                                                         F ILED-
                                                 COURT OF APPF_ ALS DIV I --
                                                  M-ATE OF WASHI1G-10H

                                                     201 TOCT   .fdi- 9: 414 -




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RICHARD FERGUSON,                       )
                                        )      DIVISION ONE
                      Appellant,        )
                                        )      No. 75706-7-1
                 v.                     )
                                        )      UNPUBLISHED OPINION
STATE OF WASHINGTON                     )
DEPARTMENT OF EMPLOYMENT                )
SECURITY,                               )
                                        )
                      Respondent.       )      FILED: October 9, 2017
                                        )

      DVVYER, J. — Richard Ferguson appeals from a decision of the

commissioner of the Washington State Employment Security Department

denying his request for unemployment benefits. Because the commissioner's

findings were supported by competent, admissible evidence and the

commissioner correctly applied the law, we affirm.



      In 2014 and 2015, Ferguson worked as a paralegal at the Baker Law Firm

in Marysville. As soon as Ferguson began working for the firm, other employees

noticed that Ferguson smelled like alcohol almost every day. Frequently, the

smell was so overpowering that other employees would close their office doors or
No. 75706-7-1/2


refuse to go into Ferguson's office. They also noticed that, on days when the

smell was particularly strong, Ferguson's eyes were red and watery and he had

difficulty following conversations or responding to questions. Kelly Matheson,

another paralegal at the firm, described the smell as "the same as, you know,

hanging out with my friends when I used to drink and smelling them the next

day." According to Brenda Chavez, the firm's receptionist, the odor smelled like

"someone had drank the night before." Another attorney visiting the office also

noticed that Ferguson smelled like alcohol, and told Baker that the smell "was a

poor reflection on [the] office."

       On January 21, 2015, Gary Baker, the owner of the firm, met with

Ferguson about the complaints. Ferguson did not deny drinking alcohol or

smelling of alcohol. Baker provided Ferguson with a written memo outlining

several problem areas in addition to the alcohol smell, including the fact that

Ferguson frequently missed filing deadlines and arrived late to the office.

Regarding the alcohol smell, Baker wrote:

       You continually come to the office smelling of alcohol. We cannot
       tell if the smell is from you drinking the previous night or before
       coming to work or during work. The smell is apparent and
       disturbing to your fellow employees and me. If clients come into
       the office and are near you, they must smell the alcohol also.

       I have counseled you about this issue in the past, but is [sic] hasn't
       really changed. I believe you have an alcohol problem of some
       sort.



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      The smell of alcohol seems to relate to you acting "foggy-headed"
      at times. Your fellow staff and I have all noticed this. Whether it's
      from you having a hangover or intoxication isn't clear.

      I cannot allow you to smell like alcohol while in the office.

      The smell improved for a period of time after the meeting. However, when

Baker went on vacation in late February, employees "noticed the smell of alcohol

pretty much on a daily basis."

      On March 13, 2015, Baker fired Ferguson. Baker told Ferguson that he

believed Ferguson suffered from an alcohol problem, that he had been given an

opportunity to correct the problem, and that the alcohol smell was causing

problems in the office. Ferguson responded, "I know. I'm a different kind of guy."

Ferguson did not deny drinking alcohol or smelling of alcohol.

      Ferguson filed a claim for unemployment benefits. The Department

denied Ferguson's request, concluding that Ferguson had been terminated for

misconduct.

      Ferguson appealed the Department's decision to the Office of

Administrative Hearings. Following several days of testimony, an administrative

law judge(AU)found that Baker, Matheson, and Chavez were credible and that

Ferguson smelled of alcohol at work nearly every day. The AU found

Ferguson's explanation that the employees were merely smelling his hairspray or




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nicotine gum to be not credible. The AU concluded that Ferguson's actions

constituted misconduct.

      Ferguson petitioned for review of the AL's decision. A commissioner of

the Department affirmed the AL's decision and adopted the AL's findings and

conclusions. In doing so, the commissioner explicitly found that Ferguson's

testimony was not credible. The commissioner concluded:

      [T]he claimant's discharge precipitating conduct, that is, repeatedly
      reporting to work with the alcohol on his breath, in the face [of]
      being asked by his employer to cease such disruptive conduct,
      evinced deliberate violations and disregard of standards of behavior
      which an employer has the right to expect of an employee. RCW
      50.04.294(1)(b). Misconduct, as that term is contemplated by RCW
      50.20.066(1), has been established.

      The superior court affirmed the commissioner's decision. Ferguson

appeals.

                                        II

      The Washington Administrative Procedure Act(WAPA), chapter 34.05

RCW,governs judicial review of a final administrative decision of the

Employment Security Department. Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397,

402, 858 P.2d 494(1993). When reviewing agency action, this court "sits in the

same position as the superior court, applying the standards of the WAPA directly

to the record before the agency." Tapper, 122 Wn.2d at 402. Because we sit in

the same position as the superior court, we do not give deference to the superior



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court's rulings. Verizon Nw., Inc. v. Emp't Sec. Dep't, 164 Wn.2d 909, 915, 194

P.3d 255 (2008). The decision on review is that of the commissioner of the

Department, not the underlying decision of the administrative law judge. Verizon

Nw., 164 Wn.2d at 915.

       A commissioner's decision is considered "prima facie correct." Anderson

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

the party asserting the invalidity of the agency action, carries the burden of

proving such invalidity. See RCW 34.05.570(1)(a); Daniels v. Emp't Sec. Dep't,

168 Wn. App. 721, 281 P.3d 310(2012). We will reverse a commissioner's

decision only if(1)the agency erroneously interpreted or applied the law, o“2)

substantial evidence does not support the decision, or(3)the order is arbitrary or

capricious. RCW 34.05.570(3); Tapper, 122 Wn.2d at 402. We will not,

however, substitute our judgment for that of the commissioner regarding witness

credibility or the weight of evidence. Affordable Cabs, Inc. v. Emp't Sec. Dep't,

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

       The Employment Security Act exists to provide compensation to

individuals who are "involuntar[ily]" unemployed "through no fault of their own."

RCW 50.01.010. Accordingly, an individual is disqualified from receiving

unemployment benefits if he or she is discharged "for misconduct connected with




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his or her work." RCW 50.20.066(1). The statute provides a nonexclusive list of

conduct that constitutes misconduct, including:

             (a) Willful or wanton disregard of the rights, title, and
      interests of the employer or a fellow employee;
             (b) Deliberate violations or disregard of standards of
      behavior which the employer has the right to expect of an
      employee;
             (c) Carelessness or negligence that causes or would likely
      cause serious bodily harm to the employer or a fellow employee; or
             (d) Carelessness or negligence of such degree or recurrence
      to show an intentional or substantial disregard of the employer's
      interest.

RCW 50.04.294(1). However, misconduct does not include:

            (a) Inefficiency, unsatisfactory conduct, or failure to perform
      well as the result of inability or incapacity;
            (b) Inadvertence or ordinary negligence in isolated
      instances; or
             (c) Good faith errors in judgment or discretion.

RCW 50.04.294(3).

      Whether an employee's actions constitute misconduct is a mixed question

of fact and law. Tapper, 122 Wn.2d at 402. We review findings of fact to

determine whether, based on the record, substantial evidence supported those

findings. William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81

Wn. App. 403, 407, 411, 914 P.2d 750(1996). Where findings of fact are

unchallenged, we treat the findings as verities on appeal. Fuller v. Dep't of Emp't

Sec., 52 Wn. App. 603, 606, 762 P.2d 367(1988). We review de novo whether

the commissioner correctly applied the law to the findings, according substantial


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weight to the agency's interpretation of the law. William Dickson, 81 Wn. App. at

407.

                                           111

       Ferguson first argues that the commissioner erred in concluding that he

had been terminated for misconduct because Baker told him that he had been

fired for different reasons, namely, his work performance and tardiness. Citing

RCW 50.36.030, which provides that it is a misdemeanor for an employer to

provide a different reason for termination to the Department than the employer

provides to the employee at the time of separation, Ferguson argues that the

commissioner was required to exclude all evidence regarding the smell of

alcohol.'

       But Ferguson did not raise this issue below. The APA precludes appellate

review of issues not raised before the agency, subject to specified exceptions.2




         ROW 50.36.030 provides:
       Employing units or agents thereof supplying information to the
       employment security department pertaining to the cause of a benefit
       claimant's separation from work, which cause stated to the department is
       contrary to that given the benefit claimant by such employing unit or agent
       thereof at the time of his or her separation from the employing unit's
       employ, shall be guilty of a misdemeanor and shall be punished by a fine
       of not less than twenty dollars nor more than two hundred and fifty dollars
       or by imprisonment in the county jail for not more than ninety days.
       2 ROW 34.05.554 provides:
               (1) Issues not raised before the agency may not be raised on
       appeal, except to the extent that:

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No. 75706-7-1/8


RCW 34.05.554(1). Ferguson does not argue that any of the statutory

exceptions apply here. Thus, Ferguson has waived this argument on appeal.

      Even if we were to review the issue, it is entirely without merit. RCW

50.36.030 does not provide for the exclusion of evidence as a remedy. And, in

any event, there was substantial evidence in the record that Baker informed

Ferguson that he was being terminated, at least in part, because of the persistent

alcohol smell.

      Ferguson next contends that the commissioner erred in finding that he

came to work with alcohol on his breath. He contends that the evidence showed

only that his body odor or perspiration smelled of metabolized alcohol. But

substantial evidence supports the challenged finding. Matheson testified that "on

occasion, I suppose, that maybe it smelled like it was coming from your breath,"

Chavez testified that the smell "could possibly" have come from Ferguson's




             (a) The person did not know and was under no duty to discover or
      could not have reasonably discovered facts giving rise to the issue;
             (b) The agency action subject to judicial review is a rule and the
      person has not been a party in adjudicative proceedings that provided an
      adequate opportunity to raise the issue;
             (c)The agency action subject to judicial review is an order and the
      person was not notified of the adjudicative proceeding in substantial
      compliance with this chapter; or
             (d) The interests of justice would be served by resolution of an
      issue arising from:
             (i) A change in controlling law occurring after the agency action; or
             (ii) Agency action occurring after the person exhausted the last
      feasible opportunity for seeking relief from the agency.

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No. 75706-7-1/9



breath. Moreover, even if the findings were erroneous, it is insignificant.

Ferguson was terminated for coming to work smelling of alcohol. The source of

the smell is immaterial.

       Ferguson next asserts that the commissioner erred in relying on lay

witness testimony because "they had no expertise or training in detection of

metabolized alcohol in someone's perspiration." But it is well settled in

Washington that a lay witness may express an opinion regarding the smell of

alcohol. See, e.o., State v. Quaale, 182 Wn. 2d 191, 201, 340 P.3d 213(2014);

State v. Randhawa, 133 Wn.2d 67, 74, 941 P.2d 661 (1997). And because

administrative hearings operate under "relaxed rules of evidence," a judge may

admit evidence of the kind "on which reasonably prudent persons" may rely.

ROW 34.05.452(1); Goldsmith v. Dep't of Soc. & Health Servs., 169 Wn. App.

573, 585, 280 P.3d 1173(2012). Moreover, both Matheson and Chavez testified

that they had personal experience with how a person who had been drinking

would later smell.

       Finally, Ferguson claims that the commissioner erred in concluding that

the alcohol smell constituted misconduct within the statutory definition. Ferguson

points to the commissioner's findings that he "was never observed drinking at

work" and "[n]one of the clients that the claimant met with ever complained about

the claimant's smell or made a comment that he smelled of alcohol." Ferguson



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argues that, at best, his actions merely constituted "unsatisfactory conduct,"

which is excluded from the definition of misconduct.

       Ferguson is mistaken. "[lit is within the legitimate interests and

expectations of an employer that all employees come to work without smelling of

alcohol." Henson v. Emp't Sec. Dep't, 113 Wn.2d 374, 381, 779 P.2d 715

(1989). The record shows Ferguson came to work smelling of alcohol despite

the fact that Baker repeatedly informed him that the smell was unacceptable.

Thus, Ferguson's conduct constituted "[dieliberate violations or disregard of

standards of behavior which the employer has the right to expect of an

employee." RCW 50.04.294(1)(b).

       Moreover, the fact that Ferguson was never observed drinking and no

client complained about the smell is unavailing. Ferguson frequently met with

clients in his small office in the course of his employment. Given that the smell

was particularly unbearable in enclosed spaces, it is all but certain that clients

could have become aware of it. When an employee's duties require contact with

customers, it is reasonable for an employer to be concerned that the smell of

alcohol will be detrimental to the interests of the business. See, e.g., Henson,

113 Wn.2d at 376 (it was misconduct for an employee to fail to complete an

alcohol treatment program required by his employer, after employee came to

work smelling of alcohol, despite the fact that the employee "never drank on the



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job and it was not alleged his performance was impaired by drinking"). The

commissioner properly concluded that Ferguson's conduct amounted to

misconduct.

      We affirm the decision of the commissioner.3




We concur:




    3 Because Ferguson is not the prevailing party, it is unnecessary to address his
request for an award of fees and costs.

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