Katherine Canning, Respondent V. State Of Wa Dept Of Employment Security, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KATHERINE CANNING,
Respondent,
v.
WASHINGTON STATE
DEPARTMENT OF EMPLOYMENT
SECURITY,
Appellant.
No. 70163-1-1
DIVISION ONE
UNPUBLISHED OPINION 	^
cr.
FILED: April 14, 2014
u" Vs • r
Grosse, J.P.T.1 — An employee who violates an employer's drug free
workplace 	policy 	commits 	misconduct 	disqualifying 	the 	employee 	from
unemployment benefits. 	Here, an employee brought marijuana-laced candy to the
workplace. This was in direct contravention ofthe employer's written policy and as
such constituted misconduct. 	It is immaterial that the employee brought the drugs
in for someone who had a 	medical 	marijuana prescription. 	We reverse the
superior 	court's 	decision 	and 	affirm 	the 	commissioner's 	decision 	denying
unemployment benefits.
FACTS
Katherine Canning worked as a meat cutter for Puget Sound Consumer Co-
Op (PCC) from July 27, 2011 through March 3, 2012. 	Canning was suspended by
the store director for bringing candy laced with 	marijuana to the store. 	That
suspension was converted to a termination for violating the company's drug and
alcohol policy.
1Judge C. Kenneth Grosse was a member of the Court of Appeals at the time oral
argument was heard on this matter. 	He is now serving as a judge pro tempore of
the court pursuant to RCW 2.06.150.

No. 70163-1-1/2
Shortly before Canning's dismissal, she had a conversation with her co
worker, 	Shawn, 	and 	the 	then 	acting 	meat 	manager, 	Jeffrey. 	Shawn 	was
discussing with supervisor Jeffrey, the fact that he had received a prescription for
medical marijuana. 	Canning 	interjected that she had 	made candy containing
marijuana and offered to bring it to Shawn. 	Canning testified that she told the
manager and Shawn that she used the marijuana-laced candy to resolve her
anxiety and that it aided her sleep. 	She offered to bring candy into the workplace
for Shawn. 	Canning testified that "nobody at the time, including the meat manager
or Shawn, said, "No, don't do that. That's against the drug and alcohol policy."
Canning brought the "candy" to the workplace. 	She left the candy in her car
until the end of her shift. 	Canning's shift ended one hour before Shawn's. 	At the
end of her shift, she went to her car to retrieve the candy and gave it to Shawn in
the workplace. 	When Canning returned to work her regularly scheduled shift, she
was sent home, and then was fired the next day for violating the company's drug
and alcohol policy.
Following 	her discharge, 	Canning 	applied 	to the 	Washington 	State
Employment Security Department (Department) for unemployment benefits. 	On
March 	20, 2012, 	the Department issued a 	Determination 	Notice 	denying 	her
request for benefits because she was fired for work misconduct and therefore did
not qualify for benefits. 	The Department concluded that Canning's bringing the
marijuana for someone who claimed to have a medical prescription was an act of
misconduct because she failed to comply with a reasonable rule or direction of her
employer.

No. 70163-1-1/3
Canning, pro se, appealed this determination. 	On April 30, 2012, after a
hearing, 	the 	administrative 	law 	judge 	(ALJ) 	set 	aside 	the 	Department's
determination. 	The 	ALJ's 	decision 	concluded 	that 	Canning 	did 	not 	commit
misconduct, but an error of judgment, and therefore was not disqualified to receive
benefits. 	In conclusion 	of 	law 	5, 	the ALJ 	concluded 	that 	Canning 	was 	not
discharged due to willful or wanton disregard of the employer's interests and that,
because Canning "did not intend to harm the employer and thought it was okay
because 	the 	co-worker 	had 	a 	prescription," 	she 	was 	not 	disqualified 	for
unemployment benefits.
On May 7, 2012, PCC petitioned the commissioner of the Department for
review of the ALJ's decision. 	The commissioner issued an order overturning the
ALJ's decision. 	The commissioner adopted the ALJ's findings of fact, except for
conclusion of law 5 and entered an additional finding, noting that PCC had a drug
and alcohol free workplace policy in its employee handbook that Canning was
given at orientation.2
Canning appealed the commissioner's order to the superior court and the
superior 	court 	reversed 	the 	commissioner, 	finding 	that 	Canning's 	conduct
amounted to a good faith error in judgment and thus, Canning was not disqualified
from receiving benefits. 	The Department now appeals the superior court's order.
ANALYSIS
On an appeal of a final decision by the Employment Security Department
commissioner, this court reviews the decision of the commissioner, rather than the
2 The handbook provided that "PCC staff are not to have alcohol, or illegal or illicit
drugs in their possession while on the premises. . . . Violation of this policy will
result in termination of employment."
3

No. 70163-1-1/4
underlying decision of the ALJ, except to the extent that the commissioner adopts
the ALJ's findings of fact.3 	This court considers a commissioner's decision to be
prima facie correct and the burden of demonstrating the invalidity of the agency
action 	is on the party 	asserting the invalidity.4 	This 	court may 	reverse the
commissioner's decision if it is based on an error of law, substantial evidence does
not support the decision, or it was arbitrary or capricious.5 	Questions of law are
reviewed de novo, with substantial weight given to the agency's interpretation of
the statutes it administers.6 	Findings of fact are reviewed for substantial evidence
in light of the whole record.7
The Employment Security Act exists to provide compensation to individuals
who are "involuntarily] . . . unemployed though no fault of their own."8 	RCW
50.20.066(1) provides: "An individual shall be disqualified from benefits ... [if] he
or she has been discharged or suspended for misconduct connected with his or
her work . . . ." 	The 	statute 	provides a 	non-exclusive list of conduct that
constitutes misconduct. 	RCW 50.04.294 defines "misconduct" as follows:
(1) "Misconduct" includes, but is not limited to, the following
conduct by a claimant:
(a) Willful or wanton disregard of the rights, title, and interests
of the employer or a fellow employee;
(b) Deliberate violations or disregard of standards of behavior
which the employer has the right to expect of an employee;
3 Verizon N.W.. Inc. v. Employment Sec. Dep't, 164 Wn.2d 909, 915, 194 P.3d 255
(2008); Griffith v. State. Dep't of Employ. Sec, 163 Wn. App. 1, 6, 259 P.3d 1111
2011).
4 RCW 34.05.570(1 )(a); Kirbv v. State. Dep't of Employ. Sec, No. 69807-9, 2014
WL 943099 *4 (Wash. Mar. 10, 2014).
5 RCW 34.05.570(3)(d),(e),(i).
6 Everett Concrete Prods. Inc. v. Dep't of Labor & Indus.. 109 Wn.2d 819, 823, 748
P.2d 1112(1988).
7 RCW 34.05.570(3)(e); Smith v. Employment 	Sec Dep't. 155 Wn. App. 24, 32,
226 P.3d 263 (2010).
8 RCW 50.01.010.
4

No. 70163-1-1/5
(c) Carelessness or negligence that causes or would likely
cause serious bodily harm to the employer or a fellow employee; or
(d) Carelessness or negligence of such degree or recurrence
to show an 	intentional or substantial disregard of the employer's
interest.
In addition, certain types of conduct are defined as misconduct per se.9 	Among
these are a "[violation of a company rule if the rule 	is reasonable and if the
claimant knew or should have known of the existence of the rule."10
Canning does not dispute that PCC maintained a policy of no drugs in the
workplace. 	Nor does she dispute that the rule was reasonable and that she was
aware of the rule. 	Instead, she argues that she did not believe she was violating
9 RCW 50.04.294(2) provides:
The 	following 	acts 	are 	considered 	misconduct 	because the 	acts
signify a willful or wanton disregard of the rights, title, and interests of
the employer or a fellow employee. 	These acts include, but are not
limited to:
(a) Insubordination showing a deliberate, willful, or purposeful
refusal 	to follow 	the 	reasonable 	directions 	or 	instructions 	of the
employer;
(b) Repeated inexcusable tardiness following warnings by the
employer;
(c) Dishonesty related to employment, including but not limited
to 	deliberate 	falsification 	of 	company 	records, 	theft, 	deliberate
deception, or lying;
(d) Repeated and inexcusable absences, including absences
for which the employee was able to give advance notice and failed to
do so;
(e) 	Deliberate 	acts 	that 	are 	illegal, 	provoke 	violence 	or
violation 	of laws, 	or 	violate the 	collective 	bargaining 	agreement.
However, an employee who engages in lawful union activity may not
be disqualified due to misconduct;
(f) Violation of a company rule if the rule is reasonable and if
the claimant knew or should have known of the existence of the rule;
or
(g) Violations of law by the claimant while acting within the
scope of employment that substantially affect the 	claimant's job
performance or that substantially harm the employer's ability to do
business.
{Emphasis added.)
10 RCW 50.04.294(2)(f).

No. 70163-1-1/6
the rule and therefore her conduct was nothing more than a good faith error in
judgment and excluded from misconduct under RCW 50.04.294(3).11
The commissioner adopted the ALJ's finding that Canning believed the co
worker's prescription made it legal, but concluded that it was not reasonable for
Canning to believe the co-worker's prescription made it acceptable under the law
and company policy for the co-worker to be in possession of the marijuana-laced
candy.
Our appellate courts have held that an employee acts with willful disregard
of an employer's interest when the employee "(1) is aware 	of his employer's
interest; (2) knows or should have known that certain conduct jeopardizes that
interest; but (3) nonetheless intentionally performs the act, willfully disregarding its
consequences."12 	The fact that Canning acted out of compassion is immaterial.
This is in accord with rules promulgated by the Department. 	WAC 192-150-205
describes "willful" as "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." 	The evidence was 	undisputed that 	Canning 	was aware of the
company's zero tolerance for drugs in the workplace.
11 RCW 50.04.294(3) excludes the following from the definition of "misconduct":
(a) Inefficiency, unsatisfactory conduct, or failure to perform
well as the result of inability or incapacity;
(b) Inadvertence or ordinary negligence in isolated instances;
or
(c) Good faith errors in judgment or discretion.
12 Hamel v. Employment Sec Dep't, 93 Wn. App. 140, 146-47, 966 P.2d 1282
(1998), rev, denied, 137 Wn.2d 1036, 980 P.2d 1283 (1999).
6

No. 70163-1-1/7
Violation of a reasonable policy of the employer is specifically defined in
the statute as misconduct per se. 	The evidence in the record was sufficient to
support 	the 	commissioner's 	conclusion 	that 	Canning 	committed 	misconduct
because she violated a reasonable company rule of which she was aware. 	We
reverse 	and 	remand 	to 	the 	superior 	court 	to 	reinstate 	the 	commissioner's
decision. 	Because Canning 	is not the prevailing party, 	it is unnecessary to
address her request for an award of attorney fees and costs.
WE CONCUR:
^L^Mr