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Wilson v. Employment Security Department

May 12, 1997

FREDERICK WILSON, APPELLANT,
v.
EMPLOYMENT SECURITY DEPARTMENT OF THE STATE OF WASHINGTON, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 95-2-17367-5. Date filed: 02/02/96.

Order Granting Motion to Publish July 15, 1997.

Authored by Ann L. Ellington. Concurring: Walter E. Webster, William W. Baker.

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- Frederick Wilson was manager of a jewelry store. He was discharged for losing diamonds from the store's inventory. At issue is whether the Commissioner of the Employment Security Department ("the Commissioner") erred by denying unemployment benefits on the ground that the discharge was for misconduct connected with Wilson's work. We find that the acts of negligence upon which Wilson's dismissal was based do not constitute willful disregard of his employer's interest and we reverse the denial of benefits.

FACTS

For about a year and a half prior to his discharge, Frederick Wilson managed a jewelry store owned by Sterling, Inc. Wilson had 17 years' experience in retail jewelry management.

Two incidents led to Wilson's discharge, although it appears from the record that his dismissal was based to a greater degree on the second incident. The first incident occurred in August, 1994, after Wilson had received five loose diamonds from a vendor. Upon receipt of the diamonds, Wilson failed to log them into his stock and failed to perform a daily diamond count. Because of this, one of the diamonds, valued at over $900, was lost. In a written statement, Wilson said:

I am not aware of what has happened to this stone, but am aware this would not have happened if the diamonds had been logged and properly counted. I realize that by my above described actions, I have violated company policy in that I was negligent in my handling of loose diamonds from a vendor.

The second incident occurred on February 3, 1995. On that date, a fellow employee gave Wilson a loose diamond valued at $490. The diamond was in a clear plastic bag. Wilson placed the bag on his desk. At the time, there were several empty clear plastic bags lying on his desk. Later, Wilson cleared his desk of the plastic bags and, in so doing, threw away the bag containing the diamond. In his written statement, Wilson states that at the time he placed the bag containing the diamond on his desk, he realized that "the diamond should have gone into the safe, but it did not." Wilson also stated: "I realize that by my above described actions, I have violated company policy and that I was negligent in my handling of this loose diamond."

Wilson was terminated from his employment on March 7, 1995, soon after the second incident, and applied for unemployment benefits. Benefits were allowed on the ground that Wilson's actions were not deliberate and thus misconduct was not established. The employer appealed. After a hearing, the administrative law Judge denied benefits on the ground that Wilson's actions leading to his discharge amounted to misconduct under RCW 50.20.060. Wilson petitioned for review, asserting that he did not intentionally lose the diamonds, but rather "simply made a mistake." The Commissioner adopted the administrative law Judge's findings of fact and Conclusions of law and affirmed the denial of benefits on the ground that Wilson was discharged for misconduct and thus was ineligible for benefits. Wilson appealed to superior court, which affirmed, finding that "claimant's conduct presented in the record rises to the level of disqualifying misconduct as defined by RCW 50.04.293 and [claimant] is thus disqualified from benefits pursuant to RCW 50.20.060."

Discussion

In reviewing an administrative decision, the appellate court stands in the same position as the superior court. Penick v. Employment Security Dep't, 82 Wash. App. 30, 37, 917 P.2d 136, review denied, 130 Wash. 2d 1004, 925 P.2d 989 (1996). Thus, we apply the appropriate standard of review directly to the administrative record. Snohomish County v. State, 69 Wash. App. 655, 664, 850 P.2d 546 (1993), review denied, 123 Wash. 2d 1003, 868 P.2d 871 (1994).

Relief from an agency order in an adjudicative proceeding will be granted if, inter alia, the agency has erroneously interpreted or applied the law, RCW 34.05.570(3)(d); the order is not supported by substantial evidence, RCW 34.05.570(3)(e); or the order is arbitrary or capricious, RCW 34.05.570(3)(i). Thus, factual findings are reviewed under the substantial evidence standard, under which there must be a sufficient quantum of evidence in the record to persuade a reasonable person that the declared premise is true. Penick v. Employment Security Dep't, 82 Wash. App. at 37.

Conclusions of law are reviewed under the error of law standard. We give great deference to the Commissioner's factual findings and substantial weight to the agency's ...


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