Englund v. State, Emp't Sec. Dep't

1

LAURIE A. ENGLUND, Appellant, v. STATE OF WASHINGTON, EMPLOYMENT SECURITY DEPARTMENT, Respondent.

No. 85694-4-I

Court of Appeals of Washington, Division 1

April 29, 2024

UNPUBLISHED OPINION

Birk J.

Laurie Englund challenges the decision of the commissioner (Commissioner) of the Employment Security Department (ESD) denying her unemployment benefits. Englund asserts that the Commissioner's decision was not supported by substantial evidence, arguing her refusal to comply with the Bellevue School District's (District) COVID-19 vaccination requirement did not fall within the statutory definition of "misconduct" for purposes of unemployment benefits. We disagree, and affirm.

I

In January 2020, the first reported cases of COVID-19 were confirmed in Washington State. The number of cases quickly grew and by the end of the month, both the World Health Organization and the United States Health and Human Services Secretary had declared a public health emergency. Gonzales v. Inslee, 2 Wn.3d 280, 286, 535 P.3d 864 (2023), petition for cert. filed, No. 23-935 (U.S. Feb. 23, 2024). As COVID-19 spread, Governor Jay Inslee declared a state of emergency and issued multiple proclamations aimed at slowing the spread of the disease. Id. Despite these efforts, COVID-19 took a heavy toll, claiming the lives of tens of thousands of people in Washington. Sehmel v Shah, 23 Wn.App. 2d 182, 194, 514 P.3d 1238 (2022).

By the start of 2021, multiple pharmaceutical companies had developed vaccines for COVID-19 that were safe and effective in reducing infection and serious disease. Proclamation by Governor Jay Inslee, No. 21-14.2, at 2 (Wash. Sept. 27 2021) https://governor.wa.gov/sites/default/files/proclamations/21-14.2%20-%20COVID-19%20Vax%20Washington%20Amendment%20%28tmp% 29.pdf [https://perma.cc/5LJ7-LPZH]. By April 15, 2021, COVID-19 vaccinations were available to everyone over the age of 16 free of charge. Id. Widespread COVID-19 vaccinations became "the primary means we have as a state to protect our health care system, to avoid the return of stringent public health measures, and to put the pandemic behind us." Id.

On August 18, 2021, Governor Inslee announced a directive requiring all employees working for K-12 schools to be vaccinated or obtain a religious or medical exemption by October 18, 2021.^[1] Proclamation 21-14.1 stated that any school employee who did not become vaccinated or obtain a valid exemption by October 18, 2021, would be prohibited from engaging in work for the operator of any education setting. Proclamation by Governor Jay Inslee, No.21-14.1, at 4-5 (Wash. Aug. 20, 2021), https://governor.wa.gov/sites/default/files/proclamations/ 21-14.1%20-%20COVID-19%20Vax%20Washington%20Amendment.pdf [https:/ /perma.cc/XVZ9-S3MN]. The proclamation further stated that all operators of educational settings

[m]ust, to the extent permitted by law, before providing a sincerely held religious belief accommodation to the requirements of this Order, document that the request for an accommodation has been made and include a statement in the document explaining the way in which the requirements of this order conflict with the sincerely held religious belief, practice, or observance of the individual.

Id. at 5. Finally, the proclamation imposed criminal penalties for any violation of its terms. Id. at 13.

Englund was formerly employed as an office manager at Woodridge Elementary School in the Bellevue School District. On August 19, 2021, the District sent out an e-mail to staff informing them about Governor Inslee's directive and warning them that" '[e]mployees who do not provide proof of vaccination or a medical or religious exemption will be subject to nondisciplinary dismissal from employment for failing to meet the qualifications of the job.'" Englund's union agreed to the vaccination requirements and entered a memorandum of understanding (MOU) outlining the verification and exemption processes. Englund repeatedly expressed her disagreement with the requirements and told the District that she thought their reminder e-mails constituted "harassment."

On September 27, 2021, Governor Inslee issued Proclamation 21-14.2, updating the requirements from Proclamation 21-14.1. As did the prior proclamation, Proclamation 21-14.2 prohibited any worker from engaging in work in an educational setting after October 18, 2021 if they had not either been vaccinated or received a medical or religious accommodation. Proclamation 21-14.2 at 4. That same day, the District sent another e-mail to all employees who had not yet provided proof of vaccination or requested an exemption, including Englund. This e-mail reminded those employees of the October 18 deadline and stated, in bold print, "[e]mployees who do not provide proof of vaccination or a medical or religious exemption will not be permitted to perform any duties and may be subject to dismissal from employment for failing to meet this condition of employment." The District's assistant superintendent of human resources sent another letter to Englund, notifying her that if she did not contact human resources by October 18, the District would begin the process of terminating her employment. Englund responded by claiming that the letter constituted "wrongful threats and intimidation" and that the directive was "illegal."

By October 18, Englund had neither submitted proof of vaccination nor requested a medical or religious exemption. The District terminated Englund's employment and notified her that she was prohibited from reporting for work as of October 19, 2021. On December 20, 2021, Englund sent a document to the District entitled "Statement of Declination of COVID-19 Vaccine Product (Claim of Religious Exemption)." In it, she claimed a religious exemption from the COVID-19 vaccines.

Englund applied for unemployment benefits with the ESD. In a written response to Englund's claim provided to ESD by February 9, 2022, the District reported that its vaccine policy was implemented pursuant to Governor Inslee's mandate, and explained, "we offered both religious and medical exemption," but Englund "did not apply for one." On February 10, 2022, ESD issued a determination letter denying benefits on the basis that Englund was discharged for misconduct. Englund filed an appeal and submitted hundreds of pages of documents on her behalf. The Office of Administrative Hearings conducted a hearing on February 14, 2023, at which the District did not appear. Following the hearing, the Administrative Law Judge (ALJ) concluded that Englund had been discharged due to a willful or wanton disregard of the rights, title, and interests of the Employer and was therefore disqualified from receiving benefits.

Englund subsequently filed a petition for review. The ESD Commissioner affirmed the order and adopted the ALJ's findings of fact and conclusions of law in full. Englund filed for reconsideration, which the ESD Commissioner denied. Englund then appealed to superior court. The superior court certified the matter to this court for review.

II

The State moves to strike Englund's amended reply brief for failing to comply with the commissioner's order that she refile her brief "without attaching documents that are not part of the record, particularly a declaration and argument addressing the merits of the case." RAP 10.7 provides this court with the discretion to strike an improper brief, or to accept the brief without consideration of any improper argument. In re Adoption of R.L.M., 138 Wn.App. 276, 283, 156 P.3d 940 (2007). We decline to strike Englund's reply brief in its entirety. However, we strike all documents included in the appendix to the reply brief, for Englund's failure to comply with RAP 9.11.^[2] Any argument pertaining to those documents contained in the reply brief has not been considered by this court in deciding this matter.

III

Our review of a decision issued by the ESD Commissioner is governed by the Administrative Procedure Act (APA), chapter 34.05 RCW. RCW 34.05.570; RCW 50.32.120. Both the superior court and this court sit in the same position as an appellate court. Darkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 244, 350 P.3d 647 (2015). We review the decision of the Commissioner rather than the ALJ, except to the extent that the Commissioner adopted the ALJ's findings and conclusions. Id.

"We consider a Commissioner's decision to be prima facie correct and the 'burden of demonstrating the invalidity of agency action is on the party asserting invalidity.'" Smith v. Emp't Sec Dep't, 155 Wn.App. 24, 32, 226 P.3d 263 (2010) (quoting RCW 34.05.570(1)(a) and citing Anderson v. Emp't Sec. Dep't, 135 Wn.App. 887, 893, 146 P.3d 475 (2006)). A decision is invalid if it is based on an error of law, if substantial evidence does not support the decision, or if it was arbitrary and capricious. Smith, 155 Wn.App. at 32 (citing RCW 34.05.570(3)(d), (e), (i)).

A

Englund initially asserts that this court lacks jurisdiction over this matter because it was not fully adjudicated in superior court. We disagree.

"An appeal from a final order of an administrative agency invokes the appellate, rather than general, jurisdiction of the superior court." Biomed Comm, Inc. v. Dep't of Health Bd. of Pharmacy, 146 Wn.App. 929, 933, 193 P.3d 1093 (2008) (citing Skagit Surveyors & Eng'rs LLC v. Friends of Skagit County, 135 Wn.2d 542, 555, 958 P.2d 962 (1998)). When a superior court is acting in its appellate capacity, the confines of its jurisdiction are dictated by statute. Id.; see also Const. art. IV, § 6 (Superior courts "shall have such appellate jurisdiction in cases arising in justices' and other inferior courts in their respective counties as may be prescribed by law.").

In appeals from an...