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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                        DIVISION II

LINDA K. KALASH,                                                                    No. 43947 -6 -II


                                            Respondent,


        kl?M



STATE OF WASHINGTON DEPARTMENT                                               UNPUBLISHED OPINION
OF EMPLOYMENT SECURITY,




         JOHANSON, A.C. J. —                   Linda Kalash appeals the Employment Security Department' s

Department) final             order    denying   her   unemployment    benefits.'   She argues that she is entitled to

                                                                                                                  2
benefits because            she quit   her job for   good cause under   the Employment      Security   Act (Act).     She


also argues that the Department commissioner erred by imposing additional requirements beyond

those defined          by   the   statutes and related regulations.     Because substantial evidence supports the


commissioner' s finding that Kalash quit her job for personal reasons and because the

    General Order 2010 -1              of   Division II, In Re:   Modified Procedures For Appeals Under The
Administrative Procedures Act, Chapter 34. 05, and Appeals Under the Land Use Petition Act,
Chapter         36. 70C           RCW (      Wash.      Ct.   App.),    available    at   http: / www.courts. wa.gov/
                                                                                                  /
appellate      trial  requires that the party filing an appeal in superior court, here Kalash,
                        courts /,

shall have the responsibility for the opening and reply briefs before our court and shall be
entitled to open and conclude oral argument, whether designated as the appellant or respondent
on appeal to this court.

2
    Title 50 RCW.
No. 43947 -6 -II



commissioner did not misapply or misinterpret the law in concluding that she did not have good

cause to quit, we affirm.


                                                                FACTS


          In August 2010, Kalash began working for La Petite Academy preschool center in

Covington,      where she    lived. In March 2011, Kalash moved to Bremerton for personal reasons,


making her      commute      substantially longer.              She inquired about a job transfer to La Petite' s sister


company near Bremerton, but the sister company did not hire her so she looked for other jobs.

On May 13, Kindercare child center in Bremerton offered her a full -ime job starting May 31.
                                                                   t

On May 16, she gave La Petite notice that she was quitting and that her last day would be May
27.    On May 26, Kindercare called Kalash and told her that they no longer had a job for her

because the person who planned to leave decided to stay after all. Nonetheless, Kalash' s last day

      La Petite                 27                  did                  La Petite if           could     retain   her job.   Her
at                 was    May          and    she          not    ask                     she




replacement began on June 14.


          In   July,   Kalash filed for      unemployment           benefits.   On the Department' s " Voluntary Quit"

questionnaire,         the Department        asked, "    Did you quit because you were hired for a new job ?"

Kalash     responded, "     No."     Administrative Record ( AR)                at   50 -51.    To the    question, "   When did


you    decide to   quit,"   Kalash     wrote    in "[   c] ut   hours 6 hours    a week."       AR   at   50.   She also told the


Department that the main reason she quit was because her commute was about 100 miles each

day after she moved to Bremerton, she was dissatisfied with the number of hours she was

working at La Petite, and that she tried to transfer to La Petite' s sister company but that the
transfer    did   not    work   out.    Later, La Petite challenged Kalash' s request for unemployment


benefits, arguing that she voluntarily quit to relocate and leave the area.



                                                                    FA
No. 43947 -6 -II



         The Department denied Kalash benefits, finding that because she left her employment

due to a lack of hours, she did not have good cause to quit and did not qualify for unemployment

benefits.     Kalash          appealed     the Department'      s   denial   of   benefits.    An administrative law judge


 ALJ)    conducted a phone            hearing      in September 2011. Kalash and the La Petite director testified.


Kalash testified that she left La Petite because of the Kindercare job, but that she did not tell the

Department about it because she did not know that it would make a difference in drawing

unemployment benefits.


         The ALJ found that Kalash was disqualified from receiving unemployment benefits

because       she    left      work      voluntarily       without       good     cause   under    RCW    50. 01. 010,   RCW

                          3
50. 20. 050( 2)(    a),       WAC 192 -150 -085, WAC 192 -320 -070,                   and     WAC 192 -320 -075.    The ALJ


found that she left La Petite due to the commute, the failure to get a transfer, and a reduction in

hours. Further, the ALJ found Kalash failed to show that her hours were cut, and that it was only

after being denied benefits that she claimed she quit in order to accept a bona fide offer of work.

The ALJ also concluded that she failed to exhaust all reasonable alternatives available short of


quitting because Kalash' s belated assertions that she left La Petite due to the bona fide job offer

were not credible and if she would have asked to rescind her resignation, La Petite would have

retained her.


          Kalash petitioned the Department commissioner for review of the ALJ' s decision,

arguing that she quit for good cause and that the ALJ erred in finding that she did not quit to
accept    a   bona fide job           offer.       Kalash also argued that the ALJ erred because under RCW




3
    RCW 50. 20. 050 was amended twice during the 2009 legislative session, each without reference
to the   other.     Throughout this              opinion, we cite    to the     most recent version —RCW       50. 20. 050 ( as
 amended      by    Laws      of   2009,   ch.   493, §   3, effective July 26, 2009).

                                                                     3
No. 43947 -6 -II



50. 20. 050( 2)( b)( i) and WAC 192 -150 -050, Kalash was not required to exhaust all reasonable


alternatives prior to quitting and was not obligated to retain employment at La Petite in order to

qualify for benefits.          The commissioner agreed with the AD and adopted its findings of fact and

conclusions       of   law     subject    to   some    minor       additions    and    modifications.       The commissioner


explained that after reviewing the entire record and considering all factors relevant to credibility,

it agreed with the ALJ that Kalash' s testimony that the Kindercare job was the reason she quit

was not credible. The commissioner also explained that


                       b] ecause the [ Kalash] continued with her decision to quit work with [ La
          Petite] after her new job offer was revoked, she did not quit because of a bona
          fide job offer. Indeed, as credibly testified to at [ the] hearing, [ La Petite] would
          have continued to employ [ Kalash] after May 27, 2011, if [Kalash] had asked to
          rescind      her   resignation....          Rather, [ Kalash]        quit   for   personal reasons,   i. e., the

          additional cost of the commute caused by her moving from Covington to
          Bremerton.


AR   at   85.    The commissioner concluded that she quit for reasons other than accepting an offer of

bona fide work and, therefore, Kalash failed to establish that she quit for good cause under RCW

50. 20. 050( 2)( b). 4       Kalash appeals.

                                                            ANALYSIS


           Kalash      challenges (       1)   the commissioner' s finding that she quit her employment for

personal        reasons      rather    than because       of   a   bona fide job       offer,    and (   2) the commissioner' s


 ultimate       conclusion     that she was        not    entitled   to   unemployment          benefits.   Kalash argues that



 because she quit only after receiving a bona fide job offer from Kindercare, she quit for good



 4 Upon Kalash' s petition for review, the superior court reversed the commissioner, finding that
 Kalash quit due to a bona fide job offer and was entitled to unemployment benefits. But because
 we do not review the superior court' s decision, and instead review the commissioner' s decision,
 Kalash is treated        as   the    appellant   here.   General Order 2010 -1, supra•, Verizon Nw., Inc. v. Emp' t
 Sec. Dep' t, 164 Wn.2d 909, 915, 194 P. 3d 255 ( 2008).

                                                                     M
No. 43947 -6 -II



cause     under      the   plain   language        of        RCW 50. 20. 050( 2)( b)( i)         and the commissioner erred by

imposing additional requirements to show good cause beyond those defined by the statutes or

related    regulations.         We disagree             with     Kalash'       s   arguments.       Because we must defer to the


commissioner' s credibility findings, we defer to its finding that Kalash' s claim that she quit for a

bona fide job          offer    was   not    credible.           Viewing the evidence in this light, we conclude that

substantial evidence supports the commissioner' s finding that Kalash quit for personal reasons

and that she did not have good cause to quit under the Act.

                                                        1.    STANDARD OF REVIEW


            The Washington Administrative Procedure Act ( APA), chapter 34. 05 RCW, governs


judicial   review of a         final decision"         by     the Department          commissioner.         Verizon Nw., Inc. v. Emp' t

Sec. Dep'       t,   164 Wn.2d 909, 915, 194 P. 3d 255 ( 2008).                               We sit in the same position as the


                                                                                                                          Verizon, 164
superior court and           apply the APA             standards          directly   to the   administrative record.




Wn.2d      at   915.   We review the commissioner' s decision, not the ALJ' s underlying decision or the

superior court.         Verizon, 164 Wn.2d at 915.


           We review the commissioner' s findings of fact for substantial evidence in light of the

whole record.           RCW 34. 05. 570( 3)(            e);    Lee'   s   Drywall Co.     v:   Dep' t     of Labor & Indus., 141 Wn.


App. 8593        864, 173 P. 3d 934 ( 2007);                 King County v. Cent. Puget Sound Growth Mgmt. Hearings

Bd., 142 Wn.2d 543, 553,                 14 P. 3d 133 ( 2000).                     Substantial evidence is evidence that would


persuade        a    fair -
                          minded      person      of    the truth         or   correctness     of   the   matter.   Cent. Puget Sound


 Growth Mgmt., 142 Wn. 2d                   at   553.        We neither weigh witness creditability " nor substitute our

judgment for that          of   the agency."        Brighton          v.   Dep' t    of Transp.,    109 Wn. App. 855, 862, 38 P. 3d

 344 ( 2001).          Our     review   of       disputed issues            of     fact is limited to the agency        record.   RCW


 34. 05. 558.


                                                                               5
No. 43947 -6 -II



          Further, we review questions of law de novo and give substantial weight to the agency' s

interpretation        of   the   statutes    it   administers.            Everett Concrete Prods.,           Inc. v. Dep' t of Labor &

Indus., 109 Wn.2d 819, 823, 748 P. 2d 1112 ( 1988);                               Smith v. Emp' t Sec. Dep' t, 155 Wn. App. 24,

32, 226 P. 3d 263 ( 2010). "                We consider a commissioner' s decision to be prima facie correct and


the ` burden of demonstrating the invalidity of agency action is on the party asserting invalidity, "'

here Kalash.           Anderson        v.   Emp' t       Sec.    Dep' t,        135 Wn.       App.    887, 893,      146 P. 3d 475 ( 2006)


 quoting        RCW        34. 05. 570( 1)(       a)).        We may reverse the commissioner' s decision if the

commissioner based his decision on an error of law, if substantial evidence does not support the

decision,      or   if the decision         was    arbitrary      or capricious.         RCW 34. 05. 570( 3)( d), (       e), (    i). Where a


statute   is   clear on      its face,      we    derive its     plain      meaning from the           statute' s   language      alone.    Ford


Motor Co.        v.   City   of Seattle, Exec. Servs.              Dep' t,       160 Wn.2d 32, 41, 156 P. 3d 185 ( 2007),                       cent.




denied, 552 U. S. 1180 ( 2008).                       And substantial, weight should be accorded to agency' s legal

interpretation if it falls             within      the agency'        s    expertise     in   a specialized     area of    law.       Jefferson



County v. Seattle Yacht Club, 73 Wn. App. 576, 588, 870 P. 2d 987, review denied, 124 Wn.2d
1029 ( 1994).


                                                                 H. Discussion


          The         legislature        adopted         the    Act        to    award    unemployment              benefits      to "`   persons




unemployed            through     no   fault     of   their    own. "'      Courtney v. Emp' t Sec. Dep' t, 171 Wn. App. 655,

 660, 287 P. 3d 596 ( 2012),                 review      denied, 177 Wn. 2d 1012 ( 2013) (                   quoting RCW 50. 01. 010).

The Act disqualifies a person from receiving benefits if the person is to blame for their

unemployment.              Courtney,         171 Wn.          App.    at   660 -61.      Thus, the Act disqualifies a person from


                                         left                                                               RCW 50. 20. 050( 2)(          a).    But
 receiving benefits if           she "           work    voluntarily        without good cause."




 the Act       also provides       that     a person       has    good cause          to leave       work and will not         be disqualified
No. 43947 -6 -II



from benefits if " she has left                     work    to   accept   a    bona fide   offer   of   bona fide     work."      RCW

                            5
50. 20. 050( 2)( b)( i).             To receive benefits due to a bona fide job offer, the claimant must


 satisfactorily demonstrate" that

                     1) [       p]   rior   to   leaving   work, [   she] received a definite offer of employment;
               and

                        She] had a reasonable basis for believing that the person making the
                     2) [
               offer had the authority to do so; and
                    3)   A specific starting date and the terms and conditions of the
                 employment were mutually agreed upon; and
                    4) [ She] continued in [ her] previous employment
                                                                    for as long as was
               reasonably consistent with whatever arrangements were necessary to start
               working at the new job; and
                   5)  The new job is in employment covered by Title 50 RCW or the
                 comparable laws of another state or the federal government.


WAC 192 -150 -050. The Act requires that the Department analyze each case' s facts to determine

the   actual   cause of         the    employee' s separation.             Safeco Ins. Cos. v. Meyering, 102 Wn.2d 385,

392 -93, 687 P. 2d 195 ( 1984).                     And in order for a claimant to be eligible for benefits, the Act


requires   that the     reason          for the     unemployment          be   external and apart       from the   claimant.      Safeco


Ins., 102 Wn.2d at 392.


          Here, the commissioner analyzed the facts- of Kalash' s case to determine what actually

caused     her    separation          and        determined that      personal    reasons   caused       her   separation— " i. e.,   the



additional cost of          the      commute caused          by   her moving from Covington to Bremerton." AR at 85.


Several     pieces     of       evidence           in the   administrative       record    support      this   finding: (    1)   in the




s RCW 50. 20. 050( 2) provides,
               a)   An individual shall be disqualified from benefits beginning with the
          first day of the calendar week in which he or she has left work voluntarily without
           good cause and thereafter for seven calendar weeks....


                     b)         An individual has good cause and is not disqualified from benefits
           under ( a) of this subsection only under the following circumstances:
                   i) He or she has left work to accept a bona fide offer of bona fide work as
           described in (a) of this subsection.
                                                                          7
No. 43947- 6- 11


Department'    s   Voluntary     Quit   questionnaire,       Kalash       answered "[ n] o"      to the       question "[   d] id you


quit   because     you   were    hired for      a    new   job ?"    AR        at    19; ( 2) in her letter attached to the


questionnaire, she explained that she was dissatisfied with the number of hours she was working

and that after she moved to Bremerton, she asked La Petite if she could work more hours, get a

raise, or be transferred, but that after the transfer did not work out she could no longer afford the

travel expenses; and ( 3) she testified that when she. started her job at La Petite she was living in

Covington, but that after she moved, she needed to find something closer to her new home.

          Kalash is correct that contrary to that evidence, she also testified at the hearing that the

Kindercare job was actually the primary reason she left La Petite. But like all other testimony at

an administrative hearing, the ALJ and the commissioner are in the best position to evaluate it

and    determine    whether      the   person' s     testimony      was    truthful.      Here, after reviewing the entire

record, the ALJ and the commissioner determined that Kalash was not being fully truthful and

that she fabricated some of the Kindercare story after realizing that the Department would deny

her benefits.      We do not weigh witness credibility nor substitute our judgment for the agency' s.

Brighton, 109 Wn.         App.     at   862.        Because substantial evidence supports the commissioner' s


finding    that    Kalash'   s   unemployment              was     due    to        personal   reasons,       the   cause     of her


unemployment was not external and apart from her, and the commissioner was correct in

determining      that she was not       eligible    for benefits. See Safeco Ins. Cos., 102 Wn.2d at 392.


          Next, Kalash argues that the commissioner misinterpreted and misapplied the law

because the commissioner ( 1) essentially found that she had a bona fide job offer, thus it should

have found her eligible for benefits, and ( 2) inappropriately imposed requirements on her to

 exhaust reasonable       alternatives     to   revoke      her   resignation after        her job   offer      fell through.     But



 ultimately Kalash'      s arguments are misplaced                because      even    if Kalash had      a   bona fide job     offer,
No. 43947 -6 -II



the commissioner found that the offer was not the actual reason for her leaving work at La Petite.

The plain language of RCW 50. 20. 050( 2)( b)( i) provides that in order to have good cause for

                   individual            have left                to              a    bona fide       offer.     Because the
quitting, the                    must                    work           accept




commissioner found that Kalash did not actually leave work to accept a bona fide offer, but

rather left for personal reasons, then it does not matter whether she actually had a job offer or

not. Kalash has failed to show that the commissioner misinterpreted or misapplied the law.

          Kalash also argues that ( 1) she should not be denied benefits for failing to report to the

Department that she had the bona fide offer because she did so before she had legal counsel, and

 2)   the commissioner should not have relied on Kalash' s responses to the Department' s

questionnaire       in    determining   whether    she    quit   for    good    cause.       But these arguments are not


supported by any legal authority. And the commissioner had a duty to analyze all the facts in the
record,    including Kalash' s questionnaire responses and her letter of explanation to the

Department         to    determine   what      actually    caused       her     separation       from    La     Petite.   RCW


34. 05. 570( 3)(   e);   Safeco Ins. Cos., 102 Wn.2d         at      393 -94.    And although Kalash argues that the


ALJ    and    the        commissioner    did   not   need    to        make     any    credibility      determinations,   such




determinations were necessary because Kalash gave conflicting reasons about why she quit —

whether it was ( 1) due to personal reasons such as being dissatisfied with the number of hours

 she received at La Petite, which she alleged until she realized she would be denied benefits; or

 2)   due to the Kindercare job             offer,   which       she    alleged       at   the   ALJ   hearing.      Again, the


 commissioner determined that Kalash left due to personal reasons, substantial evidence supports


 that finding, and we do not weigh witness credibility or substitute our judgment for the agency' s.

 Brighton, 109 Wn. App. at 862.



                                                                 9
No. 43947 -6 -II



          Ultimately,   Kalash has the "`   burden of demonstrating the invalidity of agency action "'

here and has failed to persuasively argue that the commissioner erred. Anderson, 135 Wn. App.

at   893 ( quoting RCW 34. 05. 570( 1)(   a)).   Kalash has not met her burden on appeal.


                                             Ill. ATTORNEY FEEs


          Kalash argues that she is entitled to reasonable attorney fees and costs under RCW

50. 32. 160, RCW 4. 84. 350,     and   RAP 18. 1.     But because she does not prevail in reversing or

modifying the commissioner' s decision, she is not entitled to attorney fees or costs.

          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.



                                                                                      A,

                                                                   ON, A.C
We concur:




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