DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division III
State of Washington
Opinion Information Sheet
Docket Number: 21581-4-III
Title of Case: Melissa M. Nagle v. State of WA., Department
of Employment Security
File Date: 01/27/2004
SOURCE OF APPEAL
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Appeal from Superior Court of Yakima County
Docket No: 00-2-01422-7
Judgment or order under review
Date filed: 10/25/2002
JUDGES
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Authored by Dennis J. Sweeney
Concurring: Frank L. Kurtz
Kenneth H. Kato
COUNSEL OF RECORD
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Counsel for Appellant(s)
Deanna Jill Hawkins
Attorney at Law
710 2nd Ave Ste 700
Seattle, WA 98104-1724
Counsel for Respondent(s)
James Alan Yockey
Attorney General of Washington
120 S 3rd St Ste 100
Yakima, WA 98901-2869
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MELISSA NAGLE, ) No. 21581-4-III
)
Appellant, )
)
v. ) Division Three
) Panel Nine
STATE OF WASHINGTON, DEPARTMENT )
OF EMPLOYMENT SECURITY, )
)
Respondent. ) UNPUBLISHED OPINION
)
SWEENEY, J.--This is an appeal from the denial of unemployment
compensation benefits. The only issue before us is whether the
administrative law judge's findings are supported by substantial evidence.
They are. And we therefore affirm the superior court's decision to that
effect.
FACTS
Sherri Walker owns and operates Sherri's Country Care. It is a home-based
child care business. She employed Melissa Nagle as a caregiver from
February 28, 1998 until November 12, 1999.
Ms. Nagle worked very few hours her last week on the job. Ms. Walker
asked her about the absences. Ms. Nagle became very agitated, and began
yelling, 'Fire me or lay me off.' Commissioner's Record (CR) at 94, 43.
Ms. Nagle claimed Ms. Walker asked her to leave after Ms. Nagle confronted
her about her 1998 taxes. The administrative law judge (ALJ) found that
Ms. Nagle quit.
Ms. Nagle applied for unemployment benefits. The Employment Security
Department denied her claim.
At the administrative hearing, the ALJ addressed two issues: the good
cause issue (now before us) and wage credits. The ALJ postponed
consideration of wage credits, leaving the record open for additional
documentation by the employer. The judge promised to hold additional
hearings if and when further documentation was received.
The ALJ also offered to postpone the good cause hearing to allow Ms. Nagle
to produce any additional documents. But she agreed to proceed with the
hearing. CR at 5-6, 103. The ALJ concluded that Ms. Nagle initiated the
separation and resigned, and that she voluntarily quit without good cause.
And the ALJ entered findings, conclusions and an order denying eligibility.
Ms. Nagle petitioned for administrative review. And for the first
time, she claimed that the documents for which the wage credit
determination was postponed were also highly relevant to the good cause
issue, contending they tended to prove that she quit over disputed hours
and taxes. For the first time also, she contended in the petition to the
commissioner that the employer failed to include with each paycheck proper
documentation of hours worked and deductions withheld. This, she contended
in her petition for review, constituted per se good cause to quit, even if
she never discussed it with the employer.
The commissioner affirmed the ALJ. The letter ruling noted that the
appealed good cause issue and the unappealed wage credit issue had separate
docket numbers. And the commissioner refused to consider objections to the
wage credits docket procedure in reviewing the good cause determination.
Specifically, the commissioner refused to address correspondence between
Ms. Nagle's counsel and the ALJ regarding supplementing records and holding
additional hearings on wage credits.
On the good cause issue, the commissioner found substantial support
for the ALJ's findings and concluded that those findings amply supported
the conclusions of law.
Ms. Nagle appealed to the superior court. That court affirmed the
department's action.
DISCUSSION
Our review of agency actions is governed by the Administrative Procedure
Act (chapter 34.05 RCW). RCW 50.32.120. And we review the record that was
before the ALJ. RCW 34.05.570; Kenna v. Dep't of Employment Sec., 14 Wn.
App. 898, 905, 545 P.2d 1248 (1976). We grant relief only if we determine
that the appellant has been substantially prejudiced by the action
complained of. RCW 34.05.570(1)(d). Ms. Nagle's complaint is that she was
denied a fair hearing because the ALJ left the record open for the employer
to supply missing payroll records.
Denial of Additional Time
The ALJ left the record open for the limited purpose of receiving records
the employer had misplaced. The sole purpose of these records was to
establish Ms. Nagle's base year wage credits to determine threshold
eligibility. But this decision is not before us; Ms. Nagle never sought
review of it.
That said, the ALJ offered to continue the entire hearing, including the
good cause matter, until all records were before the court. Ms. Nagle
consulted with her counsel and decided instead to proceed. Accordingly,
the ALJ did not postpone the hearing on the good cause issue and did not
leave the record open on that issue.
Ms. Nagle changed her theory of recovery only after the adverse decision.
She now insists the previously dispensable records were crucial to her good
cause case. But these theories were never before the fact finder. The ALJ
did not, then, abuse his discretion by declining to reopen the inquiry and
receive additional documents or to allow additional examination of
witnesses.
The records Ms. Nagle says were omitted are not relevant to this appeal.
They either relate to a distinct but related issue or they were not before
the ALJ. We find no error.
Good Cause Determination
A claimant must establish good cause for leaving her employment to qualify
for unemployment compensation. RCW 50.20.050(1). Good cause requires a
work-related reason sufficiently compelling as to cause a reasonably
prudent person to quit. Plus the worker must exhaust all reasonable
alternatives that might have sustained employment. Johns v. Dep't of
Employment Sec., 38 Wn. App. 566, 569, 686 P.2d 517 (1984); WAC 192-16-
009(1).
Review of a good cause determination involves mixed questions of law and
fact. Sweitzer v. Dep't of Employment Sec., 43 Wn. App. 511, 515, 718 P.2d
3 (1986). We accept the agency's unchallenged findings of fact as verities
on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828
P.2d 549 (1992); Wash. Fed'n of State Employees v. Dep't of Soc. & Health
Servs., 90 Wn. App. 501, 507-08, 966 P.2d 322 (1998). The agency findings
must be based upon substantial evidence. RCW 34.05.570(3)(e); Superior
Asphalt & Concrete Co. v. Dep't of Labor & Indus., 112 Wn. App. 291, 296,
49 P.3d 135 (2002), review denied, 149 Wn.2d 1003 (2003). Evidence is
substantial if it is sufficient to persuade a fair-minded person of the
truth of the matter asserted. King County v. Cent. Puget Sound Growth
Mgmt. Hearings Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000).
The ALJ did not believe Ms. Nagle's version of the events, specifically
that she questioned the W-2. He believed instead Ms. Walker and Sherri
Abdellatif, another employee. They testified that Ms. Nagle hardly showed
up for work at all that week, and then, on the Friday, became enraged when
Ms. Walker tried to talk to her about it. Then she quit. The record amply
supports these findings.
Ms. Nagle's contention that she established per se good cause
according to the criteria set forth in Martini v. Employment Sec. Dep't is
raised here for the first time. Martini v. Employment Sec. Dep't, 98 Wn.
App. 791, 990 P.2d 981 (2000). At her hearing, she did not allege any
connection between her decision to quit and alleged defects in the
paychecks.
Again our review of this decision is limited by statute to the record
before the ALJ. RCW 34.04.570; Kenna, 14 Wn. App. at 905. The court will
not reach this contention.
Substantial evidence supports the ALJ findings. And those findings
amply support the conclusion that Ms. Nagle quit without good cause.
We therefore affirm the judgment of the superior court.
A majority of the panel has determined that this opinion will not be
printed in the Washington Appellate Reports but it will be filed for public
record pursuant to RCW 2.06.040.
Sweeney, J.
WE CONCUR:
Kato, A.C.J.
Kurtz, J.