Mohamed Abdelkadir v. Department Of Employment Security ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
MOHAMED ABDELKADIR, No. 69736-6-1
Appellant,
v.
WASHINGTON STATE DEPARTMENT
OF EMPLOYMENT SECURITY, UNPUBLISHED OPINION
Respondent. FILED: March 3, 2014
Verellen, J. — Mohamed Abdelkadir appeals from a superior court order
affirming a Washington Employment Security Department (Department) commissioner's
decision denying his request for training benefits. The commissioner determined that
Abdelkadir was ineligible to receive training benefits because he failed to file his
application within the 60-day deadline and because he did not meet the statutory
definition of a "dislocated worker." Because the commissioner's findings are supported
by substantial evidence and the commissioner correctly applied the law, we affirm.
FACTS
On February 19, 2009, Abdelkadir filed a claim with the Department for
unemployment benefits. Although the commissioner initially denied Abdelkadir's
No. 69736-6-1/2
request, the Department later stipulated that he was eligible to receive unemployment
benefits.1
On October 11, 2011, Abdelkadir submitted his application for training benefits to
the Department. Abdelkadir planned to enroll in an automotive service training program
that was scheduled to begin in January 2012. In the application, Abdelkadir identified
the occupation of "driver" as his "main job."2 His most recent work experience included
approximately seven years as a driver for various employers.
The Department denied Abdelkadir's request for training benefits. It determined
that he was ineligible because his primary occupation as a driver was considered "in
demand," according to the Workforce Development Council.3 The Department also
determined that he was ineligible because he failed to submit his training application
within the 60-day statutory period.
Abdelkadir appealed the Department's decision to the Office of Administrative
Hearings. Following an administrative hearing, the administrative law judge (ALJ)
affirmed the Department's decision.
Abdelkadir then petitioned the commissioner to review the ALJ's order. The
commissioner adopted the ALJ's findings of facts and conclusions of law and affirmed
the ALJ's order. Abdelkadir appealed to King County Superior Court, which affirmed the
commissioner's decision.
1After the superior court affirmed the commissioner's decision denying
Abdelkadir's request for unemployment benefits, Abdelkadir filed a notice of appeal with
this court. Following settlement negotiations, the parties moved to withdraw the appeal
pursuant to RAP 18.2 and stipulated to the reversal of the commissioner's decision.
2Certified Appeal Board Record (CABR) at 103, 105.
3 CABR at 86.
No. 69736-6-1/3
Abdelkadir appeals.
STANDARD OF REVIEW
The Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW,
governs judicial review of a final administrative decision of the commissioner of the
Department.4 In reviewing such a decision, we sit in the same position as the superior
court and apply the standards of the WAPA directly to the administrative record that was
before the agency.5 Thus, we review the commissioner's decision, not the ALJ's
decision or the superior court's ruling.6
A commissioner's decision is considered "prima facie correct."7 The party
asserting invalidity of an agency action—in this case, Abdelkadir— carries the burden of
proving the invalidity.8 Relief from an agency decision will be granted if the reviewing
court determines that the commissioner has erroneously interpreted or applied the law,
the order is not supported by substantial evidence, or the order is arbitrary or
capricious.9
We review findings offact for substantial evidence.10 Substantial evidence is
evidence that would persuade a fair-minded person of the truth or correctness of the
4Tapper v. Emp't Sec. Dep't. 122 Wash. 2d 397, 402, 858 P.2d 494 (1993).
5 Id.: Daniels v. Emp't Sec. Dep't. 168 Wash. App. 721, 727, 281 P.3d 310, review
denied. 175 Wash. 2d 1028 (2012).
6 Verizon Nw.. Inc. v. Wash. Emp't Sec. Dep't. 164 Wash. 2d 909, 915, 194 P.3d
255 (2008).
7Anderson v. Emp't Sec. Dep't. 135 Wash. App. 887, 893, 146 P.3d 475 (2006).
8 RCW 34.05.570(1 )(a); RCW 50.32.150.
9 RCW 34.05.570(3)(d),(e),(i); Tapper. 122 Wash. 2d at 402.
10 Smith v. Emp't Sec. Dep't. 155 Wash. App. 24, 32, 226 P.3d 263 (2010).
No. 69736-6-1/4
matter.11 We review an agency's interpretation or application of the law de novo, giving
substantial weight to the agency's interpretation of the statutes it administers.12
DISCUSSION
As an initial matter, we note that Abdelkadir, representing himself, fails to comply
with our rules on appeal. His brief does not contain assignments of error and issues
pertaining to the assignments of error.13 And he does not support his assertions with
citations to applicable legal authority.14 But even ignoring these deficiencies, his
arguments are not persuasive.
Abdelkadir first contends that the commissioner erred in denying his request for
training benefits because, he asserts, the commissioner improperly concluded that he
failed to satisfy the timing requirement prescribed in RCW 50.22.150(2)(d). We
disagree.
Chapter 50.22 of the Employment Security Act establishes a training benefits
program to "provide unemployment insurance benefits to unemployed individuals who
participate in training programs necessary for their reemployment."15 RCW 50.22.150-
applicable to individuals like Abdelkadir with claims effective before April 5, 200916—
11 King County v. Cent. Puqet Sound Growth Mgmt. Hearings Bd., 142 Wn.2d
543,553, 14P.3d 133(2000).
12 Smith, 155 Wash. App. at 32; Honesty in Environmental Analysis &Legislation v.
Cent. Puqet Sound Growth Mgmt. Hearings Bd., 96 Wash. App. 522, 526, 979 P.2d 864
(1999).
13 RAP 10.3(a)(4).
14 RAP 10.3(a)(6).
15 RCW 50.22.130.
16 The "effective date" of an unemployment claim is the Sunday of the calendar
week in which the application for benefits is filed. WAC 192-100-035. Abdelkadir
submitted his application for unemployment benefits on February 19, 2009.
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sets forth the criteria under which an individual is eligible to receive training benefits.
According to the statute, a claimant is eligible if, among other things, he or she submits
an individual training program to the commissioner "within sixty days after the individual
is notified by the employment security department ofthe requirements of this section."17
Here, the commissioner found that "[w]hen the claimant opened his claim for
benefits in 2009, [t]he department sent him an Unemployment Claims Kit on February
20, 2009. The pamphlet contained information about [training [bjenefits."18
This finding is supported by substantial evidence in the record. At the
administrative hearing, the ALJ asked Abdelkadir, "When you opened your claim for
unemployment benefits, did they send you anything in the mail about how to file your
claim?"19 Abdelkadir responded, "They send me how to—no. They send to me how to
file, but—how to file for benefits, yeah, they send to me."20 Moreover, among the
exhibits presented to the ALJ was a document entitled "Date Calculator."21 This
document indicates that the pamphlet was mailed on February 20, 2009. Accordingly,
the commissioner did not err in finding that the Department mailed Abdelkadir the
Unemployment Claims Kit on February 20, 2009.
Abdelkadir argues that no evidence shows that he actually received a pamphlet
notifying him of the 60-day deadline. Although the commissioner found that the
Accordingly, the effective date is February 15, 2009. Because this effective date
precedes April 5, 2009, RCW 50.22.150 applies.
17 RCW 50.22.150(2)(d).
18 Clerk's Papers at 63.
19 CABR at 58.
20 CABR at 58.
21 CABR at 136.
No. 69736-6-1/6
Department mailed the kit including the pamphlet to Abdelkadir, he did not expressly
find that Abdelkadir received it. Nevertheless, Abdelkadir's testimony that he received
information about how to file claims is entirely consistent with his receipt of the kit
including the pamphlet on training benefits.22
Abdelkadir did not submit his application for training benefits until October 11,
2011, more than two years beyond the 60-day deadline set forth in RCW 50.22.150(2)(d).
Therefore, the commissioner properly concluded that Abdelkadir did not satisfy the timing
requirement necessary to establish eligibility for training benefits.
But even if Abdelkadir satisfied the timing requirement, he failed to establish his
eligibility as a dislocated worker. RCW 50.22.150(2)(a) requires that the claimant be "a
dislocated worker as defined in RCW 50.04.075." Pursuant to RCW 50.04.075(1), a
"dislocated worker" is a person who:
(a) Has been terminated or received a notice of termination from
employment;
(b) Is eligible for or has exhausted entitlement to unemployment
compensation benefits; and
(c) Is unlikely to return to employment in the individual's principal
occupation or previous industry because of a diminishing demand for their
skills in that occupation orindustryr.[23]
22 See WAC 192-120-010(3) ("Each person who is mailed a copy ofthe
information booklet will be responsible for filing claims in accordance with its
instructions." (emphasis added)); WAC 192-270-035(1) ("Information about training
benefits will be included in the claimant information booklet mailed to you at the time
you file your application for unemployment benefits (see WAC 192-120-010). ... [T]he
claimant information booklet is considered your notification of the eligibility requirements
for the training benefits program."): see also WAC 192-120-010(1), (2), (5), (7).
Abdelkadir provides no authority that the Department is required to use certified or
return receipt requested mail.
23 (Emphasis added.)
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Here, the commissioner found that "Truck Drivers, Light or Delivery Services ...
is a demand occupation in the Seattle King County Workforce Development Area and in
the Snohomish Workforce Develpment [sic] areas."24 Alluding to RCW 50.04.075(c),
the commissioner concluded that Abdelkadir "has training in a 'demand' occupation,"
and "is not eligible for training benefits because he is not a dislocated worker as he has
work experience in a demand occupation."25
The commissioner's finding—that the occupation of truck driver constitutes a
demand occupation— is supported by substantial evidence. Exhibits in the record
reflect that the occupation of "Truck Drivers, Light or Delivery," qualified as a "demand"
occupation in the Seattle King County and Snohomish County workforce development
areas.26
Abdelkadir contends that his occupation as a driver was not in demand because
he was unable to find a job as a driver. He points to his "Job Search Log," an exhibit
demonstrating that he applied to numerous driver positions between December 2010
and October 2011,27 But a commissioner's assessment ofwhether a job or skill is in
demand may also include, as it did here, consideration of local labor market and
economic data.28 The commissioner was entitled to weigh such evidence in the
24 Clerk's Papers at 64.
25 Clerk's Papers at 67.
26 CABR at 109-10.
27 CABR at 114-31.
28
See RCW 50.22.150(2)(c), (11).
No. 69736-6-1/8
Department's favor. We will not substitute our judgment for that of the agency regarding
the weight of the evidence.29
In light of these findings, the commissioner did not commit legal error by
concluding that Abdelkadir was not a dislocated worker. Based upon the finding that his
occupation was deemed to be in demand, the commissioner correctly concluded that
Abdelkadir did not meet the definition of a dislocated worker.
Abdelkadir contends, finally, that he was entitled to default judgment against the
Department because his employer's representative did not appear at the administrative
hearing. But Abdelkadir is mistaken. "If a party fails to attend or participate in a hearing
or other stage of an adjudicative proceeding, ... the presiding officer may serve upon
all parties a default or other dispositive order."30 Thus, the ALJ was authorized—but not
required—to find the Department in default. She also had the discretion to reach the
merits of the matter. The ALJ properly exercised her discretion by choosing not to enter
a default order.
Affirmed.
WE CONCUR:
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29 Smith, 155 Wash. App. at 35.
30 RCW 34.05.440(2) (emphasis added).