Jon C. James v. Employment Security Dept. ( 2014 )

FILED
CUE T OF APPEALS
DIVISION 11
20Pi SEP 23 A 9: 33
r '
Sim- - TON
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
JON C. JAMES,
Appellant. No. 44714 -2 -II
v.
UNPUBLISHED OPINION
STATE OF WASHINGTON EMPLOYMENT
SECURITY DEPARTMENT,
Respondent.
MELNICK, J. — Jon James appeals the trial court' s order affirming the Employment
Security Department' s( Department) denial of unemployment benefits. None of the errors he
alleges require reversal. The agency' s findings are supported by substantial facts in the record
and it correctly applied the law to the facts. We affirm.
FACTS
James quit his job with a landscaping company. He applied for unemployment benefits.
The Department denied James benefits because he voluntarily quit without good cause.
James appealed the denial to an administrative law judge ( ALJ). He argued that he quit
with good cause for two reasons: illegal activities on the jobsite and safety concerns. The ALJ
heard testimony from both James and the employer. James alleged that his employer did not
allow employees to take statutorily required breaks and that his employer failed to address safety
issues, such as employees riding in the bucket of a bobcat and installing the wrong backflow
valve. The employer testified that James never mentioned concerns about safety or breaks
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before he quit and that the employer addressed the bobcat and backflow valve issues when they
arose.
The ALJ found the employer more credible than James. He also found that James did not
report his concerns about breaks or safety issues to the employer before quitting. Accordingly,
the ALJ concluded that James failed to show good cause for quitting. The ALJ affirmed the
Department' s denial of benefits.
James appealed the ALJ' s decision to the Department' s commissioner. The
commissioner adopted the ALJ' s findings of facts and conclusions of law and entered the
following augmented findings of fact:
N] one of claimant' s job duties required continuous labor, that is, there was
significant down time, ten to fifteen minutes five times a day, to change tools or
tasks. The employer contends that the landscaping industry is not subject to the
statutory scheduled break requirement because of the nature of the work. The
project claimant worked on for the employer was supervised by a general
contractor, who notified the employer of safety issues, which the employer
corrected immediately. The employer was aware that the project was subject to
Occupation Health and Safety Administration rules and strove to abide by them to
keep the job.
Administrative Record at 148. The commissioner concluded that James failed to establish good
cause for quitting because he did not notify the employer of any alleged problems or give the
employer reasonable time to correct them. Additionally, the commissioner determined that the
safety issues James raised were immediately addressed and the nature of the work provided for
adequate breaks. James petitioned for reconsideration. The commissioner denied the petition.
James appealed to the superior court. The court reviewed the commissioner' s record and
heard argument from the parties. The court upheld the commissioner' s findings of fact and
conclusions of law and affirmed the commissioner' s decision. James appeals.
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ANALYSIS
The Administrative Procedure Act ( APA), chapter 34. 05 RCW, governs judicial review
of the final decision of the Department' s commissioner. RCW 50. 32. 120; Verizon Nw., Inc. v.
Emp' t Sec. Dep' t, 164 Wash. 2d 909, 915, 194 P.3d 255 ( 2008). We review de novo the
commissioner' s findings and decision, not the superior court' s decision or the underlying ALJ
order. Engbrecht v. Emp' t Sec. Dep' t, 132 Wash. App. 423, 427, 132 P.3d 1099 ( 2006).
The commissioner' s decision is prima facie correct and the burden is on the challenging
party to show otherwise. RCW 50. 32. 150. RCW 34. 05. 570( 3) lists the circumstances under
which this court can grant relief from an agency order. James appears to argue that the order
exceeded the agency' s statutory authority, the agency engaged in unlawful procedures, the
agency erroneously interpreted the law, and the order is not supported by substantial evidence.
RCW 34. 05. 570( 3)( b) -(e). Issues not raised before the agency may not be raised on appeal.
RCW 34. 05. 554( 1).
First, James argues that the Department erred when it failed to grant him conditional
benefits under WAC 192 -120 -050. James did not raise this issue before the agency and he
cannot raise it now on appeal. RCW 34. 05. 554( 1).
James next argues that the Department erred by, conducting a labor standards
investigation and granting a " meal and rest period variance." Appellant' s Br. at 6. There is no
evidence in the record that the Department engaged in a labor standards investigation or granted
a " variance" regarding meal times and rest periods. The Department' s review was limited to
determining whether James qualified for unemployment benefits.
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Next, James alleges deficiencies in the agency' s procedures. He contends that the record
of his hearing was erased and that certain " Expert Fact Finding "1 documents were not disclosed
to the ALJ or commissioner. Appellant' s Br. at 7. Neither of these issues entitles him to relief.
James is correct that there was a problem with the recording of his first hearing before the ALJ.
However, he was granted another hearing de novo. Additionally, contrary to James' s assertions,
the " Expert Fact Finding" documents were included in the commissioner' s record.
The majority of James' s remaining arguments involve challenges to the commissioner' s
findings of fact. We review the commissioner' s findings of fact for substantial evidence in light
of the whole record. RCW 34. 05. 570( 3)( e); Smith v. Emp' t Sec. Dep' t, 155 Wash. App. 24, 32,
226 P.3d 263 ( 2010). " Substantial evidence is evidence that would persuade a fair -
minded
person of the truth or correctness of the matter." Smith, 155 Wn. App. at 33.
32 - Unchallenged
findings are verities on appeal.. Tapper v. Emp' t Sec. Dep' t, 122 Wash. 2d 397, 407, 858 P.2d 494
1993). We defer to the agency' s judgment regarding witness credibility and the weight of
evidence. Affordable Cabs, Inc. v. Emp' t Sec. Dep' t, 124 Wash. App. 361, 367, 101 P.3d 440
2004). We determine de novo whether the agency correctly applied the law to the factual
findings. Affordable Cabs, Inc., 124 Wash. App. at 367.
Generally, an employee cannot receive unemployment benefits if he voluntarily quits
without good cause. RCW 50. 20. 050( 2)( a). But an employee may still be eligible for benefits if
he quit because of illegal activities on the jobsite or because a lack of safety in the workplace.
RCW 50. 20. 050( 2)( b)( viii), (ix); WAC 192 -150- 130( 2), - 135( 2). These exceptions require the
employee to report his concerns to the employer and allow a reasonable period of time for the
1 These documents include interviews with the employer during the Department' s initial
investigation of James' s claim.
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employer to correct the problem before quitting. RCW 50. 20. 050( 2)( b)( viii), (ix); WAC 192-
150- 130( 2), - 135( 2).
James appears to challenge the commissioner' s findings that ( 1) the nature of the work
allowed for breaks throughout the day and ( 2) the employer immediately corrected safety issues.
These findings are supported by substantial evidence in the record. The employer testified that,
because of the nature of the work, there are at least five 10 -15 minute breaks throughout the
workday. James asserts that these facts are not true. But the commissioner determined that the
employer had more credibility than James. We defer to the commissioner' s judgment regarding
witness credibility. Affordable Cabs, Inc., 124 Wn. App. at 367. The employer also testified
that safety concerns James referenced at the hearing were corrected immediately after they
occurred. This evidence is not contradicted in the record. The agency' s findings are supported
by substantial evidence.
Moreover, even if James had shown that the findings were not supported by substantial
evidence, the agency still correctly applied the law to the remaining findings. The commissioner
found James did not report his concerns about breaks or safety issues to his employer before
quitting. RCW 50. 20. 050( 2)( b)( viii) and ( ix) require that, in order to be eligible for
unemployment benefits, the employee must report his concerns to the employer before quitting.
James did not do so here. Therefore, the commissioner correctly determined that he did not quit
for good cause and he is not entitled to unemployment benefits. 2
Finally, James contends that WAC 192 -150 -130 and 192- 150 -135 are unconstitutional.
He does not provide any meaningful argument or citation to authority in support of this
2 James urged both this court and the agency to determine whether his employer in fact violated
regulations and break times. But this is outside the scope of this case. At all
regarding safety
levels, this review was limited to whether the Department properly denied James unemployment
benefits.
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contention. Accordingly, we do not address this argument. RAP 10. 3( a)( 6); Cowiche Canyon
Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549 ( 1992).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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