IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ) 

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### = (J"JQ NGUYETT. TANG, ) No. 67666-1-1**~c::** 

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# ,.. 0 Appellant, ) DIVISION ONE :00 0-q**-~~-** ""1'1 )**:...~~~r** }.::·-or· v. ) :r.- (fJf'Tl i :X :E:Po ) :z..:r- 

# - CJU> STATE OFWASHINGTON ) UNPUBLISHED 

## .. -:o U1 oDEPARTMENT OF EMPLOYMENT ) 

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# - SECURITY, ) FILED: March 11, 2013 ) Respondent. ) )
Cox, J.- NguyetTang, former employee of Lexus of Bellevue, appeals the decision ofthe Commissioner ofthe Employment Security Department denying her unemployment benefits. She claims that certain findings offact in the decision are not supported by either substantial oradmissible evidence. We disagree and affirm. Tang worked as a finance and leasing consultant, earning commissions by preparing financial documents and selling certain productsto customers purchasing cars. On July 28, 2010, Tang spent several hours, including two hours after her shift, preparing documentsfor a customer, to whom she also sold
a dealership warranty for $3,800. The next morning, before Tang's shift, the customer returned to the dealership dissatisfied with the purchase. The salesNo. 67666-1-1/2
manager, NickWilcox, agreed to "unwind" the sale and allow the customerto purchase a different car which was covered by a factorywarranty. Wilcox assigned a differentfinance consultant, who was then at work and who sold other additional products to the customer. When Tang learned thatthe otherfinance consultant would receive the commission, she complained repeatedly to General Manager Mark Babcock. Babcock refused to credit the sale to her. Tang did not appearfor her shift on July 30. Babcock sentTang an email saying he would process hertermination if she did not come to work the next day. Tang did not appearfor herscheduled shifts on July 31 orAugust 1. On August 2, Babcockterminated Tang forjob abandonment. Thereafter, Tang applied for unemployment insurance benefits. Following investigation, the Employment Security Department (Department) denied Tang's request. Tang sought review ofthe Department's decision. An administrative law judge (ALJ) affirmed the decision denying Tang benefits, concluding thatTang voluntarily quit herjobwithout good cause as defined by RCW 50.20.050(2)(b). The ALJ also concluded thatTang was able to, available for, and actively seeking work during the weeks at issue, as required by RCW 50.20.010(1)(c). Tang sought review ofthe ALJ's decision. The Commissioner adopted all but one ofthe ALJ's findings offactwith modifications and adopted all but one of the conclusions of law. The Commissioner concluded thatTang quit herjob without good cause. The Commissioner concluded thatTang's compliance with

2No. 67666-1-1/3 RCW 50.20.010(1)(c), which requires one to actually seek work, warranted further consideration. Accordingly, the Commissioner remanded that issue to the Departmentforfurther consideration and determination. Tang appealed the Commissioner's decision. The King County Superior Court affirmed. Tang appeals. Good Cause Tang first contends that the record does not supportthe Commissioner's determination that she quit herjob without good cause. Instead, she claims the evidence established that she had good cause to separate based on continuing unchecked discrimination. Wedisagree. Judicial review ofa decision made by an Employment Security Department commissioner is governed by the Washington Administrative Procedure Act (WAPA). 1 In reviewing the decision, we apply the standards ofthe WAPA directlyto the administrative record before the agency. 2 Relieffrom an agency decision is granted when the agency has erroneously interpreted or applied the law, the order is not supported by substantial evidence, or it is arbitrary or capricious.3 A person who voluntarily leaves work without good cause is disqualified from unemployment insurance benefits4 But a person who voluntarily leaves

1 Tapperv. Empl. Sec. Dep't, 122Wn.2d 397, 402, 858 P.2d 494 (1993). 2 ld. 3 RCW 34.05.570(3)(d),(e), (i). 4 RCW 50.20.050(2)(a). 

### 3No. 67666-1-1/4 work for good cause is notdisqualified from benefits.5 One circumstance constituting good cause exists ifthe "individual leftwork because of illegal activities in the individual's worksite, the individual reported such activities to the employer, and the employerfailed to end such activities within a reasonable period oftime."6 Whether a claimant leaves employmentfor good cause is a mixed question of law and face We review findings offact to determine whetherthey are supported by substantial evidence8 Tothe extentthe commissioner modifies or replaces findings by an administrative lawjudge, we review the commissioner's findings.9 Using this approach, we give the agency'sfactual findings the proper level of deference to which they are entitled underthe circumstances. 10 Unchallenged findings are verities on appeal. 11 The application of law to the facts is a question of law that we review de
novo. 12 We consider a commissioner's decision to be prima facie correct. 13 The party challenging the agency's action bears the burden ofdemonstrating its invalidity. 14

5 RCW 50.20.050(2)(b). 6 RCW 50.20.050(2)(b)(ix). 7 Terrv v. Empl. Sec. Dep't, 82 Wn. App. 745, 748, 919 P.2d 111 (1996). 8 Barkerv. Empl. Sec. Dep't, 127 Wn. App. 588, 592, 112 P.3d 536 (2005). 9 Tapper, 122 Wn.2d at406. 10 ld. at403. 11 Fullerv. Empl. Sec. Dep't, 52 Wn. App. 603, 606, 762 P.2d 367 (1988). 12 Terrv, 82 Wn. App. at748-49. 13 RCW 50.32.150. 14 RCW 50.32.150; RCW 34.05.570(1)(a). 

### 4No. 67666-1-1/5 Tang challenges the Commissioner's modified findings Nos. 3 through 13, which state in relevant part: As more fully set forth in the November 8, 2010 Initial Order, evidence of record establishes as follows: Overthe course ofthe four year employment relationship, one ofthe employer's sales managers (Mr. Wilcox) made disparaging comments regarding people ofvarious ethnicities, including Asians. The claimant is Asian and was offended. The claimant complained to the employer's general manager (Mr. Babcock), and he intervened, but Mr. Wilcox continued to make comments. The employer does not condone discrimination orwork-related harassment. Approximately 165-170 employeeswork atthe employer's Bellevue dealership. 40-50 ofthose employees are Asian-Americans. 50 percent ofthe dealership's employees are women. The employer's human resources director (Ms. Hunt) is Asian-American. Although Ms. Hunt's office is at the claimant's workplace, and Ms. Huntwas readily accessible to employees (including the claimant), the claimant did not report her complaints regarding Mr. Wilcoxto Ms. Hunt. Thejob separation was premised on a commission-related disagreement. [T)he claimant was upset because she

... believed she had earned and should have received the commission. The claimant faulted Mr. Wilcox and complained to the general manager (Mr. Babcock}, but Mr. Babcock determined Mr. Wilcox had complied with procedure regarding the sales and commissions. On July 30, 2010, the claimantwas scheduled to work butwas a no call/no show. Via email correspondence, the claimant was cautioned that her services were essential and that her absence burdened her coworkers. The claimant was further cautioned that, ifshe did not return to work the following day, the employerwould considerthe employment relationship terminated. The following day (July 31), the claimant did not return to work. Butfor her beliefthat she had been unfairly denied a commission, the claimant would have reported forwork. She attributed herdecision to a "matter of principle."1151 Tang first claims thatthe Commissioner discounted substantial evidence that she was subjected to a racially hostile work environment and that the

15 Clerk's Papers at 7-9. 

### 5No. 67666-1-1/6 circumstances ofthe July 28-29 car deal was the "strawthat broke the camel's back."16 To supportthis claim, Tang provides bare citations to her petitions for review to the Commissioner and the superior court as well as hertestimony before the administrative lawjudge without any explanation or argument. Tang also argues that substantial evidence does not supportthe specific finding: "The employer does not condone discrimination orwork-related harassment." We disagree. Thefindings reflectthatthe Commissioner considered Tang's testimony thatWilcox made offensive racial comments during the four years of her employment, and continued to do so even after she complained and Babcock intervened. The Commissioner also considered Tang's admissionsthat she did not report the racial comments to the human resources director and that she would have returned to work in the last days ofJuly if Babcock had given herthe disputed commission. Babcocktestified that the disputed commission was allocated in accordance with consistent company policy, describing his preference to serve the complaining customer with the personnel present atthe time ofthe replacement sale and to allocate the commission to the person who sold the replacement product. Babcock also testified: [W]e are very, very conscientious of any kind ofthreatening workplace. We have avery diverse workplace. We have controls in place and checks and balances. We have ways for people to go above anybody in the company and report such claims, and we

16 Brief ofAppellant at 13.
6No. 67666-1-1/7
take it very serious. So we obviously**ve~** much disagreewith her statements ofa threatening workplace.! 17 We conclude that substantial evidence supports the challenged statement regarding the employer's view ofworkplace discrimination or harassment. And the Commissionerwas entitled to decidefrom this and other evidence whether a discriminatory or retaliatory animus played a role in the allocation ofthe disputed commission and whetherthe reported racial comments contributed to Tang's decision notto return to work. Mere disagreementwith the Commissioner's view ofthe evidence does not show a lack ofsubstantial evidence to supportthe challenged findings. Because Tang does not challenge any ofthe Commissioner's conclusions of law or present any additional argument establishing any error in the conclusions, she is not entitled to relief. Actively Seeking Work Tang next assigns errorto the Commissioner's finding No. 2, arguing that it is not supported by admissible evidence. Without citation to authority, Tang claims that the Commissioner could not properly consider Babcock's closing statement as a basis to remand the issue forfurther proceedings. We disagree. During cross-examination atthe hearing before the ALJ, Tang admitted that she had not applied for any finance positions at any car dealerships since leaving herjob. Atthe end ofthe hearing, the ALJ asked Tang for her ''final statement," saying, "And this isn'ttestimony, anything you say in yourfinal

17 Certified Agency Record at 60.

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### 67666-1-1/8 closing I'm not going to consider as evidence." 18 When the ALJ asked Babcock for a final statement, he replied: Wedisagreewith [Tang's] claims, obviously. Ifthere were anytruth to, you know, a hostilework environment or, you know, even that she disagrees with our policy on, you know, one car deal, my question would be why has she not applied for a financejob at any other car dealership?
It's our opinion that she planned on leaving and was working towards that manyweeks before she actually - and then she has a reason to wantto collect these benefits. And in this marketplace she could go work yetthis afternoon in an S and I position anywhere in this city. And, you know, so our position is thatthis is fabricated and we think the benefits should be denied.l191 In Finding of Fact No.2, theALJ found, "During theweeks at issuethe claimant was willing and able to accept any offer ofsuitable work and sought work as directed bythe Department."20 In Conclusion of Law No. 7, the ALJ concluded: RCW 50.20.010(1)(c) requires each claimantto be able to, availablefor, and actively seeking work. The claimantwas ableto, available for, and actively seeking work during the weeks at issue and is therefore not subjectto denial underthe above-cited statute and related laws and regulations as it pertains to that issue[21 1 The Commissioner did not adoptthe ALJ'sfinding No. 2, finding instead
as follows:
Priorto herfour yeartenure with the interested employer, the claimant was employed for approximatelythree years by another dealership and performed a finance-related job. Thus, the claimant's most recent seven years ofwork experience is limited to

18 ld. at 

### 66. 19

# 1d. at69. 20

## ld. at 100. 21 ld. at 102-03. 

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auto-finance. The claimant has not applied for positions in the auto-finance industry, which the claimant attributes to lack of employment opportunities. However, the employer's general managertestified that there are numerous employment opportunities consistentwith the claimant's experience in the claimant's labor market area.1221 The Commissioner did notadopttheALJ's conclusion No. 7, concluding instead: Unemployment benefit eligibility is premised in part on proofthe claimant was able, available, and actively looked forwork during each week benefits were claimed. RCW 50.20.010(c). Here, the employer's reply to the claimant's petition for review raises the issue ofthe claimant's compliance with the above cited statute. The claimant's most recent seven years ofwork experience has been limited to auto-finance. However, the claimant admittedly has not applied for anyjobswith car dealerships during theweeks at issue. Whether (or not) suchjob opportunities existed in the claimant's labor market area is a point ofconflict. The issue (raised by an aggrieved party, the employer) merits further consideration.1231 The Commissionerthen ordered, "The issue ofclaimant's compliance with RCW 50.20.010(1)(c) during theweeks at issue is REMANDED to the Departmentfor further consideration and determination."24 Contraryto Tang's characterization ofthe record, the Commissioner did not consider Babcock's final statement as evidence ofwhetherfinancejobs at
car dealerships were available during theweeks at issue. Instead, the Commissionerfound that Babcock's statement at the hearing, as well as a similar statement in his response to Tang's petition for review beforethe Commissioner, identified a conflict between the partiesjustifying remand to the Departmentfor

22 Clerk's Papers at

### 7. 23 ld. at 10. 24 ld.
9No. 67666-1-1/10 further consideration. Tang fails to argue or establish that the orderwas invalid
or exceeded the Commissioner's authority.25 Affirmed. 

# Cm.T

WE CONCUR:

25 See RCW 50.32.080 (Commissioner's review procedure. After having acquired jurisdiction for review, the commissioner shall review the proceedings in question. Priorto rendering his or herdecision, the commissioner may orderthe taking ofadditional evidence by an appeal tribunal to be made a part ofthe record in the case. Upon the basis of evidence submitted to the appeal tribunal and such additional evidence as the commissioner may orderto be taken, the commissioner shall render his or her decision in writing affirming, modifying, or setting aside the decision ofthe appeal tribunal. Alternatively, the commissioner may orderfurther proceedings to be held before the appeal tribunal, upon completion ofwhich the appeal tribunal shall issue a decision in writing affirming, modifying, or setting aside its previous decision. The newdecision may be appealed under RCW 50.32.070. The commissioner shall mail his or her decision to the interested parties at their last known addresses.). 10