Salt Lake Donated v. Dept. of Workforce

2011 UT App 7, 246 P.3d 1206, 673 Utah Adv. Rep. 29, 2011 Utah App. LEXIS 12, 2011 WL 114070
CourtCourt of Appeals of Utah
DecidedJanuary 13, 2011
Docket2010048-CA
StatusPublished

This text of 2011 UT App 7 (Salt Lake Donated v. Dept. of Workforce) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Salt Lake Donated v. Dept. of Workforce, 2011 UT App 7, 246 P.3d 1206, 673 Utah Adv. Rep. 29, 2011 Utah App. LEXIS 12, 2011 WL 114070 (Utah Ct. App. 2011).

Opinion

246 P.3d 1206 (2011)
2011 UT App 7

SALT LAKE DONATED DENTAL SERVICES, INC., Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES, Workforce Appeals Board, Respondent.

No. 2010048-CA.

Court of Appeals of Utah.

January 13, 2011.

*1207 Kamron A. Keele, Salt Lake City, for Petitioner.

Jaceson R. Maughan, Salt Lake City, for Respondent.

Before Judges THORNE, VOROS, and CHRISTIANSEN.

MEMORANDUM DECISION

VOROS, Judge:

¶ 1 Salt Lake Donated Dental Services, Inc. (Employer) seeks review of a decision of *1208 the Workforce Appeals Board (the Board) granting Stephen Vuyk (Claimant) unemployment benefits on the ground that Employer did not terminate Claimant for "just cause." See generally Utah Code Ann. § 35A-4-405(2)(a) (Supp.2010) (providing that a claimant is ineligible for benefits if "discharged for just cause"). We affirm.[1]

¶ 2 In September 2008, Employer, a nonprofit corporation, hired Claimant as a "professional fund raiser." Claimant was terminated less than seven months later for "inability to meet [Employer's] standards." More specifically, Claimant was terminated because he was hired to raise an average of about $15,000 per month—an amount he agreed at hiring was a reasonable goal—but only raised an average of approximately $3,400 per month. Employer contends that the Board erroneously concluded that Employer lacked just cause to terminate Claimant.

¶ 3 The Board's findings of fact, "if supported by evidence, are conclusive and the jurisdiction of the court is confined to questions of law." Id. § 35A-4-508(8)(e) (2005). Thus, factual findings will be reversed "only if the findings are not supported by substantial evidence." Drake v. Industrial Comm'n, 939 P.2d 177, 181 (Utah 1997).

¶ 4 "When we review an agency's application of the law to a particular set of facts, we give a degree of deference to the agency.... Thus, we will uphold the [Board's] decision so long as it is within the realm of reasonableness and rationality." EAGALA, Inc. v. Department of Workforce Servs., 2007 UT App 43, ¶ 9, 157 P.3d 334 (alteration in original) (internal quotation marks omitted).

¶ 5 "An employee will not be awarded unemployment benefits if the Department of Workforce Services concludes that the employee was discharged for just cause." Id. ¶ 20 (citing Utah Code Ann. § 35A-4-405(2)(a) (2005)). "To establish `just cause,' three elements must be present: culpability, knowledge, and control." Id. (internal quotation marks omitted); see also Utah Admin.Code R994-405-202 (identifying the same three elements to establish just cause). "The employer must establish each of the three elements ... for the Board to deny benefits." Gibson v. Department of Emp't Sec., 840 P.2d 780, 783 (Utah Ct.App.1992). Because we affirm the Board's conclusion that Employer failed to establish the element of control, we need not examine the culpability and knowledge prongs of the just cause inquiry.

¶ 6 "To satisfy the element of control in cases involving a discharge due to unsatisfactory work performance, it must be shown the claimant had the ability to perform the job duties in a satisfactory manner." Utah Admin. Code R994-405-202(3)(b). "[C]ontinued inefficiency, repeated carelessness or evidence of a lack of care expected of a reasonable person in a similar circumstance may satisfy the element of control if the claimant had the ability to perform satisfactorily." Id. R994-405-202(3)(a). "In general, if the claimant made a good faith effort to meet the job requirements but failed to do so due to a lack of skill or ability and a discharge results, just cause is not established." Id. R994-405-202(3)(b).

¶ 7 Employer first contends that the Board erred in ruling that Claimant lacked the ability to perform his job duties. Those job duties, according to Employer, included meeting mutually-agreed-upon monthly and yearly fundraising goals. As proof that Claimant had the ability to meet these fundraising goals, Employer relies on the fact that Claimant was an experienced fundraiser who had agreed that the fundraising goals were reasonable.

¶ 8 Employer also contends that the Board erred in ruling that Claimant made a good faith effort to meet the job requirements. Specifically, Employer argues that (1) the Board's conclusion that Claimant made a good faith effort but was hampered by the economy "is completely at odds with reality and with what the Employer and the Claimant *1209 had specifically agreed to and understood throughout his employment"; (2) the Board, having given "unwarranted weight to the Claimant's unsupported statements," drew an inference that "was simply not true," namely, that Claimant needed more time to bring his projects to fruition; (3) the Board's conclusion that the Employer's fundraising success after Claimant's termination was due in part to Claimant's efforts was "complete speculation"; (4) the Board's conclusion that Claimant worked the required hours was "pure speculation" and "entirely untrue"; (5) the Board erroneously concluded that had Claimant been employed longer, he might have been able to meet Employer's expectations; (6) the Board was "inexplicably persuaded" by Claimant's "mere suggestion that he did the best he could," which was "simply not true based on the facts"; (7) the Board "failed to consider" that Claimant was caught falsifying his time card; and (8) Claimant lied about his job qualifications on his resume and otherwise.

¶ 9 Before turning to the merits of Employer's claims, we address a question related to the record on appeal. A large majority of the record citations in the portion of Employer's brief arguing that Claimant did not act in good faith refer to affidavits that were not before the Administrative Law Judge (the ALJ) or the Board at the time they made their determinations. These affidavits were exhibits attached to Employer's request for reconsideration filed with the Board December 14, 2009, three weeks after the Board issued its ruling.[2] The Board denied the request without comment.

¶ 10 On appeal, the Board contends that this court should not reverse based on allegations in these affidavits. The Board points out that, by rule, "[a]bsent a showing of unusual or extraordinary circumstances, the Board will not consider new evidence on appeal if the evidence was reasonably available and accessible at the time of the hearing before the ALJ." Id. R994-508-305(2). In effect, the Board argues that if evidence offered for the first time on appeal before the Board is inadmissible absent a showing of either unavailability or extraordinary circumstances, at least as high a standard should apply to evidence offered for the first time in a request for reconsideration. Employer contends neither that rule 994-508-305(2) is inapplicable nor that its requirements are satisfied here, except with respect to allegations that Claimant lied on his resume. We read this as a tacit concession that rule 994-508-305(2) bars all information in the untimely affidavits not related to the allegation that Claimant lied on his resume. And we agree that it does.

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Related

State v. Carter
776 P.2d 886 (Utah Supreme Court, 1989)
Drake v. Industrial Commission of Utah
939 P.2d 177 (Utah Supreme Court, 1997)
Law Offices of David Paul White & Associates v. Board of Review
778 P.2d 21 (Court of Appeals of Utah, 1989)
Albertsons, Inc. v. Department of Employment Security
854 P.2d 570 (Court of Appeals of Utah, 1993)
Gibson v. Department of Employment Security
840 P.2d 780 (Court of Appeals of Utah, 1992)
State v. Bredehoft
966 P.2d 285 (Court of Appeals of Utah, 1998)
EAGALA, INC. v. Department of Workforce Services
2007 UT App 43 (Court of Appeals of Utah, 2007)
Western Water, LLC v. Olds
2008 UT 18 (Utah Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
2011 UT App 7, 246 P.3d 1206, 673 Utah Adv. Rep. 29, 2011 Utah App. LEXIS 12, 2011 WL 114070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salt-lake-donated-v-dept-of-workforce-utahctapp-2011.