Wash. Court of Appeals published opinion — 723448.pdf

legal theory is not discussed in the opinion, that case is not controlling on a future case
where the legal theory is properly raised.").

We hold the ALJ did not err in relying on RCW 42.41.020(3)(b) to conclude the

impersonation of Swanson to The Seattle Times was "undoubtedly" a hostile action
"taken by SCL employees toward Mr. Swanson that Mr. Allen either vocally or tacitly
encouraged, if not performed himself."

Even if the definition of retaliatory action under RCW 42.41.020(3)(b) applies, the

City claims the record does not support the finding that the impersonation of Swanson
to The Seattle Times was a hostile action "taken by SCL employees toward Mr.

Swanson that Mr. Allen either vocally or tacitly encouraged." The City argues

substantial evidence does not supportfinding a SCL employee posted the comment,

19
             
No. 72344-8-1/20

Allen encouraged a SCL employee to post the comment, or Allen was a supervisor

when the comment was posted.

We review the ALJ findings of fact for substantial evidence. Port of Seattle v.

Pollution Control Hearings Bd.. 151 Wn.2d 568, 588, 90 P.3d 659 (2004). Substantial

evidence is a sufficient quantity of evidence to persuade a fair-minded person of the

truth or correctness of the agency action. Port of Seattle. 151 Wn.2d at 588. Our

review for substantial evidence is deferential. See City of Univ. Place v. McGuire. 144

Wn.2d 640, 652-53, 30 P.3d 453 (2001). We will overturn the ALJ findings only if they

are clearly erroneous and we are " 'definitely and firmly convinced that a mistake has

been made.'" Port of Seattle. 151 Wn.2d at 588 (quoting Buechel v. Dep't of Ecology.

125 Wn.2d 196, 202, 884 P.2d 910 (1994)).