DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 46316-1-I
Title of Case: Hee-Joo Park, Appellant
v.
State of Wa., Dept. of Employment Security, Res.
File Date: 02/20/2001
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 99-2-08343-1
Judgment or order under review
Date filed: 01/20/2000
Judge signing: Hon. Jay White
JUDGES
------
Authored by William W. Baker
Concurring: Walter E. Webster
C. Kenneth Grosse
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Deanna J. Hawkins
555 W Smith St
PO Box 140
Kent, WA 98035-0140
Counsel for Respondent(s)
Daphne J. Huang
900 4th Ave #2000
Seattle, WA 98164
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
HEE-JOO PARK, )
) DIVISION ONE
Appellant, )
) NO. 46316-1-I
vs. )
) UNPUBLISHED OPINION
EMPLOYMENT SECURITY )
DEPARTMENT OF THE )
STATE OF WASHINGTON, ) FILED:
)
Respondent. )
)
BAKER, J. - Hee-Joo Park voluntarily quit her job as a pharmacist
because of stress induced by 12-hour shifts and low staffing levels at Rite
Aid Pharmacies. Because the stresses involved in her pharmacist's position
are usual and customary in the industry and she knew the conditions of her
employment before she accepted it, we affirm.
I
Hee-Joo Park started working for Payless Drug as a pharmacist. Rite
Aid purchased Payless and Park experienced staff turnover and stresses
during the transition. She inquired about a promotion to another store,
and was told that one was available where she would be a pharmacist manager
working 12-hour shifts as the only pharmacist on duty.
Soon after her transfer to the new store, she began experiencing pain
in her legs, blurry vision and depression because of the 12-hour shifts,
low staffing levels and concern about errors by the pharmacist on duty when
she was not. In response, her manager scheduled additional help for her,
exceeding budget to do so. He also advised her to delegate more of her
duties to her technicians and to take a break when she could. He also
offered to return her to her former position as a pharmacist with an 8-hour
shift. Park declined the offer and after two months in her new position,
she resigned. She filed for unemployment benefits which were initially
granted, but then denied after a hearing at the request of her employer.
She appealed the decision to the superior court, who affirmed, and she now
seeks further appellate review.
II
A court reviews a final administrative decision of the Employment
Security Commissioner pursuant to the Washington Administrative Procedures
Act.1 An administrative decision may be reversed if it is not supported by
substantial evidence in light of the whole record before the court or if
the order is arbitrary or capricious.2 An appellate court sits in the same
position as the superior court, applying the statutory standard of review
to the record before the commissioner.3
As a preliminary matter, Park asks us to consider a stipulation and
agreed order entered into by Rite Aid and the Board of Pharmacy in which
Rite Aid agreed to pay a $50,000 fine to the State and review its methods
of 'establishing and ensuring appropriate personnel to service each
location.' She also asks us to consider a Seattle Post-Intelligencer
article about staffing shortages and increased errors in pharmacies across
the country. RCW 34.05.562(2) states in relevant part:
(2) The court may remand a matter to the agency, before final disposition
of a petition for review, with directions that the agency conduct fact-
finding and other proceedings the court considers necessary and that the
agency take such further action on the basis thereof as the court directs,
if . . .
(b) The court finds that (i) new evidence has become available that relates
to the validity of the agency action at the time it was taken, that one or
more of the parties did not know and was under no duty to discover or could
not have reasonably been discovered until after the agency action, and (ii)
the interests of justice would be served by remand to the agency . . .
In Keenan v. State Employment Security Department,4 the claimant was denied
benefits because she was terminated for engaging in a physical altercation
with a co-worker. On appeal, she asked the court to remand the case back
to the commissioner for consideration of new evidence that the prosecutor
could not press charges for the assault.5 The court declined to do so,
concluding that consideration of the evidence would not assist the fact
finder because decisions regarding misconduct for unemployment purposes are
made independently of criminal proceedings.6
In this case, the agreed order between Rite Aid and the Board of Pharmacy,
although not available at the time of the hearing, would not assist the
commissioner because it is not evidence of statutory and/or regulatory
personnel violations by Rite Aid. It is also not evidence of specific
conditions at the store where Park worked. Moreover, evidence of existing
statutory standards and circumstances in Park's employment that she might
claim to constitute a violation was certainly available at the time of the
hearing before the commissioner. Likewise, the Seattle Post-Intelligencer
article is irrelevant and unhelpful. Generalized problems pervasive in the
industry are not evidence of specific conditions at the store where Park
worked that would constitute good cause to quit. We decline to remand for
consideration of this new evidence.
Park next argues that substantial evidence does not support the
commissioner's conclusion that she did not quit for good cause. She does
not assign error to any of the findings of fact, but rather contends that
the commissioner erred in failing to find that Park called the Renton store
when she was offered a transfer back to her old position, and that she
declined the position because the low staffing at that store had not
changed. This failure, she claims, caused the commissioner to erroneously
conclude that she did not have good cause to quit because she did not
accept the transfer.
A commissioner's decision is prima facie correct.7 The question of whether
the commissioner erred in determining if Park had good cause to quit is a
mixed question of law and fact.8 Factual questions are reviewed under the
substantial evidence standard in light of the entire record.9 Evidence is
substantial if there is a sufficient quantum of evidence in the record to
persuade a reasonable person that the declared premise is true.10
Application of the law to the facts is reviewed de novo.11 Substantial
weight is given to an agency's interpretation of the law.12
A claimant is entitled to benefits notwithstanding a voluntary
termination if she quits with good cause.13 A claimant demonstrates good
cause if (1) she left primarily because of work-connected factors; (2) the
factors were sufficiently compelling to cause a reasonably prudent person
to terminate employment; and (3) she exhausted all reasonable alternatives
(but she is not required to engage in futile acts).14 A compelling reason
is one that forces a person to quit against her will.15 In general, a work
factor that was known and present at the time of hire will not constitute
good cause unless, inter alia, a) the work factor changed as to constitute
an involuntary deterioration of the factor; or b) other work related
circumstances would make it an unreasonable hardship for the claimant to
continue employment.16
After considering the evidence in light of the entire record, we conclude
that substantial evidence supported the commissioner's decision. The
uncontested findings stated in part that:
1. Park accepted the promotion to manager knowing that it involved 12-hour
shifts with no overlapping shifts of additional pharmacists.
2. Park started experiencing back pain, blurry vision and depression, which
she attributed to the 12-hour shifts. Park did not consult a physician for
these symptoms.
3. She had little or no opportunity to sit down or take breaks during her
shifts.
4. Park's supervisor provided a 'floating pharmacist' on several Mondays
and exceeded budget for pharmacy technicians to provide assistance to Park.
5. Park declined a transfer to return to her former position.
The record also reflects that Rite Aid suggested that Park delegate more of
her duties to allow time for breaks and that she could sit while performing
many duties as a pharmacist. Rite Aid also suggested that she work with
her subordinate pharmacist to change to a 6-hour shift rather than a 12-
hour shift. Moreover, evidence was introduced that the West Seattle store
was functioning satisfactorily at that staffing level and that, although
the conditions were stressful, they were usual and customary within the
industry. The commissioner concluded that the conditions at the Rite Aid
store were such that it would not be an unreasonable hardship for Park to
remain working there. Substantial evidence supports that conclusion and
the commissioner did not err in applying the law to the facts.
At that point, it was not necessary for the commissioner to determine
whether Park had exhausted all reasonable alternatives. Nevertheless, the
administrative law judge finished the three prong good cause analysis by
concluding that Park failed to accept a transfer back to her former
position to preserve her employment. Because the second prong was
dispositive and Park's refusal to accept the transfer did not form the
primary basis for the commissioner's rulings, her argument that the
commissioner should have considered her reasons for not returning to her
former position are irrelevant.
Park next argues that the commissioner's decision was arbitrary and
capricious because it failed to consider her fear that her pharmacist's
license was jeopardized by the errors of her subordinate pharmacist. A
decision is arbitrary and capricious if it is willful and unreasoning,
without consideration for and in disregard of the facts and circumstances.17
A finding of good cause must be based upon existing facts, not on the
claimant's conjecture.18 Park offered no evidence that would substantiate
her concern. Moreover, she admitted that her manager assured her that the
pharmacist's errors would not reflect on her license. The commissioner's
decision was not arbitrary and capricious.
AFFIRMED.
WE CONCUR:
1 RCW 50.32.120; Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858
P.2d 494 (1993).
2 RCW 34.05.570(3)(e) and (i).
3 Tapper, 122 Wn.2d at 402.
4 81 Wn. App. 391, 914 P.2d 1191 (1996).
5 Keenan, 81 Wn. App. at 396.
6 Keenan, 81 Wn. App. at 396.
7 RCW 50.32.150.
8 Terry v. Employment Sec. Dep't, 82 Wn. App. 745, 748, 919 P.2d 111
(1996).
9 Terry, 82 Wn. App. at 748-49.
10 Penick v. Employment Sec. Dep't, 82 Wn. App. 30, 37, 917 P.2d 136 (1996).
11 RCW 34.05.570(3)(d); Terry, 82 Wn. App. at 748-49. We note that in the
case of Robinson v. Employment Sec. Dep't, 84 Wn. App. 774, 930 P.2d 926
(1996), this court incorrectly recited the pertinent standard of review as
one of clearly erroneous. The case cited as authority for that standard,
Schuffenhauer v. Employment Sec. Dep't, 86 Wn.2d 233, 235, 543 P.2d 343
(1975), based its recitation of the standard of review on the former RCW
34.04.130(6), which has since been replaced by RCW 34.05.570(3), setting
forth the proper standard as stated in this opinion.
12 Wilson v. Employment Sec. Dep't, 87 Wn. App. 197, 201, 940 P.2d 269
(1997).
13 RCW 50.20.050(1).
14 Terry, 82 Wn. App. at 750; WAC 192-16-009(1)(a).
15 Terry, 82 Wn. App. at 751.
16 WAC 192-16-009(2).
17 In re Discipline of Brown, 94 Wn. App. 7, 16, 972 P.2d 101 (1998), review
denied, 138 Wn 2d 1010 (1999).
18 Terry, 82 Wn. App. at 751. See also Robinson v. Employment Sec. Dep't,
84 Wn. App. 774, 930 P.2d 926 (1996).