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Kirby v. Employment Security Department

Court of Appeals of Washington, Division 1

March 10, 2014

Jeff Kirby et al., Appellants,
The Employment Security Department, Respondent

Oral Argument November 18, 2013.

Appeal from King County Superior Court. Docket No: 12-2-15961-1. Date filed: 01/04/2013. Judge signing: Honorable Barbara L Linde.

Aaron V. Rocke and Douglas J. Davis (of Rocke Law Group PLLC ), for appellants.

Robert W. Ferguson, Attorney General, and Jeremy Gelms, Assistant, for respondent.

AUTHOR: C. Kenneth Grosse, J. WE CONCUR: James Verellen, J., J. Robert Leach, C.J.


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Grosse, J.

[179 Wn.App. 837] ¶ 1 When the record supports a finding that an employee was fired for failing to follow the employer's directions but the employer fails to show that the directions were reasonable and that the failure to follow them was deliberate, willful, or purposeful, the employee's conduct does not rise to the level of misconduct disqualifying the employee from receiving unemployment benefits. Here, the commissioner found that the employee acted out of apprehension and confusion, rather than out of a conscious intent to harm the employer when she refused to follow her employer's instructions. Further, the commissioner found that the employer's instructions were not reasonable. Because substantial evidence supports these findings, the trial court properly upheld the commissioner's decision that the employee did not commit misconduct disqualifying her from receiving benefits. Accordingly, we affirm.


¶ 2 Dorothy Thomas worked as a security officer for Puget Sound Security Inc. (PSS) from December 23, 2009 through June 15, 2011. Her position was full time, permanent, and nonunion, and she earned $10.50 per hour. United Parcel Service (UPS) was one of PSS's clients and Thomas was assigned to security detail at a UPS warehouse in Auburn, Washington. At this warehouse, imported products were delivered, unpacked, and repackaged for delivery to local retail stores.

¶ 3 As part of her job, Thomas was required to keep daily logs of her observations and to complete incident reports for any observed safety hazards, criminal activities, or unprofessional conduct by UPS employees. Her immediate supervisor from PSS was Dan Dose, who was on site at the UPS warehouse and to whom she turned in her logs and reports. The logs became the property of UPS and were kept in Dose's office on site at UPS.

¶ 4 Thomas also reported to UPS employee Doug Langston, who was the site supervisor at the Auburn warehouse. [179 Wn.App. 838] Additionally, Thomas often spoke with UPS Human Resources (HR) staff; sometimes Langston asked her to contact HR and other times HR contacted her. According to PSS, both Langston and Dose handled issues documented in incident reports. Matters that could not be resolved at that level were to be sent to Dose's immediate supervisor, PSS Operations Manager Steven Squire. Dose was to send such incident reports to Squire at the PSS office in Bellevue, Washington.

¶ 5 While at the UPS warehouse site, Thomas overheard a UPS employee bragging about possibly stealing some headphones. Thomas wrote up an incident report, which was submitted to Dose and sent to the UPS HR office. The same UPS employee also told Thomas that he could get her fired, that he was a gang member, and that he raised Pit Bulls for gambling. She included this information in an incident report and talked to the employee's manager about it but was told that the employee was just " bull shitting" and it was nothing. Theft of the headphones, however, began to occur and the insurance representative from the headphone company became involved and asked the UPS employees to empty their pockets. Thomas observed that some of the employees were carrying pocket knives in violation of UPS policy. She raised this with Langston and the employees were told not to carry the knives.

¶ 6 Theft of the headphones continued and the insurance company then authorized UPS to use scanners on the employees. But while there were scanners on the premises, Langston would not authorize Thomas to use the scanners on the employees. Dose told Thomas not to write up the employee she

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overheard talking about the possible thefts unless she actually caught him stealing.

¶ 7 Frustrated that nothing was being done to stop the thefts, Thomas then decided to call the UPS 800 number that was posted at the site for UPS employees to report security and other issues. She told a UPS security investigator about the theft and the scanners that were not being [179 Wn.App. 839] used and other problems she had encountered. She also told the UPS investigator that she did not want to be fired for reporting the employee and he told her she would not be fired. Shortly after she made the call, the scanners were put to use and the thefts ceased.

¶ 8 Thomas also reported other incidents to Langston and Dose, such as when an employee brought a weapon to work. Additionally, in early June 2011, Thomas reported to Langston and Dose that some employees told her about drug activity involving other employees that was occurring in the parking lot. She also reported that she smelled marijuana on some employees when they went through the scanner. Langston had UPS HR call Thomas about this and she told HR what she knew and suggested that the police be called to bring a drug sniffing dog to the work site. Dose told her she should not get involved because it would be her word against the employees'.

¶ 9 On June 8, 2011, Langston called Squire (Dose's supervisor) and complained that Thomas had called the employee 800 number and reported to UPS corporate headquarters about an alleged theft ring and management cover up at the Auburn warehouse. Langston was upset because the employee 800 number was not part of the chain of command under UPS's contract with PSS and Thomas's actions were outside of that contract. He asked that Thomas not continue to work at the UPS warehouse.

¶ 10 This was the first Squire had heard of the alleged theft ring. Apparently, Dose had not forwarded to Squire Thomas's incident reports about it. Squire then reported the call to PSS Chief Executive Officer (CEO) George Schaeffer, and Schaeffer contacted Langston. Langston recounted to Schaeffer several reports Thomas made to him and HR alleging harassment, concealed weapons, and gambling that UPS had determined unfounded. Langston said that " the final straw" was when a corporate security investigator came out from Arizona after Thomas called the employee 800 number about the alleged theft ring.

[179 Wn.App. 840] ¶ 11 Schaeffer assured UPS management that Thomas would be removed from the warehouse site as requested. He also told Langston that PSS would get an incident report about her allegations and do a complete investigation into them. That way, PSS could provide UPS with specifics so UPS could further investigate the allegations.

¶ 12 Squire then called Thomas at home that evening and told her he was removing her from the UPS warehouse site because of the call from Langston. When Thomas began to tell him what had been happening at the warehouse, Squire told her to write an incident report about it and come in on June 10, 2011 to discuss it with him and William Cottringer, the Executive Vice President for Employee Relations. Squire did not ...

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