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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Calvert v. State, Dept. of Labor & Workforce Development, Employment Security Division (4/15/2011) sp-6549

Calvert v. State, Dept. of Labor & Workforce Development, Employment Security Division (4/15/2011) sp-6549, 251 P3d 990

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 
        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 


CAROL CALVERT,                                    ) 
                                                  )   Supreme Court No. S-13721 
                       Appellant,                 ) 
                                                  )   Superior Court No. 3AN-08-12217 CI 
        v.                                        ) 
                                                  )   O P I N I O N 
STATE OF ALASKA, DEPARTMENT                       )
OF LABOR & WORKFORCE                              )   No. 6549 - April 15, 2011
DEVELOPMENT, EMPLOYMENT                           )
SECURITY DIVISION,                                )
                       Appellee.                  ) 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial District, Anchorage, Stephanie E. Joannides, Judge. 

               Appearances:      Carol   Calvert,   pro   se,   Soldotna,   Appellant. 
               Erin Pohland, Assistant Attorney General, Anchorage, and 
               Daniel S. Sullivan, Attorney General, Juneau, for Appellee. 

               Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
               and Stowers, Justices. 

               CHRISTEN, Justice. 


               Carol   Calvert   quit   her   job   at   a   seafood   processing  plant   and   filed   for 

unemployment insurance benefits.          Her reasons for quitting included difficulties with 

transportation to work  and personality conflicts with coworkers.             The Department of 

Labor's unemployment insurance claim center determined that Calvert voluntarily left 

----------------------- Page 2-----------------------

work without good cause; as a result, she was statutorily ineligible for unemployment 

benefits for the first six weeks of her unemployment, and her maximum potential benefits 

were reduced by three times the weekly benefit amount. 

                Calvert appealed to the Department of Labor's Appeal Tribunal where the 

assigned Hearing Officer found   that transportation problems were the "precipitating 

event"   in   Calvert's   decision   to   quit. The   Hearing   Officer   concluded   that,   although 

Calvert's   transportation   problems   may   have   provided   a   compelling   reason   to   quit, 

Calvert had not "exhaust[ed] all reasonable alternatives prior to quitting," as is required 

in   order   to  show   good    cause.   The    Hearing    Officer   affirmed    the  claim   center's 


                The   Commissioner   of   the   Department   of   Labor   affirmed   the   Hearing 

Officer's decisions, as did the superior court.          For the reasons explained below, we 



                Carol Calvert was a seasonal employee of Snug Harbor Seafoods in Kenai. 

She worked there for the first time during the summer of 2007.                 She was rehired on 

March 10, 2008, and quit on April 6, 2008.            She filed for unemployment benefits on 

April 6. 

                The Department of Labor's (Department) unemployment insurance claim 

center sent Calvert a "Voluntary Leaving Statement" to complete and return in order to 

provide additional information about her separation from employment. Calvert returned 

the Voluntary Leaving Statement on May 9.              In her explanation of why she quit, she 

cited conflicts that had begun during the 2007 season with a supervisor, Mike, and his 

girlfriend, Hope (also a Snug Harbor employee).  Calvert alleged that the conflict began 

when the plant manager asked Calvert to run the "gear department" and planned to move 

Hope out of her position in that department.  Calvert also described her disappointment 

                                                 -2-                                            6549

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at the March 2008 departure of Brandi O'Reagan, who was the plant manager during the 

2007 season and who had encouraged Calvert to return for the 2008 season.                      Calvert 

reported that Mike cut her hours immediately after O'Reagan left, allegedly in retaliation 

for Calvert's conflicts with Hope.          Calvert was also concerned that Richard King, the 

plant manager who replaced O'Reagan, was aligned with Mike and Hope, and shared 

their hostility toward her. 

                Calvert also described transportation difficulties.  She biked ten miles each 

way to get to Snug Harbor, so she required ample notice of the start times for her shifts. 

Work shifts were announced via a "hotline."             In 2007, shifts were posted so there was 

typically a three-hour lead time.  According to Calvert, in 2008 the hotline was updated 

less frequently, later in the day,   and sometimes as little as half an hour in advance. 

Calvert argued, "[i]t became a cruel guessing game whether [she] should start for work 

on    [her]  bike."    She     found   the   local  public    transit  agency    to   be  "relentlessly 

uncooperative" in arranging transportation, her bike broke, and she anticipated increased 

difficulties associated with springtime road construction on her route to work. 

                In addition, Calvert expressed concern on her Voluntary Leaving Statement 

about   the   new   plant   manager's   attitude   toward   workplace   safety.     During   the   2007 

season, a co-worker standing next to Calvert was "badly shocked" after water hit an 

electric box.     When Calvert was asked later that season to coil an extension cord lying 

in   several   inches   of   water,   she   expressed   her   safety   concerns   in   King's   presence. 

According to Calvert, King "looked at [her], turned his back on [her], and has not spoken 

to [her] since," except when she approached him about her hours. 

                The Department's claim center contacted Calvert on May 13 to ask what 

"final incident" caused her to quit.   Calvert reiterated the reasons cited in her Voluntary 

Leaving Statement: 

                                                  -3-                                             6549

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                There   was   really   no   final   incident,   just   a   compilation   of 
                everything that happened, the old branch manager quitting 
                without telling me, and then problems with the new manager. 
                I quit because my hours week [sic] being cut, and problems 
                with co-workers, and transportation problems. . . . I talked to 
                the owner my last day about them cutting my hours, and he 
                didn't seem like he wanted to do anything about it. . . . I don't 
                know if it was any one thing, just everything piled together. 

On May 14, the claim center issued a notice of determination finding that Calvert "quit 

work at Snug Harbor Seafoods because [she was] unhappy with the new manager's 

supervisory style and apportionment of work."   The claim center reasoned that because 

Calvert had not provided information demonstrating that the manager's actions were 

"hostile or discriminatory," she had not established "good cause for leaving."                    As a 

result, Calvert was denied waiting-week credit for the first week of employment and 
benefits for the next five weeks,1 and her maximum potential benefits were reduced by 

three times the weekly benefit amount.2 

                On June 16, Calvert filed a Notice of Unemployment Insurance Appeal with 

the Department of Labor's Anchorage Appeal Tribunal.                     In her appeal, she   argued: 

(1) the claim center did not establish that the work she left was "sufficient and suitable," 

and she was therefore not required to show good cause for leaving it; (2) "good cause" 

for   leaving   the   job   existed   in   any   case   based   on   Calvert's   insufficient   work   hours, 

        1       Under AS 23.20.379(a)(1), "[a]n insured worker is disqualified for waiting- 

week credit or benefits for the first week in which the insured worker is unemployed and 
for the next five weeks of unemployment" if the   worker left the "last suitable work 
voluntarily without good cause."  "Waiting-week credit" refers to credit received for the 
initial week of unemployment, during which the worker does not immediately receive 
unemployment         insurance    benefits   but  still  accrues  benefits   eligibility. See   Alaska 
Department of Labor, Frequently Asked Questions: Filing for Unemployment Insurance, 
available at 

        2       AS 23.20.379(c). 

                                                  -4-                                             6549

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transportation issues, lack of notice by the employer regarding   work hours, and the 

patterns of "[w]orkplace violence" she experienced; and (3) the Department of Labor has 

a duty to better inform employees on the rules and requirements for unemployment 

insurance benefits.      In addition to her brief, Calvert submitted a request for subpoenas 

to the Appeal Tribunal. 

                Hearing Officer Kathy A. Thorstad conducted the Appeal Tribunal hearing 

telephonically      on   July    29,  2008.     The     Hearing     Officer    observed     that,  under 

AS   23.20.379,   a   person   who   quits   a   job   without   good   cause   is   ineligible   for   full 

unemployment insurance benefits.  She also explained that the burden of showing good 

cause is on the employee seeking benefits and that a worker has "good cause" when she 

has a compelling reason for leaving work and has exhausted all reasonable alternatives 

to quitting. 

                During the hearing, the Hearing Officer heard testimony from Calvert, Snug 

Harbor   plant   manager   King,   and   the   president   of   Snug   Harbor,   Paul   Dale.   Calvert 

testified that she quit her job on April 6 because she was "upset all day long" and made 

her decision "based on the amount of stress . . . [and] based on the problems [she] was 

having with transportation."         In response to the Hearing Officer's questions about her 

transportation difficulties, Calvert stated that she had not realized that biking to work 

"would be much more difficult" during March than it had been when she worked at Snug 

Harbor     the  previous    summer.      She    noted   that  her  bike   broke   down     and  weather 

conditions were bad in March and April, forcing her to rely on the Central Area Rural 

Transit   System   (CARTS).         CARTS       requires   its   passengers   to   book   trips   hours   in 

advance, which was difficult for Calvert given her unpredictable work schedule and 

King's habit of posting the hours for the following day after 6:00 p.m., when CARTS 

had stopped answering its phones for the evening.  According to Calvert, her only other 

                                                   -5-                                             6549

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transportation option was to take a taxi, which she stated would not be cost-effective 

given the amount of money she was making at her job. 

                The Hearing Officer also questioned Calvert about her work-related stress. 

Calvert stated that Mike cut her hours after O'Reagan's departure and told her that the 

decision had been sanctioned by Dale.   Calvert noted that she had not asked Mike why 

her hours were being cut but later asked King, the plant manager, who told her he would 

"see that the work got done."  She also recounted a subsequent conversation with Dale, 

who told her he had not authorized Mike to cut her hours.  Calvert told the Hearing 

Officer that she did not directly ask Dale to address the situation with Mike, explaining 

that she "didn't feel that it was necessary" because she assumed someone in Dale's 

position would "look into it and . . . find out exactly what happened."  Calvert also stated 

that she did not directly confront Mike after learning that Dale had not authorized the 

reduction in her hours. 

                When the Hearing Officer asked Calvert what efforts she made to keep her 

job, Calvert responded that she tried to get CARTS to provide her with transportation to 

work and that she asked King and Dale about the reduction to her hours, "and that's 

about it."    The Hearing Officer asked Calvert whether she explicitly informed King or 

Dale that Mike's "messing with [her] hours was creating enough of a hardship that [she] 

would not be able to continue to work if it wasn't corrected"; Calvert confirmed that she 

did   not.  The   Hearing   Officer   then   asked   Calvert   whether   it   was   her   transportation 

difficulties or her problems with Mike that caused her to quit.             Calvert answered, "It's 

both of them. . . . I don't know if one . . . had been taken away, if the other one could 

have been solved and vice versa."           The Hearing Officer rephrased her question and 

asked, "If CARTS had not been giving you any difficulty on that day, would you still 

have quit your job?"      Calvert replied, "I think I would have gone to work, yes.            I think 

I would have given it another week. . . . I might have complained harder." 

                                                  -6-                                            6549

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                Plant manager King testified that he became aware of Calvert's problems 

with Mike after Mike reported having had a confrontation with Calvert about her hours. 

He claimed that Calvert's impression that she was being singled out for reduced hours 

was incorrect, and that the company was trying to "keep hours at a minimum" based on 

its "limited product" in April.   He also stated that he had not known why Calvert quit her 

job until he saw the exhibits she presented at the hearing. 

                Dale testified that he did not recall the conversation Calvert reported having 

had with him about whether Mike had been authorized to cut her hours, but that he 

"wouldn't dispute it" and it "sound[ed] plausible."            Dale added that, after Calvert quit, 

he   asked   King   "on   at   least   four   occasions"   if   he   had   contacted   her   "to   discuss   her 

concerns regarding employment"; King reportedly told Dale that he had left messages 

for Calvert but had not heard back from her.              In subsequent appeals, Calvert denied 

receiving   any   calls or messages, but she did not raise this point before the Hearing 


                The Hearing Officer affirmed the claim center's determination.                Because 

she found that Calvert's transportation problems were the "precipitating event" in her 

decision to quit, the Hearing Officer did not address Calvert's conflicts with supervisors 
and     co-workers.3      The    Hearing     Officer   determined      that,  although    the   loss   of 

transportation can create a compelling reason for a worker to quit a job, Calvert had not 

"exhaust[ed] all reasonable alternatives prior to quitting." She found that "[t]he claimant 

did not discuss her transportation problems with the employer nor did   she request a 

        3       The   Department   of   Labor's   Benefit   Policy   Manual   (hereinafter  BPM) 

provides that "A worker may give two or more reasons for quitting.                 However, the one 
reason that was the precipitating event is the real cause of the quit, with the other reasons 
being incidental.     In such cases, good cause depends on the precipitating event and the 
other reasons are irrelevant."        Department of Labor, BPM at VL 385-2 (Nov. 2009), 
available at 

                                                   -7-                                            6549

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possible adjustment to her work schedule which would have enabled her to use the transit 

system and continue working."            The Hearing Officer concluded that Calvert had not 

established that she had "good cause for quitting suitable work."               The Hearing Officer 

ruled that Calvert was not entitled to waiting-week benefits under AS 23.20.379. 

                Calvert appealed the Hearing Officer's decision to the Commissioner of the 

Department of Labor.        In her appeal, she argued that the Hearing Officer had confused 

the facts; that her phone bills contradicted King's claim that he had attempted to call her 

after   she   quit;   that   the   Hearing   Officer's   reliance   on   Calvert's   testimony   about   her 

decision to quit on April 6 was "sleight of hand"; and that there had been no reason to 

believe talking to her employer about her transportation problems would   lead to an 

adjustment of hours or other resolution. On October 3, 2008, the Commissioner affirmed 

the Hearing Officer's decision, finding that any factual errors in the decision were not 

prejudicial and adopting the Hearing Officer's finding that Calvert did not give Snug 

Harbor a chance to adjust "by making known her problems in getting to work."  The 

Commissioner upheld the Hearing Officer's conclusion that Calvert failed to show good 

cause for quitting. 

                Calvert   subsequently       appealed    to  the  superior    court,   which   held   that 

"[t]here was substantial evidence to support the Hearing Officer's . . . conclusion that 

Calvert     did  not   exhaust    all  reasonable    alternatives    before   voluntarily    quitting,   a 

requirement for finding good cause."            The superior court decision also found that the 

Department had adequately informed Calvert of the law regarding unemployment benefit 

eligibility.  Calvert appeals. 


                Calvert   appeals   the   decision   of   the   superior   court,   which   affirmed   the 

decisions of the Commissioner of the Department of Labor and the Appeal Tribunal for 

the   Department   of   Labor.     As   we   have   noted,   "when   the   superior   court   acts   as   an 

                                                   -8-                                             6549

----------------------- Page 9-----------------------

intermediate court of appeal, no deference is given to the lower court's decision"; rather, 
we "independently scrutinize directly the merits of the administrative determination."4 

In this case, our independent review has led us to substantial agreement with the superior 

court's carefully considered decision. 

                We   apply   four   standards   of   review     to  administrative   decisions.     The 
"substantial evidence" test applies to questions of fact.5           The "reasonable basis" test is 

used for questions of law involving agency expertise.6            Where no expertise is involved, 

questions of law are reviewed under the "substitution of judgment" test.7                 Finally, the 

"reasonable and not arbitrary" test applies to review of administrative regulations.8 

                We have held that the question of whether a person was dismissed from her 

job for "misconduct" (one of the grounds for disqualification for waiting-week credits 

under AS 23.20.379(a)(2)) is a question of fact to be reviewed under the "substantial 
evidence" test.9    Consistent with that holding, whether Calvert voluntarily quit suitable 

        4       Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 

(Alaska   1987);  see   also   Handley   v.   State,   Dep't   of   Revenue,   838   P.2d   1231,   1233 
(Alaska 1992). 

        5       Handley, 838 P.2d at 1233 (citing Jager v. State, 537 P.2d 1100, 1107 n.23 

(Alaska 1975)). 

        6       Id. 

        7       Id. 

        8       Id. 

        9       Smith     v.  Sampson,     816   P.2d   902,   904   (Alaska    1991)   (applying     the 

substantial evidence test to the "factual determination" of whether an employee was 
dismissed from his job for "misconduct" for purposes of AS 23.20.379); see also Risch 
v. State, 879 P.2d 358, 363 n.4 (Alaska 1994). 

                                                   -9-                                            6549

----------------------- Page 10-----------------------

work for good cause is reviewed here as a question of fact.10   In applying this test, we 

must determine whether there exists "such relevant evidence as a reasonable mind might 
accept as adequate to support a conclusion"11; the court "does not reweigh the evidence 

or choose between competing inferences."12 

                "[D]ue process and evidentiary arguments raise questions of law which we 
will review de novo."13 


        A.      The Unemployment Insurance Benefits Eligibility Framework 

                Under   AS   23.20.379(a),   a   worker   may       be   partially  disqualified   from 

receiving benefits if she "left . . . suitable work voluntarily without good cause" or was 

"discharged   for   misconduct."       These   rules   are   further   detailed   in   the   Department's 
Benefit    Policy    Manual.14    The    BPM     clarifies  that  suitability   and   good   cause   are 

        10      Though   the   Hearing   Officer's   Appeal   Tribunal   Decision   separates   its 

"Findings of Fact" from its "Conclusion," the conclusion section includes the Hearing 
Officer's finding that Calvert quit without good cause. The Hearing Officer's conclusion 
appears to be entirely fact-based; the determinative factual question was "whether the 
claimant exhausted all reasonable alternatives prior to quitting her job." 

        11      Storrs v. State Medical Bd., 664 P.2d 547, 554 (Alaska 1983) (citingKeiner 

v. City of Anchorage, 378 P.2d 406, 411 (Alaska 1963)). 

        12      Id. (citing Interior Paint Co. v. Rodgers, 522 P.2d 164, 170 (Alaska 1974)). 

        13      Smith, 816 P.2d at 904; see also Childs v. Kalgin Island Lodge, 779 P.2d 

310, 313 (Alaska 1989) (holding that findings of the Alaska Workers' Compensation 
Board will not be vacated when supported by substantial evidence, but "independent 
review of the law is proper" where "the Board's decision rests on an incorrect legal 

        14      The   BPM   fulfills   8   AAC   85.360's   mandate   that   "the   department   .   .   .

maintain a policy manual interpreting the provisions of AS 23.20 and this chapter."  We

                                                  -10-                                            6549

----------------------- Page 11-----------------------

independent inquiries.       "A worker who voluntarily leaves unsuitable work leaves with 
good cause"15  and need not make a separate showing of good cause to quit.16               The factors 

relevant to suitability are distinguishable from those affecting good cause:  "[s]uitability 

is based on circumstances surrounding the job, and usually involves a comparison of the 

offered   work   with   other   similar   work   in   the   locality   .   .   .   .   Good   cause   is   based   on 

personal circumstances surrounding the claimant . . . and not directly related to the 
conditions of the work."17        And while a worker may leave unsuitable work without 

further efforts to remedy the situation, establishing good cause for leaving work that is 

otherwise suitable requires a two-step showing:   not only must "[t]he underlying reason 

for leaving work . . . be compelling," but "[t]he worker must exhaust all reasonable 
alternatives before leaving the work."18 


have looked to the BPM to interpret AS 23.20 in the past, and continue to do so here. 
See, e.g., Wescott v. State, Dep't of Labor, 996 P.2d 723 (Alaska 2000) (adopting the 
BPM's   criteria   for   determining   good   cause   and   citing   the   BPM   throughout).       The 
Wescott opinion refers to the BPM as the "Precedent Manual."  The BPM is divided into 
eight sections: Able & Available, Evidence, Labor Dispute, Miscellaneous, Misconduct, 
Suitable Work, Total & Partial Unemployment, and Voluntary Leaving.  Content within 
each section is indicated by an combination of the abbreviated section title (e.g.,"VL" for 
Voluntary Leaving,"EV" for Evidence) and a numbered subsection (e.g., VL 385-2). 
Individual subsections may have different dates based on their most recent updates. 

        15      BPM at VL 425-1 (Nov. 2009). 

        16      Id. at VL 5-2 (Apr. 2004); see also Wescott, 996 P.2d at 726. 

        17      BPM at SW 5-4 to 5-5 (Aug. 2008). 

        18      Id. at VL 210-1 (Oct. 1999).         The language of the statute and the BPM, 

while defining suitability and good cause as separate inquiries, creates significant overlap 
in the criteria applicable to each.       AS 23.20.385(b), for example, identifies a single set 
of factors to be used "[i]n determining whether work is suitable for a claimant and in 

                                                  -11-                                            6549

----------------------- Page 12-----------------------

        B.	     The Hearing Officer Correctly Determined That Calvert Left Suitable 

                1.	     The Hearing Officer was required to analyze the suitability of 
                        Calvert's job at Snug Harbor. 

                In finding that Calvert failed to establish good cause for quitting suitable 

work,   the   Hearing   Officer   did   not   explicitly   discuss   whether   Calvert's   job   at   Snug 

Harbor was suitable.  Calvert argues that the hearing officer improperly "abandoned the 

issue of suitable work" and therefore did not correctly analyze whether she was required 

to show good cause for leaving.          We agree that the Hearing Officer was required to 

analyze the suitability of Calvert's work. But we hold that the Hearing Officer's decision 

implicitly found that Calvert's work was suitable. 

                Alaska Statute 23.20.385 provides that the suitability of work depends on 

a range of factors, including whether wages, hours, or other conditions of work are 

substantially less favorable than prevailing conditions in the locality; the degree of risk 

to a claimant's health, safety, and morals; the claimant's physical fitness for the work; 

the distance of the work from the claimant's residence; "and other factors that influence 
a reasonably prudent person in the claimant's circumstances."19            Although suitability of 

work may not be presumed, it need not be analyzed in all cases.20               Suitability of work 


determining the existence of good cause for leaving or refusing work."                Similarly, the 
BPM includes statements such as "work that is unreasonably distant from a worker's 
residence is unsuitable, and the worker has good cause for leaving it," id. at VL 150-2 
(Nov. 2010), followed by a discussion addressing distance from work primarily in terms 
of good cause.      As a result, it can be difficult to draw   a clear line between the two 
concepts in practice. 

        19      AS 23.20.385(a)-(b); see also BPM at VL 425-1 to 425-3 (Nov. 2009). 

        20      BPM at EV 190.3-1 (July 1999). 

                                                 -12-	                                          6549

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must be examined if:        (1) a worker objects to the suitability of wages, hours, or other 

"conditions of work"; (2) a worker specifically raises the issue of suitability of work; or 

(3) facts appear during investigation of a worker's claim that put the Department on 

notice that wages or other conditions of work may be substantially less favorable than 
prevailing conditions for similar work in the locality.21 

                Calvert raised the issue of suitability in her initial appeal to the Appeal 

Tribunal, arguing that the Department "makes no claim of sufficient and suitable work 

from my employer." She did not provide explicit justification for the claim that her work 

at Snug Harbor was unsuitable, but elsewhere in her appeal and in her initial Voluntary 

Leaving Statement, Calvert did identify a number of concerns that might be considered 

objections to "conditions of work" sufficient to place the Hearing Officer on notice that 

conditions were potentially unfavorable.            Specifically, Calvert cited safety concerns, 

"workplace violence," personality conflicts, and difficulties with transportation to work. 

                The Department contends that none of the issues Calvert raised other than 

transportation could render her work unsuitable because they were not found to be the 

"precipitating event" that led Calvert to quit.           We disagree with this reasoning.          The 

"precipitating   event"   analysis   described   in   the   BPM   identifies   which   of   a   worker's 

reasons   for   leaving   is   to   be   analyzed   for   good   cause: "good   cause   depends   on   the 
precipitating event and the other reasons [for quitting] are irrelevant."22           By contrast, the 

determination of whether work is unsuitable is a separate inquiry that is not similarly 

limited; if work is unsuitable, a worker has good cause to leave it without having to make 

        21      Id. at VL 425-1 (Nov. 2009); see also id. at EV 190.3-1 to 190.3-2 (July 


        22      See id. at VL 385-2 (Nov. 2009). 

                                                  -13                                               6549 

----------------------- Page 14-----------------------

a separate showing.23       The fact that a circumstance did or did not precipitate a worker's 

decision to quit is not relevant to whether the circumstance may render work unsuitable. 

                 The   Department   also   argues   that   none   of   the   issues   Calvert   raised   can 

properly be considered "conditions of work" as the term is used in the BPM.  It contends 

that this term should be interpreted to refer not to work conditions generally, but to "an 
essential   aspect   of   the   job."24 The   Department   argues   that   workplace   hostility   and 

transportation   problems   of   the   type   Calvert   claims   are   not   properly   categorized   as 

"essential   aspects"   of   a   job   and   should   instead   be   considered   under   the   good   cause 

                 We find this argument convincing as it applies to Calvert's transportation 

problems.  The BPM provides that "[w]ork that is unreasonably distant from a worker's 
residence   is   unsuitable   and   the   worker   has   good   cause   for   leaving   it."26 The   BPM 

illustrates this rule with a case involving a claimant whose employer assigned him to 

work in a community 118 miles from his home; the Commissioner found this to be an 

"unreasonable commuting distance" and concluded that the job was unsuitable, giving 

        23       Id. at VL 5-2 (Apr. 2004); see also Wescott, 996 P.2d at 726. 

        24       In support of this reading, the Department cites the fact that a suitability 

inquiry does not require a claimant to show that she exhausted reasonable alternatives 
before leaving a job, "presumably because an   issue that makes work unsuitable is a 
fundamental attribute of the job itself" and cannot be easily changed.                     By contrast, a 
worker who quits for "good cause" unrelated to suitability is required to demonstrate that 
she explored alternatives, which implies that good cause is determined by factors that are 
at least potentially within the worker's power to control or adjust. 

        25       The Department's brief does not address   the   safety concerns raised by 

Calvert in her Voluntary Leaving Statement. 

        26       BPM at VL 425-2 (Nov. 2009). 

                                                    -14-                                              6549

----------------------- Page 15-----------------------

the claimant good cause for quitting.27        But as the Department argues, there is "a subtle 

but   logical   distinction"   between    distance   to   work   and   personal   factors   affecting   a 

commute; "[p]ersonal circumstances that render a reasonable, customary commute no 

longer feasible cannot make a job unsuitable."            Here, Calvert's ten-mile commute was 

not "unreasonably distant" by any objective measure;   she had easily made the commute 

by bike during the previous summer and would have had no problem getting to work at 

other times of year if her means of transportation had been less limited.  And unlike the 

case described in the BPM, Calvert's employer had not asked her to relocate or done 

anything else to change the distance she had to travel to get to work.                Her difficulties 

stemmed from personal circumstances, not from an inherent characteristic of her job at 

Snug Harbor; they did not give rise to a question of suitability. 

                In contrast with Calvert's transportation issues, the workplace hostility and 

safety   breaches   Calvert   described   in   her   Voluntary   Leaving   Statement   and   Appeal 

Tribunal   brief   may   be   considered   "circumstances   surrounding   the   job,"   rather   than 
merely "personal circumstances surrounding the claimant."28               By mentioning suitability 

and raising workplace hostility and safety issues, Calvert objected to conditions of her 

work, raised the issue of suitability, and put the Department on notice that conditions at 

Snug Harbor might be less favorable than standard conditions in the locality.  Thus, the 

Hearing     Officer    was   obligated    to  analyze   the   suitability  of  Calvert's    job  before 

determining that she had failed to show good cause for quitting. 

                2.	     Calvert      did   not   show    that   her   job   at  Snug    Harbor      was 

        27      Id. (citing Appeal Tribunal Decision, Docket No. 99-1253, September 2, 


        28      See BPM at SW 5-4 to 5-5 (Aug. 2008). 

                                                  -15                                              6549 

----------------------- Page 16-----------------------

                Although the Hearing Officer did not explicitly address the question of 

suitability in reviewing Calvert's appeal, her determination that Calvert "did not establish 

that she had good cause for quitting suitable work" implicitly concluded that Calvert's 

work was suitable. Upon independent review of the evidence, we agree with the Hearing 

Officer's implied finding that Calvert did not show that her job at Snug Harbor was 


                Calvert   mentioned   "workplace   violence"   in          her   written   appeal   to   the 

Hearing Officer, but she neither explained what she meant by this term nor provided any 

evidence of "physical violence" at Snug Harbor.                  Construing this phrase in light   of 

Calvert's oral testimony, we understand her to refer to workplace hostility and to the 

personality conflicts she had with Mike and plant manager King.  We hold that the level 

of hostility Calvert describes at Snug Harbor, while no doubt uncomfortable, did not rise 

to the level of unsuitability.      Calvert's personality conflicts did not pose a risk to her 
"health, safety, and morals."29       And she does not claim she experienced threats or even 

serious verbal altercations.       Rather, she describes tensions of the type that commonly 

develop   in   a   workplace   as   a   result   of   poor   communication   and   the   suspicion   that 

coworkers are receiving preferential treatment based on personal relationships. Although 

certainly not ideal, these workplace conditions did not render Calvert's job "unsuitable." 

                Nor does Calvert's description of unsafe practices indicate that her work 

was unsuitable. The incident Calvert described in her Voluntary Leaving Statement took 

place in 2007.      The BPM provides that "[i]f the conditions of work violate a state or 

federal law concerning wages, hours, safety, or sanitation, the worker has good cause for 

leaving,    regardless    of   the  length   of  time   that  the   worker    has   worked     under   the 

        29      Id. at VL 425-1 (Nov. 2009). 

                                                   -16-                                               6549 

----------------------- Page 17-----------------------

objectionable condition."30      Therefore, the fact that Calvert continued to work at Snug 

Harbor the following year does not, by itself, imply that the work was suitable.  But 

Calvert did not describe any safety-related incidents in 2008 or offer evidence that unsafe 

practices were an ongoing condition of work.   The single 2007 incident cited by Calvert 

does not provide evidence of health and safety risks sufficient to demonstrate unsafe 

conditions rendering work at Snug Harbor unsuitable in 2008. 

        C.      Calvert Did Not Show Good Cause For Voluntarily Leaving Work. 

                If the work a claimant has left is determined to be suitable, that claimant's 

eligibility for unemployment insurance benefits depends on whether she left for good 
cause.31  To show good cause, a worker must demonstrate that the underlying reason for 

leaving work was compelling, and that the worker exhausted all reasonable alternatives 
before leaving the work.32      The burden of demonstrating both elements of good cause is 

on the worker.33     The BPM provides that "[a] compelling reason is one that causes a 

reasonable and prudent person of normal sensitivity, exercising ordinary common sense, 
to leave employment."34 

                The BPM further notes that "[a] reasonable and prudent worker sincerely 

interested in remaining at work attempts to correct any condition or circumstance that 

        30      Id. at VL 425-3 (Nov. 2009). 

        31      Id. at VL 210-1 (Oct. 1999).

        32      Id.

        33      Id. at VL 5-3 (Apr. 2004); id. at EV 5-1 (July 1999); see also Wescott v. 

State, Dep't of Labor, 996 P.2d 723,727 (Alaska 2000) (citing Reedy v. M.H. King Co., 
920 P.2d 915, 918 (Idaho 1996)). 

        34      BPM at VL 210-1 (Oct. 1999). 

                                                 -17-                                           6549

----------------------- Page 18-----------------------

interferes with continued employment."35           In order to exhaust all reasonable alternatives, 

the worker must notify the employer of the problem and request adjustment; the worker 

must also bring the problem to the attention of someone with the authority to make the 

necessary adjustments, describe the problem in sufficient detail to allow for resolution, 
and give the employer enough time to correct the problem.36             At the same time, "a worker 

is not expected to do something futile or useless in order to establish good cause for 
leaving employment."37 

                We agree with the Hearing Office that Calvert failed to exhaust alternatives 

to quitting and therefore did not demonstrate good cause for leaving work. 

                1.	     We      analyze    both    transportation       problems      and    workplace 
                        hostility as potential precipitating causes. 

                The Hearing Officer identified transportation problems as the precipitating 

cause   of   Calvert's   decision   to   quit. The   BPM   provides   that,   where   a   worker   gives 

multiple reasons for quitting, "the one reason that was the precipitating event is the real 

cause of the quit, with the other reasons being incidental.              In such cases, good cause 
depends   on   the   precipitating   event   and   the   other   reasons   are   irrelevant."38 In   other 

words,   whether   a   worker   has   shown   good   cause   for   quitting   is   to   be   analyzed   in 

        35	     Id. at VL 210-2 (Oct. 1999). 

        36	     Id. at VL 160-2 (Nov. 2010). 

        37      Id. at VL 210-2 (Oct. 1999). The BPM quotes the Commissioner of Labor: 

"The 'good cause' test only requires a worker to exhaust all reasonable alternatives.  An 
alternative is reasonable only if it has some assurance of being successful. . . . [T]here 
must be a foundation laid that the alternative does have some chance of producing that 
which the employee desires."         Id. at VL 160-1 (Nov. 2010). 

        38      Id. at VL 385-2 (Nov. 2009); see also id. at VL 385-3 (Nov. 2009) ("[T]he 

precipitating event is the reason for the separation, although the combined effect of the 
reasons may be taken into account in determining good cause."). 

                                                  -18-	                                            6549

----------------------- Page 19-----------------------

reference only to the event that directly led the worker to quit and not to any other events 

or circumstances. 

              Throughout her application for unemployment benefits and subsequent 

appeals process, Calvert identified two major factors - transportation obstacles and 

workplace hostility - in her decision to quit.  During the hearing on her administrative 

appeal, the Hearing Officer asked Calvert whether it was her transportation difficulties 

or personality conflicts that caused her to quit.  Calvert answered, "It's both of them. . . 

I don't know if one . . . had been taken away, if the other one could have been solved and 

vice versa."   The Hearing Officer then asked, "If CARTS had not been giving you any 

difficulty on that day, would you still have quit your job?"     Calvert replied, "I think I 

would have gone to work, yes.     I think I would have given it another week. . . . I might 

have tried the new schedule. I might have complained harder." Based on this testimony, 

the Hearing Officer concluded that the precipitating event in Calvert's quitting was the 

loss of transportation, and she therefore limited her good cause analysis to transportation 


              In her brief to our court, Calvert objects that the Hearing Officer took her 

words    out  of  context,  focusing  on  "[t]he  one  comment    [she]  elicited  which  was 

speculative, retrospective, and in conflict with prior testimony and actions." While there 

is no indication that the Hearing Officer's question was intentionally designed to "trick" 

Calvert - indeed, the question's structure simply reflected the BPM's emphasis on 
determining which event led a worker to "quit at [a] particular time"39 - we nonetheless 

acknowledge that the Hearing Officer's question may have elicited a different answer 

than Calvert would have provided in response to an alternatively worded or more open- 

       39     Id. at VL 385-2 (Nov. 2009). 

                                            -19-                                         6549 

----------------------- Page 20-----------------------

ended inquiry.40     Therefore, we analyze both transportation problems and workplace 

hostility to determine whether Calvert demonstrated good cause for leaving work on the 

basis of either issue. 

                2.	     Calvert did not show good cause for leaving work on the basis 
                        of her transportation problems. 

                        a.	     Calvert's       transportation       problems       did    provide      a 
                                compelling reason to quit. 

                The first element of good cause requires that a worker have a "compelling 
reason" for leaving work.41       In contrast to the requirements for determining suitability, 

"[t]here is no requirement that [a] worker's reasons for leaving work be connected with 

the work. Either work-connected or personal factors may present sufficiently compelling 
reasons."42   8 AAC 85.095 provides a limited list of factors the Department may consider 

in   determining     the  existence    of  good    cause,  including    those   factors   identified   in 

AS 23.20.385(b).   One such factor is "distance of . . . available work from the claimant's 
residence."43    The BPM clarifies that, for purposes of determining good cause, "[t]he 

actual mileage from the worker's residence to work is never the determining factor in 

        40      For instance, as Calvert pointed out in her appeal brief to the Commissioner 

of Labor, "[t]he Hearing Officer did not ask the opposite question:  Would you have quit 
if your job security and agreement with your employer had not been tampered with [as 
a result of personality conflicts]?" 

        41      BPM at VL 210-1 (Oct. 1999). 

        42	     Id. 

        43      AS 23.20.385(b). 

                                                  -20-	                                           6549

----------------------- Page 21-----------------------

establishing compelling reasons.      It is the time and expense of commuting which must 
be considered."44 

               The    Hearing   Officer   concluded    in  her  decision   that  "[t]he  loss  of 

transportation can create a compelling reason for a worker to quit [his or her] job."  We 

agree that Calvert demonstrated that her transportation difficulties gave her a compelling 

reason to quit.   The "actual mileage" from Calvert's home to Snug Harbor was not 

unusual, but the "time and expense" involved in her commute were significant: her bike 

was gradually breaking down to the point where her commute took an hour and a half 

each way, CARTS would not allow her to schedule open-ended trips or make last-minute 

arrangements to fit her work schedule, and taxi fare was prohibitively expensive.  These 

facts provide substantial evidence that meets the standard for showing a compelling 

reason to quit:  left unresolved, they would cause a "reasonable and prudent person of 
normal sensitivity . . . to leave employment."45 

                      b.	     Calvert did not exhaust all reasonable alternatives before 
                              leaving work due to transportation problems. 

               The Hearing Officer noted in her findings of fact that Calvert had never told 

her supervisor that her work schedule - and particularly the lack of notice regarding 

working hours - was creating transportation problems for her.  The Hearing Officer also 

found that Snug Harbor made repeated attempts to contact Calvert after she quit and was 

not aware of her reasons for quitting until the hearing.     The Hearing Officer concluded 

that, because Calvert did not discuss her transportation problems with her employer or 

       44      Id.  at VL 150-2 (Nov. 2010).       The BPM also explains "if the time and 

expense of commuting is customary in the worker's occupation and locality, the worker 
generally does not have good cause."  Id. 

       45	     Id. at VL 210-1 (Oct. 1999). 

                                              -21-	                                         6549 

----------------------- Page 22-----------------------

request    an   adjustment     to  her  work    schedule,    she   did  not   exhaust    all  reasonable 

alternatives prior to quitting and therefore left without good cause.              We agree. 

                Calvert   argues   that   the   primary   alternative   envisioned   by   the   Hearing 

Officer, i.e., talking to her supervisors and seeking adjustments to her schedule, was 

"neither   reasonable   nor   proved   to   be   viable."   First,   she   suggests   that   the   Hearing 

Officer's failure to investigate why Snug Harbor's representatives (presumably King and 

Dale) "did not talk to [Calvert] when she brought problems to them" casts doubt on 

whether her employers would have been willing to accommodate her requests.  Second, 

she contends that "her work schedule was reliant upon the schedule of everyone else" 
and   was   therefore   not   amenable   to   adjustment.46    Finally,   Calvert   contends   that   the 

Hearing Officer erroneously relied upon Dale's unreliable "hearsay" report that King had 

attempted to contact Calvert several times after she quit, a claim that Calvert disputed in 
earlier stages of the proceeding.47 

                An employer's limited authority or expressed refusal to accommodate an 

employee can establish that requesting an adjustment to work conditions would be futile: 

"[i]f the employer has already made it known that the matter will not be adjusted to the 

worker's satisfaction, or if the matter is one which is beyond the power of the employer 

        46      Calvert worked in the "gear" department, where she was responsible for 

ensuring that other employees' lab coats and other specialized clothing were cleaned 
daily and ready to be handed out at the start of the work day.  This required her to get to 
Snug Harbor an hour before most employees started work to "start coffee and . . . make 
sure that there was enough gear to hand out and . . . everything was ready to go." 

        47      In her appeal to the Commissioner of the Department of Labor, Calvert 

argued that her phone bill did not reflect that she had received any calls from King 
during the relevant period.       And in her appeal to the superior court, she contended that 
"[t]he claim by employer of attempting to phone claimant four times is unsupported 
HEARSAY and there is a preponderance of credible evidence (my phone bill and written 
statements) in opposition to that claim." 

                                                  -22-                                             6549

----------------------- Page 23-----------------------

to adjust, then the worker is not expected to perform a futile act."48          That does not appear 

to be the situation here. King and Dale apparently had the authority to assign work hours 

and adjust employee schedules. Even taking into account the limited flexibility of hours 

in the gear department, giving Calvert more advance notice of her hours would have 

significantly mitigated her transportation problems; alternatively, her supervisors may 

have been able to transfer her to one of the other departments at Snug Harbor where she 

had worked in the past. 

                Moreover, neither King nor Dale (or any other Snug Harbor employee) had 
explicitly "made it known"49 that they would not accommodate Calvert.  Calvert's claim 

that her employers "did not talk to [her] when she brought problems to them" seems to 

refer to King's and Dale's failure to follow up on her inquiries about Mike cutting her 

hours.   But as Calvert acknowledged to the Hearing Officer, she did not actually "ask 

[Dale] to do anything" to address her problems with Mike or the reduction in her hours, 

on the assumption that to do so would be "presumptuous."                 When the Hearing Officer 

asked   if   Calvert   told   "Richard   [King],   Paul   [Dale]   or   Mike   that   if   they   didn't   stop 

messing with [her] hours, [she was] going to quit," Calvert said she had not.  Nor did she 

ever raise the issue of her transportation difficulties. There is no indication that Calvert's 

inquiries about her hours were framed as complaints demanding a response, or that King 

and Dale would have ignored more direct requests for assistance.  Although she reports 

general "hostility," Calvert presented no evidence beyond her own subjective belief to 

        48      BPM at VL 160-3 (Nov. 2010). 

        49      Id. 

                                                  -23                                               6549 

----------------------- Page 24-----------------------

suggest that her employers' attitudes toward her would make them unwilling to help 
resolve her transportation problems had they known she was otherwise likely to quit.50 

                Calvert's claim that the Hearing Officer relied on "hearsay" to find that she 

had   not   exhausted   her   alternatives   is   also   unconvincing.     First,   Calvert   raised   this 

argument for the first time in the superior court; we therefore consider it to have been 
waived.51    Second, even if this argument had not been waived, the hearsay claim would 

be misplaced.  Calvert did not object at the Appeal Tribunal hearing to Dale's testimony 

that King had reported attempting to call Calvert after she quit.               "In the absence of a 
hearsay objection, hearsay evidence is competent evidence which may be considered."52 

Moreover, "[t]he strict rules of evidence governing admissibility of hearsay in judicial 

proceedings do not apply to administrative hearings, and [this court] will not reverse an 

administrative judgment based on hearsay unless the hearsay was inherently unreliable 
or   jeopardized     the  fairness   of   the  proceedings."53    Here,   the    admission    of   Dale's 

        50      At least one prior decision of the Commissioner of Labor  has held that 

where an employer's actions established a "pattern of abuse and hostility" toward his 
employee, it would have been futile for the employee to confront the employer about his 
offensive behavior.  See Decision of the Comm'r, Docket No. 98-0321, April 30, 1998. 
But the situation in Docket No. 98-0321 is distinguishable from the present case.  There, 
the employer was the sole owner of the business, was verbally abusive, and had proven 
hostile to previous attempts by the employee to resolve other problems.                   Here, Calvert 
does not allege a relationship with her employers of such open hostility.                 She also had 
multiple   levels   of   authority   within   Snug   Harbor   management   from   whom   to   seek 
assistance, and she does not appear to have been refused accommodation (upon direct 
request) on prior occasions. 

        51      See, e.g., Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996). 

        52      Smith v. Sampson, 816 P.2d 902, 907 (Alaska 1991). 

        53      Button   v.   Haines   Borough,   208   P.3d   194,   201   (Alaska   2009)   (internal 


                                                  -24-                                             6549

----------------------- Page 25-----------------------

testimony     does   not   appear   to  have   "jeopardized     the  fairness"   of   Calvert's   appeal 

proceedings.     It is not clear from the Hearing Officer's decision that Dale's testimony 

was, in fact, used to lay a foundation for the viability of the proposed alternative.  The 

Hearing   Officer   stated   in   her   Finding   of   Facts   that   "[a]t   no   time   did   the   claimant 

approach the supervisor and explain that the new work schedule created transportation 

issues for her . . . . [T]he employer made repeated attempts to contact [Calvert] in an 

attempt to discover why she had not returned."              This context suggests that the Hearing 

Officer relied on Dale's testimony primarily in support of the general finding that Calvert 

never informed her employers of her transportation problems (a finding that is amply 

supported by other evidence in the record, including Calvert's own testimony), rather 

than as evidence of Dale's and King's willingness to accommodate Calvert. 

                We   hold   that   there   is   substantial   evidence   in   support   of   the   Hearing 

Officer's finding that Calvert failed to exhaust all reasonable alternatives to quitting on 

the basis of transportation problems and therefore did not show good cause for leaving 

suitable work. 

                3.	     Calvert did not show good cause for leaving work on the basis 
                        of workplace hostility. 

                        a.	     Calvert's       personality      conflicts    did    not    provide      a 
                                compelling reason to quit. 

                Under the BPM, dislike for a fellow employee may only be considered 

good cause for leaving work if         "[t]he worker establishes that the actions of the fellow 

worker subjected the worker to abuse, endangered the worker's health, or caused the 


quotation marks and citations omitted). 

                                                  -25-	                                              6549 

----------------------- Page 26-----------------------

employer   to   demand   an   unreasonable   amount   of   work   from   the   worker."54        Mike's 

behavior toward Calvert did not endanger her health and, if anything, decreased the 

amount of work demanded of her (although with correspondingly decreased wages). 

Nor did it rise to the level of "abuse" as the Department has used the term in the past. 

Cases   in   which   the   Commissioner   has   found   dislike   of   a   fellow   employee   to   be   a 

compelling reason for quitting involve much more serious conflicts, such as threats of 
physical violence to the claimant.55        To the extent that the change in Calvert's schedule 

motivated her decision to quit, it also did not constitute a compelling reason.  "A change 

in [a] worker's hours, shifts, or days of work   initiated by the employer is seldom a 
sufficient   breach   of   the   contract   of   hire   to   give   a   compelling   reason   to   quit."56 A 

reduction in hours is rarely considered compelling for purposes of establishing good 

cause:   "a worker who leaves work merely because the work is less than full-time has 

voluntarily left work without good cause" and a "reduction in hours is not good cause 
for voluntarily leaving work" even where that reduction results in reduced earnings.57 

        54      BPM at VL 515.4-1 (Nov. 2009).              The worker must also "present[] the 

grievance   to   the   employer   and   allow[]   the   employer   an   opportunity   to   adjust   the 
situation."  Id.   This requirement is addressed below. 

        55      See, e.g., Decision of the Comm'r, Docket No. 95-1484, August 1, 1995 

(implying that verbal threats by a fellow employee gave worker "adequate reason" for 
leaving work, though still finding an absence of good cause based on the worker's failure 
to attempt to remedy the situation); Appeal Tribunal Decision, Docket No. 98-0392, 
March 20, 1998 (finding that a worker had good cause to quit after a fellow employee 
threatened to get in a gun fight with him, and the worker reported the incident to his 

        56      BPM at VL 450.05-5 (Nov. 2009). 

        57      Id.   at   VL   450.4-1   (Nov.   2009)  (noting   that   a   worker   whose   hours   are 

reduced      to  part-time    "is  able   to  seek   other   work    without    leaving    the   existing 

                                                  -26-                                             6549

----------------------- Page 27-----------------------

                        b.	     Calvert did not exhaust all reasonable alternatives before 
                                leaving work due to personality conflicts. 

                Even   if   the   personality   conflicts   Calvert   describes   were   to   qualify   as 

"abuse," she made only limited efforts to remedy the situation.                 As we have already 

noted, Calvert spoke to King and Dale about Mike reducing her hours but never directly 

asked either of them to address the issue or, as far as the record indicates, described the 

full extent of her conflicts with Mike.        By her own admission, Calvert never explicitly 

sought a remedy for her problem.            She contended that Dale and King "should have 

known . . . what [she] was saying to them without [her] having to challenge them to do 

something about [her] problem."           But without more information about precisely what 

Calvert said to her supervisors, there was little basis for a finding that they should have 

guessed or intuited what Calvert failed to articulate.  Calvert was required to take more 

active steps to exhaust her alternatives before quitting; because she failed to do so, we 

agree with the Hearing Officer that she did not show good cause for leaving work on the 

basis of personality conflicts. 

        D.	     Calvert Received A Fair Hearing. 

                Calvert makes a number of arguments relating to the procedural adequacy 
of her administrative hearing.        We review these arguments de novo.58            We note at the 

outset that Calvert has waived a number of her due process arguments by not raising 

them earlier in the appeals process.        For example, she argues that the Hearing Officer 

"[n]eglected   the   fair   hearing   principle   of   discovery   to   claimant   by   employer"   and 

"declined to obtain discovery from the employer, disregarding claimant's request for it." 



        58      Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991); see also  Childs v. 

Kalgin Island Lodge, 779 P.2d 310 (Alaska 1989). 

                                                  -27-	                                             6549 

----------------------- Page 28-----------------------

She also contends that "[d]ue [p]rocess requires notice of evidence to be used against 

claimant and an appropriate amount of time to develop a challenge and answer to any 

information from any source" and claims that she did not have sufficient notice of the 

evidence to be presented at the Appeal Tribunal hearing.  Because these arguments were 

raised for the first time in Calvert's appeal to the superior court, rather than in her initial 
post   hearing   appeal   to   the   Commissioner,   we   consider   them   waived.59     Similarly, 

Calvert's argument that the Hearing Officer improperly admitted hearsay evidence is 

waived because she raised it for the first time on appeal to the superior court. 

                1.      Calvert did not demonstrate actual bias by the Hearing Officer. 

                Calvert alleges that the hearing was biased, claiming that "[t]he hearing 

officer picked what she wanted out of the evidence and used it to try to prove her point" 

and that "[t]he reasonings and conclusions of the Tribunal were not fairly and impartially 

supported by the record." But as the Department notes in its brief, administrative officers 

are    "presumed     to  be   honest   and   impartial   until   a  party  shows     actual  bias   or 
prejudgment."60     To show the bias of a hearing officer, a party must demonstrate that the 

hearing officer "had a predisposition to find against a party or that the hearing officer 
interfered with the orderly presentation of the evidence."61  This is a demanding standard. 

The United States Supreme Court has found a "probability of actual bias . . . too high to 

be constitutionally tolerable" in cases where "the adjudicator has a pecuniary interest in 

the outcome" or "has been the target of personal abuse or criticism from the party before 

        59      See, e.g., Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996). 

        60     AT&T   Alascom   v.   Orchitt,   161   P.3d   1232,   1246   (Alaska   2007)   (citing 

Bruner v. Petersen, 944 P.2d 43, 49 (Alaska 1997)); see also Withrow v. Larkin, 421 
U.S. 35, 47 (1975). 

        61     AT&T Alascom , 161 P.3d at 1246 (citing  Tachick Freight Lines, Inc. v. 

State, Dep't of Labor, Emp't Sec. Div., 773 P.2d 451, 452 (Alaska 1989)). 

                                                -28-                                           6549

----------------------- Page 29-----------------------

him,"62 but not where a decisionmaker merely performs combined investigative and 

adjudicative   functions.63      Similarly,   we   have   held   that   a   hearing   officer's   failure   to 

disclose his position as an AFL-CIO president during a worker's compensation hearing 
was insufficient to show actual or probable bias.64 

                Calvert   has   not   presented   any   evidence   that   the   Hearing   Officer   was 

predisposed to find against her. The assertion that the Hearing Officer selected evidence 

to support her findings is insufficient to show actual bias. Nor does the hearing transcript 

suggest that the Hearing Officer interfered in any way with the presentation of evidence. 

The Hearing Officer's questions were thorough and objective; the only evidence she 

excluded was related to Calvert's efforts to find work after quitting at Snug Harbor, an 

issue irrelevant to the question of whether Calvert quit suitable work with good cause. 

Calvert failed to demonstrate bias sufficient to overcome the presumption of the Hearing 

Officer's impartiality. 

                2.      The superior court did not improperly reweigh evidence. 

                In   applying    the   substantial   evidence    test   to  review   an  administrative 
determination, a reviewing court may not reweigh evidence.65               Calvert argues that "[t]he 

Superior Court erred when it improperly reweighed evidence concerning transportation: 

Transportation problems DID present insurmountable difficulties . . . . This would affect 

the issue of suitable work."  Though the meaning of this argument is somewhat unclear, 

Calvert seems to be referring to the superior court's conclusion that, notwithstanding 

        62       Withrow, 421 U.S. at 47. 

        63      Id. at 58. 

        64      AT&T Alascom , 161 P.3d at 1246. 

        65      Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283, 1286 (Alaska 1997). 

                                                  -29-                                             6549

----------------------- Page 30-----------------------

Calvert's expressed concerns regarding transportation (among other issues), "the record 

does not support a finding that the work at Snug was unsuitable."                But this statement 

does   not   suggest   that   the   superior   court   "reweighed"   evidence. The   superior   court 

clearly indicated that its conclusion regarding suitability was based on the record created 

by the Hearing Officer.   And although the Hearing Officer did not explicitly address the 

question of suitability, her factual findings provide sufficient evidence to support the 

conclusion that Calvert's work was suitable.            The superior court presumably relied on 

the Hearing Officer's findings for its conclusion that "there is no evidence that the work 

was    inconsistent    with   Calvert's   physical    capability,   training,  experience,    earning 

capacity, or skill" and that the work was therefore suitable; this did not constitute a 

reweighing of the evidence. 

        E.	     The Department Of Labor Did Not Fail To Inform Calvert Regarding 
                Eligibility For Unemployment Insurance Benefits. 

                Calvert argues that "[t]he Department of Labor & Workforce Development 

neglected [its] duty" by failing to "inform the public or claimant adequately concerning 

its requirements for separation from employment regarding eligibility for full benefits 

before separation takes place."        This argument reiterates Calvert's claim in her brief to 

the   Appeal    Tribunal   that   "[t]he  DOL    neglects   to  make    known    its  presence   [and] 
expectations . . . regarding [unemployment insurance] benefits"66 and that, although "[a] 

reasonably     prudent    person   would    believe   they   had  been   completely     informed    by 

orientation, handbook, practices, and notices posted," the materials distributed to new 

        66      Similarly, in her brief on appeal to the superior court, Calvert contended 

that she "was never properly warned or informed by the employer or DOL that her OWN 
judgments regarding good cause for leaving work . . . was not the standard for which she 
could    voluntarily    quit   her  job  and  still   be  eligible  for  [unemployment     insurance] 

                                                 -30-	                                          6549

----------------------- Page 31-----------------------

employees do not in fact provide sufficient information on unemployment insurance 


                 To   the   extent   Calvert   is   arguing   that   she   lacked   access   to   the   policies 

governing unemployment benefits eligibility, we find her argument unconvincing.  The 

Department's Wage and Hour Information brochure, which Calvert submitted as an 

exhibit   in   her   appeal   to   the   Commissioner,   includes   detailed   information   about   the 

relevant statutes and regulations as well as directions for accessing past unemployment 

insurance appeals decisions online and reviewing the BPM at Department offices.  And 

as the Department notes, the BPM is also available online.                    The "Voluntary Leaving 

Statement"   that   Calvert   filled   out   and   submitted   after   she   filed   for   unemployment 

benefits   gives   notice   to   claimants   that they   must show   "reasons   for   quitting   .   .   .   so 

compelling" as to leave "no reasonable alternative."  The Hearing Officer also explained 

the eligibility requirements to Calvert at the start of the Appeal Tribunal hearing.                   As a 

result,   Calvert    had    notice   of  the   Department's      basic   eligibility   requirements      and 

directions   for   accessing   additional   information,   both   prior   to   her   Appeal   Tribunal 

Hearing and throughout the appeals process. 

                 To the extent Calvert contends that the Department had a duty to inform 

her, while she was working, of how she might quit her job and maintain her eligibility 

for unemployment benefits, we find this argument equally unavailing.  We have held that 

"[a]s a general rule, people are presumed to know the law" without being specifically 
informed of it.67    The United States Supreme Court has required explicit notice of hearing 

         67      Hutton v. Realty Executives, Inc., 14 P.3d 977, 980 (Alaska 2000) (citing 

Ferrell v. Baxter, 484 P.2d 250, 265 (Alaska 1971)). 

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procedures only where "the administrative procedures at issue were not described in any 
publicly available document."68 

                All of the statutes, regulations, and internal policy documents governing 

eligibility for unemployment insurance benefits are "publicly available documents" that 

are easily accessible and identified in Department-published materials, such as the Wage 

and    Hour    Information     brochure    and   the  unemployment       insurance    section   of  the 
Department's website.69       Workers may be presumed to be familiar with the provisions 

of those documents.       In this case, Calvert has not demonstrated that any circumstance 

prevented her from informing herself about the Department's eligibility                requirements 

before she left work.      The Department did not neglect a legal duty or deny Calvert due 

process by not informing her of its policies more directly. 


                We     AFFIRM       the  decision    of  the  superior    court.   Calvert     did  not 

demonstrate good cause for leaving suitable work voluntarily. 

        68      City of W. Covina v. Perkins, 525 U.S. 234, 241-42 (1999) (distinguishing 

Memphis   Light,   Gas   &   Water   Div.   v.   Craft,   436   U.S.   1   (1978),   from  West   Covina, 
because the state law remedies at issue in  West Covina were "established by published, 
generally available state statutes and case law"). 

        69      See 

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