FILED APRIL 21, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
SILVIA ZARATE, ) ) No. 40835-3-III Appellate, ) ) v. ) ) STATE OF WASHINGTON PUBLIC ) UNPUBLISHED OPINION EMPLOYMENT RELATIONS ) COMMISSION, ) ) Respondent. )
COONEY, A.C.J. — Silvia Zarate was a licensed foster parent and employed as a
social services specialist for the Department of Children, Youth, and Families (DCYF).
In 2020, Child Protective Services (CPS) investigated allegations of physical abuse and
neglect of a foster child in Ms. Zarate’s home. The investigation concluded with a
founded finding of physical abuse and neglect (founded finding) against Ms. Zarate. She
was also criminally charged with assault of a child in the second degree. Both the
founded finding and pending criminal charge disqualified Ms. Zarate from serving as a
social service specialist. As a result, the DCYF placed Ms. Zarate on alternate No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
assignment. While on alternate assignment, an investigation into another DCYF
employee revealed that Ms. Zarate had been misusing her employee credentials to access
her own and other foster parents’ licensing files in the DCYF’s child welfare database.
Ms. Zarate’s employment with the DCYF was later terminated.
Ms. Zarate filed an unfair labor practice complaint with the Public Employment
Relations Commission (PERC) alleging her termination was due to union animus. A
hearing examiner later found Ms. Zarate had established a prima facie case of
discrimination but that the DCYF articulated a legitimate, nondiscriminatory reason for
her termination. The hearing examiner concluded that Ms. Zarate’s termination was not
pretextual and that the DCYF did not commit an unfair labor practice. Ms. Zarate
appealed the hearing examiner’s decision to the PERC and then to the superior court.
Both affirmed the hearing examiner’s decision.
On appeal to this court, Ms. Zarate argues the PERC misapplied the law to the
facts, and its order is not supported by substantial evidence. She further contends the
PERC erred in not addressing her due process claim and, arguing the merits, that it is
another independent basis on which this court could reverse. We disagree with Ms.
Zarate’s arguments and affirm.
BACKGROUND
Ms. Zarate began working for the State of Washington as a Child Welfare Worker
in 2008 and transitioned to working for the DCYF as a Social Service Specialist 3 in
2 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
2018. Social Service Specialist 3 is a “covered position,” meaning Ms. Zarate had to
comply with the DCYF’s background check policy because the job required her to have
unsupervised contact with children. Clerk’s Papers (CP) at 462. If certain “crimes [or]
negative actions” appeared on an employee’s background check, including a founded
finding of child abuse, an employee in a covered position was disqualified from
performing their job. Part of the DCYF’s background check policy states the “[DCYF]
must not deny employment based on information in the criminal history record until the
applicant has been afforded a reasonable time to correct or complete the record, or has
declined to do so.” CP at 2136.
In both of her positions at DCYF, Ms. Zarate’s “main job was to ensure child
safety and do family assessment, conduct monthly home visits, case notes, and case
management services.” CP at 346. Her job also required her to “help the parents with
parental deficiencies to be able to keep their children with them.” CP at 346.
Ms. Zarate was also a union member and had previously sought her union’s
protection. In 2017, Ms. Zarate filed a union grievance against her then supervisor,
Jennifer Martin. Ms. Zarate asked Phaedra Quincey, her union representative at the time,
to prevent Dorene Perez, a supervisor of Ms. Zarate’s, from overseeing the grievance due
to concerns of fairness. Ms. Zarate was not satisfied with the way Ms. Quincey handled
her grievance.
3 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
In addition to her employment with the DCYF, Ms. Zarate was a licensed foster
parent. Licensed foster parents are subject to licensing laws and regulations enforced by
the DCYF licensing department of CPS. The DCYF licensing department of CPS is a
separate entity from the child welfare field operations office where Ms. Zarate worked.
In early 2020, the child welfare field operations office where Ms. Zarate worked
was informed that the DCYF licensing department had “received a report of child abuse
and neglect where [Ms. Zarate] was the subject of a physical abuse allegation.” CP at
913. The allegations stemmed from an incident in which a foster child in Ms. Zarate’s
care accused Ms. Zarate of choking her. As a result of the accusation, Ms. Perez, now the
regional administrator and appointing authority for Ms. Zarate’s child welfare field
operations office, placed Ms. Zarate on alternate assignment. The alternate assignment
permitted Ms. Zarate to perform a job that did not require unsupervised contact with
children. Ms. Zarate had concerns about the way CPS handled the investigation into her
alleged abuse and removing the children from her home. She contacted the Washington
State Office of the Family and Children’s Ombuds to report her concerns.
While Ms. Zarate was on alternate assignment, an investigation into another
DCYF employee, Maribel Rivera, revealed that Ms. Zarate had been misusing her
employee credentials to access her own and other foster parents’ licensing files on
FamLink, the DCYF’s child welfare database. Ms. Rivera was a foster parent and Ms.
Zarate’s coworker and close friend. When Ms. Perez learned of this misconduct, she
4 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
requested an audit of FamLink. The audit revealed that Ms. Zarate had repeatedly
accessed restricted foster parent licensing files without a business need for “about two-
and-a-half years.” CP at 517. Specifically, the audit showed Ms. Zarate accessed her
own foster parent file and CPS intakes 188 times and accessed Ms. Rivera’s foster parent
information over 100 times.
In July 2020, Ms. Perez was notified that the investigation into Ms. Zarate’s
alleged physical abuse and neglect of a foster child concluded in a founded finding and
that she had been charged with assault of a child in the second degree. Also in July, Ms.
Zarate filed a complaint with the State Auditor regarding “conflict of interest concerns”
with Ms. Perez. CP at 371. Ms. Perez referred the allegations of Ms. Zarate’s misuse of
FamLink and the founded finding to the workplace investigations unit. The investigation
into Ms. Zarate was assigned to Stephanie Frost. Ms. Zarate was on approved leave from
mid-April through August 2020. Consistent with the DCYF’s policy, the investigation
was postponed until Ms. Zarate returned to work. Ms. Zarate was provided notice of the
administrative investigation when she returned to work on August 19, 2020.
Ms. Frost interviewed Ms. Zarate about her alleged workplace misconduct after
Ms. Zarate returned to work. During the interview, Ms. Zarate admitted to using her
employee credentials to view her own licensing records and CPS intakes, as well as Ms.
Rivera’s, without a business need, and acknowledged her conduct violated confidentiality
5 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
and DCYF policy. Ms. Zarate admitted guilt and took responsibility for her actions. The
administrative investigative report was completed in October 2020.
Ms. Perez reviewed the report and issued a notice of intent to discipline letter to
Ms. Zarate alleging that: (1) Ms. Zarate “accessed restricted information in FamLink
regarding [her] coworker, Maribel Rivera’s, foster parent provider profile and CPS
intake;” (2) Ms. Zarate “accessed restricted information in FamLink regarding [her] own
foster parent provider profile and CPS intakes from 2016 and 2020;” and (3) a CPS
“investigation resulted in Founded findings of physical abuse of [her] foster child.” CP at
1496-97. A predisciplinary meeting was later held and attended by Ms. Perez, Ms.
Quincey (now a human resource field operations manager for the DCYF), Megan O’Neil
(a senior human resources consultant), Ms. Zarate, and Ms. Zarate’s attorney. Ms. Zarate
was given the opportunity to “share additional information” and “additional
documentation” at the meeting. CP at 939. Ms. Zarate “tried the best that [she] could to
explain [her] situation, what [she] was doing to correct [her] founded [finding] and
criminal charge” and “was very apologetic about the computer violations.” CP at 409.
She also reiterated “a concern” about Ms. Quincey “being part of [her] investigation.”
CP at 409.
Following the meeting, Ms. Zarate provided two letters to Ms. Perez, one on
November 17, 2020, and the second on November 30, 2020. Ms. Zarate later testified
that the letters informed the DCYF of her intent to file a union grievance. The first letter
6 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
did not mention Ms. Zarate’s union or use the word “grievance.” CP at 1506-07. The
second letter stated Ms. Zarate had “joined Maribel Rivera’s grievance.” CP at 1521.
Ms. Perez determined that termination of Ms. Zarate’s employment was the
appropriate level of discipline based on the founded finding and Ms. Zarate’s misuse of
FamLink. Dayana Sanchez, Ms. Perez’s assistant, worked on finalizing the notice of
discharge and sent it by e-mail to Ms. Perez on December 14, 2020. Ms. Perez, Ms.
Sanchez, and Ms. O’Neil exchanged e-mails regarding edits to the notice of discharge
and how it would be delivered to Ms. Zarate. Ms. Sanchez offered to send the notice of
discharge to the employee who would handdeliver the letter to Ms. Zarate. Ms. Perez
responded by e-mail to Ms. Sanchez’s offer, writing that she “already did �.” CP at
1623.
On December 14, 2020, Ms. Zarate received the notice of discharge informing her
that she was discharged from employment with the DCYF. The “Basis for Discipline”
listed three charges that largely mirrored the allegations listed on her notice of intent to
discipline letter. CP at 2039-40 (emphasis omitted); see also CP at 1496-98. Ms.
Zarate’s criminal charge was dismissed without prejudice in April 2021, and the founded
finding was overturned in June 2021.
Following her termination, Ms. Zarate filed an unfair labor practice complaint
with the PERC. A three-day hearing was later held before a hearing examiner.
7 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
Witnesses called to testify at the hearing included Ms. Perez, Ms. Zarate, and Renate
Rhodes, the DCYF workplace investigations administrator, among others.
Ms. Rhodes testified she was involved in the “writing of DCYF policies”
including the background check policy. CP at 475. She testified that the policy stated the
DCYF must not deny employment based on information in a criminal history background
check until the employee has been afforded a reasonable time to view their record and fix
any “errors on the[ir] rap sheet.” CP at 491. Ms. Rhodes clarified, “[W]e have to give
the employee or prospective employee an opportunity to contact Washington State Patrol
[for example,] and say, ‘Hey, there’s a crime on my rap sheet. I didn’t commit it and
here’s proof.’” CP at 492. Ms. Rhodes also testified that a pending criminal charge and
a CPS founded finding disqualified Ms. Zarate from employment as a Social Service
Specialist 3 because “she can’t have unsupervised or direct client access, which is an
essential part of her job.” CP at 475.
Ms. Perez testified that she uses happy face emojis in e-mails as “part of polite
communication.” CP at 989. Ms. Perez stated she believed Ms. Zarate’s misuse of
FamLink was “egregious” because “[i]t was such sensitive information, and it
compromised the [CPS] investigation . . . and it significantly compromised [DCYF’s]
reputation and the public trust about [Ms. Zarate] being able to do this.” CP at 519. Ms.
Perez testified, “The fact that it just had continued on for so long, it was just—it was
rather shocking.” CP at 519. Ms. Perez also claimed she did not have “animus against
8 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
the union.” CP at 522. Ms. Perez testified about other DCYF employees who had been
terminated for similar misconduct. She stated Ms. Rivera was terminated for similar
“FamLink confidentiality violations” as well as misuse of a state-issued phone. CP at
531. Another employee, Esmeralda Correa-Martinez, was also terminated for FamLink
misuse and confidentiality violations.
Ms. Perez testified that she believed the “facts supported a finding that [Ms.
Zarate] had abused a child in her care.” CP at 955. She testified Ms. Zarate was
terminated, in part, due to the “abuse and neglect of a child.” CP at 993. When asked
whether she was referring to the “founded finding of it or the actual fact of it,” Ms. Perez
responded, “The fact of it.” CP at 993. Ms. Perez later testified that Ms. Zarate was
fired, in part, because the founded finding meant “[s]he was no longer qualified for a
position.” CP at 539. When asked again if she believed “Ms. Zarate had engaged in
abuse of her foster child,” Ms. Perez responded, “The facts that I considered was [that]
there was a finding of abuse and neglect that was made by the licensing division. That
finding made her not be in compliance with the background check policy. She was no
longer qualified for the position.” CP at 540. Ms. Perez made it clear that Ms. Zarate
was also terminated for misusing FamLink.
The hearing examiner later issued his “Findings of Fact, Conclusions of Law, and
Order.” CP at 212. In it, the hearing examiner found (1) Ms. Zarate had made a prima
facie case of discrimination, (2) the DCYF articulated a legitimate, nondiscriminatory
9 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
reason for Ms. Zarate’s termination, and (3) that Ms. Zarate’s termination was not
pretextual. Thus, the hearing examiner concluded the DCYF did not commit an unfair
labor practice.
Ms. Zarate appealed the hearing examiner’s decision to the PERC. The PERC
affirmed the hearing examiner’s decision and adopted his findings and conclusions as its
own. Ms. Zarate appealed the PERC’s decision to the superior court which affirmed the
PERC.
Ms. Zarate now appeals to this court.
ANALYSIS
WHETHER THE HEARING EXAMINER ERRED IN CONCLUDING THE DCYF’S REASONS FOR TERMINATING MS. ZARATE WERE NOT PRETEXTUAL
Ms. Zarate argues the PERC’s decision is not supported by substantial
evidence and that it misapplied or misinterpreted the law in reaching its decision.
RCW 34.05.570(3)(d), (3)(e). We disagree.
“Chapter 41.56 RCW prohibits public employers from interfering with or
discriminating against the exercise of the rights secured by the collective bargaining
statute.” Int’l Ass’n of EMTs and Paramedics v. Grant County Public Hosp. Dist. 1,
No. 13514-U-97-3300, 1999 WL 1338343, at 2, (Wash. Pub. Emp’t Relations Comm’n
Dec. 14, 1999); see RCW 41.56.040. “Washington adjudicates statutory discrimination
claims using the McDonnell Douglas Corporation v. Green[, 411 U.S. 792, 93 S. Ct. 1817,
10 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
36 L. Ed. 2d 668 (1973),] framework.” City of Vancouver v. State Pub. Employ. Relations
Comm’n, 180 Wn. App. 333, 348, 325 P.3d 213 (2014). The complaining party, here,
Ms. Zarate, first bears the burden of establishing a prima facie case of discrimination.
Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 67-69, 821 P.2d 18 (1991).
In the context of an unfair labor practices claim, a prima facie case requires the
plaintiff to show “‘(1) the employee has participated in protected activity or
communicated to the employer an intent to do so; (2) the employee has been deprived of
some ascertainable right, benefit or status; and (3) there is a causal connection between
those events.’” Yakima Police Patrolmen’s Ass’n v. City of Yakima, 153 Wn. App. 541,
554, 222 P.3d 1217 (2009) (quoting Pub. Sch. Emps. of Reardan-Edwall v. Reardan-
Edwall Sch. Dist., No. 12593-U-96-2997, 1998 WL 1056978, at *6 (Wash. Pub.
Emp’t Relations Comm’n Sept 29, 1998)). If the complaining party established a prima
facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. Wilmot, 118 Wn.2d at 70; Pub. Sch. Emps. of
Reardan-Edwall, 1998 WL 1056978, at *6. “The employer bears the burden of
production, not of persuasion, in offering this permissible reason for the adverse
employment decision.” City of Vancouver, 180 Wn. App. at 349.
If the employer meets its burden of offering a permissible justification for the
adverse employment action, the complaining party bears the burden of persuasion in
showing the employee’s exercise of protected rights under chapter 41.56 RCW triggered
11 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
the adverse employment action. Wilmot, 118 Wn.2d at 70; Yakima Police Patrolmen’s
Ass’n, 153 Wn. App. at 554. The complaining party may meet their burden in two ways:
(1) by showing the employer’s stated reason for the adverse employment action was
pretextual or (2) by showing that, although the employer’s stated reason is legitimate,
animus towards the employee’s protected union activity was “a substantial motivating
factor” for the employer’s action. Yakima Police Patrolmen’s Ass’n, 153 Wn. App. at
554.
This court reviews the PERC’s decision in an unfair labor practice case according
to the Administrative Procedure Act (APA), chapter 34.05 RCW, standards. Pasco
Police Officers’ Ass’n v. City of Pasco, 132 Wn.2d 450, 458, 938 P.2d 827 (1997). We
sit in the same position as the superior court and apply the standards of RCW 34.05.570
directly to the agency record. Postema v. Pollution Control Hr’gs Bd., 142 Wn.2d 68,
77, 11 P.3d 726 (2000).
RCW 34.05.570 provides, in relevant part:
(3) Review of agency orders in adjudicative proceedings. The court shall grant relief from an agency order in an adjudicative proceeding only if it determines that: ....
(d) The agency has erroneously interpreted or applied the law;
(e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter;
12 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
Ms. Zarate asserts the PERC’s order erroneously interpreted and applied the law
and is not supported by substantial evidence. RCW 34.05.570(3)(d), (3)(e).
Under RCW 34.05.570(3)(d), we review de novo whether the agency decision
contains a legal error. Kittitas County v. E. Wash. Growth Mgmt. Hr’gs Bd., 172 Wn.2d
144, 155, 256 P.3d 1193 (2011). “[W]e give the agency’s interpretation of the law great
weight where the statute is within the agency’s special expertise.” Cornelius v. Dep’t of
Ecology, 182 Wn.2d 574, 585, 344 P.3d 199 (2015).
For challenges pursuant to RCW 34.05.570(3)(e), we review findings of fact to
determine whether there is “‘a sufficient quantity of evidence to persuade a fair-minded
person of the truth or correctness of the order.’” City of Redmond v. Cent. Puget Sound
Growth Mgmt. Hr’gs Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998) (quoting Callecod v.
Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510 (1997)). We review the
evidence in the light most favorable to “‘the party who prevailed in the highest forum
that exercised fact-finding authority.’” City of Univ. Place v. McGuire, 144 Wn.2d 640,
652, 30 P.3d 453 (2001) (quoting State ex rel. Lige & Wm. B. Dickson Co. v. County of
Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 (1992)). “The APA’s directive that we
review whether an order is supported ‘by evidence that is substantial when viewed in
light of the whole record before the court’ requires us to look beyond whether there is
merely some evidence that supports the agency order.” Crosswhite v. Dep’t of Soc. &
Health Servs., 197 Wn. App. 539, 548, 389 P.3d 731 (2017) (quoting RCW
13 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
34.05.570(3)(e)). We defer to the review judge’s determinations of witness credibility
and weight given to the evidence. Spokane County v. E. Wash. Growth Mgmt. Hr’gs Bd.,
176 Wn. App. 555, 565, 309 P.3d 673 (2013).
Ms. Zarate contends she met her burden of demonstrating the DCYF’s reasons for
termination were pretextual (union animus) and therefore the PERC’s findings to the
contrary are not supported by substantial evidence. She further contends the PERC
misapplied the law to the facts of the case. Specifically, Ms. Zarate challenges findings
of fact 10, 14, 16, 17, 18, 19, 20, 23, 26, and 27 as well as conclusion of law 2.
Substantial Evidence
Ms. Zarate assigns error to numerous findings of fact, but she does not explain
how many of them are not supported by substantial evidence. Instead, Ms. Zarate’s brief
is largely devoted to explaining how the PERC should have come to a different
conclusion based on the evidence before it. However, “[w]e do not reweigh evidence or
judge witness credibility, but instead defer to the agency’s broad discretion in weighing
the evidence.” Whidbey Env’t Action Network v. Growth Mgmt. Hrg’s Bd., 14 Wn. App.
2d 514, 526, 471 P.3d 960 (2020). Our review is limited to whether the challenged
findings are supported by substantial evidence. We conclude the findings are supported
by substantial evidence.
Challenged findings of fact 10 and 14 state:
14 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
10. The Child Protective Services investigation resulted in what is referred to as a “founded finding” against Zarate. A founded finding “means that [Child Protective Services] investigated the allegation(s) and, based on the information available, has determined that it was more likely than not that the abuse and/or neglect occurred and you [Zarate] are the person responsible for the abuse and/or neglect.” .... 14. At the time Zarate’s employment was terminated by DCYF on December 14, 2020, both the founded finding and criminal charges were standing.
CP at 33. Both of these findings are supported by substantial evidence. Ms. Zarate
seems to take exception to these findings because the founded finding was eventually
overturned. However, there is no dispute that Ms. Zarate had a founded finding against
her at the time of her termination in December 2020.
Findings of fact 16, 17, 18, and 19 read:
16. In Spring of 2020, while conducting a separate workplace investigation, DCYF discovered that Zarate had used her database credentials to gain unauthorized access to confidential Child Protective Services foster parent information that was unrelated to her work in Child Welfare. An investigation showed that she accessed a friend and coworker’s foster parent profile four times without a business need and accessed that same coworker’s Child Protective Services case file 100 times without a business need. She had also accessed her own foster parent profile 164 times and her own Child Protective Services case files 24 times without a business need. This included a period of time when Zarate was under Child Protective Services investigation for the foster child abuse allegations and ceased only when Zarate’s database access ended when she was placed on alternative assignment.
17. The information Zarate accessed was at least in part related to the Child Protective Services investigation into the child abuse allegations against her
15 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
and could have given her inside information regarding the status of the investigation and allegations.
18. On July 31, 2020, Perez opened a workplace investigation into both the founded finding and the unauthorized database access. Workplace investigations are processed through a separate DCYF division from both Child Protective Services and Child Welfare. An investigator was assigned and issued an investigation report on October 14, 2020, that substantiated the allegations.
19. On November 2, 2020, Perez issued a notice of intent to discipline letter to Zarate. The letter included references to the two aspects of the unauthorized database access (regarding accessing her own records and for accessing those of her friend) and for the founded finding and criminal charge related to the child abuse allegations as potential reasons for taking disciplinary action.
CP at 33-34. Ms. Zarate suggests that these findings fail to establish a nonpretextual
reason for the adverse employment action, but we are not tasked with reweighing the
evidence on appeal. Regardless, these challenged findings reiterate undisputed facts and
are supported. An audit of FamLink revealed Ms. Zarate accessed restricted records
without a business purpose or authorization. The records Ms. Zarate accessed included
her own “foster parent provider file” and her “CPS investigative file.” CP at 507. The
ensuing investigation substantiated the allegations, and Ms. Zarate was issued a notice of
intent to discipline letter stating the charges against her, including the unauthorized
database access, the founded finding, and the pending criminal charge. Findings of fact
16, 17, 18, and 19 are supported by substantial evidence in the record.
Challenged findings 20 and 23 state:
16 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
20. A predisciplinary meeting was held November 12, 2020. During that meeting, Zarate admitted to and accepted responsibility for the unauthorized database access. However, she vigorously denied the child abuse allegations underlying the founded finding and criminal charges. She told Perez and Quincey that she was challenging the allegations and they would be overturned. She also expressed concern over Quincey’s role since she had formerly been her union representative. .... 23. On December 14, 2020, Zarate’s employment was terminated. In the final notice of discharge letter, Perez cited the same conduct as in the November 2, 2020, notice of intent to discipline letter as the reasons for terminating Zarate’s employment. They included the two aspects of unauthorized database access and the founded finding and criminal charges related to the child abuse allegations that were still standing at the time. However, she added the following: “your off duty conduct which resulted in the founded finding and criminal charge, is detrimental to your work performance or the program of the agency.”
CP at 34-35. As to finding of fact 20, Ms. Zarate admitted to and accepted responsibility
for her unauthorized access of the FamLink database and reiterated her intention to clear
her name of the child abuse charges at the November 12, 2020, predisciplinary meeting.
Ms. Zarate also testified that she repeated a concern she had about Ms. Quincey being a
part of the investigation. Finding of fact 20 is supported by substantial evidence.
Turning to finding of fact 23, Ms. Zarate argues that Ms. Perez included “items”
in her termination letter that were not disclosed to Ms. Zarate at the outset of the
investigation, specifically “RCW 43.216.170, the Secretary’s List, and [Collective
Bargaining Agreement] Article 28.3.” Br. of Appellant at 39. Ms. Zarate characterizes
these “items” as new “justifications” and “bases for which DCYF never investigated.”
17 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
Br. of Appellant at 21, 39. However, the notice of discharge letter did not cite new bases
or justifications for Ms. Zarate’s termination. The charges and allegations against Ms.
Zarate remained the same but the notice of discharge letter included a few new citations
to policies that were “implicated” by Ms. Zarate’s conduct. Compare CP at 1498 with
CP at 2041 (emphasis and some capitalization omitted). Thus, finding 23 is supported by
substantial evidence.
Finally, findings 26 and 27 read:
26. DCYF terminated Zarate’s employment because she violated policy by accessing her friend and coworker’s foster parent record and Child Protective Services case information in DCYF’s database without a business need, by accessing her own foster parent record and Child Protective Services case information in the DCYF database without a business need, and that she had a founded finding of child abuse and neglect and a related criminal charge pending at the time her employment was terminated that disqualified her from doing her job.
27. The reasons DCYF cited for terminating Zarate’s employment were not pretextual, nor substantially motivated by union animus.
CP at 35-36. Relatedly, Ms. Zarate challenges conclusion of law 2:
2. By terminating Silvia Zarate’s employment as described in findings of fact 4 through 27, Washington State Department of Children, Youth, and Families did not discriminate against Zarate or violate RCW 41.80.110(1)(c).
CP at 36. Ms. Zarate challenges findings 26 and 27 and conclusion of law 2 because she
disagrees with the PERC’s findings and conclusion that her termination was not
pretextual but was instead due to her misconduct and the founded finding that prohibited
18 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
her from doing her job. Substantial evidence in the record supports the PERC’s findings,
and we will not reweigh the evidence to come to a different conclusion. The founded
finding disqualified Ms. Zarate from her job. Moreover, there is no dispute that Ms.
Zarate’s unauthorized FamLink access was a violation of DCYF policy and a serious
confidentiality breach. Thus, substantial evidence supports finding of fact 26. Finding
27 is also supported because a sufficient quantity of evidence exists in the record to
persuade a fair-minded person of the correctness of the PERC’s decision. Finally, the
supported findings, in turn, support the conclusion that the DCYF did not discriminate
against Ms. Zarate in violation of RCW 41.80.110(1)(c) when it terminated her.
In sum, the findings and conclusions Ms. Zarate challenges are supported by
substantial evidence in the record.
Misapplication of the Law
Ms. Zarate argues the PERC incorrectly determined her termination was not
pretextual. She contends the PERC and the hearing examiner “misunderstood the
standards for evaluating pretext” and the “findings and conclusions that PERC adopted as
its own misapplied the correct legal standard.” Br. of Appellant at 41. Nevertheless, Ms.
Zarate does not explain how the PERC misapplied or misunderstood the law. Generally,
Ms. Zarate argues she was actually fired due to union animus evidenced by (1) the
DCYF’s explanations for her termination shifting over time, (2) the suspect timing of her
termination, (3) the DCYF’s unwillingness to allow her time to appeal the founded
19 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
finding, (4) the severity of her punishment being harsher than punishment for other
employees accused of similar misconduct, (5) the exaggeration of her misconduct by the
DCYF, and (6) the use of a smiley face emoji by Ms. Perez in an e-mail thread containing
her notice of discharge letter. Though these arguments boil down to a disagreement with
the weight of the evidence, which is not an APA standard of review, we address Ms.
Zarate’s arguments.
First, the DCYF’s explanations for Ms. Zarate’s termination remained consistent.
Though the DCYF cited additional implicated policies in its notice of discharge, Ms.
Zarate’s underlying charges remained the same. Ms. Zarate claims the hearing examiner
found Ms. Perez’s testimony to be “not reliable.” CP at 30. Her argument misrepresents
the PERC’s findings. The hearing examiner wrote:
Zarate also points to Perez’ inconsistent testimony about whether it was the existence of the founded finding that formed the basis for the decision to terminate Zarate’s employment, or whether Perez actually believed the underlying allegations of child abuse. . . .
Perez’ testimony is not reliable on this point in that she went back-and-forth in her testimony regarding whether she based her decision on the existence of the founded finding and criminal charges, or whether she believed the underlying accusations of child abuse were in fact true. . . .
However, in the end it does not make a difference to the outcome [because] . . . [e]ven if Perez did believe that the underlying accusations of the founded finding and criminal charges were true and that belief formed part of her decision, that motivation does not demonstrate that she acted out of union animus.
20 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
CP at 30. The PERC did not find Ms. Perez’s testimony about why Ms. Zarate was
terminated unreliable. Instead, it found Ms. Perez did not testify consistently about
whether she believed the accusations underlying the founded finding. As the PERC
pointed out, whether Ms. Perez believed the accusations or not was irrelevant to whether
Ms. Zarate’s termination was due to union animus.
Second, the timing of Ms. Zarate’s termination does not suggest pretext given the
surrounding circumstances. Though Ms. Zarate was terminated 14 days after submitting
a letter indicating she would be joining Ms. Rivera’s grievance, both letters were sent
after the November 12, 2020, predisciplinary meeting. At the time the second letter was
sent, Ms. Zarate was already aware that she was going to be disciplined for her
unauthorized FamLink access and that she was disqualified from her job due to the
founded finding. Her termination 14 days after engaging in protected union activity does
not demonstrate a causal connection given that the disciplinary process was well
underway when she sent the November letters.
Third, Ms. Zarate misinterprets the DCYF policy she alleges should have allowed
her time to appeal the founded finding of abuse. The DCYF’s background check policy
states, “[DCYF] must not deny employment based on information in the criminal history
record until the applicant has been afforded a reasonable time to correct or complete the
record, or has declined to do so.” CP at 2136. Ms. Rhodes testified that the policy is
designed to allow an applicant or employee time to correct “errors” on a background
21 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
check. CP at 491. Ms. Rhodes stated, “[W]e have to give the employee or prospective
employee an opportunity to contact Washington State Patrol [for example,] and say,
‘Hey, there’s a crime on my rap sheet. I didn’t commit it and here’s proof.’” CP at 492.
Thus, Ms. Zarate’s contention that the DCYF violated its own policy by not allowing her
time to appeal the founded finding and clear her name fails. At the time of her
termination, her background check correctly reflected a founded finding and a pending
criminal charge.
Fourth, Ms. Zarate argues she was punished more severely than other employees
who committed similar misconduct, evidencing pretext. As the DCYF points out, Ms.
Zarate was disciplined in a manner consistent with others who committed similar
offenses. Notably, Ms. Zarate’s conduct was not a one-time mistake. Rather, it was
intentionally committed over a period of years. Furthermore, evidence in the record
showed other employees who committed similar violations were also terminated. 1 Thus,
Ms. Zarate was not punished more severely for her conduct than other employees.
Fifth, Ms. Zarate claims evidence of pretext is found in the DCYF exaggerating
her workplace misconduct. She asserts the DCYF exaggerated the effect of the founded
finding and criminal charge by claiming the finding and charge completely disqualified
1 Notably, Esmeralda Correa-Martinez for unauthorized access of confidential information unrelated to her duties and Maribel Rivera for unauthorized FamLink access and misuse of her state-issued phone.
22 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
her from her job. She contends this is untrue because the DCYF was able to put her on
alternate assignment for almost a year. This was not, however, an exaggeration of the
effect of the founded finding. According to DCYF policy, Ms. Zarate could not work as
a Social Service Specialist 3 due to the founded finding because it prohibited her from
having “unsupervised or direct client access, which is an essential part of her job.” CP at
474-77.
Ms. Zarate further argues Ms. Perez’s testimony that her inappropriate FamLink
use was “shocking” and “egregious” was an exaggeration and that the DCYF
mischaracterized her FamLink use as “ongoing.” Br. of Appellant at 52. As Ms. Perez
explained, however, Ms. Zarate’s unauthorized access of FamLink was “egregious”
because “it was such sensitive information, and it compromised the investigation of child
safety, and it significantly compromised [the DCYF’s] reputation and the public trust.”
CP at 519. Ms. Perez also testified, “The fact that it just had continued on for so long, it
was just—it was rather shocking.” CP at 519. Finally, characterizing Ms. Zarate’s
conduct as “ongoing” was an accurate description because Ms. Zarate accessed restricted
files, including her own CPS file, almost 300 times over the course of more than two and
one-half years. CP at 2039.
Lastly, Ms. Zarate argues the smiley face emoji Ms. Perez used in an e-mail thread
containing her notice of discharge is evidence of union animus. Taken in context, the use
of the emoji does not demonstrate pretext or union animus. As the DCYF points out, the
23 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
emoji was used at the end of an e-mail thread discussing the finalization and ultimate
delivery of the notice of discharge to Ms. Zarate. The e-mail containing the emoji was
sent in response to Ms. Perez’s assistant stating she would “send out the email to
Claudia.” CP at 1623. Ms. Perez responded, “I already did �.” CP at 1623. Ms. Perez
also testified she sends smiley face emojis as a “part of polite communication.” CP at
989. In context, the emoji was not used to express joy about Ms. Zarate’s termination but
was instead used to politely let Ms. Perez’s assistant know she had already completed a
task her assistant was offering to perform.
In sum, the PERC did not misapply or misinterpret the law. We will not reweigh
the evidence and come to a different conclusion than the PERC. The PERC correctly
concluded, based on the evidence, that Ms. Zarate did not meet her burden of showing
her termination was pretextual. 2 The PERC’s order and its findings and conclusions are
supported by substantial evidence and it did not misinterpret or misapply the law.
WHETHER THE DCYF VIOLATED MS. ZARATE’S RIGHT TO DUE PROCESS
Ms. Zarate argues the DCYF violated her right to due process when it failed to
follow its own procedures during its investigation and acted arbitrarily and capriciously
2 Ms. Zarate also argues the superior court misapplied the legal standard but acknowledges that our review is de novo. Because we stand in the same position as the superior court and apply the APA standards of review directly to the agency record, what the superior court found and concluded is irrelevant to our review. Postema, 142 Wn.2d at 77.
24 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
in doing so. She alleges the PERC erroneously failed to address her due process issue.
The DCYF and the PERC respond that Ms. Zarate’s due process challenge was not
properly before the PERC and the PERC did not err in declining to address it. We agree
Ms. Zarate’s due process argument was not properly before the PERC.
As the PERC and the DCYF point out, Ms. Zarate did not make a due process
claim in her amended complaint. She first mentioned the issue of due process, in passing,
in her notice of appeal to the PERC. Ms. Zarate substantively briefed her due process
claim for the first time in her appeal brief to the PERC, arguing the DCYF “violated [her]
right to due process” and that it was “an independent basis to reverse.” CP at 165, 168
(some capitalization omitted).
The PERC “generally will not consider issues raised for the first time on appeal.”
Int’l Fed. of Prof. and Tech. Engineers, Local 17 v. King County, Decision 6994-B-
PECB (2002). 3 The PERC’s decision on appeal is limited to the record before it. Kitsap
County Juv. Det. Officers’ Guild v. Kitsap County, 1 Wn. App. 2d 143, 163, 404 P.3d 547
(2017) (citing WAC 391-45-390). Ms. Zarate did not raise a due process claim before
the hearing examiner. Thus, the issue lacked the factual development necessary for
review. We therefore decline review of Ms. Zarate’s due process argument.
3 https://decisions.perc.wa.gov/waperc/decisions/en/item/172737/index.do?q=6994 -B
25 No. 40835-3-III Zarate v. Washington Public Employment Relations Commission
ATTORNEY FEES
Ms. Zarate requests an award of attorney fees on appeal pursuant to RAP 18.1,
RCW 49.48.030, and RCW 49.52.070. See Int’l Ass’n of Fire Fighters, Local 46 v. City
of Everett, 146 Wn.2d 29, 51-52, 42 P.3d 1265 (2002). Because Ms. Zarate has not
prevailed in this appeal, she is not entitled to attorney fees.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Cooney, A.C.J.
WE CONCUR:
Lawrence-Berrey, J.
Hill, J.