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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

DOSIA NORDLUND,                                                  No.  34143-3-II

                             Appellant,

       v.

STATE OF WASHINGTON DEPARTMENT                              PUBLISHED OPINION
OF EMPLOYMENT SECURITY,

                             Respondent.

       Hunt, J.  -  Dosia Nordlund appeals the superior court's affirmance of the Department of 

Employment Security Commissioner's  denial of unemployment benefits.        She  argues that the 

Commissioner (1) erred in finding that she voluntarily quit employment without good cause; and 
(2) misapplied RCW 50.20.050, RCW 50.20.060, and the "constructive quit"1 doctrine. Agreeing 

with the superior court, we affirm the Commissioner's order.

                                            FACTS

                                  I.  Employment Termination
       From January 21, 2002, through December 15, 2003,2 Dosia Nordlund  worked as a 

"Group Administrative Assistant" for Expedia, Inc. in Tacoma.  Her last day of work at Expedia 

1 The "constructive quit" doctrine allows an employer to treat a discharged employee as though 
the employee voluntarily quit, thus precluding unemployment benefits.  Bauer v. Employment 
Security Dep't, 126 Wn. App. 468, 478, 108 P.3d 1240 (2005).

2 There is no indication in the record that Nordlund was on bad terms with her employer or that 
Expedia was dissatisfied with her performance during this period of employment.   

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was  Thursday, October 30, 2003.   From Friday, October 31, through Friday, November 7, 

Nordlund was absent due to personal illness.  

                           A.  Mother's Illness and Subsequent Death

       The following Monday, November 10, Nordlund left a voice mail message on Expedia's

company "help line," explaining that she would not be at work because of an emergency.  

       The next day, Tuesday, November 11, Senior Human Resources Representative Kristin 

Brunner telephoned Nordlund;     Nordlund  told Brunner    that her  (Nordlund's)  mother had 

unexpectedly taken ill and required her attention.  Brunner told Nordlund that (1) Expedia needed 

certification of Nordlund's mother's illness from her mother's healthcare provider to determine 

whether Nordlund's leave of absence could qualify  for compensation  under the Washington 

Family Medical Leave Act (FMLA); and (2) she (Brunner) would leave the necessary FMLA 

paperwork with Expedia's front receptionist for Nordlund to pick up.  

       According to Nordlund, (1) Brunner also asked Nordlund to return her Expedia keys and 

badge, and (2) Brunner's request confused Nordlund about whether she was still employed with 
Expedia.  Brunner recalled having asked Nordlund to return her keys,3 but Brunner did not recall 

having asked Nordlund to return her badge.  

       On November 13, Nordlund reported to Expedia's front desk, submitted her badge and 

keys, picked up the FMLA paperwork  Brunner had  left, and dropped off a letter from her 

mother's social worker indicating that her mother was going to have liver transplant surgery.  

3 Brunner further explained that the keys were needed for administrative functions, such as 
checking the mail.  

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Expedia heard nothing more from Nordlund until November 25.  

       On Monday, November 24, Nordlund's mother passed away.  On November 25, Nordlund 

left a voice mail message for Brunner, informing Brunner that Nordlund's mother had passed 

away and that she (Nordlund) might need to travel to Montana to handle her mother's affairs.  

       The next day, Tuesday, November 25,  Brunner returned Nordland's phone call and left a 

voice mail message stating that (1)  Expedia would give Nordlund three days bereavement leave,

and (2) Expedia needed Nordlund's FMLA paperwork by December 8.  Believing that the social 

worker handling  her mother's liver transplant had already processed the FMLA paperwork,

Nordlund did not return Brunner's phone call.  Nor did Nordlund ever again contact Brunner or 

Expedia.  

                     B.  Nordlund's Actions and Failure to Notify Expedia

       On Friday, November 28, Nordlund left for Montana.  She did not inform Expedia of her 

departure or her expected return date; nor did she attempt to make alternative arrangements with 

Expedia to cover her employment.  

       While Nordlund was in Montana, she had her brother, Abraham Hartfield, move her 

residential address within Tacoma.  According to Hartfield, (1) he moved Nordlund's belongings 

from her original Anderson Street address to a new residence on Trafton Street; and (2) although 

he checked Nordlund's mail at her Anderson Street address during this time, she received no 

packages or letters there.  

       Nordlund returned to Tacoma on December 12.  The record does not reflect any attempt 

by Nordlund to inform Expedia of her return or her new address.

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                      C.  Expedia's Further Attempts to Contact Nordlund

       On December 1 and 3, Brunner left additional voice mail messages at Nordlund's home

and on her cell phone voice mail.  Nordlund did not respond.  

       On December 3, Brunner also drafted a letter to Nordlund, (1) again requesting the FMLA 

paperwork by Monday, December 8; (2) explaining that without this paperwork,  Nordlund's

absences would be considered unexcused; and (3) asking Nordlund to contact Brunner about the 

matter.  Brunner sent this letter via UPS to Nordlund's Anderson Street residence.  UPS delivered 

it on December 5.   Although the record  contains  UPS delivery information for this letter, it 

contains no delivery signature associated with this delivery.  

       Having received no reply from Nordlund, Brunner drafted another letter on December 9.

In this letter, Brunner asked Nordlund for the FMLA paperwork by December 12 and informed

her that if she did not contact Brunner, Expedia would treat her situation as job abandonment.  

This letter was also delivered by UPS to Nordlund's Anderson Street residence.  Unlike Brunner's 

previous letter, however, the record contains no UPS tracking or delivery information for this 

letter.  

                                 D.  Employment Termination

       On December 19, Brunner drafted a  third  letter  to  Nordlund.  In this letter,  Brunner 

terminated Nordlund's employment with Expedia for having abandoned her job, and it recorded

December 15 as  Nordlund's  last day of employment.   As with her two previous letters to 

Nordlund, Brunner had UPS deliver this letter to Nordlund's Anderson Street address.  UPS 

delivered the letter on December 22, indicating "front door" as the delivery location.  Again, the 

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record contains no delivery signature associated this delivery, although there is delivery and 

tracking information.  

       According to Nordlund, (1) she did not receive Brunner's voice mail messages or three 

letters; (2) other packages had been mistakenly delivered to her Anderson Street front-duplex 

neighbor instead of her rear-unit residence; (3) she was not on pleasant terms with this front-unit 

neighbor; (4) Nordlund contacted UPS about delivery of the December 3 letter and learned that 

the UPS driver had left the letter behind a screen door; (5) Nordlund did not have a screen door 

on her unit, but her front-duplex neighbor did; (6) Nordlund's Anderson Street voice mail did not 

transfer to her new residence phone number when she moved; and (7) consequently, she lost any 

pending messages on her  Anderson Street home voice mail.        Nordlund could not, however, 

explain why she did not receive voice mail messages on her cell phone.  

                                     II.  Procedural History

                             A.  Denial of Unemployment Benefits

       Around December 18, 2003, Nordlund applied to the Employment Security Department 

(Department)  for unemployment benefits.  Expedia  objected, replying       that Nordlund  had 

abandoned her job when she left employment and failed to respond to numerous letters and voice 

messages.  Nordlund argued that Expedia had wrongfully discharged her on November 16, 2004.  

       Because Nordlund failed to respond to the Department's requests for further information, 

the Department concluded that Nordlund had abandoned her job with Expedia.  On January 17, 

2004, the Department issued an order denying Nordlund's application for unemployment benefits.  

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                                   B.  Administrative Appeal 
       Nordlund filed an  appeal on March 31, 2004.4   Following  a  June 25 hearing,5 an 

administrative law judge (ALJ) entered findings of fact that "[b]y choosing to act in a manner 

which the claimant knew or should have known would result in discharge, claimant constructively 

quit employment."   Commissioner's Record (CR) at 128.   The  ALJ ruled, therefore, that 

Nordlund was disqualified from receiving unemployment benefits under RCW 50.20.050(1)(a), 

the "voluntary quit" statute.  

       The ALJ also entered the following relevant findings on credibility:

       (22) We find claimant's testimony credible that she did not receive the letters from 
       Ms. Brunner in December 2003.  Her brother, Mr. Hatfield checked the mail daily 
       while he was moving claimant's residence and testifies that he no [sic] mail was 
       received from the employer.
              (23) Additionally, UPS indicated that they had left some of the mail in the 
       front screen door.  Claimant did not have a front screen door, her neighbor did.  
       She lived in the rear unit and had problems with her neighbor in the front unit.  The 
       neighbor was racially antagonistic toward claimant and may have been motivated 
       to accept and retain her mail.  For these reasons we find that claimant did not 
       receive the December letters from the employer.
              . . . .
              (25) We find claimant's testimony credible that she did not receive 
       messages on her  home phone from Ms. Brunner.  Our finding is based on 

4 An administrative law judge (ALJ) determined that Nordlund had good cause for filing a late 
appeal.  

5 During the administrative hearing, the ALJ initially addressed three issues:  (1) whether 
Norlund's appeal was timely, filed 30 days after the Department mailed its Benefits Determination
Notice; (2) whether Nordlund voluntarily quit her job with Expedia without good cause and, thus, 
was disqualified from unemployment benefits under RCW 50.20.050; and (3) whether Norlund 
was available for and actively seeking work during the weeks at issue.  The ALJ determined that 
(1) under the circumstances, Nordlund's appeal was timely; (2) Nordlund did not qualify for 
unemployment benefits because she had voluntarily quit her job without good cause; and (3) she 
was actively seeking and available for work under RCW 50.20.010(1)(c).  Norlund appealed only 
the second issue to the Department Commissioner. 

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       claimant's reasonable testimony that when she moved her telephone service to her
       new residence the telephone company did not transfer her voice messages to the 
       new telephone number.
              (26) However, we do not find claimant's testimony credible that she did 
       not receive the two calls Ms. Brunner left on her cell phone.  Claimant offered no 
       reasonable explanation why the messages would not have been received.  She also 
       offered no documentary evidence such as her cell phone bills for the months of 
       November and December to dispute Ms. Brunner's testimony. 

CR at 127-28.

                            C.  Appeal to Department Commissioner

       Nordlund timely appealed this ALJ order to the Department Commissioner, who issued his 

decision on August 13, 2004.  Acting under RCW 34.05.464(4), the Commissioner adopted the 

ALJ's findings of fact and conclusions of law.  The Commissioner affirmed the ALJ's initial order 

because Nordlund had made no effort to contact Expedia after November 25, 2003, or to ensure 

that Expedia had received the FMLA documents, thus effectively abandoning her job.   The 

Commissioner further ruled  that if RCW 50.20.060  applied,  Nordlund's conduct constituted 

willful misbehavior, thus disqualifying her from unemployment benefits. 

       Neither the ALJ nor the Commissioner addressed RCW 50.20.050(1)(b)(ii), the illness 

"safe harbor" provision of the Employment Security Act.  

                                 D.  Appeal to Superior Court

       Nordlund appealed the Commissioner's order to the Pierce County Superior Court.  The 

Commissioner conceded that RCW 50.02.060 ("willful misbehavior") did not apply and, thus, 

limited his argument to upholding his order under RCW 50.20.050 ("voluntary quit" analysis)

only.  Sitting in its appellate capacity, the superior court affirmed the Commissioner.  

       Nordlund further appeals.  

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                                          ANALYSIS

                I.  "Voluntary Quit" Statute and "Illness Safe-harbor" Provision

       Nordlund argues that she is entitled to unemployment benefits because the illness and 

subsequent death of her mother are exceptions to disqualification from unemployment benefits 

under RCW 50.20.050(b)(ii).  We disagree.

                                    A.  Standard of Review

       We review the Commissioner's decision, rather than the administrative law judge's initial 

decision.  Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 404-06, 858 P.2d 494 (1993)

(citing RCW 34.05.464(4)).  We sit in the same position as the trial court and apply the APA

standards directly to the agency's administrative record. Superior Asphalt & Concrete Co. v. 

Dep't of Labor & Indus., 112 Wn. App. 291, 296, 49 P.3d 135 (2002) (citing Tapper, 122 Wn.2d 

at 402), review denied, 149 Wn.2d 1003 (2003).  

       Under the APA, we consider the Commissioner's decision to be prima facie correct, and 

the "burden of demonstrating the invalidity of agency action is on the party asserting invalidity."

RCW 34.05.570(1)(a).  We review conclusions of law de novo to determine if the reviewing 

judge correctly applied the law.  Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 325, 

646 P.2d 113 (1982), cert. denied, 459 U.S. 1106 (1983).  

       Under the APA, a reviewing court may reverse an agency's adjudicative decision 
       if, inter alia:  (i) the agency erroneously interpreted or applied the law;  (ii) the 
       agency's decision is not supported by substantial evidence; or (iii) the agency's 
       ruling is arbitrary or capricious. 

Aponte v. Dep't of Soc. & Health Servs., 92 Wn. App. 604, 615, 965 P.2d 626 (1998) (citing

Tapper, 122 Wn.2d at 402; RCW 34.05.570(3)(d), (e), (i)), review denied, 137 Wn.2d 1028 

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(1999) (footnotes omitted).  

                               B.  The Employment Security Act

       The  Legislature promulgated the  Employment Security Act (ESA) to provide 

compensation to individuals who become involuntarily unemployed through no fault of their own. 

RCW 50.01.010; Tapper, 122 Wn.2d at 407-08.  Courts have held that the Legislature intended 

to compensate both the involuntarily unemployed and the voluntarily unemployed for good cause.

Cowles Publ'g Co. v. Employment Sec. Dep't, 15 Wn. App. 590, 593, 550 P.2d 712 (1976), 

review denied, 88 Wn.2d 1001 (1977).  But if a claimant leaves work voluntarily without good 

cause, the ESA disqualifies the claimant and denies her unemployment benefits. RCW 

50.20.050(1)(a).  

                               C.  Illness Safe-Harbor Exception

       Nevertheless, RCW 50.20.050(1)(b) provides four instances in which an individual "shall 
not be considered to have left work voluntarily without good cause,"6 three of which do not apply 

here.7 The instance that applies here is RCW 50.20.050(1)(b)(ii). This statute provides:

              (b) An individual shall not be considered to have left work voluntarily 
       without good cause when:
              . . . .
              (ii) The separation was because of the illness or disability of the claimant or 
       the death, illness, or disability of a member of the claimant's immediate family if 

6 The 2003 Washington Legislature amended RCW 50.20.050 to set forth ten specific instances 
where a claimant is not disqualified from unemployment benefits.  See RCW 50.20.050(2).  But 
because Nordlund's claim has an effective date before January 4, 2004;  instead, only RCW 
50.20.050(1) applies.  

7 The three instances that do not apply to Nordlund here are:  (1) leaving work to accept a bona 
fide offer or bona fide work; (2) leaving work to relocate for the spouse's employment; and (3)
that separation from work was necessary to protect the employee from domestic violence.  RCW 
50.20.050(1)(b)(i), (iii), and (iv). 

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       the claimant took all reasonable precautions, in accordance with any regulations 
       that the commissioner may prescribe, to protect his or her employment status by 
       having promptly notified the employer of the reason  for the absence and by 
       having promptly requested reemployment when again               able to assume 
       employment: PROVIDED, That these precautions need not have been taken when 
       they would have been a futile act, including those instances when the futility of the 
       act was a result of a recognized labor/management dispatch system.

RCW 50.20.050(1)(b)(ii) (emphasis added).  

       During the administrative hearing, Nordlund presented evidence of her mother's illness.  

On appeal to the Commissioner, she asserted that the ESA illness safe-harbor provision should 

apply.  Nordlund is correct.  Because her employment absence was due to family illness, the 

illness safe-harbor provision of RCW 50.20.050(1)(b)(ii) applied.   Neither the ALJ nor the 

Commissioner, however, addressed this provision.  

       Nonetheless, we address the illness safe-harbor provision's applicability to determine, as a 

matter of law, whether Nordlund qualified for unemployment benefits.  Having done so, we note 

that applying RCW 50.20.050(1)(b)(ii) would not change the outcome of the case.  Were we to

remand   this  case  to the office of administrative hearings for review under             RCW 

50.20.050(1)(b)(ii), Nordlund would not prevail on the facts before us.  RCW 50.20.050(1)(b)(ii) 

requires that  unemployment benefit  claimants take all reasonable precautions to protect their 

employment status, including compliance with department regulations, to qualify for protection 

under the illness safe-harbor provision.  Nordlund failed to comply.

       At the time of Nordlund's claim date, WAC 192-150-055 required the following:

       (1) General rule.  To establish good cause for leaving work voluntarily because of 
       your illness or disability or the illness, disability, or death of a member of your 
       immediate family, you must demonstrate that:
              (a) You left work primarily because of such illness, disability, or death; and
              (b) The illness, disability, or death necessitated your leaving work; and

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              (c) You first exhausted all reasonable alternatives prior to leaving work, 
       including asking that you be reemployed when you are able to return to work.
              (2) Exception.   You may be excused from failure to exhaust reasonable 
       alternatives prior to leaving work as required by subsection (1)(c) if you can show 
       that doing so would have been a futile act.

       In Nordlund's case, the Commissioner's Record substantially supports the ALJ's findings

of fact that Nordlund (1) failed to comply with Expedia's requests for information, (2)  failed to

make reasonable efforts to keep Expedia informed about her mother's death and her need to take 

time off from work, (3) failed seek Expedia's permission for an extended absence or to exhaust 

reasonable alternatives before leaving work without notice to Expedia, (4) failed to tell Expedia 

that she was leaving the state for Montana for a period of time, and (5) failed to inform Expedia 

that she changed her Tacoma address while she was in Montana.  Moreover, Nordlund never 

asserted that exhaustion of alternatives would have been futile.  

       We hold, therefore, that Nordlund did not qualify for the illness safe-harbor provision of 

RCW 50.20.050(1)(b)(ii) and WAC 192-150-055.  Accordingly, we affirm the Commissioner's 
denial of Nordlund's claim for unemployment benefits as a matter of law.8

                                       IV.  Attorney Fees

       Nordlund requests costs and  attorney fees for work performed at the administrative, 

superior court, and appellate court levels, payable from the state unemployment fund under RCW 

50.32.100, .110, and .160.  Because Nordlund has not prevailed at any level, she is not entitled to 

8 Nordlund also argues that (1) the ALJ erroneously applied the  "constructive quit" doctrine 
rejected in Bauer v. Employment Sec. Dep't, 126 Wn. App. 468, 478, 108 P.3d 1240 (2005); and 
(2) the Commissioner erred by alternatively ruling that she was disqualified from unemployment 
benefits under RCW 50.20.060.  Because we affirm the Commissioner on the voluntary quit 
ground, we do not address Nordlund's additional arguments.

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costs and attorney fees under the statute.

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       Affirmed.

                                                                     Hunt, J.
We concur:

               Bridgewater, P.J.

               Armstrong, J.

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