.24 Kopp argues that she should have received an opportunity to correct her
behavior, just as the employee in Henson did.
21 113 Wn.2d 374, 779 P.2d 715 (1989).
22 Former RCW 50.20.060 (1982).
23 Henson, 113 Wn.2d at 378.
24 jd at 375-76.
8 No. 71025-7-1/9
But the Henson court did not hold that the employer was required to give
the employee an opportunity to correct his behavior. The court merely held that
the employer's policies were reasonable.25
Additionally, Kopp's basic argument is that Pliant's termination policy is
unreasonable. She argues that "the company's policy of terminating an
employee for one incident of an obvious mistake is certainly not reasonable."26
But under RCW 50.04.294(2)(f), this court determines whether Kopp violated a
reasonable company rule. Thus, this court examines Pliant's fire policy, not its
termination policy.
Kopp also argues that Pliant's actions were unreasonable because it
actually terminated her to save costs. But this argument is not relevant to
whether her employer's rule is reasonable. And, as discussed later in this
opinion, this argument relies on evidence that the superior court incorrectly
admitted to supplement the administrative record. For these reasons, we reject
this argument.
Ordinary Negligence or a Good Faith Error in Judgment
The Department argues that the Commissioner correctly concluded that
Kopp's failure to report the fire was neither ordinary negligence nor a good faith
error in judgment. We again agree.
RCW 50.04.294(3) states that misconduct does not include: "(b)
Inadvertence or ordinary negligence in isolated instances; or (c) Good faith errors
25 Id, at 379.
26 Response Brief of Respondent at 18-19. 9 No. 71025-7-1/10
in judgment or discretion." In contrast, "[w]illful or wanton disregard of the rights,
title, and interests of the employer or a fellow employee" and "[deliberate
violations or disregard of standards of behavior" are misconduct.27 Under the
Department's regulations, behavior is willful when it is "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."28
Here, the Commissioner properly concluded that Kopp did not commit
either ordinary negligence or a good faith error in judgment or discretion.
Kopp did not commit ordinary negligence because her behavior was
willful. Kopp intentionally failed to report the fire. She described her failure to
notify her supervisor of the fire as "a poor decision." Kopp alleges in her brief
that it "skipped her mind to inform her supervisor." But Kopp does not provide
any citation to the record that supports this. And, the record does not show that
Kopp intended to comply with the policy and then failed to do so. Instead, her
failure to report the fire was "a poor decision."29
And as discussed earlier, Kopp was aware of Pliant's fire policy. Thus,
although Kopp was aware of her employer's policy, she intentionally disregarded
it. Accordingly, Kopp acted willfully or deliberately, not negligently.
Kopp also did not make a good faith error in judgment. She intentionally
violated a reasonable company rule. Pliant required its employees to report all
27 RCW 50.04.294(1 )(a) and (b).
28 WAC 192-150-205(1).
29 (Emphasis added.) 10 No. 71025-7-1/11
fires—it did not allow its employees to decide whether any particular fire should
not be reported. Thus, Kopp was not entitled to decide whether to report this fire.
She had a clear duty to report it, a duty that she chose to disregard.
In sum, the Commissioner correctly concluded in this case that Kopp's
failure to report the fire was neither ordinary negligence nor a good faith error in
judgment.
Relying on Wilson v. Employment Security Department, Kopp argues that
she did not commit misconduct but committed only ordinary negligence or a good
faith error in judgment.30 Wilson is distinguishable.
In that case, an employee was discharged from a jewelry store after losing
diamonds.31 The employee failed to log in the diamonds and place them in a
safe, as company policy required him to do.32 He "fully intended to comply with
the [diamond logging] policy, but simply failed to do so in time to prevent the
losses."33 The court held that the employee had not deliberately decided to
disregard the policy, but had negligently delayed complying with the policy.34
As discussed previously, this record contains no evidence that Kopp
intended to report the fire, but failed to do so. Instead, the record shows that
30 Response Brief of Respondent at 22-23 (citing Wilson v. Emp't Sec. Dep't, 87 Wn. App. 197, 940 P.2d 269 (1997)).
31 Wilson, 87 Wn. App. at 198.
32 id, at 199.
33 jU at 203.
34 Id,
11 No. 71025-7-1/12
Kopp described her failure to report the fire as a "poor decision." Accordingly,
Kopp's failure to report the fire was not ordinary negligence.
Kopp submitted Kirbv v. Employment Security Department as an
additional authority.35 At oral argument, she relied on Kirbv to argue that she
committed a good faith error. Her argument fails, because Kirbv is
distinguishable.
In Kirbv, an employee was discharged after she did not comply with her
employer's directions.36 In that case, this court held that the employee had
committed a good faith error.37 The court reached that conclusion for two
reasons. First, it held that the employer's directions were not reasonable.38
Second, it held that the employee did not deliberately or willfully fail to comply
with the directions.39 Instead, the employee failed to comply because she was
confused.40
Neither of those reasons applies to Kopp's case. Here, as discussed
earlier in this opinion, Kopp failed to comply with a reasonable company rule, not
an employer's unreasonable directions. Additionally, Kopp does not claim that
35 Respondent's Statement of Additional Authorities at 1 (citing Kirbv v. Emp. Sec. Dep't, 179 Wn. App. 834).
36 Kirbv, 179 Wn. App at 840-41.
37 ]d, at 850.
38 Id, at 848-49.
39 ]d, at 847.
40 jd, at 850.
12 No. 71025-7-1/13
she failed to report the fire because she was confused. Instead, she simply
made a "poor decision" not to report the fire. Accordingly, Kopp's argument is
unpersuasive.
SUPPLEMENTATION OF ADMINISTRATIVE RECORD
The Department argues that the superior court abused its discretion when
it supplemented the agency record. We agree.
The superior court's review of agency action is generally confined to the
agency record. A court may admit evidence outside the agency record only in
"highly limited circumstances."41 And the evidence must "relat[e] to the validity of
the agency action at the time it was taken."42
Additionally, the new evidence must regard: "(a) Improper constitution as a
decision-making body or grounds for disqualification of those taking the agency
action; (b) Unlawfulness of procedure or of decision-making process; or (c)
Material facts in rule making, brief adjudications, or other proceedings not
required to be determined on the agency record."43 Limiting the superior court to
the agency record ensures that the court acts as an appellate court, rather than
retrying the case.44
41 Motlev-Motlev. Inc. v. PCHB, 127 Wn. App. 62, 76, 110P.3d812 (2005).
42 RCW 34.05.562(1).
43 id,
44 Motlev-Motlev, 127 Wn. App. at 76.
13 No. 71025-7-1/14
Appellate courts review a trial court's decision to admit new evidence for
abuse of discretion.45 A trial court abuses its discretion when its "decision is
'manifestly unreasonable or based on untenable grounds or untenable
reasons.'"46 A "decision is 'based on untenable reasons,' [when] it is 'based on
an incorrect standard or the facts do not meet the requirements of the correct
standard.'"47
Here, the superior court relied on RCW 34.05.562(1 )(c) and RCW
34.05.566(7) to admit new evidence. Neither of these provisions authorizes the
court's action.
RCW 34.05.562 allows the court to admit evidence if it relates to "the
validity of the agency action at the time it was taken" and meets other
requirements.
RCW 34.05.566(7) states, "The court may require or permit subsequent
corrections or additions to the record."
In this case, the supplemental evidence was not about the validity of the
agency action. The evidence Kopp submitted allegedly shows that Pliant
terminated her to reduce costs. This evidence does not go to the validity of the
agency's action, and thus RCW 34.05.562(1 )(c) does not apply.
45 See id, at 77.
46 State v. Dye, 178Wn.2d 541, 548, 309 P.3d 1192 (2013) (Quoting In re Marriage of Littlefield. 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)).
47 id, (quoting Littlefield, 133 Wn.2d at 47). 14 No. 71025-7-1/15
RCW 34.05.566(7) also does not apply because that statute does not deal
with the admission of evidence. The context of RCW 34.05.566(7) shows that
the statute does not grant the superior court authority to admit new evidence, but
instead allows the court to add evidence that was before the agency to the
administrative record. The statute as a whole deals with the costs and
transmission of the agency record to a reviewing court, not the admission of new
evidence.48
Additionally, if RCW 34.05.566(7) gave courts discretion to admit new
evidence, it would bypass the limitations created by RCW 34.05.562. RCW
34.05.566(7) does not provide any standards for the admission of new evidence,
thus the court would have complete discretion. RCW 34.05.562 would become
effectively meaningless, as the court could always admit evidence under RCW
34.05.566(7) instead.
Therefore, the superior court's decision is untenable because it admitted
the supplemental evidence on the bases of misapplying two statutes.
Accordingly, it abused its discretion.
Kopp argues that the superior court properly admitted the evidence
because the evidence is material to her case. Kopp cites the dissent in Rios v.
Department of Labor & Industries, to support the proposition that the court may
48 See RCW 34.05.566.
15 No. 71025-7-1/16
take additional evidence if it relates to a material issue of fact.49 But Rios is not
helpful because the dissent does not control the rule of the case.
Moreover, Kopp misleadingly quotes part of a sentence out of context.
She quotes "'. . . RCW 34.05.514 states how and when the agency is to respond,
and states that the court may hear evidence, pursuant to RCW 34.05.562, on
material issues of fact.'"50 But the sentence reads: "[W]here an agency has
failed to perform a duty required by law... the court may hear evidence,
pursuant to RCW 34.05.562, on material issues of fact."51 In this case, there is
no basis to contend that the Department failed to perform a duty required by law.
Accordingly, Rios does not apply.
Kopp also does not explain why she failed to present this evidence to the
ALJ or the Commissioner. Allowing Kopp to present new evidence before the
superior court simply because it is material to her case would improperly allow
her to retry her case.52 Thus, RCW 34.05.562 does not provide a legal basis for
supplementing the agency record in this case.
Kopp fails to argue why RCW 34.05.566(7) applies in this case apart from
quoting its plain text. Thus, we do not address this aspect of her claim any
further.
49 Response Brief of Respondent at 29 (citing Rios v. Dep't of Labor & Indus., 145 Wn.2d 483, 39 P.3d 961 (2002) (Madsen, J. dissenting)).
50 Id, (quoting Rios. 145 Wn.2d at 514-15).
51 Rios, 145 Wn.2d at 514-15 (emphasis added).
52 See Motlev-Motlev. 127 Wn. App. at 77.
16 No. 71025-7-1/17
Notwithstanding the erroneous supplementation of the record by the
superior court, the error is harmless. "'A harmless error is an error which is
trivial, or formal, or merely academic, and was not prejudicial to the substantial
rights of the party assigning it, and in no way affected the final outcome of the
case.'"53 In this case, the error did not affect the outcome.
ATTORNEY FEES
The Department argues that if we reverse the superior court, we should
also reverse its judgment granting Kopp fees. We agree.
Superior Court Fees
RCW 50.32.160 provides that when an individual appeals an
unemployment compensation decision, the court must determine a reasonable
amount of fees, and if it reverses or modifies the commissioner's decision, it must
award fees and costs to the individual.54
Here, the superior court granted Kopp attorney fees and costs under that
statute, as the court reversed the Commissioner's decision. We have concluded
that the superior court improperly reversed the decision. Because the superior
court did not properly reverse the Commissioner's decision, its award of attorney
fees was incorrect under a plain reading of RCW 50.32.160.
Fees on Appeal
Kopp argues that she is entitled to fees on appeal. She is mistaken.
53 In re Pet, of Pouncv. 168 Wn.2d 382, 391, 229 P.3d 678 (2010) (quoting State v. Britton. 27 Wn.2d 336, 341, 178 P.2d 341 (1947)).
54 RCW 50.32.160.
17 No. 71025-7-1/18
As stated earlier, RCW 50.32.160 mandates courts to award attorney fees
when they reverse or modify the commissioner's decision. Because we reverse
the superior court's decision, reinstating the Commissioner's decision, Kopp is
not entitled to attorney fees on appeal.
We reverse the superior court's decision on the merits and its award of
attorney fees to Kopp in the superior court. This reinstates the Commissioner's
decision. We deny Kopp's request for attorney fees on appeal.
G*?. WE CONCUR:
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m CI -n TO
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