FILED

OOORT OF APPEALS

DIVISION 11

2013 APR - 2 AM 8` 49

STATE OF WASIIHGTON

BY

UTY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

JAMES M. CRAVEN,

Appellant,

V.

STATE OF WASHINGTON DEPARTMENT

OF EMPLOYMENT SECURITY,

No. 42955 -1 -II

UNPUBLISHED OPINION

QuiNN- BRINTNALL, J. — After meting out progressive levels of discipline for past

misconduct, Clark College (College) suspended Professor James Craven for two academic

quarters for his frequent and repeated use of College resources to send unprofessional, harassing,

and offensive e -mails to other faculty members at the College. During his period of suspension,

Craven applied for and received unemployment benefits from the Washington State Employment

Security Department (ESD). The College appealed the benefit award and following a hearing, an

administrative law judge (ALJ) ruled that Craven's misconduct rendered him ineligible to

receive unemployment benefits, thereby requiring that he repay the benefits he had already

received. Former RCW 50. 190 ( 20.2007); RCW 50. 066; 20.RCW 50. 294( b). 04. 1)(Craven

appealed, and the ESD Commissioner confirmed the ALJ's decision. Craven, appearing pro se,

now appeals the commissioner's decision. Because substantial evidence supports the
No. 42955 -1 -II

commissioner'sfactual findings and Craven deliberately violated standards of behavior and use

of school resources that the College had the right to require of its employees, we affirm.

FACTS

BACKGROUND

The College suspended Craven, a tenured economics professor, for two academic

quarters (108 days) in 2010 after concluding that Craven violated school policy on multiple

occasions by using school resources to send unprofessional and offensive .e -mails to colleagues.

Although all of the incidences precipitating the disciplinary action involved valid professional

concerns —the election of a new division chair to replace Craven when Craven was on extended

medical leave, the denial of tenure for another faculty member, and intra -union faculty

concerns — Craven offended a number of his colleagues with the bellicose and offensive ways in

which he expressed his concerns. And although some of these communications occurred in

electronic forums not monitored by the College, offended faculty members brought the

communications to the College's attention.

On February 6, 2009, Craven wrote an e -mail to five College faculty members, including

Professor Adnan Hamideh who had recently replaced Craven as the division chair of their

academic division. Craven explained that he deeply resented being replaced as chair while on

medical leave and stated that Hamideh was not fit to hold the job, "not even close."

1 Craven's briefs fall well below the standards envisioned by RAP 10.3 as he fails to cite any

legal authority for his arguments. Nevertheless, it is clear that ` Craven challenges the

commissioner'sdecision denying him unemployment benefits, a decision ESD agrees is properly

before us.

z

The College had disciplined Craven multiple times (with increasing severity) in the past for

similar policy violations.

2
No. 42955 -1 -II

Administrative Record (AR) at 497. Two days later, in another e -mail sent to the same group,

Craven stated that Hamideh did "not even qualify as an amateur in this job" and that "you will

never in your life know the economics I know." AR at 496. In April, Craven sent another

message addressed to Hamideh (sent also to six others) entitled, "This is What REAL Division

Chairs and `Educators' Do," stating, in part,

Please notice date sent and my status /title on that date. There is no question

whatsoever as to when my Division Chair term started and is to end. Thus those

who continue to deny it are liars, and those who continue to act upon what they

themselves have called known lies and misrepresentations are what? What would

you call such persons? Fit to be called "colleagues ", "educators ", "leaders" — of

anything? And for any kind of educators to be undermining their own contracts

and seniority rights, as well as the rights of students to the best qualified teachers

we have available and for whom they signed up reminds me of those Palestinians

covertly working in the occupied territories building illegal settlements on the

historical lands oftheirfamilies for invading settlers.

AR at 503 (emphasis added).

Hamideh reported this last e -mail to the College administration, explaining that "as

Craven] well knows, the Palestinian issue is deeply rooted in my soul, being and culture. To

compare me to the sell outs and culprits is far too big of an insult to swallow realizing that as he

knows, from our talks in the past, this is one of the biggest insults that anyone from my cultural

background can take." AR at 502.

In a separate incident from March involving the denial of tenure for some faculty

members, Craven sent an e -mail to his union's entire faculty and adjunct e-mail distribution

lists. This e -mail stated, in part,

Well I sleep well at night because they know that I will never back down, I cannot

be schmoozed, bullied, co- opted, bought or taken out without a fight and I have

tried to call the warning about abuses of human and employee rights over and

3 The Association of Higher Education is the faculty union at Clark College.

3
No. 42955 -1 -II

over.... I have no doubt that in the case of the Journalism teacher, it was certain

articles in The Independent that led to her not getting tenure. For the life of me I

cannot figure what Professor "Chemical Ali" (who was told to ignore all my

emails when he first came here) could have done. But just as in the case ofNazi

Germany, you can also add, to the list of those responsible for these abuses, all

those faculty and staffwho are spineless, two-faced and opportunistic and willing

to trade away their own rights and those ofothers to protect their sweet gigs, little

turfs andprograms, etc.

AR at 505 (emphasis added).

Although Professor Ali Aliabadi— referred to by Craven as " Chemical Ali" —was

initially upset with being compared to "a notorious mass murderer of Kurds," Aliabadi did not

formally complain to administration after Craven. apologized. AR at 504. However, other

faculty members did make the administration aware of the offensive e-mail.

Last, on April 27, Craven sent an e -mail to the same faculty list -serve groups discussing a

faculty petition of support for their union representative, Marcia Roi. Craven entitled the e -mail

High Noon" and stated, in part,

Gerry Smith dropped in with a petition to support Marcia Roi and said he could

not make the Board meeting would I drop it off.... So why only 41 then 42

names on [ the petition]? Here, I believe we have the " High Noon"

phenomenon/metaphor [of] the "townspeople" who very quietly, covertly and in

some cases spinelessly and opportunistically, cheered on the Sheriff while

covertly making alliances and playing it safe with the invading thugs.... I was

genuinely worried that not having more names would further undercut Marcia

whose own guts, despite our differences, I respect as much as I have contempt for

the spineless and petit- bourgeois, especially the ones that talk and sound so

radical" -- the lowest of the low.

This happened before with [other initiatives] that threatened cutbacks and layoffs

initially. Union membership went up, the entrepreneural [sic] types jockyed [sic]

for close proximity and face -time with the administrators, supposed friends

betrayed supposed friends, and GI Joe's [sic] did a booming business on

kneepads and chapstick.

AR at 511 (emphasis added). Professor David- Reed was offended by this e -mail and reported it

to College administration.

11
No. 42955 -1 -II

Because Craven was on medical leave in the spring and then he and the College

administration were unable to meet during the summer, a hearing concerning potential discipline

related to these e -mails did not occur until November 20, 2009. Following this hearing, at which

Craven was represented by union counsel, the College notified Craven of his pending 108 -day

suspension.

PROCEDURE

Following his suspension, Craven applied for unemployment benefits. Although the

benefits were initially granted on the grounds that "the delay between the discovery of the

incident and the imposition of [Craven's] suspension [was] longer than reasonably expected of a

serious offense, " the College appealed the benefits determination. AR at 301. A hearing before

an ALJ occurred on June 28, 2010.

Both parties presented witness testimony at the hearing and extensive documentary

evidence. Additionally, the College submitted its faculty and computing policies as part of the

administrative record. The College argued that all of Craven's above -cited e -mails violated the

College's policies and procedures. For instance, article VI AA of the College's policies states

that when a faculty member "speaks or writes as a citizen, he or she should be free from

institutional censorship or discipline" but that "[a]s a person of learning and an educational

officer, he or she should remember that the public may judge the profession and the institution

by his or her utterances." AR at 600. Accordingly, faculty members "should at all times be

accurate, exercise appropriate restraint, [and] show respect for the opinions of others." AR at

11

4

The record indicates that at the time of this initial determination, ESD was. unaware of why

such a long delay occurred between the misconduct and the suspension. .

5
No. 42955 -1 -II

In addition, article VI A.5 states that "[a]ll members of the College community are to be

treated with respect and with sensitivity to the impact of words and opinions:" AR at 600.

Finally, the College's "Faculty Job Description" states that faculty members must "[d]emonstrate

respect for others," and "[e]ffectively use computer applications for instruction and

communication where appropriate." AR at 600. Craven never denied authorship of the e -mails

and mostly argued about due process, the First Amendment, and conspiracies perpetrated by the

College— issues not properly before the ALJ.

Following the hearing, the ALJ issued an initial order reversing ESD's benefit

determination. The order explained that the only "issue in the appeal is whether [Craven] was

suspended from employment for deliberate violations or 'disregard of standards of behavior

which the employer has the right to expect of an employee as defined in RCW 50. 294( b).04. 1)(

AR at 864. The ALJ's factual findings pointed out that Craven had previously been disciplined

for similar incidences of misconduct, including an eight -day suspension for "inappropriate

behavior through e -mail that was threatening, intimidating, retaliatory and created a hostile work

environment." AR at 865. The ALJ also found that despite Craven's assertions that he was not

5

The ALJ repeatedly attempted to explain to Craven the limited scope of review. See, e.g., AR

at 106 ( "[W]hat I am dealing with is whether or not misconduct has been shown by what you

did. And if it's a matter of the judges have judged you at the school, having some biased, still

comes back to whether or not I agree with their decision, the fact that what you did was

misconduct. "). While it is true that "the state may not abuse its position as employer to stifle `the

First Amendment rights [ its employees] would otherwise enjoy as citizens to comment on

matters of public interest, "' Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (quoting

Pickering v. Board of Education of Township High School District 205, Will County, Illinois,

391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)), cert. denied, 130 S. Ct. 1047

2010), the only question before the ALJ —and this court—is whether ESD erred in denying

Craven unemployment benefits. If Craven seeks to vindicate a claim related to violation of his

First Amendment rights, rather than his right to unemployment compensation, he must bring the

First Amendment claim in the appropriate forum.

C
No. 42955 -1 -II

given sufficient opportunity to respond to the College's proposed disciplinary action, Craven

did get sufficient and appropriate chances to respond to the disciplinary action prior to its

imposition." AR at 868.

And in his conclusions of law, the ALJ explained that

t]he rude comments, innuendos, sexual reference, and derogatory analogies used

by the claimant through the e -mails giving rise to his suspension [were] totally

inappropriate. The claimant had been repeatedly warned of using this type of

language and approach to voice his complaints over whatever issue he was upset

about.... It is held that the claimant's actions were willful and inappropriate

under the overall rules of both the college policies and the union contract. It is

held his actions were harmful to the College. It is held that the claimant was

suspended for misconduct under RCW 50. 294( b) 04. 1(and RCW 50. 066. 20

AR at 868.

Craven appealed this decision to the ESD Commissioner. After reviewing the entire

record before the ALJ, the commissioner adopted the ALJ's findings of fact and conclusions of

law. The commissioner concluded that Craven "was afforded a full and fair opportunity to

present his case before the Office of Administrative Hearings" and that ultimately Craven's

discharge precipitating conduct has been shown, by a preponderance of substantial and credible

evidence of record, to have been in deliberate violation or disregard of standards of behavior

which an employer has the right to expect of an employee." AR at 882. Craven now appeals

this decision.

6

Craven also appealed, unsuccessfully, to Thurston County Superior Court. Because this court

sits "in the same position as the superior court," reviews "the decision of the Commissioner, not

the underlying decision of the ALJ," and applies "the [Administrative Procedure Act (APA), ch.

34.05 RCW,] standards directly to the administrative record, ". discussion of the superior court

ruling is unnecessary. Smith v. Emp'tSec. Dep't, 155 Wn. App. 24, 32, 226 P.3d 263 (2010).

7
No. 42955 -1 -II

DISCUSSION

DISQUALIFYING MISCONDUCT

Craven asserts that his e -mail exchanges to other faculty members at the College did not

constitute misconduct disqualifying him from receiving unemployment benefits for the duration

of his suspension. ESD argues that Craven engaged in disqualifying misconduct and was

properly disqualified from receiving unemployment benefits while suspended. Specifically, ESD

contends that Craven's e -mails constituted conduct that "willfully disregarded his employer's

interests and deliberately disregarded his employer'sstandards of behavior" and, accordingly,

the commissioner did not err in denying benefits. Br. of Resp't

at 13. We agree. Because

substantial evidence supports the commissioner'sfindings of fact and Craven'sviolation of the

College'sreasonable policies constituted misconduct, we affirm the commissioner.

A. STANDARD OF REVIEW

The Washington Administrative Procedure Act (APA), ch. 34.05 RCW, governs judicial

review of a final decision by the ESD Commissioner. Verizon Nw., Inc. v. Emp'tSec. Dep't, 164

Wn.2d 909, 915, 194 P.3d 255 (2008). We sit in the same position as the superior court, apply

the APA standards directly to the administrative record, and review the decision of the

commissioner, not the underlying decision of the ALJ. Verizon, 164 Wn.2d at 915 (citing

Tapper v. Emp't

Sec. Dep't, 122 Wn.2d 397, 405 -06, 858 P.2d 494 (1993)). We treat the

commissioner's decision as being prima facie correct and the "burden of demonstrating the.

invalidity of agency action is on the party asserting invalidity," here Craven. RCW

34. 570( a); 05. 1)(Anderson v. Emp'tSec. Dep't, 135 Wn. App. 887, 893, 146 P.3d 475 (2006).

But we will reverse the commissioner'sdecision if that decision is based on an error of law, if

H .,
No. 42955 -1 -II

substantial evidence does not support the decision, or if the decision is arbitrary or capricious.

RCW 34. 570( d), ( 05. 3)(e), ( i).

We review questions of law de novo, giving substantial weight to an agency's

interpretation of the statutes it administers. Everett Concrete Prods., Inc. v. Dep'tof Labor &

Indus., 109 Wn.2d 819, 823, 748 P.2d 1112 (1988). We review findings of fact for substantial

evidence in light of the whole record. RCW 34. 570( e); 05. 3)(Lee's Drywall Co., Inc. v. Dep'tof

Labor & Indus., 141 Wn. App. 859, 864, 173 P.3d 934 (2007). Substantial evidence is evidence

that would persuade a fair - minded person of the truth or correctness of the matter. King County

v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000).

The determination of whether an employee has committed misconduct is a mixed

question of law and fact in that it requires the application of legal precepts (defining misconduct)

to factual circumstances (the circumstances surrounding the disciplinary action). Tapper, 122.

Wn.2d at 402. As our Supreme Court explained in Tapper,

Analytically, resolving a mixed question of law and fact requires establishing the

relevant facts, determining the applicable law, and then applying that law to the

facts. The characterization of "misconduct" as a mixed question of law and fact

does not mean that we are free to substitute our judgment for that ofthe agency as

to the facts; instead, the factual findings of the agency are entitled to the same

level of deference which would be accorded under any other circumstance. See

Franklin Cy. [Sheriffs Office v. Sellers], 97 Wn.2d [317,] 329 -30[ 646 P.2d 113

1982), cent. denied, 459 U.S. 1106 (1983)]. The process of applying the law to

the facts, however, is a question of law and is subject to de novo review. Henson

v. Emp'tSec. Dep't], 113 Wn.2d [374,] 377, 779 P.2d 715 [(1989)]; Johnson v.

Dep'tofEmp'tSec., 112 Wn.2d 172, 175, 769 P.2d 305 (1989). The findings of

fact made by the agency below are therefore critical to our resolution of the

question of whether [the defendant] engaged in misconduct connected with her

work.

0
No. 42955 -1 -II

122 Wn.2d at 403. Accordingly, we must initially determine whether substantial evidence

supports the commissioner'sfactual findings and, if so, whether these facts constitute

disqualifying misconduct under the Employment Security Act, Title 50 RCW.

B. FACTUAL FINDINGS

Craven does not deny authoring any of the e -mails in question or that the College

previously disciplined him for prior inappropriate behavior, including inappropriate e -mail

exchanges. Accordingly, substantial evidence supports the commissioner'sfindings relaying

the content of the inappropriate e -mails described above and, further, the finding that "[b]efore

the incidences giving rise to his suspension, prior disciplinary actions were taken against

Craven] based on similar factors giving rise to the suspension in this case."' AR at 864.

C. DISQUALIFYING MISCONDUCT

Whether the commissioner'sfactual findings support its conclusion that Craven's actions

constituted misconduct disqualifying him from receiving unemployment benefits during his

suspension is a legal issue we review de novo. Haney v. Emp'tSec. Dep't, 96 Wn. App. 129,

138 -39, 978 P.2d 543 (1999).

The Washington Legislature enacted the Employment Security Act to provide benefits to

individuals who are "involuntarily'' unemployed "through no fault of their own." RCW

7

The findings are technically the ALPS findings explicitly adopted by the commissioner.

8

Craven's brief appears to challenge finding of fact 10that he was given "sufficient and

appropriate chances to respond to the disciplinary action prior to its imposition," AR at 868 —by

frequently asserting that he was denied due process prior to the suspension occurring. Although

a government employee who possesses a constitutionally protected property interest in his or her

employment is entitled to a predeprivation opportunity to be heard pursuant to Cleveland Board

ofEducation v. Loudermill, 470 U.S. 532, 542 -45, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985),

Craven has failed to adequately brief this issue or explain why the hearing he received in this

instance, a hearing at which he had legal representation, was legally inadequate. Accordingly,

we do not address his bald assertion. RAP 10. a)(3( 6).

10
No. 42955 -1 -II

50. 010. 01Accordingly, "where any fault of unemployment lies with the claimant, the claimant

is disqualified from receipt of unemployment benefits." Cowles Pub. Co. v. Emp'tSee. Dep't,

15 Wn. App. 590, 595, 550 P.2d 712 (1976), review denied, 88 Wn.2d 1001 (1977). The Act

specifies that when a claimant "has been discharged or suspended for misconduct connected with

his or her work," he or she is disqualified from benefits, RCW 50. 066(20. 1), and that

disqualifying " misconduct" includes "[d]eliberate violations or disregard of standards of

behavior which the employer has the right to expect of an employee." RCW 50. 294( b). 04. 1)(

The Act provides a number of examples of per se disqualifying' misconduct, including

v]iolation of a company rule if the rule is reasonable and if the claimant knew or should have

known of the existence ofthe rule." RCW 50. 294( f). 04. 2)(

Here, Craven engaged in disqualifying misconduct by disregarding his employer's

reasonable policies to ensure a nonhostile work environment— policies he was well aware of

having been disciplined on multiple occasions in the past for having violated them — concerning

treating colleagues in a respectful manner. The College'srules are reasonable since they relate

to employee job duties and are a normal business requirement. See WAC 192- 150- 210(4) ( " A

company rule is reasonable if it is related to your job. duties, [or] it is a normal business

requirement or practice for your occupation or industry. "). Moreover; Craven's a -mails clearly

fall beyond the pale of acceptable workplace communications. While an isolated error in

judgment is understandable, Craven's inappropriate conduct was pervasive and recurring:

Craven analogized his colleagues' behavior to that of Nazi sympathizers, implied that a

Palestinian colleague (Hamideh) was the type of person who would betray his own country, offhandedly referenced a mass murderer in naming another colleague (Aliabadi), referred to fellow

staff as "spineless, two - faced, and opportunistic," AR at 505, and employed inappropriate sexual

11
No. 42955 -1 -II

innuendo, referencing "kneepads and chapstick." AR at 511. These comments clearly evince a

complete disregard for the College's reasonable policies concerning inappropriate work place

behavior. It is not unreasonable for an employer to expect a certain level of civility from its

employees.

Craven flouted the College'sreasonable company rules concerning employee decorum

and appropriate use of e -mail. On appeal, Craven had the "burden of demonstrating the

invalidity of agency action." RCW 34. 570( a). 05. 1)(Having refrained from arguing why the

College's policies are unreasonable or that he did not violate these reasonable policies, Craven

fails to meet this burden. Accordingly, we hold that the commissioner did not err in ruling that

Craven's actions constituted misconduct disqualifying him from receiving unemployment

benefits while suspended. Further, to the extent Craven received benefits in error, he was not

entitled to those benefits and is liable for repayment pursuant to RCW 50. 066(20. 5): " All

benefits that are paid in error ... are recoverable."

OTHER ISSUES

Although Craven raises issues related to union contracts, civil and criminal conspiracy,

judicial misconduct, employer harassment, and the First Amendment, none of these issues are

appropriately before this court or properly briefed. Pro se litigants, like Craven, are held to the

same standard as attorneys and must comply with all procedural rules on appeal. In re Marriage

ofOlson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993). Accordingly, we refrain from addressing

them. RAP 10. a)(3( 6). See also Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,

828 P.2d 549 (1992). Craven also requests attorney fees. Attorney fees, however, are not

available on appeal to a nonlawyer, pro se litigant. In re Marriage ofBrown, 159 Wn. App. 931,

938, 247 P.3d 466 (2011). Moreover, Craven has not prevailed in this appeal.

12
No. 42955 -1 -II

Because substantial evidence supports the commissioner'sfactual findings and Craven

deliberately violated standards of behavior the College had the right to expect of its employees,

we affirm the commissioner'sdecision.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 040, 06.it is so ordered.

INN- BRINTNALL, J.

We concur:

bJ / H ANSON, A. J.C

f l

BXO N, J.

13