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Keenan v. Washington

filed as corrected.: March 21, 1996.

SHIRLEY D. KEENAN, APPELLANT,
v.
STATE OF WASHINGTON EMPLOYMENT SECURITY DEPARTMENT, RESPONDENT.



Appeal from SUPERIOR COURT GRANT COUNTY. Superior Court No: 94-2-00167-8. Date filed in Superior Court: 11/30/94. Superior Court Judge signing: MICHAEL LEAVITT.

Author: Ray E. Munson, Concurring: Dennis J. Sweeney & John A. Schultheis

Author: Munson

MUNSON, J. --Shirley Keenan appeals from a superior court judgment affirming the Employment Security Department denial of her claim for unemployment benefits. She contends the evidence was insufficient to support a finding she was disqualified by reason of employment-related misconduct and the court should have remanded to permit her to present newly discovered evidence. We affirm.

Ms. Keenan was employed by the Grant County District Court as the court administrator beginning in October 1989. Her relationship with one of the judges began to deteriorate and in November 1991, she filed a complaint against him with the Judicial Conduct Commission. In March 1992, her position was eliminated and she accepted a lesser position as a clerk. In the next year there were allegations of several incidents involving misconduct by Ms. Keenan. In February and again in June 1993, Ms. Keenan's fellow employees signed letters complaining about Ms. Keenan's conduct.

On the morning of July 2, 1993, an incident occurred involving Ms. Keenan and another clerk, Jenny Gunderson. According to Ms. Gunderson, Ms. Keenan was stomping toward her, struck her somewhat forcefully with her shoulder, and kept on going. The force of the blow knocked Ms. Gunderson back into a filing cabinet. Two other clerks saw the incident and confirmed Ms. Gunderson's description. Both indicated Ms. Gunderson was trying to get out of Ms. Keenan's way when she was struck. Ms. Keenan denies the incident occurred.

On July 6, 1993, after the July 4th holiday, Ms. Keenan was notified she was suspended without pay. Her employment was later terminated. Her claim for unemployment compensation was denied. She filed an administrative appeal. After the hearing, the administrative law judge (ALJ) affirmed the denial, finding she had been discharged for willful misconduct. The commissioner of the Employment Security Department affirmed the ALJ's decision.

Ms. Keenan filed an appeal in Grant County Superior Court and moved for a remand based on newly discovered evidence. The newly discovered evidence consisted of two documents. The first was a letter from the Douglas County prosecuting attorney expressing her opinion the evidence was insufficient to prove fourth degree assault beyond a reasonable doubt. The second document was an order of reprimand by the Judicial Conduct Commission, relating to one of her employers, with supporting stipulation of facts and related documents. The court denied the motion for remand and affirmed the denial of benefits.

Ms. Keenan contends the commissioner erred in determining she was disqualified from receiving unemployment benefits because she had been discharged for misconduct and the court should have considered her newly discovered evidence.

An individual who has been suspended or discharged for misconduct connected with work is disqualified from receiving unemployment benefits. Tapper v. Employment Sec. Dep't, 122 Wash. 2d 397, 858 P.2d 494 (1993); RCW 50.20.060. Misconduct is defined by statute as "an employee's act or failure to act in willful disregard of his or her employer's interest where the effect of the employee's act or failure to act is to harm the employer's business." RCW 50.04.293. This statutory definition applies to "separations occurring after July 3, 1993." Laws of 1993, ch. 483, ยง 23.

First, Ms. Keenan argues her claim should be determined under the common law definition of misconduct because the alleged misconduct occurred prior to the effective date of RCW 50.04.293. This argument is contrary to the express terms of the legislation which establishes that the effective date of the statutory definition applies to separations, not misconduct, occurring after July 3, 1993. See Tapper, 122 Wash. 2d at 408 n.7. It is undisputed Ms. Keenan was suspended on July 6, 1993.

Prior to enactment of RCW 50.04.293, the courts employed a test for work-related misconduct expressed in terms of violations of the employer's workplace rule. See Tapper, 122 Wash. 2d at 408. This test is inapplicable here because Ms. Keenan's conduct did not violate a specific rule of the employer. See Lawter v. Employment Sec. ...


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