Kirby v. Employment Security Department, 320 P.3d 123

Thomas, a security officer for PSS, was discharged for insubordination after refusing to write an incident report on June 10, 2011.
The Department denied unemployment benefits finding misconduct; the ALJ reversed, deeming the conduct a good faith error in judgment.
The commissioner remanded to address reasonableness of the directive, the circumstances surrounding the incident report request, and claimant’s motivation.
ALJ found Thomas acted out of apprehension and confusion, not intent to harm, and that the directive on June 10, 2011 was not reasonable.
The commissioner adopted the ALJ’s findings; the superior court affirmed; PSS appeals to the supreme court.
Court affirms agency decision that Thomas did not commit misconduct disqualifying her from benefits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Thomas’s refusal to write the incident report misconduct?	Thomas acted from confusion/non-willful intent	Thomas insubordinate; willful disregard of directions	Not misconduct; good faith error in judgment
Was the June 10 directive to write the report reasonable?	Directive was not reasonable given context and prior logs	Directive reasonable from employer's perspective	Not misconduct; order not reasonable under circumstances
What is the proper standard of review and burden of proof?	Agency findings should be upheld if supported by substantial evidence	Commissioner’s interpretation governs; deference to agency findings	Findings supported by substantial evidence; proper deferential review maintained

Harvey v. Employment Sec. Dep’t, 53 Wn. App. 333 (1988) (relevance of reasonable directives; misconduct analysis)
Peterson v. Employment Sec. Dep’t, 42 Wn. App. 364 (1985) (refusal to answer supervisor questions; intentionality examined)
Verizon Nw., Inc. v. Emp’t Sec. Dep’t, 164 Wn.2d 909 (2008) (administrative review framework; mixed questions of law/fact)
Hamel v. Emp’t Sec. Dep’t, 93 Wn. App. 140 (1998) (misconduct defined; good faith errors in judgment)