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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LISA PAPPAS,                                )
                                            )       No. 57147-8-I
                      Appellant,            )
                                            )       DIVISION ONE
            v.                              )
                                            )
STATE OF WASHINGTON,                        )
EMPLOYMENT SECURITY                         )       UNPUBLISHED OPINION
DEPARTMENT,                                 )
                                            )       FILED: October 2, 2006
                      Respondent.           )
________________________________ )

       PER CURIAM --- An administrative hearing officer may rely on hearsay for her 

decision if the hearsay is not the sole basis for the decision.  And hearsay evidence 

combined with a party's refusal to deny or refute the allegations is sufficient to support 

findings of fact.  The hearing officer based her decision on Lisa Pappas' evasive 

answers, her testimony acknowledging her employer's directions, and her refusal to 

deny the allegations of misconduct.  This evidence was sufficient to support the 

findings of fact and related conclusions of law.  We therefore affirm the decision to 

deny unemployment benefits. 

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                                            FACTS

       Lisa Pappas was employed at ER Solutions, Inc. (ER) as a collector 

beginning on November 13, 2000.  Pappas received a copy of the company 

personnel manual, which defined harassment to include "comments, jokes, 

innuendoes, unwelcome compliments, pictures, cartoons, pranks, or other verbal or 

physical conduct which . . . has the purpose or effect of creating an intimidating, 

hostile, or offensive working environment."  After several incidents of misconduct, 

ER discharged Pappas on August 10, 2004. 

       A written warning dated August 15, 2001, documents the first incident.  The 

warning states that ER's insurance carrier had complained that Pappas used profanity 

toward their employees several times.  The document directed Pappas to cease verbal 

communications with the insurance carrier.  Pappas, Michael Flannigan, a collections 

supervisor, and James Bernard, Assistant Collection Manager, signed this document. 

       In a second incident on February 5, 2003, Pappas received a document stating

that she violated policy when she sent an email to a co-worker about a disagreement 

over an account.  The document asked her to bring such disagreements to 

management because they could otherwise result in altercations.  Pappas, Sylvia Lock, 

Assistant Collection Manager, and Bernard signed this document.  Documentation of a 

third incident on March 2, 2004, stated that after allegedly receiving bad checks from a 

co-worker to pay for Avon products, Pappas harassed her by making disparaging 

comments about the co-worker and pointing her out to others in the office. This 

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document stated that Pappas was being placed on "Final Warning" because of the 

seriousness of her actions. 

       Approximately five months before her discharge, $200 disappeared from 

Pappas' coat pocket while she was on a break at work.  Pappas believed that a co-

worker named Raychel had taken the money, and she made other workers aware of her 

suspicions.  Pappas called the police, who investigated but determined that there was 

insufficient evidence to bring charges.  Pappas also reported the incident to her 

superiors at ER. 

       On August 4, 2004, Pappas received a document stating that several employees 

had reported that Pappas was accusing Raychel of being a thief.  The document 

referred to a meeting the day before where Lock had told Pappas that this behavior 

violated the company harassment policy and would not be tolerated.  Lock told Pappas 

to refrain from making such statements to co-workers.  At the end of the work day, Lock 

received an email from an employee saying that Pappas was still making accusations 

about Raychel.  On August 5, Lock placed Pappas on suspension, and on August 10 

he discharged her. 

       The Employment Security Department denied Pappas' application for 

unemployment benefits because she was discharged for misconduct.  After an 

administrative hearing in which Pappas contested the denial, an administrative law 

judge entered an initial order finding that ER had proved Pappas was discharged for 

misconduct and affirmed the Department's ruling denying benefits.  Pappas petitioned 

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the Department Commissioner for review.  The commissioner affirmed the ruling.  

Pappas appealed the commissioner's decision to King County Superior Court, which 

also affirmed the decision.  

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                                          HEARSAY

       The Washington Administrative Procedure Act (WAPA) governs judicial review 
of agency action regarding unemployment compensation.1  "In reviewing administrative 

action, this court sits in the same position as the superior court, applying the standards 
of the WAPA directly to the record before the agency."2 Under the WAPA standards, 

the appellate court may sustain a challenge to findings of fact when those findings are 

       not supported by evidence that is substantial when viewed in the light of 
       the whole record before the court . . . .[3]

Substantial evidence is evidence sufficient to persuade a fair-minded person of the 
truth of the assertion.4

       Pappas contends that finding of fact 6 was based entirely on hearsay evidence 

that did not have even a circumstantial guarantee of trustworthiness.  The disputed 

finding states that Pappas

       firmly believed that Raychel had been the thief.  She repeatedly 
       disobeyed the employer's instructions, given several times, and shared 
       her belief with co-workers.  The co-workers in turn reported this to 
       management.  [Pappas] received first verbal warnings, and then written
       warnings not to do this, but she persisted.

       Hearsay evidence may be admitted at an administrative hearing if the presiding 

officer determines that "it is the kind of evidence on which reasonably prudent persons 

       1 RCW 34.05.510; 50.32.120.

       2 Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).

       3 RCW 34.05.570(3)(e).

       4 Lawter v. Employment Sec. Dep't, 73 Wn. App. 327, 332, 869 P.2d 102, review
denied, 124 Wn.2d 1019 (1994).

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are accustomed to rely in the conduct of their affairs."5  The co-workers acted according 

to company policy by making management aware of Pappas' persistent repetition of her 

suspicions and accusations. The information was relayed in writing, and is signed by 

both Pappas and management.  Although she had the right to do so, Pappas failed to 
call any witnesses to rebut this evidence.6

       Pappas also argues that conclusion of law 8 fails to state that it was based on 

anything other than hearsay.  But the hearing officer stated on the record that the 

WAPA precluded her from basing her findings exclusively on hearsay evidence (Civil 

Rule 16), and  conclusion 8 specifically states that the findings

       are not based solely on hearsay written statements from co-workers.  
       They are also based on the claimant's evasive answers, her ultimate 
       acknowledgment that she received the instructions the employer alleges 
       [not to speak of her suspicions to other co-workers], and her refusal to 
       deny making the theft accusation to co-workers.  She testified only that 
       she did not recall making the specific statements alleged by the specific 
       co-workers on the specific dates.

Pappas repeatedly refused to specifically deny that she accused Raychel of stealing.  

She admitted that management told her not to make accusations in front of other co-

workers.  It is clear from the conclusion itself and from a review of the record that 

Pappas' own testimony at the hearing contributed to the decision.  The hearing officer 

did not rely solely on hearsay.

       5 RCW 34.05.452.

       6 RCW 34.05.446(1); see Chmela v. Dep't of Motor Vehicles, 88 Wn.2d 385, 391, 
561 P.2d 1085 (1977).

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                                    VALIDITY OF RULE

       Pappas contends that ER's rule defining harassment is so vague as to be 

unenforceable and is therefore unreasonable.  Pappas cites no authority pertinent to a 

determination of vagueness or reasonableness of company rules.  "[A]n appellate court 
need not decide a claim that is not supported by citation to authority."7 We decline to 

further address this issue.

                               SUFFICIENCY OF EVIDENCE

       Pappas argues that the evidence supporting incidents on February 5, 2003, and 

March 2, 2004, was insufficient.  While the February incident does not appear to have 

violated the complaint procedure set out in the company handbook because Pappas 

approached the co-worker directly, the March incident clearly violated company 

procedure because Pappas accused the co-worker to others in the office.  This incident 

and Pappas' repeated accusations against Raychel provide ample evidence to support 

the decision to discharge her.

       7 Mairs v. Dep't of Licensing, 70 Wn. App. 541, 544-45, 854 P.2d 665 (1993).

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                                        CONCLUSION

       We affirm the trial court's decision affirming the administrative decisions denying 

benefits.

       FOR THE COURT:

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