Martin L. Michaelson , Respondent ,
The Employment Security Department , Appellant
As amended by order of the Court of Appeals May 26, 2015.
Appeal from Pierce County Superior Court. Docket No: 13-2-11121-2. Judge signing: Honorable Ronald E Culpepper. Judgment or order under review. Date filed: 02/11/2014.
Robert W. Ferguson, Attorney General, and Dionne M. Padilla-Huddleston, Assistant, for appellant.
Nigel S. Malden (of Nigel Malden Law ), for respondent.
Authored by Stephen M. Brown. Concurring: Laurel H. Siddoway, George B. Fearing.
Stephen M. Brown, J.
[187 Wn.App. 295] [As amended by order of the Court of Appeals May 26, 2015.]
[¶ 1] Martin Michaelson successfully appealed to the Pierce County Superior Court to review the Employment [187 Wn.App. 296] Security Department's commissioner's decision affirming an order denying him unemployment benefits. We, like the superior court, review the commissioner's ruling that adopted the findings of fact and conclusions of law of the administrative law judge (ALJ). First, Mr. Michaelson contends the commissioner erred in finding his employment was justifiably terminated after he was involved in three chargeable accidents within a year while driving trucks for Food Services of America (FSA). Second, he contends the commissioner erred in concluding his behavior was misconduct disqualifying him from unemployment benefits. Mr. Michaelson argues he was merely negligent in one accident and not at fault in two accidents, and thus no misconduct occurred.
[¶ 2] We disagree with Mr. Michaelson's first contention because FSA followed its progressive discipline policy, but we agree with his second argument. We hold the commissioner erred in concluding his negligent behavior in the last year of his 10-year employment was disqualifying misconduct because the record lacks evidence his behavior was of " such degree or recurrence to show an intentional or substantial disregard of [FSA's] interest." RCW 50.04.294(1)(d). Accordingly, we, like the superior court, reverse the commissioner's decision denying unemployment benefits and award attorney fees to Mr. Michaelson under RCW 50.32.160.
[¶ 3] Mr. Michaelson was a delivery driver for FSA from August 2003 through March 2013. He received FSA's handbook detailing corporate policy when he was hired. FSA follows a progressive disciplinary policy where a written warning is issued for the first chargeable incident, followed by another written warning and suspension for the second chargeable incident, then termination for the third chargeable incident occurring within a 12-month period. A " chargeable" [187 Wn.App. 297] incident is one where the driver is accountable for the collision. This policy was designed to protect FSA's interests: ...