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DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 54134-0-I
Title of Case: Mark Hooser, Appellant v. Employment Security
Department, Respondent
File Date: 07/18/2005
SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 03-2-32528-7
Judgment or order under review
Date filed: 03/30/2004
Judge signing: Hon. Joan B Allison
JUDGES
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Authored by Marlin Appelwick
Concurring: Mary Kay Becker
Ronald Cox
COUNSEL OF RECORD
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Counsel for Appellant(s)
William B. Knowles
Attorney at Law
PO Box 61252
Seattle, WA 98141-6252
Counsel for Respondent(s)
Robert Kosin
Office of the Attorney General
900 4th Ave Ste 2000
Seattle, WA 98164
MARK C. HOOSER, )
) NO. 54134-0-I
Appellant, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
EMPLOYMENT SECURITY )
DEPARTMENT OF THE )
STATE OF WASHINGTON, )
)
Respondent. ) FILED: July 18, 2005
)
APPELWICK, J. - Mark Hooser worked for a publishing company placing
employee recruitment ads in a newspaper and on a website. He stopped
working for the company on August 20, 2002. He exhausted his state
unemployment compensation benefits and sought extended federal benefits,
claiming that he was laid off because of lack of work caused at least in
part by the September 11 terrorist attacks. He argues that the Employment
Security Department (ESD) Commissioner improperly denied him extended
benefits under the federal Temporary Emergency Unemployment Compensation
Act (TEUC) by making factual findings not supported by sufficient evidence
and misinterpreting federal law. We hold that the Commissioner's factual
findings are supported by substantial evidence and that the Commissioner
correctly applied federal law. We affirm.
FACTS
'{T}he TEUC Act of 2002 created federally funded unemployment compensation
benefits for individuals who have exhausted their state and federal
unemployment compensation benefits and who qualify to receive TEUC
benefits.' Chiccitt v. Unemployment Comp. Bd. of Review, 842 A.2d 540, 542
(Pa. Commw. Ct. 2004). In 2003, the Act was amended, and special rules
were created for determining whether certain displaced airline and airline-
related industry workers were eligible for additional benefits identified
as TEUC-A benefits. See Workforce Security Programs: Unemployment
Insurance Program Letter Interpreting Federal Law (UIPL No. 3002, Changes 2
& 3), 68 Fed. Reg. 35,429 (June 13, 2003).
The statute provides that TEUC-A benefits are available for eligible
individuals who have exhausted regular state unemployment compensation and
were entitled to such compensation based on qualifying employment.
Emergency Wartime Supplemental Appropriations Act, 2003, sec. 4002(a)(1),
(b), Pub. L. No. 108-11, 117 Stat. 559, 607 (Apr. 16, 2003). Qualifying
employment is employment
(A) with an air carrier, employment at a facility at an airport, or
with an upstream producer or supplier for an air carrier; and
(B) As determined by the Secretary, separation from which was due, in whole
or in part, to
(i) reductions in service by an air carrier as a result of a terrorist
action or security measure;
(ii) a closure of an airport in the United States as a result of a
terrorist action or security measure; or
(iii) a military conflict with Iraq that has been authorized by Congress{.}
sec. 4002(a)(2), 117 Stat. 559, 607. The statute further defines a
'terrorist action or security measure' as 'a terrorist attack on the United
States on September 11, 2001, or a security measure taken in response to
such attack.' sec. 4002(a)(7), 117 Stat. 559, 607.
Mark Hooser worked for Auto Trader, a national publishing company, from
June 24, 1996, through August 20, 2002. He worked as a sales
representative placing employee-recruitment advertising in the Today's
Careers division. After his employment ceased, he qualified for regular
state unemployment benefits. He exhausted these benefits and applied for
TEUC-A benefits. His application was denied after an initial screening,
because the screener determined that although Hooser worked in an airline
related industry,1 he was not separated for a qualifying reason. Hooser
appealed and requested a hearing.
Hooser and Kirsten Gillespie, an intake lead worker representing the ESD,
testified at Hooser's hearing. Judge Furtado presided. Judge Furtado
first numbered and described several exhibits, which were entered into
evidence without objection. Judge Furtado then examined Hooser about his
job history. He examined Gillespie about one of the exhibits, an intake
screen printout, to
determine what it signified, how it was created, and how data was gathered
during the initial screening interview. The intake screen data showed that
Hooser was not laid off for lack of work. Hooser testified that the
information in the intake screen interview did not accurately reflect the
reason for his separation. He said that the intake interviewer focused on
semantics and found that he was terminated because Hooser initially used
the word 'terminated.' Hooser testified that he tried to explain to the
interviewer that he was actually separated for lack of work.
Gillespie also testified that Hooser did not appeal the initial, earlier
ESD determination of September 5, 2002, finding him eligible for regular
state unemployment benefits based on a 'discharge.' Judge Furtado asked
Hooser how he explained the discrepancy between the unappealed September 5
determination, in which Hooser said he was discharged for failure to
perform to the standards of the job, and his current position, that he was
separated for lack of work. Hooser explained that after the September 11,
2001 attacks, his company experienced a significant loss of business. As a
result of the loss of business, his boss had to separate some employees,
and for that purpose instituted a mechanism called 'the standards' to
determine who would be separated. Of the fourteen employees working a year
before September 11, four had been separated by thirteen weeks after
September 11. Hooser explained that his client base was heavily populated
with airlines and airline related entities. Thus, he reasoned, in spite of
his best efforts, he was unable to meet 'the standards' his company imposed
to determine which employees to separate.
Judge Furtado looked at spreadsheets Hooser introduced to document his
employer's loss of business, and concluded that the data substantiated the
initial claims that Hooser was discharged for failure to perform to the
employer's standards. Judge Furtado explained that he discredited Hooser's
argument that his declining performance was due to the terrorist attacks,
because neither Hooser nor his employer initially identified the attacks as
a cause of his separation, although both could have done so. Judge Furtado
explained that he gave more weight to statements Hooser made prior to
learning the effect of the cause of his separation on his eligibility for
TEUC-A benefits than statements made after learning the effect.
Judge Furtado found that Hooser was discharged for failure to perform to
the employer's standards. Because this was not a qualifying separation
under the TEUC-A act, Judge Furtado concluded that Hooser was not eligible
for TEUC-A benefits. He affirmed the ESD's initial determination because
Hooser was not laid off 'as a result, at least in part, of (a) a reduction
in air carrier service or airport closure caused by the terrorist attacks
of September 11, 2001 or related increased security measures, or (b) the
war in Iraq.'
Hooser appealed the order to the ESD Commissioner. The Commissioner
adopted the OAH's findings of fact and conclusions of law, and affirmed its
decision. The Commissioner commented that it had considered Hooser's
position that the September 11, 2001 attacks were an underlying reason for
the separation, but noted that the immediate cause of the separation was
failure to meet the employer's performance standards. Hooser appealed to
the Superior Court, which affirmed the Commissioner's decision. This
appeal followed. Hooser argues that the Commissioner erred by applying
incorrect legal standards to determine what constitutes a qualifying job
separation. Hooser also argues that there was insufficient evidence to
support the Commissioner's findings.
DISCUSSION
This court reviews the Commissioner's challenged findings of fact under the
substantial evidence standard. RCW 34.05.570(3)(e). Evidence is
substantial if it is sufficient 'to persuade a fair-minded person of the
truth of the declared premises.' Western Ports Transp., Inc. v. Employment
Sec. Dep't, 110 Wn. App. 440, 449, 41 P.3d 510 (2002). This court does not
reweigh the credibility of witnesses or the evidence. Western Ports, 110
Wn. App. at 449. This court reviews the Commissioner's interpretation of
law and conclusions of law de novo. Western Ports, 110 Wn. App. at 449-50.
I. Lack of Work
The Department of Labor (DOL) issued a letter '{t}o provide State Workforce
Agencies (SWAs) instructions for implementing the changes to the TEUC
program related to displaced airline and related workers.' 68 Fed. Reg.
35,429 (June 13, 2003). The instructions state that 'SWAs are required to
continue to follow the Department of Labor's interpretation of the TEUC
Act.' 68 Fed. Reg. 35,429 (June 13, 2003).
Hooser argues that the Commissioner erred in applying the requirement that
his separation must 'have clearly been for lack of work.' The Commissioner
noted that 'federal law makes it plain that no other kind of job separation
can qualify.' According to the DOL, an individual whose separation was not
due to a lay-off is not eligible for TEUC-A benefits. 68 Fed. Reg. 35,429
(June 13, 2003). Under DOL guidelines, all eligible separations must be
for lack of work for one or more of the reasons stated in the statute:
any separation from a qualified employer due to a voluntary quit or
discharge for any reason is not a separation for a qualifying reason; the
separation must be a 'lack-of-work' separation due to one or more of the
reasons stated above.
68 Fed. Reg. 35,429, 35,430 (June 13, 2003). Given the binding DOL
interpretation that benefits are available only for separations due to lack
of work, the Commissioner did not err in applying that standard here.
II. Immediate Cause
In its ruling affirming the decision of the Office of Administrative
Hearings (OAH), the Commissioner adopted the OAH's findings of facts and
conclusions of law, and held that Hooser 'was not laid off from a base year
employer as a result, at least in part, of' a qualifying reason. Among the
adopted conclusions was that Hooser 'was discharged from his job for non-
qualifying reasons' and therefore was 'not eligible for TEUC-A benefits.'
The Commissioner additionally commented in his ruling:
Although we have given due consideration to the claimant's position
that an underlying reason for his separation was related to the employer's
loss of business in the September 11, 2001 aftermath, the fact of the
matter is that the immediate cause was a failure to meet the employer's
performance standards.
Hooser argues that by separating underlying from immediate causes, the
Commissioner imposed an erroneous standard of causation. Hooser argues
that the statutory language, 'due, in whole or in part,' in sec.
4002(a)(2)(B) sets out a broad causation standard 'which would include
proximate cause, cause-in-fact, or even multiple causes including unrelated
causes, provided that the September 11, 2001 aftermath is a cause.'
From its plain text, the TEUC-A statute seems to allow eligibility if one
of the qualifying reasons is a cause in any part. The statute does not
further clarify the necessary causation standard or explain how directly
one of the qualifying reasons must have caused the separation. It does not
specify that the cause must be the latest, i.e., most immediate, cause.
But, the TEUC-A statute requires that the separation must be caused 'in
whole or in part' by a qualifying reason. A general argument that loss of
business due to the September 11, 2001 attacks was a cause of the
separation does not meet the statute's requirements. In Chiccitt, the
claimant was employed by a flight instruction company that also sold flight-
related supplies and charts to the public and to air carrier pilots.
Additionally, the employer was located at an airport facility. Chiccitt,
842 A.2d at 541. The court concluded that Chiccitt had not met his burden
of proving eligibility for TEUC-A benefits, even though he had argued a
correlation between the September 11 attacks and a reduction in his
employer's business:
Chiccitt argues, nonetheless, that he was eligible for benefits since he
was employed as a flight instructor for Employer from April 2001 to May
2002. In addition, Employer was located on airport property; the airport
was closed temporarily due to the September 11 attacks; security and flight
restrictions imposed by the airport authority, local law enforcement and
the Federal Aviation Authority caused a drastic reduction in Employer's
business; and Chiccitt was separated because Employer was losing money and
could not afford to retain him. These facts do not satisfy the requirements
of Section 4002(a)(2)(B)(i), (ii) or (iii).
Chiccitt, 842 A.2d at 543 (emphasis supplied). Under Chiccitt, a showing
that the September 11 attacks were 'a cause' (however remote) is
insufficient; the specific showing required is that one of the three
statutory enumerated reasons reduction in service by an air carrier,
closure of an airport, the military conflict in Iraq and not just a general
business downturn resulted in the separation.
An example from the DOL's letter shows that, even if a separation is partly
caused by the September 11, 2001 attacks or related security measures, the
separated employee does not necessarily qualify for TEUC-A benefits:
Question: An individual worked as a security screener at an airport. In
response to the terrorist actions of September 11, 2001, this function was
transferred to the newly created federal Transportation Security
Administration (TSA). The individual was not hired by the TSA and is, as a
result, now unemployed. Is this a qualifying reason for separation for TEUC-
A purposes?
Answer: No. The above individual worked at a facility at an airport and was
separated from employment due to a security measure taken in response to
the terrorist actions of September 11, 2001. However, to have "qualifying
employment," the individual must have been separated because of reductions
in service by an air carrier or the closure of an airport in the United
States. This did not occur under the scenario described. Rather, the
individual was separated because the TSA took over security at the airport.
68 Fed. Reg. 35,429, 35,442 (June 13, 2003). An additional example from
the UIPL shows the direct causal link required between the separation and a
qualifying reason:
Example 2: An employer manufactures commercial aircraft for air carriers
and private aircraft for individuals and non-airline corporations. As a
result of the terrorist action, the employer suffers a loss of business in
its private aircraft business. It loses no sales to air carriers. The
employer separates some workers, including those who manufactured
commercial aircraft, because of the lost revenues. Even though the employer
supplies air carriers and even though workers who worked on those supplies
were separated, the separated workers are not eligible for TEUC-A because
there is no loss in air carrier-related business.
68 Fed. Reg. 35,429, 35,430 (June 13, 2003).
If the Commissioner had (a) found that one of the three enumerated
qualifying reasons did partly cause the separation, but (b) found that this
qualifying reason was not the most 'immediate' cause, and (c) on that basis
denied eligibility, then the Commissioner would have erred. This is not
what the Commissioner did.
Rather, the Commissioner indicated that the decision to affirm the OAH's
order was based on the conclusion that the 'immediate' cause of the
separation was failure to perform to the employer's standards. The
Commissioner adopted the OAH's finding that Hooser was laid off for non-
qualifying reasons. That is, the Commissioner found that a qualifying
reason did not cause the separation even 'in part.' Thus, no matter what
standard of causation the Commissioner imposed, the factual finding here
could only have resulted in the conclusion that there was no causal link
between separation and a qualifying reason. Therefore, even if the
Commissioner applied an erroneous standard of causation, no harm resulted.
III. Hearsay Evidence
Hooser argues that the Commissioner improperly relied on hearsay evidence
to support its ruling by considering the intake screen printout. The
challenged exhibit shows Hooser's answers to an intake interview on June
18, 2003.
But, the evidence was admitted without objection. At Hooser's hearing,
Judge Furtado numbered the intake screen printout exhibit 4. He described
on the record the first five exhibits he was going to consider, including
the intake screen printout. He then asked, 'Any objections to these
documents being party of the record, Mr. Hooser?' Hooser answered 'No.'
Thus, Hooser waived any objection to the exhibit as hearsay at the hearing
and cannot raise the issue for the first time on appeal. RAP 2.5(a); State
v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000).
IV. Confrontation Rights
The nature of Hooser's challenge on confrontation grounds is unclear from
the briefing. Hooser argues he had 'no opportunity or ability to cross-
examine this unidentified Department employee during the administrative
hearing.' Hooser cites WAC 192-04-110, which guarantees claimants the
right to cross examine witnesses or interested parties. The Department
employee was not an interested party, and was not made a witness. Hooser
did not subpoena the employee, although he could have sought a subpoena
under RCW 34.05.446(1).
The ESD's brief seems to respond to a different argument: that Hooser was
challenging the lack of opportunity to cross-examine his employer. But, an
employer is not an interested party in the determination of TEUC-A
eligibility. See 68 Fed. Reg. 35,429, 35,441 (June 13, 2003). And Hooser
admitted he did not seek to have the employer be a witness at the hearing.
Thus, Hooser's confrontation and cross-examination rights were not violated
with respect to either his employer or the 'unidentified Department
employee.'
V. Findings of Fact
Hooser argues that '{t}here is substantial evidence to support a finding
that {he} was separated from employment due to a business downturn caused
by the September 11, 2001 aftermath.'2 Although Hooser's brief focuses on
why the evidence supports his suggested alternate finding, he does argue
that '{t}here is not substantial evidence to support the contrary
proposition.' Hooser's burden is to show that substantial evidence does
not support the factual findings the Commissioner actually made.
Judge Furtado's factual findings show that he considered all the evidence
in the record, that he found some evidence credible and other evidence not
credible, and that he gave more weight to some evidence than other
evidence.3 The reviewing court does not reweigh the credibility of
witnesses or the evidence. Western Ports, 110 Wn. App. at 449.
There is substantial evidence in the record to support the factual finding
that Hooser was not separated for a qualifying reason. The following
evidence in the record supports the findings:
1. The September 5, 2002 ESD determination that Hooser was eligible for
regular unemployment benefits. This determination sets out as 'facts' that
Hooser's 'employer reported {he was} terminated for failing to perform to
the standards of the job' and that Hooser said he 'failed to meet the
company's productivity/sales standards' although he 'did the best {he}
could.' Hooser was found 'eligible for benefits based on a discharge.'
This determination was not appealed.
2. Exhibit 4, the intake screen printout from the June 18, 2003 initial
screening interview with the ESD, which shows that Hooser indicated he was
not separated for lack of work.
3. Hooser's testimony at the hearing that, when the intake screening
interviewer asked 'what happened,' Hooser initially said he was
'terminated.'
4. Exhibit 7, a letter from Hooser's employer that stated Hooser was the
top performer in 1998.
5. Exhibit 6, spreadsheet data Hooser produced, that showed the decline
in his performance and that of other sales representatives.
6. Exhibit 8, an 'Employee Performance and Development Review' that
showed Hooser's overall good performance, but noted he was 'marginally
satisfactory' in 'Total Ad Revenue Growth' and 'Cold call frequency and
effectiveness.'
Hooser argues that the evidence would support a finding on the cause of
Hooser's separation other than the cause Judge Furtado actually found.
But, Judge Furtado's determination is supported by sufficient evidence.
That the evidence, if weighted and credited differently, could have
supported an alternate finding is not a basis on which to challenge the
findings. Judge Furtado's written findings and his statements during the
hearing show that he considered all the evidence in the record to reach his
final determination. The weight he placed on evidence and the credibility
determinations he made are not reviewable.
The factual findings in Judge Furtado's order were supported by substantial
evidence. Hooser does not argue that the conclusions of law are not
supported by the findings of fact. Therefore, the Commissioner's ruling
adopting Judge Furtado's findings of fact and conclusions of law was
supported by substantial evidence and not in error.
Because we affirm the commissioner's decision, Hooser is not entitled to
attorney fees. RCW 50.32.160.
WE CONCUR:
1 Kirsten Gillespie, an ESD intake lead worker, explained that the initial
determination that Hooser worked for a qualifying employer would have been
subject to further fact finding if he had not been disqualified because he
was discharged rather than laid off for lack of work. Hooser argued that
the determination in the intake screen printout was that he was an airline-
related employee.
2 Even if the Commissioner agreed with this suggested alternate finding, it
would not justify entitlement to TEUC-A benefits. This finding does not
state that the lack of work was caused by one of the three statutory
qualifying reasons for separation. As discussed, a general business
downturn caused by the September 11, 2001 aftermath does not satisfy the
statute.
3 Judge Furtado's findings were:
1. The claimant worked for the interested employer between June 24, 1996
and August 20, 2002. The claimant worked as a sales representative,
earning approximately $25,000, a combination of salary and commission, in
2002.
2. On the claimant's initial application for unemployment benefits, the
claimant indicated that he had been discharged from work. In a
Determination dated September 5, 2002, the claimant had indicated that he
had been discharged for failing to meet the employer's standards. The
employer also stated that the claimant had been terminated for failing to
perform to the employer's standards. On June 18, 2003, during an interview
regarding his TEUC-A claim, the claimant again initially asserted that he
had been discharged. I give more weight to the claimant's statements as to
the reason for his separation, prior to his learning of the consequences of
that statement on his TEUC-A application, than I do to his explanation at
the hearing, or in conversation with the Employment Security Department
interviewer.
3. The data provided by the claimant in Exhibit 6 shows that the
claimant's productivity was declining more than his peers. This supports
the employer's assertion that the claimant was discharged for failing to
perform to the standards of the job. I do not credit the claimant's
assertion that his declining performance was due to the terrorist attacks
of September 1{1}, 2001. The claimant could have raised that issue when
his initial eligibility for unemployment benefits was being assessed, and
the employer could easily have indicated that the claimant was being laid
off for lack of work. However, neither did so. Similarly, either the
claimant or his employer could have indicated that the claimant's declining
performance was due to the terrorist attacks, but both stated that his
separation was due to lack of job performance.
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