IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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NGUYET T. TANG, ) No. 67666-1-1 ,_., ~c::
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STATE OF WASHINGTON ) UNPUBLISHED
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DEPARTMENT OF EMPLOYMENT
SECURITY,
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) FILED: March 11, 2013
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Respondent. )
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Cox, J.- Nguyet Tang, former employee of Lexus of Bellevue, appeals
the decision of the Commissioner of the Employment Security Department
denying her unemployment benefits. She claims that certain findings of fact in
the decision are not supported by either substantial or admissible evidence. We
disagree and affirm.
Tang worked as a finance and leasing consultant, earning commissions
by preparing financial documents and selling certain products to customers
purchasing cars. On July 28, 2010, Tang spent several hours, including two
hours after her shift, preparing documents for a customer, to whom she also sold
a dealership warranty for $3,800. The next morning, before Tang's shift, the
customer returned to the dealership dissatisfied with the purchase. The sales
No. 67666-1-1/2
manager, Nick Wilcox, agreed to "unwind" the sale and allow the customer to
purchase a different car which was covered by a factory warranty. Wilcox
assigned a different finance consultant, who was then at work and who sold other
additional products to the customer.
When Tang learned that the other finance consultant would receive the
commission, she complained repeatedly to General Manager Mark Babcock.
Babcock refused to credit the sale to her. Tang did not appear for her shift on
July 30. Babcock sent Tang an email saying he would process her termination if
she did not come to work the next day. Tang did not appear for her scheduled
shifts on July 31 or August 1. On August 2, Babcock terminated Tang for job
abandonment.
Thereafter, Tang applied for unemployment insurance benefits. Following
investigation, the Employment Security Department (Department) denied Tang's
request.
Tang sought review of the Department's decision. An administrative law
judge (ALJ) affirmed the decision denying Tang benefits, concluding that Tang
voluntarily quit her job without good cause as defined by RCW 50.20.050(2)(b).
The ALJ also concluded that Tang was able to, available for, and actively
seeking work during the weeks at issue, as required by RCW 50.20.010(1)(c).
Tang sought review of the ALJ's decision. The Commissioner adopted all
but one of the ALJ's findings of fact with modifications and adopted all but one of
the conclusions of law. The Commissioner concluded that Tang quit her job
without good cause. The Commissioner concluded that Tang's compliance with
2
No. 67666-1-1/3
RCW 50.20.010(1)(c), which requires one to actually seek work, warranted
further consideration. Accordingly, the Commissioner remanded that issue to the
Department for further consideration and determination.
Tang appealed the Commissioner's decision. The King County Superior
Court affirmed.
Tang appeals.
Good Cause
Tang first contends that the record does not support the Commissioner's
determination that she quit her job without good cause. Instead, she claims the
evidence established that she had good cause to separate based on continuing
unchecked discrimination. We disagree.
Judicial review of a decision made by an Employment Security
Department commissioner is governed by the Washington Administrative
Procedure Act (WAPA). 1 In reviewing the decision, we apply the standards of the
WAPA directly to the administrative record before the agency. 2 Relief from an
agency decision is granted when the agency has erroneously interpreted or
applied the law, the order is not supported by substantial evidence, or it is
arbitrary or capricious. 3
A person who voluntarily leaves work without good cause is disqualified
from unemployment insurance benefits 4 But a person who voluntarily leaves
1
Tapper v. Empl. Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).
2
ld.
3
RCW 34.05.570(3)(d),(e), (i).
4
RCW 50.20.050(2)(a).
3
No. 67666-1-1/4
work for good cause is not disqualified from benefits. 5 One circumstance
constituting good cause exists if the "individual left work because of illegal
activities in the individual's worksite, the individual reported such activities to the
employer, and the employer failed to end such activities within a reasonable
period of time." 6 Whether a claimant leaves employment for good cause is a
mixed question of law and face
We review findings of fact to determine whether they are supported by
substantial evidence 8 To the extent the commissioner modifies or replaces
findings by an administrative law judge, we review the commissioner's findings. 9
Using this approach, we give the agency's factual findings the proper level of
deference to which they are entitled under the circumstances. 10 Unchallenged
findings are verities on appeal. 11
The application of law to the facts is a question of law that we review de
novo. 12
We consider a commissioner's decision to be prima facie correct. 13 The
party challenging the agency's action bears the burden of demonstrating its
invalidity. 14
5
RCW 50.20.050(2)(b).
6
RCW 50.20.050(2)(b)(ix).
7
Terrv v. Empl. Sec. Dep't, 82 Wn. App. 745, 748, 919 P.2d 111 (1996).
8
Barker v. Empl. Sec. Dep't, 127 Wn. App. 588, 592, 112 P.3d 536
(2005).
9
Tapper, 122 Wn.2d at 406.
10
ld. at 403.
11
Fuller v. Empl. Sec. Dep't, 52 Wn. App. 603, 606, 762 P.2d 367 (1988).
12
Terrv, 82 Wn. App. at 748-49.
13
RCW 50.32.150.
14
RCW 50.32.150; RCW 34.05.570(1 )(a).
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No. 67666-1-1/5
Tang challenges the Commissioner's modified findings Nos. 3 through 13,
which state in relevant part:
As more fully set forth in the November 8, 2010 Initial Order,
evidence of record establishes as follows: Over the course of the
four year employment relationship, one of the employer's sales
managers (Mr. Wilcox) made disparaging comments regarding
people of various ethnicities, including Asians. The claimant is
Asian and was offended. The claimant complained to the
employer's general manager (Mr. Babcock), and he intervened, but
Mr. Wilcox continued to make comments. The employer does not
condone discrimination or work-related harassment. Approximately
165-170 employees work at the employer's Bellevue dealership.
40-50 of those employees are Asian-Americans. 50 percent of the
dealership's employees are women. The employer's human
resources director (Ms. Hunt) is Asian-American. Although Ms.
Hunt's office is at the claimant's workplace, and Ms. Hunt was
readily accessible to employees (including the claimant), the
claimant did not report her complaints regarding Mr. Wilcox to Ms.
Hunt.
The job separation was premised on a commission-related disagreement.
[T)he claimant was upset because she ... believed she had earned
and should have received the commission. The claimant faulted Mr.
Wilcox and complained to the general manager (Mr. Babcock}, but
Mr. Babcock determined Mr. Wilcox had complied with procedure
regarding the sales and commissions. On July 30, 2010, the
claimant was scheduled to work but was a no call/no show. Via
email correspondence, the claimant was cautioned that her
services were essential and that her absence burdened her
coworkers. The claimant was further cautioned that, if she did not
return to work the following day, the employer would consider the
employment relationship terminated. The following day (July 31),
the claimant did not return to work. But for her belief that she had
been unfairly denied a commission, the claimant would have
reported for work. She attributed her decision to a "matter of
principle." 1151
Tang first claims that the Commissioner discounted substantial evidence
that she was subjected to a racially hostile work environment and that the
15
Clerk's Papers at 7-9.
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No. 67666-1-1/6
circumstances of the July 28-29 car deal was the "straw that broke the camel's
16
back." To support this claim, Tang provides bare citations to her petitions for
review to the Commissioner and the superior court as well as her testimony
before the administrative law judge without any explanation or argument. Tang
also argues that substantial evidence does not support the specific finding: "The
employer does not condone discrimination or work-related harassment." We
disagree.
The findings reflect that the Commissioner considered Tang's testimony
that Wilcox made offensive racial comments during the four years of her
employment, and continued to do so even after she complained and Babcock
intervened. The Commissioner also considered Tang's admissions that she did
not report the racial comments to the human resources director and that she
would have returned to work in the last days of July if Babcock had given her the
disputed commission.
Babcock testified that the disputed commission was allocated in
accordance with consistent company policy, describing his preference to serve
the complaining customer with the personnel present at the time of the
replacement sale and to allocate the commission to the person who sold the
replacement product. Babcock also testified:
[W]e are very, very conscientious of any kind of threatening
workplace. We have a very diverse workplace. We have controls
in place and checks and balances. We have ways for people to go
above anybody in the company and report such claims, and we
16
Brief of Appellant at 13.
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No. 67666-1-1/7
take it very serious. So we obviously ve~ much disagree with her
statements of a threatening workplace.! 17
We conclude that substantial evidence supports the challenged statement
regarding the employer's view of workplace discrimination or harassment. And
the Commissioner was entitled to decide from this and other evidence whether a
discriminatory or retaliatory animus played a role in the allocation of the disputed
commission and whether the reported racial comments contributed to Tang's
decision not to return to work. Mere disagreement with the Commissioner's view
of the evidence does not show a lack of substantial evidence to support the
challenged findings. Because Tang does not challenge any of the
Commissioner's conclusions of law or present any additional argument
establishing any error in the conclusions, she is not entitled to relief.
Actively Seeking Work
Tang next assigns error to the Commissioner's finding No. 2, arguing that
it is not supported by admissible evidence. Without citation to authority, Tang
claims that the Commissioner could not properly consider Babcock's closing
statement as a basis to remand the issue for further proceedings. We disagree.
During cross-examination at the hearing before the ALJ, Tang admitted
that she had not applied for any finance positions at any car dealerships since
leaving her job. At the end of the hearing, the ALJ asked Tang for her ''final
statement," saying, "And this isn't testimony, anything you say in your final
17
Certified Agency Record at 60.
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No. 67666-1-1/8
closing I'm not going to consider as evidence." 18 When the ALJ asked Babcock
for a final statement, he replied:
We disagree with [Tang's] claims, obviously. If there were any truth
to, you know, a hostile work environment or, you know, even that
she disagrees with our policy on, you know, one car deal, my
question would be why has she not applied for a finance job at any
other car dealership?
It's our opinion that she planned on leaving and was working
towards that many weeks before she actually - and then she has a
reason to want to collect these benefits. And in this marketplace
she could go work yet this afternoon in an S and I position
anywhere in this city. And, you know, so our position is that this is
fabricated and we think the benefits should be denied.l191
In Finding of Fact No.2, the ALJ found, "During the weeks at issue the
claimant was willing and able to accept any offer of suitable work and sought
work as directed by the Department." 20 In Conclusion of Law No. 7, the ALJ
concluded:
RCW 50.20.010(1)(c) requires each claimant to be able to,
available for, and actively seeking work. The claimant was able to,
available for, and actively seeking work during the weeks at issue
and is therefore not subject to denial under the above-cited statute
and related laws and regulations as it pertains to that issue[21 1
The Commissioner did not adopt the ALJ's finding No. 2, finding instead
as follows:
Prior to her four year tenure with the interested employer, the
claimant was employed for approximately three years by another
dealership and performed a finance-related job. Thus, the
claimant's most recent seven years of work experience is limited to
18
ld. at 66.
19
1d. at 69.
20
ld. at 100.
21
ld. at 102-03.
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No. 67666-1-1/9
auto-finance. The claimant has not applied for positions in the
auto-finance industry, which the claimant attributes to lack of
employment opportunities. However, the employer's general
manager testified that there are numerous employment
opportunities consistent with the claimant's experience in the
claimant's labor market area.1221
The Commissioner did not adopt the ALJ's conclusion No. 7, concluding instead:
Unemployment benefit eligibility is premised in part on proof the
claimant was able, available, and actively looked for work during
each week benefits were claimed. RCW 50.20.010(c). Here, the
employer's reply to the claimant's petition for review raises the
issue of the claimant's compliance with the above cited statute.
The claimant's most recent seven years of work experience has
been limited to auto-finance. However, the claimant admittedly has
not applied for any jobs with car dealerships during the weeks at
issue. Whether (or not) such job opportunities existed in the
claimant's labor market area is a point of conflict. The issue (raised
by an aggrieved party, the employer) merits further
consideration. 1231
The Commissioner then ordered, "The issue of claimant's compliance with RCW
50.20.010(1)(c) during the weeks at issue is REMANDED to the Department for
24
further consideration and determination."
Contrary to Tang's characterization of the record, the Commissioner did
not consider Babcock's final statement as evidence of whether finance jobs at
car dealerships were available during the weeks at issue. Instead, the
Commissioner found that Babcock's statement at the hearing, as well as a similar
statement in his response to Tang's petition for review before the Commissioner,
identified a conflict between the parties justifying remand to the Department for
22 Clerk's Papers at 7.
23 ld. at 10.
24 ld.
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No. 67666-1-1/10
further consideration. Tang fails to argue or establish that the order was invalid
or exceeded the Commissioner's authority. 25
Affirmed.
Cm.T
WE CONCUR:
25
See RCW 50.32.080 (Commissioner's review procedure. After having
acquired jurisdiction for review, the commissioner shall review the proceedings in
question. Prior to rendering his or her decision, the commissioner may order the
taking of additional evidence by an appeal tribunal to be made a part of the
record in the case. Upon the basis of evidence submitted to the appeal tribunal
and such additional evidence as the commissioner may order to be taken, the
commissioner shall render his or her decision in writing affirming, modifying, or
setting aside the decision of the appeal tribunal. Alternatively, the commissioner
may order further proceedings to be held before the appeal tribunal, upon
completion of which the appeal tribunal shall issue a decision in writing affirming,
modifying, or setting aside its previous decision. The new decision may be
appealed under RCW 50.32.070. The commissioner shall mail his or her
decision to the interested parties at their last known addresses.).
10