Opinion
No. 30308-6-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 02-2-01863-4. Judgment or order under review. Date filed: 03/28/2003. Judge signing: Hon. Richard D Hicks.
Counsel for Appellant(s), William Raymond Evans, City of Kirkland, 123 5th Ave, Kirkland, WA 98033-6189.
Counsel for Respondent(s), Erika G.S. Uhl, Washington Attorney General's Office, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
William Anderson appeals a denial of unemployment benefits, arguing that the Administrative Law Judge (ALJ) erred in concluding that he resigned from his job without good cause. We affirm.
FACTS
After working for many years in the telecommunications industry, William Anderson's employer laid him off in March 2002. He applied for unemployment benefits and began looking for work. Because he was unable to find a position in his usual field, he accepted a groundman position with Avista Utilities on May 20, 2002. But Anderson soon realized that utility work was very dangerous. For example, on his first day, he had to jump into a ditch where a main power line had been severed. Although the line was supposedly disconnected, Anderson contends he had no way to verify that fact. His co-worker's comments that the line might still be connected also made Anderson uneasy. Anderson asserts that he told his employer about his concerns on May 22, 2002, and told them he wanted to quit. But he agreed to work until May 27, so the employer could find a replacement.
Avista contends that Anderson told them he was quitting because he had another job and did not want to be directed by younger people.
The Employment Security Department granted Anderson unemployment benefits and Avista appealed. The Department held a telephonic hearing on August 1, 2002, attended by Anderson, Avista representatives, and Avista's attorney.
The ALJ concluded in his initial order that Anderson voluntarily quit without good cause and denied him unemployment benefits. The Commissioner of the Employment Security Department and the Thurston County Superior Court affirmed.
I. Standard of Review
`Under the APA, a reviewing court may reverse an agency adjudicative decision if, inter alia: (i) the agency erroneously interpreted or applied the law; (ii) the agency's decision is not supported by substantial evidence; or (iii) the agency's ruling is arbitrary or capricious.' Aponte v. State Dep't of Soc. and Health Serv., 92 Wn. App. 604, 615, 965 P.2d 626 (1998) (citing Tapper v. Employment Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993) and RCW 34.05.570(3)(d), (e), (i)). The party challenging an agency's action bears the burden of demonstrating the invalidity of the decision. RCW 34.05.570(1)(a). The court reviews findings of fact to determine if they are supported by substantial evidence, RCW 34.05.570(3)(e); we review conclusions of law de novo to determine if the reviewing judge correctly applied the law. Tapper, 122 Wn.2d at 402.
II. Analysis
Anderson concedes to quitting his job voluntarily, but argues he had good cause to do so. And he urges us to hold that a strict good cause test does not apply when a person resigns from a job outside his customary field.
The Department contends Anderson has failed to prove good cause because he has not demonstrated that he was actually exposed to dangerous conditions (and thus compelled to quit) or that he exhausted all reasonable alternatives.
We decline to adopt Anderson's argument that a strict good cause test should not apply. The cases Anderson cites actually support only the proposition that an employee must show he faced greater harm than others doing comparable work in order to show good cause for quitting based on safety reasons. In re Kidd, Empl. Sec. Comm'r. Dec.2d 998 (1973); In re Crawford, Empl. Sec. Comm'r. Dec.2d 777 (1986); and In re Luther, Empl. Sec. Comm'r. Dec.2d 582 (1979).
In Kidd, the employee quit because she was forced to weld in the rain without shelter or rain gear, and she received shocks. Kidd, at 3. The Commissioner noted that the employee did not show `that these conditions were any more hazardous for her than any other worker performing the same job.' Kidd, at 3. There was no evidence that welding was not the employee's typical line of work. Because the employee did not meet the good cause test, the Commissioner affirmed the denial of benefits.
In Crawford, a boiler operator quit after a confrontation with another employee regarding malfunctioning boilers. The operator had concerns about illegally operating or forcing others to operate the boilers. Crawford, at 4. The Commissioner stated, `If the work is in the petitioner's customary occupation, he must be willing to face normal risks of that work.' Crawford, at 4. But the Commissioner did not assert this to be the case only if the work is within one's normal occupation. In fact, because the operator had extensive knowledge about boilers, Crawford, at 2, the issue that Anderson raises was not considered. The Commissioner found good cause in Crawford, not because the danger exceeded that in the employee's normal occupation, but because the employee was not required to exhaust all reasonable alternatives in the face of immediate danger. Crawford, at 4.
In Luther, safety was not a primary concern of the employee, and the Commissioner employed the standard good cause test despite the fact that the employee was primarily performing duties outside his normal position as an aircraft mechanic. The court stated that the employee had not shown `any greater risk to his safety than that of any other individual performing comparable work.' Luther, at 4 (citation omitted).
Under RCW 50.20.050(1)(c), an individual is disqualified from receiving unemployment benefits for leaving work voluntarily without good cause:
In determining under this section whether an individual has left work voluntarily without good cause, the commissioner shall only consider work-connected factors such as the degree of risk involved to the individual's health, safety, and morals, the individual's physical fitness for the work, the individual's ability to perform the work, and such other work connected factors as the commissioner may deem pertinent. . . . Good cause shall not be established for voluntarily leaving work because . . . any . . . significant work factor which was generally known and present at the time he or she accepted employment, unless the related circumstances have so changed as to amount to a substantial involuntary deterioration of the work factor or unless the commissioner determines that other related circumstances would work an unreasonable hardship on the individual were he or she required to continue in the employment.
To establish good cause within the meaning of RCW 50.20.050, an employee must demonstrate that: (1) he or she left work primarily because of a work connected factor; (2) the work connected factor was of such a compelling nature as to cause a reasonably prudent person to leave his or her employment, and (3) he or she first exhausted all reasonable alternatives prior to termination, unless pursuit of the otherwise reasonable alternatives would have been a futile act. WAC 192-16-009(1).
1. Work Connected Factor
Anderson asserts that he left his job because it was too dangerous. Although Avista claimed Anderson gave other reasons for quitting, the ALJ accepted Anderson's explanation, finding that Anderson quit because `he believed the work he was doing was dangerous and unsafe.' Administrative Record (AR) at 52.
2. Compelling Nature
Anderson contends that a reasonably prudent person in his position would have found `potential for danger and harm . . . a compelling reason to leave.' App. Br. at 12.
He cites Robinson v. Employment Sec. Dep't, 84 Wn. App. 774, 778-79, 930 P.2d 926 (1996), for the proposition that `potential or fear of harm is enough.' App. Br. at 12-13. In Robinson, the employee quit her job as an escrow agent because she believed she might be held personally liable for processing certain loans and that she might lose her professional license. These fears were based in part on statements from the Department of Financial Institutions' Consumer Affairs Division and the Escrow Division of the Department of Licensing. Robinson, 84 Wn. App. at 776-77.
A `reasonable apprehension of future harm' is sufficient. Robinson, 84 Wn. App. at 778-79. But unlike the employee in Robinson, Anderson did not quit based on outside information from government agencies or other reliable sources. Even if he quit due to his fear of possible danger, this fear was unsubstantiated. According to Avista, none of their employees has been injured while performing this type of work in twenty-five years. Anderson has not demonstrated that his apprehension was reasonable.
Furthermore, a compelling reason is one that forces a person to quit a job against his or her will. Cowles Pub'g Co. v. Employment Sec. Dep't, 15 Wn. App. 590, 593, 550 P.2d 712 (1976). The reason must be `external and separate from the claimant.' Cowles Pub'g Co., 15 Wn. App. at 593. And work factors generally known and present at the time an individual is hired do not constitute good cause to quit. WAC 192-16-009(2). ``Generally known' means commonly known without reference to specific cases or individuals.' WAC 192-16-009(3)(b).
Anderson states that he realized utility work was very dangerous when he had to jump into a ditch where a main power line had been severed. He also worried about having to climb poles 40 or 50 feet high. But he has not shown that he was forced to quit against his will, or that he quit for any reason other than his own subjective fear. And the ALJ concluded that the nature of the work was apparent to Anderson when he took the job.
Moreover, Anderson made no attempt to discuss his concerns with his employer and have the employer address what he perceived as dangerous as WAC 196-16-009(1) requires.
We conclude that the ALJ's findings are supported by the evidence and that the findings support the legal conclusion that Anderson quit without good cause.
3. Policy Argument
Finally, Anderson argues he `should not be punished for exploring other career options outside his customary occupational field.' App. Br. at 7-8. The Department counters that providing funds to people exploring new career options is contrary to the purpose of the unemployment fund. Because the legislature, not the court, makes public policy, we decline to address this argument. See Skagit Surveyors and Eng'rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 567, 958 P.2d 962 (1998), and Leavitt v. Jefferson County, 74 Wn. App. 668, 675, 875 P.2d 681 (1994).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, A.C.J., concur.