Jeff Kirby & Puget Sound Security Patrol, Inc., Apps. v. Dept. Of Employment Security, Resps. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JEFF KIRBY and PUGET SOUND No. 70738-8-1
SECURITY PATROL, INC.,
DIVISION ONE
Appellants,
WASHINGTON STATE DEPARTMENT UNPUBLISHED
OF EMPLOYMENT SECURITY,
FILED: December 22, 2014
Respondent.
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 award to Sarah Black of unemployment compensation benefits following her
discharge by Puget Sound Security Patrol (PSSP) for a post she made on
Facebook. The superior court affirmed. Because PSSP fails in its burden to
show that the Commissioner's action was invalid, we affirm.
The material facts are established by the findings of fact. Black worked as
a full-time, permanent, nonunion security officer for PSSP from December 2010
to February 2012. She worked the graveyard shift at the Tacoma Public Utilities
(TPU) building. In the course of her duties, Black routinely interacted with a wide
range of people, including police officers.
1 RCW 50.20.066(1).
No. 70738-8-1/2
In February 2012, Black "posted" the following message on Facebook:
u kno wat, I do not give a f[***] about a police officer that got shot, if
they quit fu[*]kin wit ppl, ppl prolly quit shootin em all the goddamn
time karmas a bitch[2]
"Generally speaking, a post from an individual's profile will appear in
another user's news feed if that user has connected with the individual on
Facebook by creating a 'friend' relationship, generally referred to as 'friending'
another user."3 The words "post," "friend," and "friending" used in this context
merely refer to individuals communicating with those listed on a social networking
website and does not, necessarily, imply any more significant relationship
between those individuals.
Black posted this message on Facebook while she was at home, not on
duty. She had set her Facebook privacy level so that her posts were only
accessible to the approximately 100 people designated as her "friends" on
Facebook. Members of the public and others not listed as "friends" could not
view her posts.
One of Black's Facebook "friends," a TPU employee, disagreed with the
post but did not tell Black that he was going to tell anyone else about it. He sent
a copy of the message to TPU's customer service department who then notified
Black's supervisor. Black's supervisor notified PSSP's CEO and Executive Vice
President for Employee Relations.
2 Administrative Record at 306.
3Andy Taylor, Friending and Following: Applying the Rules of Professional
Conduct to Social Media, 34 U. Ark. Little Rock L. Rev. 551, 556 (2012).
No. 70738-8-1/3
When confronted, Black told her supervisor that she had the right to
express an opinion when she was not at work and that her Facebook settings
were private. PSSP did not then have any specific social media policies or
guidelines with respect to Facebook or other social media sites. And the
company had not given Black or other employees instructions regarding
communications on such channels of communication. PSSP discharged Black.
Black applied for, and received, unemployment compensation benefits.
The Employment Security Department determined that there was no disqualifying
misconduct by Black.
PSSP appealed, and an administrative law judge (ALJ) entered an order
affirming the Department's decision. PSSP petitioned the Department's
Commissioner for review. The Commissioner adopted the ALJ's findings of fact
and conclusions of law and affirmed the initial order.
PSSP appealed to King County Superior Court. The court affirmed the
Commissioner's decision and denied PSSP's motion for reconsideration.
PSSP appeals.
DISQUALIFYING MISCONDUCT
PSSP argues that the Commissioner erred in concluding that Black did not
commit disqualifying misconduct. We hold that PSSP fails in its burden to show
that the Commissioner's action was invalid.
The Employment Security Act exists to provide compensation to
individuals who are involuntarily unemployed "through no fault of their own."4 An
4 RCW 50.01.010.
No. 70738-8-1/4
individual is disqualified from receiving unemployment benefits if he or she is
discharged "for misconduct connected with his or her work."5
Judicial review of a decision made by the Commissioner of the
Employment Security Department is governed by the Washington Administrative
Procedure Act (WAPA).6 This court sits in the same position as the superior
court and applies the standards of WAPA directly to the administrative record
before the agency.7 This court reviews the Commissioner's decision.8
The Commissioner's decision is prima facie correct.9 The party
challenging the agency's action bears the burden of demonstrating its invalidity.10
Relief from an agency decision is granted if the reviewing court determines that
the Commissioner erroneously interpreted or applied the law, the order is not
supported by substantial evidence, or the order is arbitrary or capricious.11
This court reviews findings of fact to determine whether they are
supported by substantial evidence.12 An appellate court views the evidence and
5 RCW 50.20.066(1).
e Tapper v. Emp't Sec. Dep't. 122 Wash. 2d 397, 402, 858 P.2d 494 (1993).
7kL
s Verizon Nw.. Inc. v. Emp't Sec. Dep't, 164 Wash. 2d 909, 915, 194 P.3d
255 (2008).
9 RCW 50.32.150.
10 Id; RCW 34.05.570(1 )(a).
11 RCW 34.05.570(3)(d), (e), (i).
12 Barker v. Emp't Sec. Dep't, 127 Wash. App. 588, 592, 112P.3d536
(2005).
4
No. 70738-8-1/5
reasonable inferences therefrom in the light most favorable to the party who
prevailed at the administrative proceeding below.13 Unchallenged findings are
verities on appeal.14
The application of law to the facts is a question of law that this court
reviews de novo.15 This court gives substantial weight to the agency's
interpretation of the statutes it administers.16
Whether a claimant engaged in misconduct connected with work is a
mixed question of law and fact.17 Accordingly, this court determines the law
independently and then applies the law to the facts as found by the agency.18
Work-Connected
PSSP argues that the Commissioner erred when it concluded that Black's
conduct was not connected to work. We disagree.
Whether off-duty conduct is work-connected for purposes of qualifying for
unemployment compensation benefits was first addressed by the supreme court
13 William Dickson Co. v. Puget Sound Air Pollution Control Agency. 81
Wash. App. 403, 411, 914 P.2d 750 (1996).
14 Fuller v. Emp't Sec. Dep't, 52 Wash. App. 603, 605, 762 P.2d 367 (1988).
15 Terry v. Emp't Sec. Dep't, 82 Wash. App. 745, 748-49, 919 P.2d 111
(1996).
16 Smith v. Emp't Sec. Dep't, 155 Wash. App. 24, 32, 226 P.3d 263 (2010).
17 Tapper, 122 Wash. 2d at 402.
18 Hamel v. Emp't Sec. Dep't, 93 Wash. App. 140, 145, 966 P.2d 1282
(1998), review denied. 137 Wash. 2d 1036 (1999).
No. 70738-8-1/6
in Nelson v. Department of Employment Security.19 There, the claimant was a
cashier for a publishing company.20 She notified her supervisor that she recently
had been arrested for shoplifting.21 The crime occurred off her employer's
premises and after working hours.22 Nothing during her appearance in court or at
the time of her arrest identified her employer.23 She pled guilty to the charge and
the court imposed a $50 fine, a 10-day suspended jail sentence, and a 3-month
deferred sentence.24
Her employer discharged her based on concern about her trustworthiness
in handling cash and a fear her conviction would adversely affect her relationship
with other employees of the publishing company.25 The court noted that she did
not contest the propriety of her discharge.26
The supreme court concluded that the claimant in Nelson was entitled to
unemployment compensation benefits.27 In doing so, the supreme court adopted
19 98 Wash. 2d 370, 372, 655 P.2d 242 (1982).
20 ]d at 371.
21 id
22 id
23 \±
24 id
25 Id at 371-72.
26 id at 372.
27 Id. at 375.
No. 70738-8-1/7
a three part test in order to establish misconduct connected with an employee's
work.28 Specifically, the employer must show by a preponderance of the
evidence that a reasonable person would find the employee's conduct: "(1) had
some nexus with the employee's work; (2) resulted in some harm to the
employer's interest; and (3) was in fact conduct which was (a) violative of some
code of behavior contracted for between employer and employee, and (b) done
with intent or knowledge that the employer's interest would suffer."29
For the third element, the court held that the conduct cannot be impliedly
contracted between employer and employee. Rather, it "must be the subject of a
contractual agreement between employer and employee" though it need not be a
formal written contract.30 It "may be reasonable rules and regulations of the
employer ofwhich the employee has knowledge and is expected to follow."31 In
so holding, the court expressly rejected as far too broad this court's formulation
of the rule, prior to review by the supreme court in that case, that violation of a
code of behavior impliedly contracted was sufficient.32 Rather, it at least
requires a reasonable rule or regulation known to the employee.33
28
id at 373-75.
29
id at 375.
30
id. at 374.
31
id
32
id
33
Id.
No. 70738-8-1/8
Importantly, the question before this court is not whether Black should
have been terminated from her job. Rather, the question is whether the
Commissioner properly concluded that Black was eligible to receive
unemployment compensation benefits under the Employment Security Act.34
As counsel for the Department conceded during oral argument at the
superior court when asked whether Black's post was defensible:
[DEPARTMENT COUNSEL]: No, Your Honor. And I agree,
it was offensive and despicable. The problem is, it wasn't
sufficiently connected with her work to constitute misconduct that
should disqualify her from receiving unemployment benefits. And
as Your Honor has correctly indicated, the question isn't: Did this
employer have the right to fire her? Absolutely, they did. The
question is: Did they fire her for misconduct as it's defined by the
Employment Security Act such that she should not get
unemployment benefits? And the statute for misconduct says
you're disqualified if you're discharged for misconduct that's
connected with your work. And that's also what it says in the
Department's regulations.t35]
Here, adopted findings of fact 3, 4, 5, and 8 establish the factual basis to
determine whether Black's post was work-connected.
In finding of fact 3, the Commissioner found, in relevant part, that "[Black]
posted the message from home, when she was not on duty."36 PSSP challenges
this finding, but it is supported by substantial evidence. Black testified that she
was at home and not at work when she made the post.37
34 See Tapper, 122 Wash. 2d at 412; Johnson v. Emp't Sec. Dep't, 64 Wn.
App. 311, 314-15, 824 P.2d 505 (1992).
35 Report of Proceedings (June 25, 2013) at 16 (emphasis added).
36 Administrative Record at 306.
37 Id. at 133, see also 235.
8
No. 70738-8-1/9
In finding of fact 4, the Commissioner found, in relevant part, that Black
"had set her Facebook privacy level so that her. . . postings were only accessible
to the approximately 100 people designated as her friends on Facebook.
Members of the public and others not listed as friends could not view her
[post]."38 PSSP does not challenge this finding, and thus, it is a verity on appeal.
In finding of fact 5, the Commissioner found, in relevant part:
[Black's] message was an expression of a personal opinion that did
not include any reference to [PSSP], to [TPU], or to her job as a
security officer. She did not intend to communicate her opinion to
[PSSP], to [TPU], or to anyone not on her list of friends. The
person who reported her message to [TPU] had disagreed with
[Black] in a blog posting but had not told [Black] that he was going
to tell anyone else about it.[39]
PSSP challenges this finding, but it, too, is supported by substantial
evidence. Black testified that she made the post because it was her "personal
feelings upon reading the news that day."40 She further testified, "I didn't say
anything about work or co-workers or clients or the company. My post had
absolutely nothing to do with my job."41 Additionally, she testified that she did not
intend to cause any harm or embarrassment to PSSP. And she testified that she
did not expect that the post would be known to PSSP. Moreover, the privacy
38 id at 306.
39 id
40idat132.
41 Id. at 133.
No. 70738-8-1/10
settings on Facebook and the undisclosed intent of one of the limited "friends" to
forward the post, with which he disagreed, amply support this finding.
In finding of fact 8, the Commissioner found, in relevant part: "[PSSP] did
not have any specific social media policies or guidelines and had not given
[Black] and other employees instructions with respect to communications on
Facebook or similar channels of communication."42 PSSP does not challenge
this finding, and thus, it is also a verity on appeal.
Based on the above findings, the Commissioner affirmed Conclusion 10 of
the ALJ's order, which stated in relevant part:
10. Based on the above findings and pursuant to the above
referenced authority, [PSSP] has not met its burden of proof with
respect to misconduct. There is no evidence of a nexus between
[Black's] blog post and her work. It was sent from her home
when she was not at work. It made no reference to [PSSP], to
TPU, to her job, or to her position as a security officer.. . . [Black]
sent the message only to the individuals who were within the
privacy settings she had established in Facebook. She did not
intend to send the message to [PSSP] or to others. Further, none
of [PSSP's] general policies, rules, or instructions addressed social
media communications in any way, and the policies, rules, and
instructions that were in place were very general and for the most
part specifically govern conduct at the workplace or on the job. . . .
[Black's] actions therefore do not violate a code of behavior
contracted for between [PSSP] and [Black]. [PSSP] made
numerous arguments for why [Black's] behavior impliedly violated
their general policies, but implied behavior is not the standard that
must be applied. Accordingly, [Black] is not subject to
disqualification under RCW 50.20.066J43'
42 id at 307.
43 ]d at 310 (emphasis added).
10
No. 70738-8-1/11
First, consistent with the directive of Nelson, the Commissioner properly
concluded that there was "no evidence of a nexus between [Black's] [post] and
her work."44 The Commissioner affirmed the factual determination of the ALJ that
the post was made while Black was at home and not on duty, and the post made
no reference to PSSP, to TPU, or to Black's job or to her position of a security
officer. Further, Black made the post on her private Facebook page, which was
accessible only to her "friends." Consequently, PSSP fails to establish that the
first Nelson element is met—that the conduct had some nexus with Black's work.
Second, again consistent with Nelson, the Commissioner properly
concluded that Black did "not violate a code of behavior contracted for between
[PSSP] and [Black]."45 The Commissioner affirmed the factual determination of
the ALJ that there was no policy of the company that dealt with posts on
Facebook or other social media sites. And the company did not direct its
employees in any respect with respect to communication using these media until
after Black's discharge. Thus, PSSP fails to establish that the first requirement of
the third Nelson element is met—that the conduct was "violative of some code of
behavior contracted for between employer and employee."46
Further, the Commissioner also properly concluded that Black "did not
intend to send the message to [PSSP] or to others."47 In fact, the Commissioner
44 ]d
45 id
46 See Nelson, 98 Wash. 2d at 375.
47 Administrative Record at 310.
11
No. 70738-8-1/12
expressly found that Black "did not intend to communicate her opinion to [PSSP],
to [TPU], or to anyone not on her list of friends" and that Black's post was "an
expression of personal opinion."48 Accordingly, PSSP also fails to establish that
the other requirement of the third Nelson element is met—that the conduct was
"done with intent or knowledge that the employer's interest would suffer."49
In sum, PSSP failed to establish the first and third required Nelson
elements. The Commissioner, whose decision is prima facie correct, properly
concluded that that Black's post on Facebook was not work-connected.
PSSP makes several arguments that Black's conduct was work-
connected. None are persuasive.
First, PSSP claims that the Commissioner erred in finding insufficient
nexus, because "[cjonduct is connected with one's work if it 'results in harm or
creates the potential for harm to [PSSP's] interest.'"50 For this, it relies on WAC
192-150-200(2). But in doing so, it misreads and misapplies both Nelson and
this administrative regulation. Under Nelson, the first of several elements of the
test to determine whether conduct is work-connected is that there be "some
nexus with the employee's work."51 The second, separate element is that the
48 id at 306.
49 See Nelson, 98 Wash. 2d at 375.
50 Brief of Appellant at 29 (emphasis omitted) (quoting WAC 192-150-
200(2)).
51 Nelson, 98 Wash. 2d at 375.
12
No. 70738-8-1/13
conduct "resulted in some harm to the employer's interest."52 PSSP
impermissibly merges these separate elements—nexus and harm—in its
argument.
PSSP also relies on the same administrative regulation to argue that harm
to the employer can include the potential for harm. Thus, it argues that it was an
error of law to require evidence of "specific harm." With this argument, PSSP
refers to a portion of Conclusion 10 where the Commissioner concluded, "While
the offensive content of the [post] had the potential to harm [PSSP's] relationship
with it's [sic] client, there is no evidence of specific harm here as [PSSP]
immediately discharged [Black]."53
As the Department correctly concedes, this portion of Conclusion 10 was
erroneous. WAC 192-150-200(2) provides that "the action or behavior is
connected with [a person's] work if it results in harm or creates the potential for
harm to [the] employer's interests."54 And here, as the Commissioner properly
concluded, there was the potential for harm to PSSP. Thus, the second Nelson
element—harm to the employer—is satisfied. Nevertheless, this error is not
material, because it relates only to the second Nelson element. And as already
discussed, PSSP fails to establish both the first and third Nelson elements.
52 id
53 Administrative Record at 310.
54 (Emphasis added.)
13
No. 70738-8-1/14
Next, PSSP argues that Black "violated a company rule requiring courtesy,
and the policies requiring positive relationships with law enforcement."55 And it
asserts that Black "knew about the rule requiring professionalism, courtesy, and
respect."56 In support, it points to policies detailing TPU's ethical conduct
requirements, general workplace policy, and TPU's policies about
professionalism. But PSSP fails to explain how the rule requiring
"professionalism, courtesy, and respect" reasonably extends to off-duty, off-site,
social media posts. As already discussed, implied behavior is not the standard.
PSSP relies on WAC 192-150-210(4), which states that "[a] company rule
is reasonable if it is related to [the person's] job duties, is a normal business
requirement or practice for [the] occupation or industry, or is required by law or
regulation."57 And it argues that the rule requiring professionalism, courtesy and
respect "reasonably related to [Black's] job duties because the client whom she
was assigned to protect included law enforcement and because a security
guard's relationship with law enforcement is so important."58 But the
Commissioner did not make any findings to support this assertion, and PSSP
fails to persuasively explain how this rule is related to Black's job duties under
these facts.
55 Brief of Appellant at 27.
56 id at 28.
57 WAC 192-150-210(4).
58 Brief of Appellant at 28.
14
No. 70738-8-1/15
PSSP also argues that the following portion of Conclusion 10 is arbitrary
and capricious: "The fact that [PSSP] deemed it necessary to tell [Black's] co
workers after she was discharged that nothing they said on Facebook should be
considered private shows that this was not a rule or instruction that had been
contracted for with employees prior to her discharge."59 But even if we were to
disregard this portion of the court's conclusion, it does not materially affect the
outcome, because as just discussed, PSSP still fails to show that Black violated
an existing code of behavior or a reasonable rule. Likewise, it is clear that if such
a policy did not exist, Black could not have known of it. PSSP's suggestions to
the contrary are wholly unpersuasive and we reject them.
PSSP next argues that the "law governing employment benefits does not
require a specific intent to harm."60 PSSP is again wrong. Nelson remains the
focus of our examination. And the third element to show that the conduct is
work-connected is that the conduct is "done with intent or knowledge that the
employer's interest would suffer'™ Thus, the plain words of the element
refute this argument.
PSSP relies on Griffith v. State Department of Employment Security and
Hamel v. Employment Security Department to support this argument.62 But
59 Reply Brief of Appellant at 12 (citing Administrative Record at 310).
60 Brief of Appellant at 32.
61 Nelson, 98 Wash. 2d at 375 (emphasis added).
62 Brief of Appellant at 32 (citing Griffith v. Emp't Sec. Dep't, 163 Wn. App.
1,259P.3d 1111 (2011): Hamel, 93 Wash. App. 140).
15
No. 70738-8-1/16
PSSP's reliance on these cases is misplaced. Neither of these cases conducted
an analysis of work-connected misconduct under Nelson. And the third Nelson
element requires the employer to show that the employee's conduct was "done
with intent or knowledge that the employer's interest would suffer."63 Thus, while
specific intent to harm may not be relevant to the statutory definitions of
misconduct, it is relevant under Nelson.
PSSP also argues that findings of fact 4 and 5 conflict. It alleges that the
fact that one of Black's Facebook friends, a TPU employee, saw the post,
contradicts the fact that Black did not intend to communicate her opinion to TPU.
But these findings do not necessarily conflict. Black could intend to communicate
the post to her Facebook friends and not intend for her Facebook friends to
communicate the post to TPU. The fact that one of her Facebook friends was a
TPU employee does not mean Black intended for that friend to communicate the
post to his employer.
Finally, for the first time in its reply brief, PSSP argues that the
Department's regulation, WAC 192-150-200, "replaces or refines the Nelson
test." This argument is untenable.
WAC 192-150-200(2) provides that an action or behavior is connected
with work "if it results in harm or creates the potential for harm to [the] employer's
interests." Thus, PSSP appears to argue that the first and third Nelson elements
are no longer part of the test. This reading is unpersuasive.
63 Nelson, 98 Wash. 2d at 375.
16
No. 70738-8-1/17
As the Department correctly argued at oral argument of this case, the
three elements of Nelson remain the law. The mere establishment of either harm
or potential for harm is insufficient to satisfy the other two elements of the Nelson
test. Any other reading conflicts with Nelson, which remains the law of this state.
To summarize, because PSSP failed to establish the first and third Nelson
elements, the Commissioner properly concluded that Black's conduct was not
work-connected. Based on this threshold determination, the question of whether
the Facebook post constituted statutory misconduct is not material to the
outcome.
Misconduct
PSSP next argues in its briefing that the Commissioner erred when it
concluded that Black did not commit misconduct. It contends that Black
committed statutory misconduct under RCW 50.04.294. But at oral argument,
PSSP appeared to concede that misconduct would not be material to the
outcome of this case if it failed to establish that the conduct here was work-
connected. Nevertheless, we reach the issue of misconduct to be clear and
complete in this case.
RCW 50.04.294(1) provides a non-exhaustive list of "misconduct":
(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;
(c) Carelessness or negligence that causes or would likely cause
serious bodily harm to the employer or fellow employee; or
17
No. 70738-8-1/18
(d) Carelessness or negligence of such degree or recurrence to
show an intentional or substantial disregard of the employer's
interest.
Subsection (2) provides that certain acts 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."64 Among those is (2)(f), which is 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."65
PSSP only places in issue in its briefing on appeal subsections (1)(b),
(1)(d), and (2)(f) of the above statute.
RCW 50.04.294(1)(b)
First, PSSP argues that Black's conduct met the statutory definition of
misconduct under subsection (1)(b). Under this subsection, misconduct may
include "[deliberate violations or disregard of standards of behavior which the
employer has the right to expect of an employee."66
As the Department points out, PSSP has a right to expect professionalism
and courtesy at the workplace. But PSSP does not explain why it has a right to
expect these standards of behavior when the employee is off-site and off-duty.
And PSSP fails to provide any support for this argument. Accordingly, it fails to
show misconduct under this subsection.
64 RCW 50.04.294(2).
65 RCW 50.04.294(2)(f).
66 RCW 50.04.294(1 )(b).
18
No. 70738-8-1/19
PSSP cites RCW 18.170.170 and RCW 18.235.130(4), which provide
examples of "unprofessional conduct." PSSP cites to one subsection in
particular, which states that "[incompetence, negligence, or malpractice that
results in harm or damage to another or that creates an unreasonable risk of
harm or damage to another" constitutes unprofessional conduct.67 But it is not
clear how these statutes, which provide examples of "unprofessional conduct,"
relate to the inquiry before this court, whether the conduct was unprofessional
misconduct. More importantly, PSSP fails to explain how Black's conduct was
deliberate or created an "unreasonable risk of harm or damage to another." For
these reasons, reliance on these statutes is not helpful.
RCW 50.04.294(1)(d)
Second, PSSP argues that Black's conduct met the statutory definition of
misconduct under subsection (1)(d). Under this subsection, misconduct may
include "[cjarelessness or negligence of such degree or recurrence to show an
intentional or substantial disregard of the employer's interest."68 "'Carelessness'
and 'negligence' mean failure to exercise the care that a reasonably prudent
person usually exercises."69 These are not established on this record.
While Black's post was contrary to PSSP's interests, PSSP fails to
articulate how it was an "intentional or substantial disregard" of its interests. In
67 RCW 18.235.130(4).
68 RCW 50.04.294(1 )(d).
69 WAC 192-150-205(3).
19
No. 70738-8-1/20
fact, the Commissioner found that Black "did not intend to communicate her
opinion to [PSSP], to [TPU] or to anyone not on her list of friends."70
Further, as the court also found, Black had set her Facebook privacy level
so that her post was accessible only to the approximately 100 people designated
as her friends. Members of the public and others could not view the post. And
Black did not refer to her employer, to TPU, or to her job as a security officer.
PSSP fails to explain how, in light of these facts, Black did not exercise the care
that a reasonably prudent person exercises.
PSSP points out that Black's post was visible to a TPU employee and
argues that the post "caused embarrassment and damage to the business
relationship."71 But even if the post caused embarrassment and damage, PSSP
fails to establish that Black's conduct was intentional or in substantial disregard
to PSSP's interests. Thus, PSSP also fails to show misconduct under this
subsection.
RCW'50.04.294(2)(f)
Third, PSSP argues that Black's conduct met the statutory definition of
misconduct under subsection (2)(f). Under this subsection, misconduct may
include "[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."72
70 Administrative Record at 306.
71 Brief of Appellant at 29.
72 RCW 50.04.294(2)(f).
20
No. 70738-8-1/21
Black did not commit disqualifying misconduct under this subsection for
the same reasons that the court properly concluded that the third Nelson element
was not met. Specifically, unchallenged finding of fact 8 establishes that Black
did not violate any company rule related to social media posts. Further, PSSP
fails to show how the policies and rules requiring professionalism, courtesy, and
respect reasonably extend to off-site, off-duty social media posts.
In sum, PSSP fails to show that Black committed misconduct.
PSSP relies on Smith v. Employment Security Department.73 It appears to
argue that Black can commit misconduct in ways other than by violating a
specific policy. In Smith, Division Two concluded that even if there had not been
substantial evidence that David Smith was aware of the county policy that he
violated to support misconduct under (2)(f), he nonetheless committed
misconduct under (1)(d). We note that PSSP fails to establish misconduct under
any statutory subsections relevant to this case. Thus, this case is not helpful.
In its reply brief, PSSP asserts for the first time that other jurisdictions
have denied benefits in similar circumstances.74 We do not generally address
arguments raised for the first time in a reply brief.75 And PSSP fails to articulate
why we should do so in this case. In any event, extra-jurisdictional cases are not
73 Brief of Appellant at 35-36 (citing Smith, 155 Wash. App. at 35-36).
74 Reply Brief of Appellant at 6-7 (citing Guevarra v. Seton Med. Ctr.. 2013
WL 6235352 (N.D. Cal. 2013)).
75 Cowiche Canyon Conservancy v. Boslev, 118 Wash. 2d 801, 809, 828
P.2d 549 (1992)).
21
No. 70738-8-1/22
helpful to the inquiry before this court—whether Black's conduct meets
Washington's statutory definition of misconduct.
EVIDENTIARY RULING
PSSP argues that it was deprived of its due process right to cross-
examine Black. We hold there was no abuse of discretion in the evidentiary
ruling limiting the scope of cross-examination.
PSSP fails to provide any authority to support the proposition that this
evidentiary decision rises to the constitutional magnitude of due process. In the
absence of such authority we assume there is none.
Decisions regarding the scope of cross-examination are normally
evidentiary rulings left to the sound discretion ofthe trial court.76 Atrial court
abuses its discretion when its decision is unreasonable or based on untenable
grounds.77
Here, the Commissioner properly concluded that the ALJ properly
sustained objections, based on relevancy on cross-examination questions about
the history of Facebook's privacy settings and the dissemination of information
on the Internet. The ALJ noted that Black testified that her Facebook privacy
settings were limited to her friends and there was no evidence that the
information came to anyone's attention other than through one of Black's
Facebook friends. Accordingly, the ALJ stated, there was "no basis for this
76 Falkv.KeeneCorp., 53 Wash. App. 238, 247, 767 P.2d 576 (1989).
77 id
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broad, somewhat academic discussion of the functioning of the Internet."78 For
the reasons identified by the ALJ, this was a proper exercise of discretion.
Arguments to the contrary have no basis.
PSSP relies on Baxter v. Jones.79 But in Baxter, the court terminated the
trial and gave a ruling before the cross examination had been completed.80 It is
easily distinguishable from this case, where the court properly sustained
objections to a broad line of questioning during cross-examination, which
exceeded the scope of direct examination. Thus, reliance on Baxter is
misplaced.
We affirm the superior court's decision affirming the Commissioner's
decision and denying PSSP's motion for reconsideration.
&*,T.
WE CONCUR:
.l~JkJ.
78 Administrative Record at 141.
79 Brief of Appellant at 37-38 (citing Baxter v. Jones, 34 Wash. App. 1, 3, 658
P.2d 1274(1983)).
80 Baxter, 34 Wash. App. at 3.
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