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                                                                               FILED 

                                                                             MAY 5, 2015 

                                                                    In the Office of the Clerk of Court 

                                                                  W A State Court of Appeals, Division III 





                IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                   DIVISION THREE 


     JESSICA PEDERSON,                           )
                                                 )         No. 32410-9-111
                         Respondent,             )
                                                 )
           v.                                    )
                                                 )
     ENWLOYMENTSECURITY                          )         UNPUBLISHED OPINION
     DEPARTMENT, STATE OF                        )
     WASHINGTON,                                 )
                                                 )
                         Appellant.              )

           SIDDOWAY, C.J.      The Employment Security Department (Department) denied

     Jessica Pederson's application for unemployment benefits, determining she voluntarily

     quit her job without good cause and therefore was disqualified from receiving

     unemployment compensation. Because we agree Ms. Pederson did not meet her burden

     of showing she had good cause to quit her employment, we affirm.

                        FACTS AND PROCEDURAL BACKGROUND

           Ms. Pederson was interviewed for a position as a shipping assistant at Chukar

     Cherry Company (Chukar) in Prosser, Washington. When she reported for her first day
No. 32410-9-111
Pederson v. Employment Security Dep 't


of work, Ms. Pederson discovered she was one of three candidates who would work for

three days, after which Chukar would offer a permanent job to the individual who best fit

the position. Ms. Pederson continued working for the rest of the day, but did not return

after that. She subsequently applied for unemployment benefits. In a "Voluntary Quit

Statement" submitted to the Department, Ms. Pederson indicated the main reason she quit

was that her co-workers informed her she would be replacing the person who had been

translating English to Spanish for her, and she "only [knew] English." Administrative

Record (AR) at 47,51.

       The Department issued a written determination notice denying Ms. Pederson

unemployment benefits and assessing an overpayment of$I,678.00. Ms. Pederson

appealed the determination to the Office of Administrative Hearings, and an

administrative law judge (ALJ) issued an initial order setting aside the determination of

the Department. The ALJ concluded that Ms. Pederson was not disqualified from

receiving unemployment benefits because she had established good cause for quitting

work. Specifically, the ALJ found that Chukar "changed the terms of employment from

full-time permanent to [three]-day temporary," thereby reducing the hours of

employment by more than 25 percent. Clerk's Papers (CP) at 11. Under RCW

50.20.050(2)(b)(vi), "[a]n individual is not disqualified from benefits [when] [t]he

individual's usual hours were reduced by twenty-five percent or more."




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       Chukar appealed the initial order to the Commissioner's Review Office. The

commissioner issued a final decision setting aside the ALl's initial order. The

commissioner found Ms. Pederson had not met her burden of showing she quit for any of

the eleven enumerated good cause reasons set forth in RCW 50.20.050(2)(b), noting that

when she arrived for her first day and learned she did not yet have a permanent position,

she chose to begin working "[r]ather than leave at that time." CP at 4. Ms. Pederson

sought review of the commissioner's decision by the Yakima County Superior Court.

Following a hearing, the court entered findings and conclusions and an order affirming

the decision of the commissioner. Ms. Pederson timely appealed. The sole issue before

this court is whether the commissioner erred in concluding that Ms. Pederson voluntarily

quit without good cause.

                                        ANALYSIS

                                   I. Standard ofReview

       The Washington Administrative Procedure Act (APA), chapter 34.05 RCW,

governs this court's "limited review" of a final decision by the commissioner ofthe

Department. Campbell v. Employment Sec. Dep't, 180 Wn.2d 566, 571, 326 P.3d 713

(2014); RCW 34.05.570(l)(b). Under the APA, a party will be granted relief from an

adverse administrative decision if"the [agency] decision is based on an error of law, the

order is not supported by substantial evidence, or the order is arbitrary and capricious."

Campbell, 180 Wn.2d at 571; RCW 34.05.570(3)(a)-(i). We give "substantial weight" to

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II 
   the agency's interpretations of the law which it is charged with carrying out. Korte v. 



I      Employment Sec., 47 Wn. App. 296, 300, 734 P.2d 939 (1987). 


I             A decision by the Department commissioner is considered prima facie correct,

I      Safecolns. Companies v. Meyering, 102 Wn.2d 385,391,687 P.2d 195 (1984), and the

       party challenging the decision carries the burden of demonstrating its invalidity.

       Darkenwald v. Employment Sec. Dep't, 182 Wn. App. 157, 169,328 P.3d 977, review

       granted, 337 P.3d 326 (2014); RCW 34.05.570(1)(a). To prevail on appeal, therefore,

       Ms. Pederson bears the burden of establishing her entitlement to unemployment benefits.

       Darkenwald, 182 Wn. App. at 169. 1

              A review of the decisions of the commissioner and of the ALJ show that the

       following relevant facts were found:

                     [1.] [Ms. Pederson] was employed by Chukar Fruit (employer), for 1
              day on March 18,2013. At the time of the job separation, [she] was



              1  Ms. Pederson's assignments of error speak of error made by "The Court." Br. of
       Appellant at 1. In reviewing agency actions, however, this court "sit[ s] in the same
       position as the superior court and appl[ies] the APA standards directly to the
       administrative record." Campbell, 180 Wn.2d at 571; Tapper v. Employment Sec. Dep't,
       122 Wn.2d 397, 402,858 P.2d 494 (1993). Because "the decision [the appellate court]
       reviews is that of the agency ... not of the superior court," Campbell, 180 Wn.2d at 571,
       we do not give deference to the trial court's rulings. Verizon Nw., Inc. v. Employment
       Sec. Dep't, 164 Wn.2d 909, 915, 194 P.3d 255 (2008); Waste Mgmt. ofSeattle, Inc. v.
       Utilities & Transp. Comm'n, 123 Wn.2d 621,633,869 P.2d 1034 (1994) ("Assignment
       of error to the superior court findings and conclusions [are] not necessary in review of an
       administrative action."). We therefore address only the commissioner's decision, as well
       as that of the ALJ, "to the extent that the [c]ommissioner adopts the ALl's findings of
       fact." Darkenwald, 182 Wn. App. at 169.

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       working full-time as a nonunion Shipping Coordinator earning $9.19 per
       hour.
              [2.] [Ms. Pederson] believed that she had been hired for the job.
       However, when she arrived at work the first day, she discovered that she
       would be working for three days and that after that she would be among a
       group of several candidates from whom the position would be filled.
       Rather than leave at that time, [she] began working.
              [3.] During that same day, co-workers saw [Ms. Pederson's] resume
       and commented on her qualifications and suggested that she seemed
       overqualified and ought to look for other work.
              [4.] [Ms. Pederson] did not return to work after that. She told the
       employer that she did not think the job would be a good fit for her.
              [5.] If[Ms. Pederson] had not quit when she did, she could have
       continued working for at least two more days.

CP at 4-5, 10.

       Ms. Pederson did not challenge any of these findings before the trial court, nor

does she assign error to them on appeal. Unchallenged findings of fact are treated as

verities on appeal, and our review is limited to "whether those findings support the

commissioner's conclusions oflaw." Darkenwald, 182 Wn. App. at 170; Tapper, 122

Wn.2d at 407. We review the commissioner's legal determinations using the "error of

law" standard, which permits us to substitute our view of the law for that of the

commissioner. Verizon NW, Inc. v. Employment Sec Dep't, 164 Wn.2d 909, 915, 194

P.3d 255 (2008). We also review de novo whether the law was correctly applied to the

facts as found by the agency. Silverstreak, Inc. v. Dep't ofLabor & Indus., 159 Wn.2d

868, 879-80,154 P.3d 891 (2007).




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                              II. Employment Security Act

      Under Washington's Employment Security Act (Act), chapter 50.01 RCW, a

worker who is separated from a job may apply for unemployment benefits by filing a

claim with the Department. RCW 50.20.140. To be eligible for benefits, a claimant must

show, among other things, that she is able to work, available to immediately accept work,

and actively seeking suitable work. RCW 50.20.01O(c). The Act's voluntary quit statute,

RCW 50.20.050, provides that a claimant is disqualified from receiving benefits if she

"left work voluntarily without good cause." RCW 50.20.050(2)(a). The statute sets forth

"an exhaustive list of reasons that qualify as good cause to leave work." Campbell, 180

Wn.2d at 572; RCW 50.20.050(2)(b).

                     A. Ms. Pederson was "employed" by Chukar.

      Ms. Pederson asserts that she should not have been disqualified from receiving

benefits under the voluntary quit statute because she had only a "working interview," and

therefore was never actually employed by Chukar. Br. of Appellant at 5. She

emphasizes the following conclusion of law from the commissioner's decision:

             While claimant was undoubtedly disappointed when she learned that
      she did not yet have a permanent position, what she did have was
      essentially a working interview. She could have continued working the
      three days and may well have been given the job. At worst, she would have
      had three days of pay....

CP at 5. But the commissioner also adopted the ALl's finding that Ms. Pederson "was

employed by Chukar Fruit (employer), for [one] day on March 18,2013" and that, "[a]t

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the time of the job separation, [Ms. Pederson] was working full-time as a nonunion

Shipping Coordinator earning $9.19 per hour." CP at 9.

       Whether a work situation qualifies as "employment" under the Act is a mixed

question of law and fact. Cascade Nursing Servs., Ltd. v. Employment Sec. Dep't, 71

Wn. App. 23, 30, 856 P.2d 421 (1993). In addressing mixed questions oflaw and fact,

we "give the same deference to the agency's factual findings as in other circumstances,

but apply the law to the facts de novo." Affordable Cabs, Inc. v. Employment Sec., 124

Wn. App. 361, 367, 101 P.3d 440 (2004).

       The Act defines "employment" as "personal service, of whatever nature ...

performed for wages or under any contract calling for the performance of personal

services, written or oral, express or implied." RCW 50.04.100. Thus, "a work situation

satisfies the definition of 'employment'" under the statute "(1) if the worker performs

personal services for the alleged employer and (2) if the employer pays wages for those

services." Penick v. Employment Sec. Dep't, 82 Wn. App. 30, 39,917 P.2d 136 (1996).

Ms. Pederson does not dispute that she worked at Chukar for one "full day" on March 18,

2013, and was paid for her one day of work. AR at 47. Because Ms. Pederson was

"employed" within the meaning of the Act, the commissioner properly applied the

voluntary quit statute to determine whether she was disqualified from receiving benefits.




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                   B. Ms. Pederson voluntarily quit without good cause

       Ms. Pederson next contends that, even if the voluntary quit statute applies, she had

good cause for terminating her employment. "Whether a claimant had good cause to quit

his or her job is a mixed question of law and fact." Campbell, 180 Wn.2d at 573. RCW

50.20.050(2)(a) states, "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." If a worker "voluntarily quits" her job, therefore, "she will be denied

benefits unless she has 'good cause' for quitting." Meyering, 102 Wn.2d at 389.

       RCW 50.20.050(2)(b) sets forth "an exhaustive list of reasons that qualify as good

cause to leave work." Campbell, 180 Wn.2d at 572. Ms. Pederson claims she had good

cause for quitting her job at Chukar under RCW 50.20.050(2)(b )(v) and (vi) because her

expectation of a 40 hour work week was changed to a three-day working interview.

RCW 50.20.050(2)(b) provides, in relevant part:

               An individual is not disqualified from benefits under [the statute]
       when:

             (v) The individual's usual compensation was reduced by twenty-five
       percent or more;
             (vi) The individual's usual hours were reduced by twenty-five
       percent or more.

RCW 50.20.050(2)(b).

       "A substantial wage reduction has long been recognized as a compelling reason

for terminating one's employment." Forsman v. Employment Sec. Dep't , 59 Wn. App.

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I   76,81, 795 P.2d 1184 (1990). But to qualify as good cause for quitting work, "some

    employer action must have caused the reduction in the employee's compensation."
f
    Darkenwald, 182 Wn. App. at 175 (emphasis in original); WAC 192-150-115(3). In

    Darkenwald, the employer asked the employee to work three days per week instead of

    her usual two. ld. at 175. Because this resulted in an increase in the employee's

    compensation, the court held that the employer "did not cause a reduction in

    compensation ... [the claimant] did not have good cause to quit under RCW

    50.20.050(2)(b)(vi)." ld. at 175-76.

          Likewise, while a claimant is not disqualified from receiving unemployment

    benefits ifher usual hours were reduced by 25 percent or more, RCW

    50.20.050(2)(b)(vi), she must again show the reduction in hours was caused by the

    employer. WAC 192-150-120(2). These requirements are consistent with the basic

    purpose of the Act, which was intended "to award unemployment benefits to those

    unemployed through no/ault o/their own." Meyering, 102 Wn.2d at 392 (emphasis

    added); RCW 50.01.010.

          Ms. Pederson has not met her burden of establishing that any reduction in hours or

    compensation was caused by Chukar. The record shows that when she first arrived at

    work on March 18, Ms. Pederson was told she would work for three days, after which

    time Chukar would elect one of three candidates to offer a permanent position. Rather

    than leave at that time, Ms. Pederson continued working. Although she indicated she was

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concerned Chukar might not hire her, Ms. Pederson testified at her hearing before the

ALJ that "they didn't dismiss me. I was the one who left." RP at 6. The commissioner

found that if Ms. Pederson "had not quit when she did, she could have continued working

for at least two more days." CP at S. The possibility that ChiIkar might have chosen one

of the other candidates after the three days was merely conjectural. See Korte, 47 Wn.

App. at 301-02 (because many of claimant's objections to contract proposed by her

employer were conjectural, she did not have good cause to quit under former RCW

SO.20.0S0).

      More importantly, Ms. Pederson has failed to meet her burden of establishing that

her decision to leave work was among the 11 enumerated grounds for establishing good

cause under the voluntary quit statute. RCW SO.20.0S0(2)(b )(i)-(xi). Our Supreme Court

has made clear that RCW SO.20.0S0(2)(b) sets forth an exhaustive list of reasons

constituting good cause to quit. Campbell, 180 Wn.2d at S72 n.2; see also Darkenwald,

182 Wn. App. at 179 ("[W]e decline to adopt an additional reason for establishing good

cause beyond the exclusive list in RCW SO.20.0S0(2)(b)."). Because Ms. Pederson has

not shown that she quit for any of the exclusive statutory reasons, the commissioner

properly denied her unemployment benefits.

      Affirmed.




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           A majority of the panel has determined this opinion will not be printed in the

     Washington Appellate Reports, but it will be filed for public record pursuant to RCW

1
   2.06.040.

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     WE CONCUR: 





           Fearing, J.




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