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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON MELODIE R. HOFF,Appellant,

v. STATE OF WASHINGTON DEPARTMENT OF EMPLOYMENT SECURITY, Respondent. DIVISION ONE No. 68442-6- UNPUBLISHED OPINION

FILED: April 29, 2013 Dwyer, J. — Melodie R. Hoffappeals from a decision ofthe commissioner 

### of the Washington Employment Security Department denying her requestfor unemployment benefits. The commissioner determined that Hoffwas 

### disqualified from receiving benefits because she failed to show good cause for voluntarily leaving her employment. The commissioner further determined that Hoffwas liable for the repayment of overpaid benefits and the refund of conditional benefits. Because the commissioner's findings are supported by substantial evidence and the commissioner correctly applied the law, we affirm.



### On September 13, 2007, David Zimmar, an attorney and solo practitioner, 

### hiredHoffas his part-time legalassistant. Initially, Zimmaragreed to pay Hoffa 

### weekly salary of $240 and to separately reimburse her for her parking expenses.No. 68442-6-1/2
Zimmar was semi-retired and kept his office open Monday through Thursday. Zimmar did not require Hoff to work on a set hourly schedule; rather, he permitted her to work at any time she desired on the four days the office was open, so long as she completed her assignments. As a result, Hoffs compensation was not based on the number ofhours she worked. Instead, she


### was paid weekly. Hofftestified that she initially worked for approximately four 

### hours each day, but that in March 2009, she began workingthree hours each day. 

### Initially, Hoffworked for another employer, Bonnie's Seaside Cleaning, 

### concurrently with her part-time position at Zimmar's lawoffice. Eventually, Hoff's employment at Bonnie's Seaside Cleaning terminated. Thereafter, she began 

### complaining to Zimmarthat her compensation was not sufficient and requested a raise. In March 2009, Zimmar raised Hoffs weekly compensation to $290. However, Hoffcontinued to tell Zimmar that she was dissatisfied with her 

### compensation. She also requested that Zimmar pay her parkingexpenses in advance instead of reimbursing her each week. In October 2009, Zimmar informed Hoff of his plan to obtain a parking 

### pass for her,for which he would be billed. Hoffappeared to have noobjection to this new arrangement. Shortly thereafter, however, she walked out of Zimmar's law office. When Zimmar heard the office door close, he got up and found a note 

### written by Hoffstating that she had quit. Hoffindicated in the note that her
reason for quittingwas her unhappiness with her compensation.No. 68442-6-1/3
Hoffthereafter filed a claim for unemployment benefits, asserting that she quit herjob because of "horrible working conditions." She also averred that Zimmar ignored her requests for raises. The Washington Employment Security Department denied Hoff's request for unemployment benefits. Itconcluded that she did not establish good cause for quitting herjob. The Department also determined that Hoffwas overpaid $119 in regular benefits and $5,661 in conditional benefits, and that she was therefore required to repay the Department
a total of $5,780. Itfurther determined that Hoffwas at fault for the overpayment ofregular benefits. Hoffsought administrative review ofthese decisions. 

### At the administrative hearing, Hoff provided several reasons for quitting. She testified that Zimmar frequently yelled at her and at others, which was 

### against her religious beliefs; that Zimmar reduced her hours; that she developed involuntary eye spasms while working forZimmar; and that one ofZimmar's former clients was involved in "business [he or she] shouldn't be doing." 

### Following the administrative hearing, the administrative lawjudge (ALJ) affirmed the Department's decision and concluded that Hoff's reasons forquitting did not demonstrate "good cause" under the Employment SecurityAct. The ALJ also concluded that Hoffwas not at fault incausing the overpayment of$119 in 

### benefits she received, butwas required to repay this amount. Although the ALJ cited to applicable authority that provides forcircumstances in which theNo. 68442-6-1/4 

### repayment of overpaid benefits may be waived,1 the ALJ did notexplicitly determine whether Hoff was entitled to such a waiver. The ALJ further concluded that Hoff was liable for the refund of conditional benefits in the amount of $5,661. Hoffthereafter petitioned the Department's commissioner to review the ALJ's order. The commissioner adopted the ALJ's findings offacts and conclusions of law and affirmed the ALJ's order. The commissioner also concluded that Hoff "was not at fault in causing the overpayment but is required 

### to repay the regular overpayment pursuant to RCW50.20.190 in the amount of $119." Similar to the ALJ's decision, the commissioner did not explicitly address whether Hoffwas entitled to a waiver. He additionally ordered Hoff to repay $5,661 in conditional benefits she received. 

### Hoff's subsequent petition to the commissioner to reconsider its decision was denied. She thereafter appealed to the Snohomish County Superior Court, which affirmed the commissioner's decision. Hoff appeals.
II 

### The Employment Security Act(Act), RCW Title 50, designates 

### unemployment reserves to be used by "persons unemployed through nofault of their own." RCW 50.01.010. Unemployment compensation is intended to reduce 

### "the disruption caused byinvoluntary inability to obtain employment and to
1The order cited to RCW 50.20.190, WAC 192-220-020, and WAC 192-220-030, stating that"[i]ftheclaimant is notatfault for bringing abouttheoverpayment, theoverpaymentmay be waived ifrequiring repayment by theclaimantwould beagainst 'equity andgood conscience.'"No. 68442-6-1/5 

### provide support for unemployed workers as they seek new jobs." Tapper v. Emp't Sec. Dep't. 122 Wn.2d 397, 407-08, 858 P.2d 494 (1993) (citing RCW 

### 50.01.010). Pursuant to RCW 50.20.050(2)(a), an applicant for unemployment benefits is disqualified from receiving such benefits if"he or she has left work voluntarily without good cause." The Act enumerates eleven factual 

### circumstances thatconstitute good cause. RCW 50.20.050(2)(b)(i)-(xi).2 Failure

2RCW 50.20.050(2)(b) provides: An individual is not disqualified from benefits under (a) of this subsection when: (i) He or she has leftwork to accept a bona fide offer of bona fide work as described in (a) of this subsection; (ii) The separation was necessary because of the illness ordisability of the claimant or the death, illness, or disability of a member of the claimant's immediate family if: (A) The claimant pursued all reasonable alternatives to preserve his or heremployment status byrequesting a leave of absence, byhaving promptly notified the employer of the reason for the absence, and byhaving promptly requested reemployment when again able to assume employment. These alternatives need not be pursued, however, when they would have been a futile act, including those instances when the futility of the act was a result of a recognized labor/management dispatch system; and (B) The claimantterminated his or her employmentstatus, and is not entitled to be reinstated to the same position or a comparable or similar position; (iii)(A) With respect toclaims that have an effective date before July 2, 2006, he or she: (I) Leftwork to relocate forthe spouse's employmentthat, due to a mandatory military transfer: (1) Is outside the existing labor market area; and (2) isin Washington or another state that, pursuantto statute, does notconsider such an individual to have left work voluntarily without good cause; and (II) remained employed as long as was reasonable prior to the move; (B) With respect toclaims that have an effective date on or afterJuly 2, 2006, he or she: (I) Left work to relocate forthe spouse's employmentthat, due to a mandatory military transfer, is outsidethe existing labor market area; and (II) remained employed as long as was reasonable priorto the move; (iv) The separation was necessary to protect the claimantor the claimant's immediate family members fromdomestic violence, as defined in RCW 26.50.010, or stalking, as defined in RCW 9A.46.110; (v) The individual's usual compensation was reduced bytwenty-five percent or more; (vi) The individual's usual hours were reduced bytwenty-five percent or more; (vii) Theindividual's worksite changed, such change caused a material increase in distance ordifficulty of travel, and, after the change, the commute was greater than iscustomary for workers in theindividual'sjobclassification and labor market;No. 68442-6-1/6
to establish good cause results in disqualification from benefits. RCW 50.20.050(2)(a). Ifan applicant quit work because of a change in working conditions, as set forth in RCW 50.20.050(2)(b)(v)-(x), benefits will not be denied solely because the applicant worked for a "brief period of time" after the change took place. 

### WAC 192-150-145(1). "Brief period of time" is defined as "the amount of time a reasonably prudent person would have continued working after the change in circumstances." WAC 192-150-145(2). Hoff asserts that five of the eleven circumstances constituting good cause 

### forquitting work apply to her and, therefore, she contends, she is eligible for unemployment benefits. In particular, Hoffmaintains that she quit for the 

### following reasons: illness; reduction of her usual compensation and hours by 25 

### percent ormore; illegal activities in the worksite; and changes to her usualwork that violated her religious convictions. RCW50.20.050(2)(b)(ii),(v),(vi),(ix),(x).
Ill 

### The WashingtonAdministrative Procedure Act(WAPA) governsjudicial review of a final administrative decision of the commissioner of the Employment (viii) The individual's worksite safetydeteriorated, the individual reported such safetydeterioration to the employer, and the employerfailed to correctthe hazards within a reasonable period of time; (ix) Theindividual leftwork because ofillegal activities in the individual's worksite, the individualreported such activities to the employer, and the employerfailed to end such activities within a reasonable period oftime; (x)The individual's usual work was changed to work that violates the individual's religious convictions or sincere moral beliefs; or (xi) Theindividual leftwork to enter an apprenticeship program approved by theWashington state apprenticeship training council. Benefits are payable beginning Sunday of the weekprior to the weekin which the individual begins active participation in the apprenticeship program.No. 68442-6-1/7 Security Department. Tapper, 122 Wn.2d at 402. In reviewing such a decision,
we sit in the same position as the superior court and apply the standards ofthe WAPA directly to the administrative record that was before the agency. Tapper. 122 Wn.2d at 402; Daniels v. Emp't Sec. Dep't, 168 Wn. App. 721, 727, 281 P.3d 310, review denied. 175 Wn.2d 1028 (2012). Thus, we review the commissioner's decision, not the administrative lawjudge's decision or the superior court's ruling. Verizon Nw.. Inc. v. Wash. Emp't Sec. Dep't. 164 Wn.2d 909, 915, 194 P.3d 255 (2008). 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). The party asserting invalidity of an agency action carries the burden of proving the invalidity. RCW 34.05.570(1 )(a). Relief from an agency decision will be granted ifthe reviewing court determines that the commissioner has erroneously interpreted or applied the law, the order is not supported by substantial evidence, or it is arbitrary or capricious. RCW 34.05.570(3)(d),(e),(i); Tapper. 122 Wn.2d at
402. 

### We review findings of fact for substantial evidence. Smith v. Emp't Sec. Dep't. 155 Wn. App. 24, 32, 226 P.3d 263 (2010). We review an agency's interpretation or application ofthe law de novo, giving substantial weight to the 

### agency's interpretation of the statutes itadministers. Smith. 155 Wn. App. at 32; Honesty in Envtl. Analysis & Legislation v. Cent. Puqet Sound Growth Mgmt. Hearings Bd.. 96 Wn. App. 522, 526, 979 P.2d 864 (1999). Moreover, aNo. 68442-6-1/8 

### reviewing court will not substitute itsjudgmentforthat ofthe agency regarding witness credibility or the weight ofthe evidence. Smith, 155 Wn. App. at 35.
IV Hoff first asserts that she had good cause to quit because she developed 

### an illness caused by work-related stress, thereby entitling her to receive unemployment benefits. We disagree. 

### Under RCW 50.20.050(2)(b)(ii), a claimant is not disqualified from receiving unemployment benefits if he or she quit because of an illness. However, the claimant must establish that (1) "[t]he separation was necessary 

### because of the illness or disability," (2) he or she leftworkprimarily because of such illness, and (3) he or she "pursued all reasonable alternatives to preserve 

### his or her employment status" unless seeking such alternatives would have been futile. RCW 50.20.050(2)(b)(ii); WAC 192-150-055(a). 

### Hofffails to establish that her eyelid spasms made itnecessary for her to leave her work. "Necessary" means that the conditions are ofsuch degree or 

### severitythat theywould cause a reasonably prudent person acting undersimilar circumstances to quitwork. WAC 192-150-055(c)(4). Here, at the administrative 

### hearing, Hofftestified that heroptometrist recommended that she quit herjob because ofstress-induced spasms. In support of this contention, she brought to the ALJ's attention a letter written by her optometrist. Contrary to Hoff's 

### testimony, the letter recommended that Hoffapplywarm compresses and reduce stress; it did not, in fact, advise her to leave herjob.

8No. 68442-6-1/9 Similarly, Hoff failed to show that she left her position primarily because of her illness, as required by WAC 192-150-055(1 )(a). Instead, the record demonstrates that her primary reason for quitting was dissatisfaction with her weekly compensation. Zimmar testified that prior to quitting, Hoffrepeatedly expressed frustration with the amount of her compensation. In addition, the note that Hoff left for Zimmar stated that she was unhappy with her compensation and that this was her reason for quitting. The note did not mention her eyelid spasms
or any other medical issue as constituting the motivation for her departure. Nor did Hoff establish that she exhausted all reasonable alternatives to preserve her employment status. A claimant must show that he or she pursued all reasonable alternatives "by requesting a leave of absence, by having promptly notified the employer ofthe reason for the absence, and by having promptly requested reemployment when again able to assume employment." RCW 50.20.050(2)(b)(ii)(A). Hoff did not make Zimmar aware of her medical condition 

### by either discussing it with him or by showing himthe optometrist's letter. Hoff likewise did not ask for a leave of absence prior to quitting. Moreover, Hoff did not demonstrate that pursuing these alternatives would have been futile. 

### Accordingly, the commissioner properly concluded that Hofffailed to establish that she had good cause for quitting because of an illness.
V Hoffnext contends that she had good cause to quit because Zimmar reduced her usual hours by 25 percent or more in March 2009. Again, we disagree.
-9-No. 68442-6-1/10
A claimant is not disqualified from receiving unemployment benefits if his or her usual hours were reduced by 25 percent or more. RCW 

### 50.20.050(2)(b)(vi). Good cause for quitting under this section requires a 

### showing that the employer caused the reduction in the claimant's hours. WAC 192-150-120(2). Furthermore, pursuant to WAC 192-150-145(1), a claimant 

### must prove that the alleged reduction in hours was the motivating factor for quitting. 

### At the administrative hearing, Hofftestified that her hours were reduced 

### from four hours per day to three hours per day. However, Zimmar testified that Hoffdid not work in accordance with a predetermined or agreed-upon schedule. 

### Instead, Zimmar gave her the freedom to determine the time and hours she 

### would work, so long as she completed herassignments.3 Moreover, Zimmar explained that Hoff's compensation was not based on the number of hours she worked. Rather, she was paid a weekly salary. Thus, Zimmar was not 

### responsible forHoffs allegedreduction in hours. Additionally, as theALJ 

### correctly concluded in its order, "[Hoff] received more money for working fewer hours inlight of the increase in her weekly pay." Hoffalso failed to show that the purported reduction in hours was the 

### motivating factorforleaving employment. Aspreviously discussed, it appears, instead, that she quitprimarily because she was displeased with herweekly 

### salary. Nonetheless, Hoffcontinued towork atZimmar's office for several

3The ALJ found Zimmar's testimony more credible than Hoffs testimony on this issue.
-10-No. 68442-6-1/11 

### months after her hours were allegedly reduced. Accordingly, Hoffdid not 

### substantiate herclaim for goodcause as based on a reduction in herhours.4
VI 

### Hoffnext contends that illegal activities transpired at the worksite and that, accordingly, she had good cause to quit. We disagree. 

### Aclaimant is not disqualified from receiving unemployment benefits under 

### the Actifhe or she quit her work because illegal activities were taking place in the worksite. RCW50.20.050(2)(b)(ix). However, the claimant must establish 

### that he or she reported such activities to the employer, and that the employer failed to end such activities within a reasonable period of time. RCW 50.20.050(2)(b)(ix). 

### Hoff's claim is unavailing because, first, she did not support hercontention 

### thatillegal activities took place by describing oridentifying suchactivities. Hoff merely testified that"itwas against[her] beliefs to doworkfor a clientthat 

### engages in activities in theirbusiness they shouldn'tbedoing." Second, Hoffdid not show that she reported these alleged improper activities toZimmar. Finally, Hoffdid not establish that these purportedly illegal activities were a motivating 

### factor in herdecision toquit. Hofftherefore failed todemonstrate good cause for quitting under RCW 50.20.050(2)(b)(ix).

4Hoffasserts onappeal thatshe had good cause toquit under RCW 50.20.050(b)(v) 

### ("The individual's usual compensation was reduced by twenty-five percentormore."). She did not raise this claim before the ALJ and the record does not support it.

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-No. 68442-6-1/12

VII Hoffnext contends that Zimmar's yelling violated her religious convictions, thereby constituting good cause to quit under the Act. This claim is also without
merit. A claimant is eligible to receive unemployment benefits under the Act if his
or her "usual work was changed to work that violates [his or her] religious convictions or sincere moral beliefs." RCW 50.20.050(2)(b)(x). The claimant must establish that the change in work required the claimant to violate his or her religious beliefs or sincere moral convictions. WAC 192-150-140(2)(b). However, mere disapproval ofthe employer's method ofconducting business is 

### not good cause for leaving work. WAC 192-150-140(2)(b). Finally, the claimant must show that he or she notified the employer that the work violated his or her 

### religion or sincere moral beliefs, unless doing so wouldhave been futile. WAC 192-150-140(2)(c). 

### Hofftestified that Zimmar yelled at her and others at the worksite. She claims that as a Baptist, working in an environment in which yelling occurs runs 

### counterto her religious beliefs. However, she described onlyone incident in 

### which Zimmar yelled at her. Moreover, although Hofftestified that she informed Zimmar that she could not tolerate such conduct, the ALJ found more credible 

### the testimony ofZimmar, who stated that Hoffnever brought this matter to his attention. Hoff also did not demonstrate that Zimmar caused a change in her 

### work that required her to violate her religious beliefs. Nor did she show that the yelling was a motivating factor that caused her to quit.
-12-No. 68442-6-1/13

VIII Hoffasserts, finally, that the commissioner erred by ordering her to repay unemployment benefits that she received as overpayment. We disagree. Pursuant to RCW 50.20.190(1), an individual who received unemployment benefits to which he or she was not entitled is liable for the repayment ofthe 

### amount overpaid, unless otherwise relieved ofthe obligation pursuantto RCW 50.20.190(2). "The commissioner may waive an overpayment ifthe commissionerfinds that the overpaymentwas not the result of fraud, 

### misrepresentation, willful nondisclosure, or fault attributable to the individual and that the recovery thereofwould be against equity and good conscience." RCW 50.20.190(2). 

### Here, the commissioner ordered Hoffto repay overpaid benefits in the amount of$119. The commissioner's decision did not explicitly address waiver 

### of the overpaymentofbenefits. However, in ruling that Hoffwas not atfault in 

### causing the overpayment but was required to repayit, the commissionercited to the applicable statute, thus implicitly determining that Hoffwas notentitled to a waiver. Accordingly, the commissionerdid not errin ordering Hoffto repay such benefits pursuant to RCW 50.20.190. The commissionerfurther determined that Hoffwas liable for the refund of conditional benefits inthe amount of $5,661. A conditional payment is a payment 

### issued to a claimant after he or she has "already received benefits but during a 

### period in which thedepartmentquestions [his orher] continued eligibility for benefits." WAC 192-100-070(1). The claimant's right to receive conditional
-13-No. 68442-6-1/14 payments is conditioned on the Department's finding that he or she is eligible for such benefits during the weeks in question. WAC 192-100-070(1). Overpayments ofconditional benefits may not be waived by the commissioner and must be refunded to the Department. RCW 50.20.190, WAC 192-220- 017(3)(c). 

### Here, Hoffreceived conditional payments inthe amount of $5,661 after 

### the Department notified her that itwas questioning her eligibility to receive 

### unemployment benefits. On February 16, 2010, the Department determined that Hoffdid not have good cause to quit work and denied her benefits. Because we conclude that the commissioner properly determined that Hoffvoluntarily quit 

### without good cause, thereby disqualifying herfrom receiving unemployment benefits, we also conclude that the commissioner properly determined that Hoff
must refund the conditional benefits. Affirmed.

We concur:



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