Sawyer v. Department of Workforce Services , 2015 Utah LEXIS 81 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 33
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
AMY SAWYER,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES
and JORDAN SCHOOL DISTRICT,
Respondents.
No. 20120850
Filed February 6, 2015
Original Proceeding in this Court
Attorneys:
Troy L. Booher, Julie J. Nelson, Tracey M. Watson,
Salt Lake City, for petitioner
Amanda B. McPeck, Salt Lake City, for respondent
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,
JUSTICE PARRISH , and JUSTICE LEE joined.
JUSTICE DURHAM , opinion of the Court:
INTRODUCTION
¶1 The Department of Workforce Services (DWS) denied Amy
Sawyer’s application for unemployment benefits based upon its
finding that she quit her job without good cause. Ms. Sawyer
appeals from the denial, arguing that (1) we should review DWS’s
good cause determination de novo and (2) DWS’s good cause
determination was in error. We conclude that good cause to quit is
a fact-like mixed question of law and fact that we review
deferentially. We also conclude, however, that the administrative
law judge and appeals board applied an incorrect legal standard to
this mixed question, and we therefore reverse and remand for
further proceedings.
BACKGROUND
¶2 Ms. Sawyer was a special education teacher for the Jordan
School District. The principal of the school where Ms. Sawyer
worked became concerned with her teaching skills and informed
Ms. Sawyer that she would be formally evaluated under the Jordan
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OPINION OF THE COURT
Performance Appraisal System (JPAS), which consisted of classroom
observation by the principal and an interview. Ms. Sawyer received
an overall score of “ineffective” during her first JPAS evaluation.
After the failed evaluation, the principal provided suggestions for
improvement and administered another JPAS evaluation the
following month. Ms. Sawyer also received a failing score for her
second JPAS evaluation.
¶3 Following the second evaluation, the principal met with
Ms. Sawyer and informed her that she would be required to
complete a third JPAS evaluation. If Ms. Sawyer passed the third
evaluation she would keep her job; but if she failed again, school
policy dictated that she be terminated. The principal also told
Ms. Sawyer that she could resign in order to avoid the third
evaluation.
¶4 Because she had some special-needs students with
behavioral challenges in her class, Ms. Sawyer had little confidence
that she could perform at a level that would allow her to pass a third
evaluation. Ms. Sawyer was also concerned that if she were
terminated that she would not find future employment as a teacher
because schools typically ask whether an applicant has ever been
fired from a teaching position. Therefore, Ms. Sawyer elected to
resign rather than submit to a third JPAS evaluation.
¶5 Ms. Sawyer began searching for new employment and
applied for unemployment benefits. DWS denied unemployment
benefits because it found that Ms. Sawyer quit her job without good
cause. An administrative law judge upheld the department’s
decision, reasoning that if Ms. Sawyer had chosen to submit to the
third JPAS evaluation, “[s]he may not have lost her job.” The
Workforce Appeals Board affirmed the denial of benefits. The
appeals board concluded that “[q]uitting in order to avoid a
discharge . . . does not establish good cause.” Ms. Sawyer appealed,
and the court of appeals certified the case to this court.
ANALYSIS
¶6 An individual is ineligible for unemployment benefits if he
or she quits “without good cause.” UTAH CODE § 35A-4-405(1)(a).
We have adopted a reasonable person standard for determining
whether good cause to quit exists: “Good cause is established where
the unemployment is caused by pressures so compelling that a
reasonably prudent person would be justified in quitting under
similar circumstances.” Hurst v. Indus. Comm’n, 723 P.2d 416, 419
(Utah 1986); accord Smith v. Indus. Comm’n, 714 P.2d 1154, 1155
(Utah 1986). DWS has adopted rules in accord with the reasonable
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person standard, explaining that in order for an individual to qualify
for benefits, “[t]he separation must have been motivated by
circumstances that made the continuance of the employment a
hardship or matter of concern, sufficiently adverse to a reasonable
person so as to outweigh the benefits of remaining employed.”
UTAH ADMIN . CODE R994-405-102(1)(a).
¶7 In reviewing DWS’s determination that Ms. Sawyer quit
without good cause, we first establish the appropriate standard of
review for this mixed question of law and fact.1 See Smith, 714 P.2d at
1155 (good-cause determination is a mixed question). We then
determine whether DWS erred when it denied benefits.
I. STANDARD OF REVIEW
A. Mixed Questions of Law and Fact
¶8 Prior to the formation of the court of appeals, this court did
not consistently articulate the precise standard of review it applied
to the cases before it. State v. Thurman, 846 P.2d 1256, 1268, 1270 n.11
(Utah 1993). The addition of an intermediate court of appeals,
however, created a greater incentive to establish standards of review
that could be uniformly applied by both appellate courts. Id.
Moreover, established standards of review allow attorneys to better
advise clients on appellate matters and facilitate an appellant’s
ability to select and properly frame arguments.
¶9 In line with our efforts to better define the standard of
review applied by appellate courts, we created an analytical
framework for choosing the standard of review for mixed questions
of law and fact in State v. Pena, 869 P.2d 932 (Utah 1994). In Pena, we
held that the amount of discretion afforded in an appeal from a
district court’s application of a rule of law to a given set of facts is an
institutional policy determination made by the appellate court.2 Id. at
938–39. Depending on the nature of the legal question at issue, we
determined that varying levels of deference should be afforded to a
1
Ms. Sawyer also argues on appeal that DWS improperly denied
benefits because she did not voluntarily quit, and because
considerations of equity and good conscience required DWS to grant
benefits. See UTAH CODE § 35A-4-405(1)(a), (b). Because we find
Ms. Sawyer’s good-cause argument to be dispositive, we do not
address the alternative ground for reversal.
2
Of course the court of appeals may also determine the
appropriate standard of review for cases before it where this court
has not established a standard of review for a particular mixed
question.
3
SAWYER v. DEPARTMENT OF WORKFORCE SERVICES
OPINION OF THE COURT
district court’s resolution of mixed questions. Id. at 937–38. We
envisioned multiple standards of review for various types of mixed
questions, occupying a spectrum of deference falling between the
nondeferential de novo standard of review and the highly
deferential clearly erroneous standard of review:
[The amount of deference] permitted a trial judge will
vary depending on the legal issue, although the
terminology we use to describe the operative standard
of review does not begin to reflect the many shades of
this variance. The best we can do is to recognize that
such a spectrum of discretion exists and that the
closeness of appellate review of the application of law
to fact actually runs the entire length of this spectrum.
Id. at 938.
¶10 Although a broad spectrum of standards of review affords
appellate courts a great amount of flexibility, the principal drawback
of this approach is that it leads to indefinite standards that are
difficult to describe and even more difficult for litigants or appellate
courts to predict and apply. In Pena, for example, we held that the
mixed question at issue in that case “conveys a measure of discretion
to the trial judge,” but “[p]recisely how much discretion we cannot
say.” Id. at 939. The Pena court went on to describe this standard of
review as “something less than de novo” and acknowledged that
“this ‘some discretion’ standard is less than precise.” Id. at 940 & n.6.
Applying the principles announced in Pena, we have arrived at
similarly indefinite standards of review, such as “some scrutiny,”
“limited deference,” and “conditionally deferential.” Drake v. Indus.
Comm’n, 939 P.2d 177, 182 (Utah 1997); State v. Virgin, 2006 UT 29,
¶ 34, 137 P.3d 787; Salt Lake City Corp. v. Labor Comm’n, 2007 UT 4,
¶ 15, 153 P.3d 179.
¶11 While we have not rejected the broad spectrum approach
espoused in Pena or the various standards of review adopted in
subsequent cases, in our more recent cases we have applied a binary
method for determining the appropriate standard of review for
mixed questions. In Manzanares v. Byington (In re Adoption of Baby
B.), 2012 UT 35, ¶¶ 42, 44, 308 P.3d 382, we stated that mixed
questions can either be law-like or fact-like. See also Jex v. Utah Labor
Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799; Union Pac. R.R. v. Utah Dep’t
of Transp., 2013 UT 39, ¶ 15, 310 P.3d 1204; Murray v. Utah Labor
Comm’n, 2013 UT 38, ¶ 37, 308 P.3d 461; Swallow v. Jessop (In re United
Effort Plan Trust), 2013 UT 5, ¶ 19, 296 P.3d 742. Law-like mixed
questions are reviewed de novo, while fact-like mixed questions are
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reviewed deferentially. Baby B., 2012 UT 35, ¶ 42. We took this
approach in another case involving unemployment benefits, Carbon
County v. Workforce Appeals Board., 2013 UT 41, ¶ 7, 308 P.3d 477, and
similarly conclude that the standard of review for the mixed
question at issue here turns on whether it is properly characterized
as either law-like or fact-like.
¶12 In determining whether a mixed question should be
deemed law-like or fact-like, we evaluate the “marginal costs and
benefits” of conducting either a searching de novo review or a
deferential review of a lower tribunal’s resolution of the mixed
question. Baby B., 2012 UT 35, ¶ 42. This cost-benefit analysis is
conducted through the three-factor Levin evaluation, in which we
consider
(1) the degree of variety and complexity in the facts to
which the legal rule is to be applied; (2) the degree to
which a trial court’s application of the legal rule relies
on facts observed by the trial judge, such as a witness’s
appearance and demeanor, relevant to the application
of the law that cannot be adequately reflected in the
record available to appellate courts; and (3) other policy
reasons that weigh for or against granting discretion to
trial courts.
State v. Levin, 2006 UT 50, ¶ 25, 144 P.3d 1096 (internal quotation
marks omitted).
¶13 The first and second Levin factors assess whether a
particular mixed question is best resolved by either a fact-finding
tribunal or an appellate court based on the relative competencies of
these two types of courts. District courts and fact-finding
administrative bodies are in a superior position to weigh facts that
depend upon credibility determinations, the direct observation of
witness testimony, and other evidence not fully captured in a
written appellate record. The degree to which a mixed question is
based upon facts observed by a lower tribunal determines whether
the second factor weighs for or against a deferential standard of
review. Appellate courts, on the other hand, have the capacity to
create broad rules that can create a greater degree of consistency and
predictability to future cases involving a particular mixed question.
The degree to which a mixed question is based upon a complex
variety of facts determines whether an appellate court can create
useful precedent and, thus, whether the first factor weighs for or
against de novo review.
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¶14 The third Levin factor is a catchall category under which an
appellate court may weigh other considerations. A prime example
of these other policy reasons for reviewing mixed questions de novo
can be found in our search and seizure jurisprudence. Despite the
fact-intensive nature of determining whether police officers had
reasonable suspicion to conduct a search or whether a warrant was
supported by probable cause, we review these questions de novo in
order to provide guidance to law enforcement officials:
We have not retreated . . . from exercising de novo
review of equally fact-intensive matters that arise in the
realm of search and seizure. We have not ceded
deference in these cases both because they concern
constitutional rights and because irrespective of the
difficulties inherent in extracting general rules from
fact-intensive matters, we nevertheless believe it a
worthy endeavor to offer some guidance to law
enforcement officials charged with the duty of
conducting their affairs within constitutional bounds.
Salt Lake City Corp., 2007 UT 4, ¶ 15 n.1.3 The mixed question of
whether a defamatory statement was made with actual malice and
the issue of whether speech may be punished as obscene are likewise
reviewed de novo. Jensen v. Sawyers, 2005 UT 81, ¶¶ 91–92, 130 P.3d
325; City of St. George v. Turner, 860 P.2d 929, 932–33 (Utah 1993).
Other mixed questions with constitutional dimensions that we have
3
See also Levin, 2006 UT 50, ¶ 23 (“[W]ith regard to certain mixed
questions where uniform application is of high importance, as in the
context of Fourth Amendment protections, we have held that policy
considerations dictate that the application of the legal concept
should be strictly controlled by the appellate courts. Thus, if we
determine that society’s interest in establishing consistent statewide
standards outweighs other considerations, we grant no discretion to
the trial court, and we review the mixed question for correctness.”
(emphasis added) (footnote omitted)); cf. Ornelas v. United States, 517
U.S. 690, 697–98 (1996) (although fact-intensive reasonable suspicion
or probable cause determinations “will seldom be a useful precedent
for another [case],” the Supreme Court reviews these mixed
questions for correctness because “de novo review tends to unify
precedent and will come closer to providing law enforcement
officers with a defined set of rules which, in most instances, makes
it possible to reach a correct determination beforehand as to whether
an invasion of privacy is justified in the interest of law enforcement”
(internal quotation marks omitted)).
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reviewed de novo for policy reasons include whether a police
interrogation was custodial, Levin, 2006 UT 50, ¶¶ 41–42, and
whether a confession was voluntary, Thurman, 846 P.2d at 1271.
B. Good-Cause-to-Quit Determinations Are Fact-Like
¶15 In determining whether a lower tribunal’s good-cause-to-
quit determination is either law-like or fact-like, we first look to
prior cases in which we have articulated a standard of review for
this question. Because unemployment benefit cases are typically
handled by the court of appeals, we have not decided a good-cause-
to-quit case since developing a framework and terminology for
determining the standard of review for mixed questions in Pena,
Levin, and Baby B. Cases that predate Pena, however, are still
relevant. Pena and its progeny “are not fundamental departures
from earlier standard-of-review law. Rather, they clarify and further
define basic positions that have long served as the foundation for
standard-of-review law both nationally and within Utah.” State v.
Vincent, 883 P.2d 278, 281 (Utah 1994).
¶16 Although we have not used uniform terminology to
describe the standard of review for a good-cause-to-quit
determination, we have consistently stated that we cede a great deal
of deference to DWS’s resolution of this mixed question. Hurst v.
Indus. Comm’n, 723 P.2d 416, 419 (Utah 1986) (“In reviewing . . . what
constitutes good cause [to quit] . . ., we are bound to defer to [DWS]
so long as its decision falls within the limits of reasonableness and
rationality.”); Smith v. Indus. Comm’n, 714 P.2d 1154, 1155 (Utah
1986) (same); Gibson v. Indus. Comm’n, 707 P.2d 675, 676 (Utah 1985)
(“The definition of good cause requires the application of a legal
question to the fact situation at issue. On questions of mixed law and
fact, we will not substitute our judgment for that of [DWS] so long
as its interpretation has warrant in the record and a reasonable basis
in the law.”); Box Elder Cnty. v. Indus. Comm’n, 632 P.2d 839, 841
(Utah 1981) (“[Good-cause-to-quit determinations], once found to be
supported by the evidence, are binding and will not be disturbed.”).
In addition, we have recently decided that a similar mixed question,
whether an employer terminated an employee for “just cause,” is
fact-like in nature. Carbon Cnty., 2013 UT 41, ¶¶ 5, 7.
¶17 An application of the Levin factors also points toward a
deferential standard of review. Under the first factor, the variety and
complexity of factual scenarios that might cause a worker to quit
“does not lend itself to consistent resolution by a uniform body of
appellate precedent.” Baby B., 2012 UT 35, ¶ 42. Under the second
factor, DWS’s decision to grant or deny benefits will often rely on
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facts observed by an administrative law judge. Workers will
inevitably be required to explain the reasonableness of their decision
to quit based upon job conditions or other external considerations,
and administrative judges must assess the credibility of the worker
or other witnesses to determine the degree to which this testimony
is accurate or exaggerated. Thus, administrative law judges will
have a more nuanced view of the facts than an appellate court
would, and administrative judges will be in a better position to
apply the good-cause-to-quit legal standard to these facts. Finally,
under the third Levin factor, we do not find any other considerations
that weigh in favor of de novo review.
¶18 Citing Murray and Baby B., Ms. Sawyer contends, however,
that good-cause-to-quit determinations should be reviewed de novo
in a manner similar to probable cause or reasonable suspicion
determinations under our search and seizure jurisprudence.
Ms. Sawyer argues that because both search and seizure cases and
good-cause-to-quit cases turn upon the general reasonableness of the
action taken by the police officer in conducting a search or a worker
in deciding to quit, both types of mixed questions are law-like. In
support of her argument, she cites Baby B., where we state:
[T]he downside [of reviewing probable cause and
reasonable suspicion cases de novo] is minimal in a case
involving common, recurring practices, where the
decision will turn on the general reasonableness of
those practices and not so much on the demeanor or
credibility of a particular witness. This is why a mixed
finding of reasonableness is typically subject to a non-
deferential standard of review.
2012 UT 35, ¶ 44 (footnote omitted); accord Murray, 2013 UT 38, ¶ 39
(a search and seizure determination “is not ‘fact-like’ because the
ultimate determination will often rest on the ‘general
reasonableness’ of the facts”).
¶19 Ms. Sawyer’s interpretation of these cases is incorrect. Baby
B.’s reasoning did not depend on a simple rule that all
determinations of reasonableness are law-like. Rather, Baby B. used
the Levin factors to analyze the costs and benefits of de novo review
for each of the mixed questions it had to address. 2012 UT 35,
¶¶ 42–46.
¶20 This analysis led the Baby B. court to conclude that some
determinations of reasonableness should be reviewed de novo and
others should not. On the one hand, a finding that a search or
seizure was reasonable is subject to de novo review in part because
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Opinion of the Court
search and seizure cases involve “common, recurring practices” that
allow appellate courts to establish “a consistent rule . . . as to the
reasonableness of certain law enforcement procedures.” Id. ¶ 44.
Thus, “a mixed finding of reasonableness is typically subject to a
non-deferential standard of review” in search and seizure cases. Id.
¶21 In other contexts, mixed findings of reasonableness are
more often not subject to non-deferential review, and Baby B.
mentioned two of these. In negligence suits, the reasonableness of a
defendant’s conduct is determined by the fact-finder and subject
only to deferential review. See id. ¶ 43. And in Baby B. itself, we gave
“some deference” to a district court’s determination that a biological
father could have known, through “the exercise of reasonable
diligence,” that his child might be born in Utah. Id. ¶ 46.
¶22 In both of these contexts, appellate courts’ ability to lay
down clear rules is minimal because of the “complex and varying”
circumstances to which the rules would have to apply. Id. (internal
quotation marks omitted). It would be impossible for appellate
courts to “spell[] out,” in advance, how each potentially relevant fact
should affect the legal outcome, and we have therefore entrusted
these determinations of reasonableness to district judges’ superior
knowledge of the evidence of the case and to trial juries’ superior
knowledge of the community standards that govern the behavior of
reasonable people. Id. (internal quotation marks omitted).
¶23 Ms. Sawyer also argues that this court should review the
administrative decision below de novo because the facts are not in
dispute. But this argument also misconstrues our precedent. In
Murray, 2013 UT 38, ¶ 40, we indicated that the second Levin factor
may weigh in favor of de novo review where the facts are not at
issue because the lower tribunal is not required to evaluate witness
credibility or demeanor. But the other two Levin factors may weigh
more heavily in favor of deferential review of a given mixed
question. For example, if a plaintiff and a defendant agreed to the
essential facts of a negligence claim, leaving only the mixed question
of whether the defendant acted negligently given those facts, we
would still not review a jury’s resolution of this mixed question de
novo, for the reasons explained above. See supra ¶¶ 21–22.
¶24 But even if our precedents did support the notion that de
novo review is appropriate wherever the facts are not in dispute,
that would not help Ms. Sawyer here. In this case, contrary to her
assertions, important facts were in dispute. Ms. Sawyer’s central
contention is that she quit for good cause because, despite her
reasonable efforts, the principal of her school would have given her
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a failing mark if she had participated in a third performance
evaluation, leading to her termination. The school district did not
concede that Ms. Sawyer’s prediction that her termination was
inevitable was accurate. Instead, the principal of her school testified
that if Ms. Sawyer’s performance had improved in the third
evaluation, she would not have been terminated. Because the
likelihood that Ms. Sawyer would have passed the third evaluation
was disputed and involves a credibility determination of testimony
produced by the school district, the second Levin factor supports
deferential review.
¶25 Considering the relevant precedent and the Levin factors,
we conclude that a good-cause-to-quit determination is a fact-like
mixed question, and we apply a deferential standard of review to a
lower tribunal’s resolution of this issue. However, “we must be
vigilant in our review of . . . mixed findings to ensure that they are
based on correct legal principles.” Baby B., 2012 UT 35, ¶ 47. We
review the legal standard applied to a particular mixed question for
correctness. Id.
II. GOOD CAUSE TO QUIT
¶26 In evaluating Ms. Sawyer’s contention that DWS erred by
finding that she quit without good cause, we first evaluate whether
it applied the correct legal standard. If a lower court or
administrative body does not apply the correct legal standard to a
mixed question, we must reverse. See Price River Coal Co. v. Indus.
Comm’n, 731 P.2d 1079, 1083 (Utah 1986).
¶27 Ms. Sawyer consistently asserted in the proceedings below
why she quit her job. She believed that, despite her reasonable
efforts, she would not pass the third teaching evaluation and her
resulting termination would prevent her from finding another
teaching job.4 The administrative law judge that evaluated her claim
found that “[t]aking the third JPAS evaluation was a reasonable
alternative to quitting and [Ms. Sawyer] did not take it. She may not
have lost her job if she had.” In other words, the administrative
4
Ms. Sawyer also asserted below that she had some particularly
challenging special needs students that year with behavioral issues.
The principal assigned a teaching aide to help with one student, but
the teaching aide had to spend time assisting in other classrooms.
Ms. Sawyer, therefore, claimed that absent any additional help with
the behavioral issues exhibited by some of her students, there was
no reason to believe she would obtain a different result in the third
JPAS evaluation.
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judge concluded that the possibility that Ms. Sawyer could have
passed the third evaluation dictated that good cause to quit was not
established. The Workforce Appeals Board affirmed the legal
conclusion drawn by the administrative judge, stating unequivocally
that “[q]uiting in order to avoid a discharge . . . does not establish
good cause.”
¶28 Utah courts have not considered whether quitting in order
to avoid a potential discharge may ever constitute good cause. The
Oregon Supreme Court, however, has considered this question in
McDowell v. Employment Department, 236 P.3d 722 (Or. 2010). In that
case, a school district informed a high school teacher that it would
recommend the teacher’s termination at an upcoming school board
meeting for showing a film clip containing profane language to his
students. Id. at 724. The teacher’s union attorney advised him to quit
because there was no chance that the school board would overrule
the school district’s recommendation. Id. Fearing he would be unable
to find another teaching job if he were terminated, the teacher
resigned. Id. at 724, 727–28. Oregon’s employment department
denied unemployment benefits, and an administrative law judge
and an appeals board affirmed the denial. Id. at 724–25. The appeals
board concluded that because the teacher faced “a mere possibility
of discharge,” and because his termination “was not a foregone
conclusion,” he did not have good cause to quit. Id. at 728 (internal
quotation marks omitted).
¶29 The Oregon Supreme Court reversed, reasoning that
[t]o the extent that the board has suggested . . . that a
future discharge must be “certain” before a resignation
to avoid the discharge can qualify as good cause, such
a conclusion would be inconsistent with the “reasonable
and prudent person” standard in place. . . . [T]he fact
that a threatened discharge is less than certain to occur
. . . [is not] dispositive . . . .
Id. at 730 n.9. Instead, the court concluded that good cause to quit
depends “on whether a reasonable person facing that prospect of
discharge would consider the prospect so grave a circumstance that
resigning was the only reasonable option.” Id. at 730; see also
Madisonville Consol. Indep. Sch. Dist. v. Tex. Emp’t Comm’n, 821 S.W.2d
310, 313 (Tex. Ct. App. 1991) (a teacher may quit with good cause if
the teacher has “good reason to believe that he will imminently be
discharged . . . unless he chooses to resign”). This “objective inquiry
depends on what [the] claimant in fact knew and reasonably should
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have known when he made his decision, not on an assessment of
how events in fact would have played out.” McDowell, 236 P.3d at
730.
¶30 We similarly hold that the administrative judge and
appeals board erred by concluding that the possibility that
Ms. Sawyer could have retained her job was sufficient to defeat her
employment benefits claim. Good cause to quit is measured by the
objective standard of whether “a reasonably prudent person would
be justified in quitting under similar circumstances.” Hurst v. Indus.
Comm’n, 723 P.2d 416, 419 (Utah 1986). This assessment should be
based on the information that the worker knew or should have
known at the time of the resignation. McDowell, 236 P.3d at 730.
Reasonably prudent persons, of course, must often make decisions
based upon an assessment of potential consequences rather than in
the context of certain outcomes. Little in life is guaranteed. In
evaluating whether a reasonably prudent employee would quit in
order to avoid a potential termination, administrative law judges
and courts should consider (1) the likelihood of termination, in spite
of the employee’s reasonable efforts to remain employed, and (2) the
degree to which termination will negatively affect future
employment.
CONCLUSION
¶31 Because the administrative law judge and appeals board
did not assess whether a reasonable person in Ms. Sawyer’s shoes
would have quit, but rather whether there was some possibility that
she could have retained her job, we conclude that an incorrect legal
standard was applied to the facts of this case. We therefore reverse
and remand Ms. Sawyer’s unemployment benefits claim to the
administrative law judge for further proceedings consistent with this
opinion.
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