CHRISTINA ABGARIAN, Appellant, v. THE EMPLOYMENT SECURITY DEPARTMENT, Respondent.

No. 59844-9-I.The Court of Appeals of Washington, Division One.
June 9, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for King County, No. 06-2-24248-3, Donald K. Westfall III, J. Pro Tem., entered June 30, 2006.

Reversed and remanded by unpublished opinion per Schindler, C.J., concurred in by Agid and Appelwick, JJ.

SCHINDLER, C.J.

Christina Abgarian (Abgarian) appeals the decision of the Washington State, Employment Security Department (the Department) to deny unemployment benefits. Based on the undisputed facts, the guidelines adopted in In re Amie, Empl. Sec. Comm’r Dec.2d 593 (1980), and the requirement to liberally construe the Employment Security Act, chapter 50.01 RCW, the Commissioner erroneously concluded that when Abgarian took a maternity leave of absence, she voluntarily quit without good cause. We reverse the decision of the Commissioner denying Abgarian unemployment benefits and reinstate the decision of the Administrative Law Judge (ALJ).

The facts are undisputed. Joanne Zwickert owns and operates “Joanne Zwickert Electrolysis,” a small business with approximately six employees. On March 27, 2002, Zwickert and Christina Abgarian entered into a written employment agreement (the Agreement). Zwickert agreed to hire and train Abgarian as an electrologist and pay her on commission. The commission was calculated based on a percentage of the gross revenue from the clients Abgarian provided services to. Abgarian agreed to work full time, which was defined as a minimum of three days per week and every other Saturday. Under the Agreement, Zwickert was entitled to terminate Abgarian with a one week written notice during the 90 day probationary period. Thereafter, Zwickert had to give Abgarian a two week notice of termination. Abgarian agreed to give Zwickert a 90 day written notice of her intent to terminate employment. The Agreement also states that all clients, including those acquired by Abgarian, were clients of the business and in the event that Abgarian left, she could not contact any of the clients or provide electrolysis services within 35 miles of Zwickert’s business for a period of two years. The Agreement does not address maternity leave or a leave of absence.

Abgarian started working as an electrologist on June 27, 2002. In early 2005, Abgarian told Zwickert that she was pregnant with her second child and planned to work until her August 26 due date. But during the third trimester, Abgarian told Zwickert her pregnancy was making it difficult for her to work. In a May 16 memorandum to Zwickert, Abgarian said that she had planned to begin her maternity leave on June 15 and return in March 2006. “Effective 6/15/05 I will be beginning my maternity leave. Barring any unforeseen complications I plan on returning on or about March of 2006.”

After receiving the memorandum, Zwickert discussed Abgarian’s maternity leave with her. According to Abgarian, she told Zwickert that she planned to begin her maternity leave in June and return in March when business picked up. Abgarian said that Zwickert’s only response was to tell her that “she can’t guarantee me clients. She said when you come back I can’t guarantee you clients.” Abgarian told Zwickert “that’s okay, because if my customers will be back I will be back, they know that I’m back and they will be back to me.” Zwickert also testified that Abgarian told her she wanted to begin her maternity leave in June, and return in March 2006. Zwickert also acknowledged that her only response to Abgarian’s maternity leave request was to tell her that she couldn’t guarantee clients.

Abgarian stopped working on June 15. She gave birth to her son on August 22. While on maternity leave she kept in touch with Zwickert. In March 2006, Abgarian called Zwickert to tell her she was ready to return to work. At first, Zwickert said “okay, well let me see what I can do and get back to you.” However, when pressed, Zwickert told Abgarian that “it will be better if you find a better-or different job.”

On March 17, 2006, Abgarian applied for unemployment benefits. In April, the Department denied her request on the ground that she voluntarily quit without good cause. Abgarian filed an appeal of the Department’s decision with the Department’s Office of Administrative Hearings.

Abgarian and Zwickert testified at the hearing. Zwickert admitted that her only response to Abgarian’s request to take maternity leave was to tell her that she “couldn’t guarantee her clients.” But Zwickert explained that she “thought that’s a polite way of saying I can’t guarantee her a job because there is nothing to do if there aren’t any clients.” Abgarian testified that if Zwickert had told her that her request to take the maternity leave would jeopardize her job, she would have returned to work much sooner.

And when we started talking I see that she didn’t say anything to me, she never answered me. So I asked her did you think about when you want to start me back to work. And she said well, this is a little slow time right now, and, um, I don’t know, Eve wants to work a little more time because there’s no school, summer time. So she kind of said stuff like that, and I was just shocked, I said — and she said it will be better if you find a better — or different job. So I was like are you trying to tell me that you don’t want me back? Well, why didn’t you tell me before so I know what I was going to do? If I knew, you know, you don’t want me leave that long, I may be back in two months, I may be back in six weeks, whatever we would agree in between, but she never said anything else. And I felt backstabbed. And I just (unintelligible). And everybody else was shocked. Everybody who heard the story they were all like why would she do that. I was a loyal employee, I’ve never done anything, to harm her or do anything, you know. Yeah, people make mistakes, it happens during work. I don’t know if I’ve done anything that she didn’t like but we always worked everything out, there was no tension, nothing bad. The customers loved me, I did my job. I’ve never done anything, you know, to cause a problem. And she was nice to me, too. So I have no idea what happened. And now I heard that she’s hiring, she’s training someone else to hire. Well, she already had me there. If she needs an employee she already had me and I was already trained.

The ALJ concluded that because Abgarian did not voluntarily quit, she was entitled to unemployment benefits. While the ALJ found that Zwickert “never specifically said that she would hold the job open for her,” the ALJ also found that Zwickert “did not tell the claimant that her job would not be held open for her.” The ALJ also found that Abgarian “credibly discussed her situation with Ms. Zwickert, and was not told that there would be no leave of absence. Had her employer been clear with her, it is entirely possible that the claimant would not have taken such an extensive leave.”

Zwickert filed a petition to review the ALJ’s decision. On review, the Commissioner decided that because Abgarian voluntarily quit without good cause, she was disqualified from receiving unemployment benefits. The Commissioner’s decision adopts all of the ALJ’s findings of fact with an additional finding and comments. The additional finding states that when Abgarian discussed her leave of absence with Zwickert, “the employer told [Abgarian] that there was no guarantee that there would be clients for [Abgarian] when she wished to return.” The Commissioner relied on prior Commissioner decisions, In re Amie, Empl. Sec. Comm’r Dec.2d 593 (1980), and In re Dorman, Empl. Sec. Comm’r Dec.2d 736 (1983), to conclude that because Abgarian did not have a guarantee of a job or a specific return date, she “was not on a leave of absence for purposes of the Employment Security Act.” Abgarian appealed to superior court. The court affirmed the Department’s decision. Abgarian appeals.

The Washington Administrative Procedures Act (WAPA), chapter 34.05 RCW, governs judicial review of the Department’s decision. RCW 50.32.120; RCW 34.05.510; W. Ports Transp., Inc. v. Employment Sec. Dep’t, 110 Wn. App. 440, 449, 41 P.3d 510
(2002). The scope of our review on appeal is restricted to the record of the administrative tribunal. Franklin Cy. Sheriff’s Office v. Sellers, 97 Wn.2d 317, 323-24, 646 P.2d 113 (1982). In reviewing the Department’s decision, this court sits in the same position as the superior court and applies the WAPA standard of review to the record before the agency. As the party challenging the Department’s decision, Abgarian bears the burden of demonstrating the invalidity of the decision. RCW 50.32.150; RCW 34.05.570(1)(a); Robinson v. Employment Sec. Dep’t, 84 Wn. App. 774, 777, 930 P.2d 926 (1996).

Abgarian contends the Department erroneously interpreted or applied the law in violation of the WAPA, RCW 34.05.570(3)(d). Whether Abgarian was on an approved leave of absence or voluntarily quit is a mixed question of law and fact. The court can treat factual statements in the Department’s conclusions of law as findings of fact. Tapper v. Employment Sec. Dep’t, 122 Wn.2d 397, 406, 858 P.2d 494 (1993). Because here, the facts are undisputed, they are verities on appeal.[1] Tapper, 122 Wn.2d at 407. Applying the law to the undisputed facts is a question of law that we review de novo. Tapper, 122 Wn.2d at 403. We accord substantial weight to the agency’s interpretation of the law it administers, but we are not bound by it. William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wn. App. 403, 407, 914 P.2d 750 (1996). The agency’s interpretation and application of the law is reviewed de novo. City of Redmond v. Central Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1988). The court can reverse an administrative decision that is based on an error of law. Tapper, 122 Wn.2d at 402; RCW 34.05.570(3).

The purpose of the Employment Security Act (ESA), chapter 50.01
RCW, is to provide benefits to “persons unemployed through no fault of their own.” The legislature specifically states that the ESA shall be “liberally construed for the purpose of reducing involuntary unemployment.” RCW 50.01.010. However, a person who leaves work “voluntarily without good cause” is disqualified from receiving benefits. RCW 50.20.050(1)(b).

The dispositive question in this case is whether under the ESA and the guidelines adopted by the Commissioner in In re Amie, Empl. Sec. Comm’r Dec.2d 593 (1980), Abgarian voluntarily quit without good cause and was disqualified from receiving unemployment benefits. The disqualification provisions of the ESA are based on principles of fault and focus on the worker’s actions. Safeco Ins. Cos. v. Meyering, 102 Wn.2d 385, 393, 687 P.2d 195 (1984). Thus, the Department must analyze each case to determine whether the employee intended to voluntarily quit or was on a leave of absence. Safeco Ins., 102 Wn.2d at 393. “An individual leaves work `voluntarily’ only when freely making an affirmative choice to do so.” Bauer v. State Employment Sec. Dep’t, 126 Wn. App. 468, 476, 108 P.3d 1240 (2005) (quoting Brousseau v. Me. Employment Sec. Comm’n, 470 A.2d 327, 330 (Me. 1984)).

A leave of absence is not defined by the ESA. The Commissioner in In re Amie adopted guidelines to determine whether an employee has voluntarily quit or is on a leave of absence under the ESA.[2]

1. For purposes of the Employment Security Act, the question of whether an employer-employee agreement is a leave of absence is a matter of fact to be determined from the terms of the agreement rather than by the parties’ characterization of the agreement. An agreement described by either or both of the parties as a `leave of absence’ may actually be a separation or termination.
2. A leave of absence is an agreed temporary release of an employee from his or her assigned work, during which the employment status continues, but no work is performed and no remuneration paid.
3. An agreement is not a leave of absence if continuity of the employment status terminates with the cessation of work, and the employee is left with no more than a promise of reemployment if a job is available upon the expiration of the “leave.”

In In re Amie, an employee who worked for the Employment Security Department wanted to transfer from the Port Angeles office to the office in Vancouver because her husband’s employer was transferring him to Vancouver. Because the Department did not have a job opening in Vancouver, Amie took a leave of absence from her Port Angeles job. The leave of absence allowed Amie to maintain her benefits as an employee and gave her preferential status for appointment elsewhere. After Amie moved to Vancouver, she applied for unemployment benefits while still on the leave of absence from the Port Angeles position. Because the continuity of Amie’s employment at Port Angeles ended and she only had the promise of a work assignment in Vancouver when one was available, the Commissioner ruled that Amie was not on a leave of absence but rather voluntarily quit.

[T]he purpose of the agreement was not to maintain continuity of the employment status, . . . it being understood that she was moving to another city. . . . [T]he continuity of her employment status in [Port Angeles] was terminated, and she was left with only a promise of a work assignment elsewhere if and when such an assignment became available. [The agreement] was not a leave of absence, but a leaving, or voluntary quit. . . .”

In reaching the conclusion that Abgarian’s leave of absence was a decision to voluntarily quit, the Commissioner erroneously applied the guidelines adopted in In re Amie, to the undisputed testimony. Relying on the guidelines, the Commissioner concluded that Abgarian’s decision to take maternity leave was a decision to voluntarily quit. The Commissioner relied on Zwickert’s testimony that there was no guarantee there would be clients when Abgarian returned, to conclude Abgarian did not have “a guarantee that there would be a job to return to.”[3]

Here, unlike in In re Amie, Abgarian’s employment status continued during her maternity leave of absence and Zwickert did not tell Abgarian that she had “no more than a promise of reemployment if a job is available upon the expiration of the `leave’.” In re Amie, Employ. Sec. Comm’r Dec.2d 593, CLIII. The Agreement between Zwickert and Abgarian allowed Abgarian to work full time and required a written notice in order to terminate employment. Abgarian was paid exclusively on commission. According to the Agreement, the commission was calculated based on an agreed percentage of gross revenues that she generated from the clients she provided services to. The Agreement contained no provisions related to either maternity leave or a leave of absence.

Zwickert admits that her only reply to Abgarian’s request to take a maternity leave, was to tell Abgarian “[t]here was no guarantee that there would be clients for [Abgarian] when she wished to return.” In the context of the terms of the Agreement, telling Abgarian there was no guarantee that when she returned she would have clients is not the same as telling Abgarian that she would not have a job. In addition, Zwickert admits that she never told Abgarian that she would not have the opportunity to return to her job. Under the terms of the Agreement, unless she was terminated, Abgarian’s job as an electrologist continued but she would only receive a commission-based salary from the money generated by the clients she served.

The Commissioner’s reliance on the decision in In re Dorman, Empl. Sec. Comm’r Dec.2d 736 (1983), to conclude that Abgarian voluntarily quit, is misplaced. In In re Dorman, Dorman was given a “non-service” leave of absence to stay home with her baby for a year. When Dorman was hired, the employee handbook expressly stated that a non-service leave was “granted with the understanding that the employee was guaranteed no particular job, and was to have work only if it were available, upon his or her return.” Two weeks after taking her leave, Dorman tried to return to work, but there was no work available. Dorman then applied for unemployment benefits. Following the guidelines in In re Amie, the Commissioner held that Dorman voluntarily quit because the employer clearly informed her that if she took a non-service leave, there was no guarantee to a particular job and she would only have work if it was available. Here, unlike in In re Dorman, there was no policy that taking a leave of absence meant the employee had no guarantee of a job. To the contrary, under the Agreement, absent termination, Abgarian had a continuing right to work as an electrologist.

The Commissioner also concluded that Abgarian voluntarily quit because the written memorandum concerning her maternity leave did not provide a definite return date. The Department cites In re Dorman and In re Amie to argue that Abgarian did not provide an end date that was specific enough. The record does not support the Commissioner’s conclusion and In re Dorman and In re Amie do not support the Department’s argument. Neither In re Dorman nor In re Amie address the need for a specific end date. In In re Dorman Dorman was granted leave of “up to one year,” but she wanted to return to work two weeks after beginning her leave. In In re Amie, Amie was granted a leave from June 13, 1978, through March 31, 1979, but started working in Vancouver for the Department in January 1979 before her leave was over.

Abgarian told Zwickert that she planned to stay home for six months after the baby was born. The baby was due on August 26. In the memorandum, Abgarian said she planned to leave on June 15, 2005 and return in March 2006. Abgarian kept in touch with Zwickert while on leave, and reiterated that she planned to return to work. Abgarian contacted Zwickert in early March to tell her she was ready to return to work. On this record, we conclude Abgarian’s return date in March provided a sufficiently specific end date.

We conclude the Commissioner erred in deciding Abgarian voluntarily quit without good cause. We reverse the decision of the Commissioner, reinstate the decision of the ALJ, and remand. Because RCW 50.32.160 provides that an unemployment compensation claimant is entitled to reasonable attorney fees and costs if the Commissioner’s decision is modified or reversed, we award Abgarian attorney fees and costs upon compliance with RAP 18.1.[4]

[1] In addition, because Abgarian did not assign error to the findings as required by RAP 10.3, the Department’s findings of fact are verities on appeal. Shoreline Community College Dist. 7 v. Employment Sec. Dep’t, 120 Wn.2d 394, 404, 842 P.2d 938 (1992).
[2] Under RCW 50.32.095, the Commissioner can designate certain unemployment benefits decisions as precedent. Designated precedential decisions are persuasive authority in this court. Martini v. Employment Sec. Dep’t, 98 Wn. App. 791, 795, 990 P.2d 981 (2000).
[3] Emphasis added.
[4] “[I]f the decision of the commissioner st and the cost shall be payable out of the unemployment “.160 (emphasis added).