       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JUSTIN M. ROBINSON,            )
                               )             No. 73619-1-1
              Appellant/       )
              Cross-Respondent,)             DIVISION ONE
                               )
                               )
                               )
EMPLOYMENT SECURITY            )
DEPARTMENT OF THE STATE OF     )             UNPUBLISHED OPINION
WASHINGTON,                    )
                               )             FILED: July 17, 2017
              Respondent/      )
              Cross-Appellant. )
                               )

       BECKER, J. — Before us on discretionary review is a superior court order

remanding for the taking of additional evidence in an administrative proceeding

that upheld the denial of unemployment benefits. The case does not meet the

criteria for reopening the record, but it does require a remand for a new set of

findings and conclusions. The key evidence the agency relied on to deny

benefits was unreliable hearsay, and it is unclear which party had the burden of

proof with respect to the employee's claim that he gave notice instead of

resigning effective immediately. We order the case remanded for

reconsideration by the agency on the existing record.
No. 73619-1-1/2

                                      FACTS

      The following facts are undisputed. Appellant Justin Robinson was

employed by Target beginning June 19, 2012. In May 2014, he decided to quit

his position because of a personal conflict with his supervisor, John Randall. On

May 17, Randall sent Robinson a text message advising him to follow Target's

resignation notice policy rather than ending his employment on bad terms. Also

on May 17, Robinson sent a text message to another supervisor, Julia Robison,

saying that he intended to give two weeks' notice of his resignation. On May 18,

Robinson telephoned Emily Hughes, a Target human resources manager, to tell

her he was quitting.

       Exactly what Robinson told Hughes in that phone call is the critical fact in

dispute. According to Robinson, he told Hughes he was giving two weeks'

notice. According to Target, he told her he was resigning effective immediately.

       It is undisputed that Target immediately removed Robinson's name from

the work schedule after that phone call and stopped paying him.

       Robinson applied for unemployment compensation. The Employment

Security Department denied Robinson's application on July 10, 2014, on the

ground that he quit voluntarily without good cause.

       Robinson appealed the decision to the Office of Administrative Hearings

for the department. A hearing was held before an administrative law judge.

       Robinson testified at the hearing that when he spoke with Hughes on the

telephone, he told her he was putting in his two weeks' notice and that his last




                                         2
No. 73619-1-1/3

day would be May 31. He said that when he next went to work as scheduled, he

was not able to "punch in," and was told that he was not on the work schedule.

      Target's representative at the hearing was Annie Kroshus, who had

replaced Hughes as a human resources manager. Hughes was not present.

Kroshus testified that Robinson told Hughes he was "voluntarily resigning" and

that his decision to end his employment was "effective immediately. And so that

is why he was removed."

      If Robinson resigned effective immediately as Kroshus testified, it was a

voluntary quit without good cause and he is not entitled to benefits. RCW

50.20.050. But if Robinson gave two weeks' notice and Target accelerated the

date of the job separation without paying him through the notice period, it was an

involuntary discharge and he is entitled to benefits under RCW 50.20.060.

Safeco Ins. Cos. v. Meverinq, 102 Wn.2d 385, 687 P.2d 195(1984); In re Moa,

Empl. Comm'r Dec. 1132(1974); In re Sauer, Empl. Sec. Comm'r Dec.2d 334

(1977); In re Satcher, Empl. Sec. Comm'r Dec.2d 741 (1983).1

      The judge asked Kroshus what information she was looking at, "as far as

that his resignation was effective immediately?" Kroshus said she was testifying

based on her review of e-mails:

              MS. KROSHUS: Um,so 1 just have—unfortunately, I only
      have a series of emails, uh,from Emily that she sent, urn, to the—
      to the office.
             [JUDGE]: Okay. So if-1 guess, from your experience in
      H.R., if any employee gives, urn, notice to quit, is it always effective
      immediately or is an end date discussed?


       1 Opinions designated by the commissioner as precedential are
persuasive authority in this court. RCW 50.32.095; Martini v. State Emp't Sec.
Dep't, 98 Wn. App. 791, 795, 990 P.2d 981 (2000).
                                         3
No. 73619-1-1/4

               MS. KROSHUS: Yeah. So it is typically circumstantial. Uh,
       it sounds, based on all of the written correspondence that I have,
       urn, it—it was effective immediately just over the phone. It's typical
       that we have someone still out.[2] A voluntary resignation form in
       which they write down when their last date will be, but that was not
       the case here. In the system—in our hiring system—Justin was
       keyed as, uh, a rehirable—personal rehire—personal rehirable,
       which means that he decided to leave for personal reasons. And it
       does mean that we would rehire him if he decided to come back to
       Target at a later date. Um, and that is just for our own records
       based on people wanting to return in the future.
              [JUDGE]: So if Mr. Robinson had stated his last date—he
       wanted his last date to be the 31st of May, I guess, would H.R.
       override that and make it effective immediately?
               MS. KROSHUS: No, we would-1 mean, if—if the date was
       specified, and because, you know, for all intents and purposes it
       sounds like, um—and maybe John can speak more to this, but it
       sounds like Emily was really trying to work with Justin to extend a
       leave of absence they needed. But, um, if he had specified that
       date as his last date, that is what we would have keyed as the date.
       So unfortunately, 1 have no other information regarding what that
       date discussed was.

Hughes had sent the e-mails to Kim Sharner,"the unemployment hearing

consultant," and to Lori Horn,"the unemployment insurance consultant for

Workforce Solutions." Sharner and Horn were not present. The e-mail

messages were not submitted as evidence.

       A second witness for Target was John Randall, the supervisor with whom

Robinson had a conflict. Randall, responding to questions from the judge,

testified that on May 19, he was in the building on the second floor and Robinson

could have contacted him but did not do so.

       The judge asked Robinson how he thought Hughes got the impression

that he was resigning effective immediately. Robinson answered that Hughes



       2 According    to Robinson, there is an error in the transcript and it should
read, "fill out" instead of "still out."
                                           4
No. 73619-1-1/5

asked him if he wanted to take another leave of absence and he told her, "`I just

cannot continue to work with John." But Robinson said he thought Hughes

understood he was planning to work through the next two weeks. "I told her it

was a two weeks-1'm putting in my two weeks. There was no effective

immediately." He said he and Hughes used their calendars to count out two

weeks and agreed that his last day of work would be May 31, and Hughes told

him at the time she was typing that information into the corporate system.

       The judge asked Robinson why he did not make a greater effort to contact

someone at Target on May 19 to find out why he had been taken off the

schedule. Robinson said he called Hughes and she told him she would look into

it, but he never received a call back.

       The administrative law judge issued an initial order determining that it was

a voluntary quit. Her determination that Robinson notified Target that he was

quitting effective immediately is set forth in two findings and a conclusion of law:

Finding of fact 9:

       Claimant stated [in a telephone conversation with Emily Hughes on
       May 18, 2014]that he could no longer work with his supervisor.
       Human Resources accepted claimant's resignation effective
       immediately.

Finding of fact 10:

       Claimant was scheduled to work on May 19, 2014. Because
       claimant had resigned claimant was taken off the schedule.

Conclusion of law 5:

      In this case the claimant alleges that employer accelerated the job
      separation when he intended to work two weeks after his notice.
      The undersigned concludes the claimant's testimony was not
      credible and finds that claimant notified the employer that his

                                         5
No. 73619-1-1/6

       resignation was effective immediately, on May ... 18, 2014.[31
       Claimant voluntarily resigned from his position and this case is
       properly adjudicated as a quit under RCW 50.20.050.

Findings of fact 9 and 10 are not clear as to whether Robinson said his

resignation was effective immediately, or whether Target decided to treat the

resignation as effective immediately. Conclusion of law 5 contains the only

statement on the disputed issue, where the judge "finds that claimant notified the

employer that his resignation was effective immediately." We will review this

statement as a finding rather than as a legal conclusion.

       Robinson obtained review by the Commissioner of the Employment

Security Department. The decision of the commissioner, issued by a review

judge in the commissioner's review office, affirmed the decision of the

administrative law judge. The findings of fact and conclusions of law were

adopted with minor changes.

       Robinson petitioned for review in superior court. The superior court was

"unable to determine" whether the agency decision was supported by substantial

evidence:

              The Court is unable to determine whether the
       Commissioner's findings of facts are supported by substantial
       evidence due to its dependence on unreliable hearsay evidence
       specifically the testimony of a human resources employee
       characterizing emails written by a different employee (no longer
       with Target). These emails were not part of the administrative
       record, were not written contemporaneously to the events at issue,
       and did not constitute business records.




      3 The administrative law judge finding was "May 17 or 18," but the
commissioner modified it to "May 18" based on the record.
                                        6
No. 73619-1-1/7

The court ordered a remand of the commissioner's decision back to the Office of

Administrative Hearings for additional fact-finding on the issue of whether

Robinson resigned giving two weeks' notice or resigned effective immediately

when talking with Emily Hughes. The order stated, "Both parties should have the

opportunity to submit additional evidence."

       The superior court's remand order is before this court on Robinson's

motion for discretionary review.

1. The superior court abused its discretion by reopening the record for additional

fact-finding

       Robinson correctly contends the court lacked statutory authority to reopen

the record for the taking of additional evidence.

       "Judicial review of a decision of the commissioner involving the review of

an appeals tribunal decision may be had only in accordance with the procedural

requirements of RCW 34.05.570," the Administrative Procedure Act. RCW

50.32.120.

       Generally, judicial review of an agency action is confined to the agency

record. RCW 34.05.558. Remand of a matter for additional fact-finding is

allowed in certain circumstances by RCW 34.05.562(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:
              (a) The agency was required by this chapter or any other
       provision of law to base its action exclusively on a record of a type
       reasonably suitable for judicial review, but the agency failed to
       prepare or preserve an adequate record;


                                         7
No. 73619-1-1/8

             (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;
             (c) The agency improperly excluded or omitted evidence
      from the record; or
             (d) A relevant provision of law changed after the agency
      action and the court determines that the new provision may control
      the outcome.

       A superior court's decision to expand the record under RCW 34.05.562 is

reviewed by this court for abuse of discretion. Amalgamated Transit Union, Local

1384 v. Kitsap Transit, 187 Wn. App. 113, 122-23, 349 P.3d 1, review

denied, 184 Wn.2d 1005(2015).

       The superior court did not identify the source of its authority to order

additional fact-finding. The department contends the court was presented with a

situation where "the agency failed to prepare or preserve an adequate record,"

RCW 34.05.562(2)(a). This is incorrect. The problem identified by the superior

court was the unreliability of the evidence presented by Target, not a failure by

the agency to prepare or preserve a record suitable for judicial review. Target

decided to present its case without calling Emily Hughes as a witness and

without submitting her e-mails into the record. Target's failure to present reliable

evidence is not attributable to the department.

       The department alternatively contends a court may remand for further

fact-finding when there is insufficient evidence to support the agency decision.

For this proposition, the department relies on Hong v. Department of Social &




                                          8
No. 73619-1-1/9

Health Services, 146 Wn. App. 698, 192 P.3d 21 (2008), review denied, 165

Wn.2d 1052(2009).

       In Hong, after a key witness completed her testimony supporting the

agency's position, a document came to light that cast doubt on the credibility of

the witness. The administrative law judge for the agency denied a motion to

reopen the case to allow further cross-examination of the witness concerning the

document. Hong, 146 Wn. App. at 705. The superior court remanded for further

proceedings to address the witness's credibility. Hong, 146 Wn. App. at 705.

This court held that the superior court's remand order was authorized by RCW

34.05.562(2)(c), which allows remand if the agency "improperly excluded or

omitted evidence from the record." RCW 34.05.562(2)(c). Hong does not hold

that a party may be given a second opportunity to submit evidence when the

evidence presented at the administrative hearing is insufficient to support that

party's position on appeal.

       We conclude the superior court abused its discretion by remanding for the

taking of additional evidence. The matter must be decided on the existing

agency record.

2. The existing record does not support the finding that Robinson resigned

effective immediately

       On cross review, the department requests affirmance of the

commissioner's decision. The department contends that even without the

testimony about the Hughes e-mails, the existing agency record contains

substantial evidence to prove that Robinson resigned effective immediately.
No. 73619-1-1/10

       In reviewing an agency decision, we sit in the same position as the

superior court and apply the standards of the Administrative Procedure Act

directly to the administrative record. Campbell v. State Emp't Sec. Dep't, 180

Wn.2d 566, 571, 326 P.3d 713(2014). Thus, the decision we review is that of

the agency. Campbell, 180 Wn.2d at 571.

       The decision of the commissioner on matters relating to the Employment

Security Act is prima facie correct, and the burden is on the challenger to show

otherwise. RCW 50.32.150. Under the Administrative Procedure Act, Robinson

has "the burden of demonstrating the invalidity of agency action." RCW

34.05.570(1)(a). We may grant relief to Robinson only if he has been

"substantially prejudiced by the action complained of." RCW 34.05.570(1)(d).

       The standards for granting relief from an agency order in an adjudicative

proceeding are stated in RCW 34.05.570(3). Robinson's primary argument for

relief is that the order "is not supported by evidence that is substantial when

viewed in light of the whole record before the court." RCW 34.05.570(3)(e).

Substantial evidence is evidence of a sufficient quantity to persuade a fair-

minded person of the truth and correctness of the agency action. Campbell, 180

Wn.2d at 571.

       Hearsay evidence is admissible in administrative proceedings "if in the

judgment of the presiding officer it is the kind of evidence on which reasonably

prudent persons are accustomed to rely in the conduct of their affairs." RCW

35.05.452(1). Findings of fact may be based on such evidence even if it would

be inadmissible in a civil trial. "However, the presiding officer shall not base a


                                         10
No. 73619-1-1/11

finding exclusively on such inadmissible evidence unless the presiding officer

determines that doing so would not unduly abridge the parties' opportunities to

confront witnesses and rebut evidence. The basis for this determination shall

appear in the order." RCW 35.05.461(4). Robinson contends that the

commissioner's finding in conclusion of law 5 is invalid because it is based solely

on the inadmissible hearsay evidence provided by Kroshus.

       The department prudently declines to defend the admission of the

Kroshus testimony summarizing the contents of the Hughes e-mails. As the

superior court recognized, this was unreliable hearsay evidence. Instead, the

department maintains that the disputed finding is supported by substantial

circumstantial nonhearsay evidence:(1) Kroshus testified that it was the

employer's practice to key the separation date requested by the employee

directly into the work schedule, and the date keyed in for Robinson was May 18;

(2)She testified that Target typically has an employee fill out a voluntary

resignation form specifying their last date of employment, and Robinson did not

fill out this form;(3)She testified that Robinson was considered eligible for rehire;

and (4) Robinson testified that he tried to clock in for work on May 19, but he was

unable to explain why, if he was surprised by being turned away, he did not get in

touch with John Randall, who was in the building at the time.

       Strictly speaking, RCW 35.05.461(4) does not apply because the

presiding officer based her finding at least in part on the circumstantial evidence

itemized above. But we arrive at the same outcome. The circumstantial

evidence, when viewed in light of the whole record, is not enough to persuade a


                                         11
No. 73619-1-1/12

fair-minded person that Robinson told Hughes he was resigning effective

immediately.

       The employer's alleged practice of keying in the employee's requested

separation date is not decisive. Kroshus said, "But, um, if he had specified that

date[May 31]as his last date, that is what we would have keyed as the date. So

unfortunately, 1 have no other information regarding what that date discussed

was." This is not evidence that Robinson said he was resigning effective

immediately. Also, it is not evidence that it was Hughes who keyed in May 18 as

Robinson's last day of work. And Hughes was not available for questioning

about this topic.

       The other items of nonhearsay evidence have even less persuasive value.

There was no testimony that Robinson knew he was supposed to fill out a

voluntary resignation form to establish that he was giving two weeks' notice. The

fact that Robinson was keyed in as eligible for rehire suggests just as readily that

he tried to leave on good terms as that he quit without giving notice. Randall's

testimony that he was working on the second floor and did not see or talk to

Robinson is not irreconcilable with Robinson's testimony that he was told Randall

was not present when he tried to clock in. When the unreliable hearsay evidence

provided by Kroshus is set aside, the record does not support the finding that

Robinson resigned effective immediately. The only admissible evidence is that

Robinson gave two weeks' notice. Accordingly, we reject the department's

request to affirm the commissioner's decision. Robinson has demonstrated that




                                        12
No. 73619-1-1/13

the commissioner's decision is not correct and that he was prejudiced by the

commissioner's use of unreliable hearsay.

3. The matter must be remanded to the department for a new set of findings and

conclusions

      The next question is what relief Robinson is entitled to as a result of the

agency's unsupported finding that he resigned effective immediately. Robinson

contends he is entitled to an award of unemployment benefits and attorney fees.

      While the department has failed to prove that Robinson resigned effective

immediately, it is also not an established fact that Robinson gave two weeks'

notice. This is because the administrative law judge found Robinson was not a

credible witness:

      The testimony of the parties conflicted on material points regarding
      the job separation. The undersigned, having carefully considered
      and weighed all the evidence, including the witness demeanor(as
      determined by voice, attitude, straightforwardness, unreasonable
      hesitancy in responses), party motivations, the reasonableness and
      consistency of the testimony throughout the hearing and as related
      to prior document submissions in connection with the benefits claim
      and claim response, whether the testimony was of first-hand
      knowledge or hearsay, and the totality of the circumstances
      presented, finds that the testimony of employer is more credible.
      The testimony of employer's witnesses was logical and consistent.
      It does not make logical sense that employer would have
      accelerated the job separation, but still considered claimant to be
      eligible for re-hire. No does it make logical sense that claimant
      would have been able to correspond with supervisors and human
      resources over the phone and through text message on May 17-18,
      2014, yet after May 19, 2014 claimant was not able to speak or
      correspond with a supervisor or human resources. Claimant
      testified that he arrived at work on May 19, 2014 and was not able
      to clock in. Claimant testified that he spoke with a supervisor, but
      does not remember to whom he spoke. Claimant's supervisor
      testified at hearing and was present in the store during the time
      which claimant states he tried to clock in on May 19, 2014. The


                                        13
No. 73619-1-1/14

       supervisor did not see claimant or have any knowledge of claimant
       ever coming in to the store that day.

Finding of Fact 4.

       In this case the claimant alleges that employer accelerated the job
       separation when he intended to work two weeks after his notice.
       The undersigned concludes the claimant's testimony was not
       credible and finds that claimant notified the employer that his
       resignation was effective immediately.

Conclusion of Law 5. The commissioner's review judge independently made the

same determination. "Additionally, our thorough review of the record convinces

us the claimant is not a credible witness."

       In assessing the credibility of a witness, this court may not substitute its

judgment for that of the agency tribunal. See e.g., Scheeler v. Dep't of Emp't

Sec., 122 Wn. App. 484, 490-91, 93 P.3d 965 (2004). This is particularly true

when the credibility assessment is based on witness demeanor. Here, the

agency based its assessment of Robinson's credibility in part on demeanor and

in part on a judgment that the testimony of Kroshus and Randall was more logical

and consistent than Robinson's testimony. As discussed above, the testimony of

Kroshus had no value, and Randall likewise had no personal knowledge of what

was said in the May 18 phone call between Robinson and Hughes. For that

reason, the agency's credibility assessment may not stand as is. Nevertheless,

because the commissioner did not believe Robinson when he said he told

Hughes he was giving two weeks' notice, we may not conclude as a matter of

law that Robinson did give two weeks' notice. Thus, we are not in a position to

require the commissioner to adjudicate Robinson's job separation as a discharge

rather than as a voluntary quit.

                                          14
No. 73619-1-1/15

      The Administrative Procedure Act provides guidance in this situation. It

allows, among other options, a remand for further proceedings.

             (1) In a review under RCW 34.05.570, the court may(a)
      affirm the agency action or (b) order an agency to take action
      required by law, order an agency to exercise discretion required by
      law, set aside agency action, enjoin or stay the agency action,
      remand the matter for further proceedings, or enter a declaratory
      judgment order. The court shall set out in its findings and
      conclusions, as appropriate, each violation or error by the agency
      under the standards for review set out in this chapter on which the
      court bases its decision and order. In reviewing matters within
      agency discretion, the court shall limit its function to assuring that
      the agency has exercised its discretion in accordance with law, and
      shall not itself undertake to exercise the discretion that the
      legislature has placed in the agency. The court shall remand to the
      agency for modification of agency action, unless remand is
      impracticable or would cause unnecessary delay.

RCW 34.05.574.4

      We believe the appropriate disposition of these cross motions for

discretionary review is to remand the matter for the agency to take a second

look. The agency should reexamine the existing record and generate a new set

of findings and conclusions in light of this opinion. Questions to be considered

on remand include the following:

       Burden of proof. The Employment Security Act, Title 50 RCW,sets aside

unemployment reserves to be used for the benefit of persons unemployed

through no fault of their own. RCW 50.01.010. In general, to accomplish this

end, the act provides for the payment of unemployment benefits to unemployed

individuals unless a claimant is disqualified from receiving such benefits.


      4A  court's authority to remand for further proceedings under RCW
34.05.574 is distinct from its authority to remand for the taking of additional
evidence under RCW 34.05.562. As discussed above, circumstances that would
permit reopening the record are not present here.
                                        15
No. 73619-1-1/16

Meyering, 102 Wn.2d at 388-89. An individual is disqualified from       receiving
benefits if he or she left work voluntarily without good cause. RCW 50.20.050(1).

The characterization of Robinson's job separation as a voluntary quit depends on

whether he resigned effective immediately or whether he gave notice and Target

accelerated the date of the job separation without paying Robinson through the

notice period. How is the burden of proof allocated in this situation? Did Target

have the burden of proving that Robinson resigned effective immediately, or did

Robinson have the burden of proving that he gave two weeks' notice?

       Credibility determination. The agency determined that Robinson's

testimony was not credible when compared to the testimony of the employer's

witnesses. When Robinson's testimony is reassessed in light of this opinion, was

it credible?

4. Robinson's request for an award of attorney fees is premature

       Robinson requests an award of attorney fees. If the decision of the

commissioner is reversed or modified, attorney fees "shall be payable out of the

unemployment compensation administration fund." RCW 50.32.160. On

discretionary review, Robinson has demonstrated that he is entitled to relief from

the superior court's decision to require reopening of the record for further fact-

finding. But it is not yet clear that the existing record calls for a reversal or

modification of the commissioner's decision that the job separation was a

voluntary quit. If the outcome on remand is a decision that reverses or modifies

the current decision of the commissioner, the commissioner shall award fees to

Robinson, including fees for this appeal.


                                           16
No. 73619-1-1/17

       Remanded to the commissioner for further proceedings consistent with

this opinion.




WE CONCUR:




                                      17
