Dinger v. Department of Workforce Services, Workforce Appeals Board ( 2013 )

2013 UT App 59_________________________________________________________
THE UTAH COURT OF APPEALS
CARL DINGER,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
WORKFORCE APPEALS BOARD;
AND UTAH TRANSIT AUTHORITY,
Respondents.
Opinion
No. 20120093‐CA
Filed March 7, 2013
Original Proceeding in this Court
Phillip W. Dyer, Benjamin R. Dyer, and B. Kent Morgan,
Attorneys for Petitioner
Jaceson R. Maughan,
Attorney for Respondent Department of Workforce Services,
Workforce Appeals Board
JUDGE CAROLYN B. MCHUGH authored this Opinion,
in which JUDGES WILLIAM A. THORNE JR.
and STEPHEN L. ROTH concurred.
McHUGH, Judge:
¶1 Carl Dinger challenges the decision of the Workforce
Appeals Board (the Board) that he is ineligible for unemployment
benefits following his termination from the Utah Transit Authority
(UTA). We decline to disturb the Board’s decision.
Dinger v. Dept. of Workforce Services
BACKGROUND
¶2 Dinger was hired as a UTA police officer on March 24, 2008,
and worked there until his July 15, 2011 termination for insubordi‐
nation. UTA’s “Letter of Termination” indicates that the decision
to fire Dinger was based on his “repeated refusal to comport
[himself] in conformance with [UTA policies],” despite “five
informal notices of insubordination over . . . two years” and a
“Written Notification for another incident of insubordination.” In
addition, the Letter of Termination indicates that Dinger “refused
to answer questions in connection with an Internal Affairs investi‐
gation.”
¶3 Following his termination, Dinger’s claim for unemploy‐
ment benefits was denied on the ground that he had been termi‐
nated “for just cause.” Dinger appealed the decision, denying the
allegations against him and claiming that UTA’s disciplinary
actions were retaliatory.
¶4 At an evidentiary hearing before an administrative law
judge (ALJ), Dinger testified that during his tenure at UTA he had
“filed numerous complaints” with UTA management and outside
investigative agencies about the operations at UTA. Dinger alleged
that, in response, UTA “subjected [him] to a hostile work environ‐
ment” and fabricated allegations of insubordination against him.
Contrary to Dinger’s account of events, his supervisors testified
that he had been repeatedly insubordinate during his tenure at
UTA. They reported that Dinger refused to sign two semi‐annual
performance evaluations because they stated he was argumentative
with supervisors and had “negative interactions” with other
employees. One supervisor, who had rejected three of Dinger’s
incident reports as illegible, described a meeting on January 30,
2011, during which Dinger became argumentative. The supervisor
stated, “[Dinger] was shouting at me trying to drown out what I
was trying to say back to him. . . . So I finally had to tell him just,
‘Look, you need to leave my office.’” The supervisor indicated that
after Dinger left, a patrol officer who had overheard the exchange
20120093‐CA 2 2013 UT App 59Dinger v. Dept. of Workforce Services
reported that he had remained nearby out of concern for the
supervisor’s safety. Following that incident, Dinger’s lieutenant
sent him an email explaining that the lieutenant “had received
several complaints regarding [Dinger’s] behavior,” which included
an argument where Dinger raised his voice “to the point of yelling”
and “was heard and observed by others in the patrol room.” The
lieutenant warned, “this behavior is clearly outside of department
and UTA policy, which requires professional and respectful
conduct when dealing with superiors and co‐workers.” The email
also admonished Dinger concerning his outburst about another
officer’s performance during a shift briefing, explaining that
Dinger’s conduct was “inappropriate and unprofessional.” The
letter instructed Dinger regarding UTA policies on obeying orders
of superiors, insubordination, and courtesy and respect for
department members and warned, “Any future violation of these
policies will be dealt with accordingly.”
¶5 Subsequently, Dinger received a written notification of
insubordination. The notice alleged that on June 10, 2011, Dinger
had “refused to follow a direct order when instructed to respond
to a call and became argumentative and hostile when [a sergeant]
raised this issue with [him].” The notice reminded Dinger that this
act of insubordination was one of four that had followed a June 8,
2010 coaching session1 on treating supervisors and coworkers with
respect and observing the chain of command. The letter concluded
that “[c]oaching has failed to correct the insubordinate behavior”
and warned that failure to “meet the requirements in this Written
Notification” could result in “further disciplinary action up to and
including termination.” Dinger testified that following this
notification, the human resources director offered him $5,000, and
1. UTA’s Corporate Policy Number 6.3.1 explains that “non‐
disciplinary performance coaching” may be used “to help
employees understand expectations, provide instruction and to
monitor progress and performance.”
20120093‐CA 3 2013 UT App 59Dinger v. Dept. of Workforce Services
then $15,000, “to leave [and] to hold [him] over to find another
job.”
¶6 The testimony before the ALJ also indicated that on June 22,
2011, Dinger was instructed to appear for an internal affairs
interview.2 Police Chief Ross Larsen testified that the meeting was
conducted “to seek specific answers [to questions] that [UTA] had
. . . regarding [Dinger’s] conduct.” Dinger testified that he believed
that he would be terminated at the meeting. At the start of the
meeting, UTA read to and presented Dinger with a written
warning indicating that his answers could not be used in a criminal
proceeding against him and warned that his failure to answer
could result in termination of his employment in accordance with
Garrity v. New Jersey, 385 U.S. 493 (1967).3 Dinger refused to sign
this Garrity warning. Instead, he read a statement prepared by his
attorney and refused to answer any questions. He was then placed
on administrative leave until his July 15, 2011 termination.
¶7 Based on the evidence presented, the ALJ determined that
Dinger had “very little notice of the meeting on June 22, 2011,” was
2. It is unclear from the record how much notice Dinger actually
received. He testified that he was notified of the meeting on the day
of the meeting. UTA claimed that Dinger had been notified a day
prior to the meeting.
3. In Garrity v. New Jersey, 385 U.S. 493 (1967), the United States
Supreme Court held that “the protection of the individual under
the Fourteenth Amendment against coerced statements prohibits
use in subsequent criminal proceedings of statements obtained
under threat of removal from office.” Id. at 500. Thus, a police
officer who has invoked his Fifth Amendment right against self‐
incrimination can be disciplined for failing to answer questions
only if he was first given a warning that includes the assurance that
his answers cannot be used against him in any subsequent
prosecution. See id.
20120093‐CA 4 2013 UT App 59Dinger v. Dept. of Workforce Services
not informed that he would be given a Garrity warning, and was
not told that his job was in jeopardy or that he would be discharged
if he refused to answer. The ALJ also faulted UTA for not asking
Dinger whether, in the future, he might be inclined to answer its
questions. Ultimately, the ALJ concluded that Dinger’s refusal to
answer questions was reasonable and did not amount to insubordi‐
nation. As a result, the ALJ held that unemployment benefits had
been improperly disallowed.
¶8 UTA appealed the decision to the Board, challenging the
ALJ’s findings of fact. In particular, UTA claimed that it gave
Dinger one day’s notice of the internal affairs interview and that he
was warned orally and in writing at the interview that failing to
answer questions could result in termination. UTA also claimed
that Dinger’s refusal to participate in the interview was the
culmination of “a documented pattern of insubordination” and that
the interview was part of an investigation into Dinger’s alleged
“improper workplace conduct.”
¶9 On December 1, 2011, the Board reversed the ALJ’s decision
and denied Dinger benefits on the basis that he was fired for just
cause. In a December 21, 2011 letter, Dinger requested that the
Board reopen the hearing to take additional evidence and recon‐
sider its determination. The Board declined Dinger’s invitation.
Dinger now seeks judicial review of the Board’s determination.
ISSUES AND STANDARDS OF REVIEW
¶10 Dinger first asserts that he was substantially prejudiced by
the Board’s determination that he was terminated for just cause.
We grant “great deference to an agency’s findings, and will uphold
them if they are supported by substantial evidence when viewed
in light of the whole record before the court.” EAGALA, Inc. v.
Department of Workforce Servs., 2007 UT App 43, ¶ 8, 157 P.3d 334(citation and internal quotation marks omitted). “When we review
an agency’s application of the law to a particular set of facts, we
20120093‐CA 5 2013 UT App 59Dinger v. Dept. of Workforce Services
give a degree of deference to the agency,” and we will uphold the
Board’s decision “so long as it is within the realm of reasonableness
and rationality.” Id. ¶ 9 (citation and internal quotation marks
omitted).
¶11 Next, Dinger contends that the Board acted arbitrarily and
capriciously by denying his motion to reconsider its decision. The
rules promulgated by the agency afford the Board the discretion to
reconsider its prior rulings. See Utah Admin. Code R994‐508‐401(2)
(providing that the Board may review a prior decision and issue a
new decision, if appropriate). We review the Board’s denial of a
request for reconsideration for abuse of discretion. See Nigohosian
v. Workforce Appeals Bd., 2009 UT App 242U, para. 2 (mem.).
ANALYSIS
I. The Just Cause Determination
¶12 Dinger challenges the Board’s factual findings supporting its
conclusion that UTA had just cause to terminate him for insubordi‐
nation. See Utah Code Ann. § 63G‐4‐403(4)(g) (LexisNexis 2011).
Accordingly, we must determine whether the findings are sup‐
ported by substantial evidence when viewing the record as a
whole. See EAGALA, 2007 UT App 43, ¶ 8. “Substantial evidence is
that quantum and quality of relevant evidence that is adequate to
convince a reasonable mind to support a conclusion.” Lucas v.
Murray City Civil Serv. Comm’n, 949 P.2d 746, 758 (Utah Ct. App.
1997) (citations and internal quotation marks omitted).
A. Failure to Marshal
¶13 When challenging an agency’s factual findings, “‘[i]t is the
petitioner’s duty to properly present the record, by marshaling all
of the evidence supporting the findings and showing that, despite
that evidence and all reasonable inferences that can be drawn
therefrom, the findings are not supported by substantial evi‐
20120093‐CA 6 2013 UT App 59Dinger v. Dept. of Workforce Services
dence.’” EAGALA, 2007 UT App 43, ¶ 8 (quoting Department of the
Air Force v. Swider, 824 P.2d 448, 451 (Utah Ct. App. 1991)). The
Board argues that Dinger did not marshal the evidence in support
of the Board’s findings.4 Dinger contends that he has properly
marshaled the evidence and argues in the alternative that, to the
extent that he did not, we should exercise our discretion to consider
the merits of his claims. See Martinez v. Media‐Paymaster Plus/Church
of Jesus Christ of Latter‐day Saints, 2007 UT 42, ¶ 20, 164 P.3d 384(“The reviewing court . . . retains discretion to consider independ‐
ently the whole record and determine if the decision below has
adequate factual support.”). We agree with the Board that Dinger
has not properly marshaled the evidence.
¶14 Dinger’s marshaling deficiencies are the result of his
decision to focus his appeal almost entirely on whether his refusal
to participate in the interview was reasonable. However, the Board
concluded that the failure to answer questions during the internal
affairs investigation “was not an isolated incident.” The Board took
into account Dinger’s entire record of insubordination in making
4. Dinger also claims that the evidence before the Board was
incomplete because UTA submitted only three evaluations of his
performance while omitting others that showed his performance
as “meeting or exceeding UTA’s expectations.” He includes with
his brief to this court an August 2008 evaluation illustrating that
point. Although it is stamped “Appeal Adjudication Oct 13 2011
U.D.W.S.,” indicating that it was received by the Board in
consideration of his request for reconsideration, this evaluation is
not part of the record on appeal and Dinger did not seek to modify
the record on appeal by including it. See generally Utah R. App. P.
11(h) (providing that either party may request that a supplemental
record be certified and transmitted to the appellate court).
Accordingly, we do not consider it further. See State v. Pliego, 1999
UT 8, ¶ 7, 974 P.2d 279 (“An appellate court’s review is . . . limited
to the evidence contained in the record on appeal.” (citation and
internal quotation marks omitted)).
20120093‐CA 7 2013 UT App 59Dinger v. Dept. of Workforce Services
its determination that he was ineligible for benefits. Therefore, the
evidence concerning each of those incidents provides support for
the Board’s decision and should have been marshaled by Dinger.
Although Dinger refers to these prior incidents in his brief, he fails
to mention the evidence supporting the Board’s finding that he had
repeatedly been hostile and argumentative with his supervisors.
For example, nowhere does he acknowledge that UTA’s witnesses
reported that Dinger yelled so loudly and inappropriately at his
supervisor during the January 30, 2011 meeting that another officer
could hear the exchange and was concerned for the supervisor’s
safety. Instead, Dinger refers to this interaction as “a discussion” in
his brief and never addresses the more concerning characterization
accepted by the Board. Rather than minimizing the evidence that
supports the Board’s decision, Dinger was required to set forth
those facts and then demonstrate that, despite that evidence, the
record is insufficient to support the findings. See Columbia HCA v.
Labor Comm’n, 2011 UT App 210, ¶ 12, 258 P.3d 640.
B. Substantial Evidence Supports the Findings
¶15 In addition to failing to meet his marshaling burden, Dinger
cannot prevail on the merits of his challenge to the Board’s
decision. First, contrary to Dinger’s argument, there was substan‐
tial evidence to support the Board’s conclusion that UTA had just
cause to terminate Dinger. See Utah Admin. Code R994‐405‐201
(“Benefits will be denied if the claimant was discharged for just
cause . . . .”). In order to establish just cause, an employer must
establish three elements: culpability, knowledge, and control. See
id. R994‐405‐202, ‐203.
¶16 Here, Dinger was terminated for insubordination which can
constitute just cause. “An employer generally has the right to
expect lines of authority will be followed; reasonable instructions,
given in a civil manner, will be obeyed; supervisors will be
respected and their authority will not be undermined.” Id. R994‐
405‐208(4). However, not all disagreements between an employee
and his employer rise to the level of insubordination justifying
20120093‐CA 8 2013 UT App 59Dinger v. Dept. of Workforce Services
termination. “In determining when insubordination becomes
disqualifying conduct, a disregard of the employer’s rightful and
legitimate interests is of major importance.” Id. While “[p]rotesting
or expressing general dissatisfaction without an overt act is not a
disregard of the employer’s interests,” expressing “provocative
remarks to a superior or vulgar or profane language in response to
a civil request may constitute insubordination if it disrupts routine,
undermines authority or impairs efficiency.” Id. An employer has
a legitimate interest in maintaining the lines of authority, but
“[m]ere incompatibility or emphatic insistence or discussion by a
claimant, acting in good faith, is not disqualifying conduct.” Id.
¶17 In determining whether UTA had just cause to terminate
Dinger for insubordination, we first examine the element of
culpability, which is shown if “[t]he conduct causing the dis‐
charge” is “so serious that continuing the employment relationship
would jeopardize the employer’s rightful interest.” Id. R994‐405‐
202(1). In undertaking this analysis, Dinger’s prior work record is
relevant because if the “conduct was an isolated incident or a good
faith error in judgment,” then UTA may not be able to establish
that the “single violation . . . would be repeated by a long‐term
employee with an established pattern of complying with [its]
rules.” See id.
¶18 Dinger argues that refusing to participate in the Garrity
interview by itself did not establish culpability because it “was an
isolated incident that was the result of being interviewed by the
specific people against whom he [had] filed administrative
complaints.” He further argues that UTA improperly relied on
informal “coaching sessions” as examples of his prior insubordi‐
nate conduct and that any prior acts fell into a category of good
faith disagreement with UTA, which does not constitute insubordi‐
nation. See id. R994‐405‐208(4). In support, Dinger points to his
testimony before the ALJ asserting that all of the charges were
fabricated in retaliation for the complaints he lodged against UTA.
The Board concluded otherwise, finding that Dinger had “a long
history of insubordinate acts” and that his “behavior disrupted the
20120093‐CA 9 2013 UT App 59Dinger v. Dept. of Workforce Services
work place, impaired efficiency, and undermined his superior’s
authority.” See id.
¶19 Nevertheless, Dinger asks us to reject the Board’s assess‐
ment of the evidence on the ground that UTA relied only on
informal coaching sessions and an incomplete record of his
performance evaluations. Even if we were to discount the prior
notices of insubordination because they were “informal,” there is
evidence in the record to support the Board’s finding. Dinger
refused to sign two written performance evaluations that stated he
was argumentative with supervisors, and that he “shout[ed]” at a
supervisor during a meeting that became so heated that another
officer remained to ensure the supervisor’s safety. The record also
reflects that after informal coaching sessions were ineffective,
Dinger was presented with a written notice of insubordination on
June 15, 2011. Despite that notice, Dinger’s supervisors reported
that his insubordination continued.
¶20 Essentially, Dinger asks us to reject the Board’s determina‐
tion that the testimony of the supervisors was more credible than
Dinger’s. However,
It is the province of the Board, not appellate courts,
to resolve conflicting evidence, and where inconsis‐
tent inferences can be drawn from the same evi‐
dence, it is for the Board to draw the inferences.
Therefore, [w]hen the evidence is disputed, as it was
here, we defer to the Board’s assessment of credibil‐
ity and resolution of conflicting evidence.
Davis v. Department of Workforce Servs., 2012 UT App 158, ¶ 6, 280
P.3d 442 (alteration in original) (citations and internal quotation
marks omitted).
¶21 The Board found that “over the course of his employment,
[Dinger] exhibited an escalating pattern of insubordination” that
culminated in his refusal to participate in the internal affairs
20120093‐CA 10 2013 UT App 59Dinger v. Dept. of Workforce Services
investigation. It further determined that Dinger’s conduct over
time “threatened the reporting structure of [UTA] and negatively
impacted its operations.” In light of that history of insubordination,
the Board concluded that Dinger’s refusal to participate in the
Garrity interview amounted to another act of insubordination and
that he was therefore culpable. We accept the Board’s determina‐
tion that UTA’s witnesses were credible, and conclude that their
testimony provides substantial evidence to support the Board’s
culpability determination.
¶22 We next consider the element of knowledge. To establish
knowledge, an employer must show that the claimant “had
knowledge of the conduct the employer expected.” Utah Admin.
Code R994‐405‐202(2). “There does not need to be evidence of a
deliberate intent to harm the employer; however, it must be shown
the claimant should have been able to anticipate the negative effect
of the conduct.” Id. The Board determined that Dinger “knew, or
should have known, he was expected to show respect to his
superiors and follow their direct orders.” The Board concluded that
Dinger’s “behavioral problems” were addressed on “eight different
occasions,” that Dinger “was provided with written notification of
what behavior [UTA] expected,” and that during the June 22
Garrity interview, Dinger was notified “that termination was a
possible consequence of not cooperating in the interview.”
¶23 In arguing that UTA failed to establish knowledge, Dinger
limits his argument to his lack of prior knowledge about the
conduct expected of him at the Garrity interview. Again, the
Board’s decision is based on a pattern of incidents in which Dinger
was argumentative with his supervisor, and on UTA’s multiple
warnings that this behavior was unacceptable. The Board noted
that Dinger’s July 30, 2009 performance evaluation stated that “he
was disagreeable and had shown a pattern of refusing to be
coached by supervisors,” his July 27, 2010 performance evaluation
indicated that “he was argumentative towards his superiors,” and
his January 5, 2011 evaluation “reiterated [UTA’s] concern with
[Dinger’s] argumentative behavior toward his supervisors.”
20120093‐CA 11 2013 UT App 59Dinger v. Dept. of Workforce Services
Although Dinger refused to sign these evaluations, he was aware
that UTA considered the conduct unacceptable. In concluding that
knowledge was established, the Board also relied on UTA’s email
to Dinger, reprimanding him for yelling at his supervisor and
explaining UTA’s expectations for Dinger’s future behavior. The
Board also considered the written notification of insubordination,
which stated that Dinger had violated the following rules: “officer
to obey orders of supervisors,” “insubordination,” and “courtesy
and respect for departmental members.” The notification informed
Dinger,
Coaching has failed to correct the insubordinate
behavior documented above. . . . Pursuant to this
Written Notification, you are expected to conform to
Departmental policies, to be courteous, respectful,
and calm (no abusive language) . . . and are expected
to obey all lawful orders from your superiors. If you
fail to meet the requirements of this Written Notifica‐
tion, you may receive further disciplinary action up
to and including termination.
¶24 Based on this history, the Board determined that while it
was unclear from the testimony whether Dinger had advance
notice of the June 22, 2011 Garrity interview, he was informed of its
purpose at the meeting and had ample notice such that he either
knew or should have known prior to the meeting the “negative
consequences that could result if he failed to adhere to [UTA’s]
expectations.” The record as a whole indicates that there is
substantial evidence to support the Board’s determination that
Dinger had knowledge of what was expected of him.
¶25 Dinger also disputes the finding of control. “The conduct
causing the discharge must have been within the claimant’s
control.” Utah Admin. Code R994‐405‐202(3)(a). Dinger asserts that
UTA failed to establish control because his refusal to answer
questions in the Garrity interview was “[d]ue to his good faith
reliance on his attorney’s advice.” Again, Dinger narrowly focuses
20120093‐CA 12 2013 UT App 59Dinger v. Dept. of Workforce Services
his argument on his refusal to answer questions at the internal
affairs investigation, rather than on the course of insubordinate
conduct found by the Board. Although it is true that “good faith
errors in judgment are not sufficient to establish just cause for
discharge,” see id., the Board indicated that Dinger was in control
because “he could have followed instructions . . . on how to behave
appropriately at work.” Indeed, Dinger has not indicated that he
could not have adjusted his behavior in response to the multiple
coaching sessions or the notice of insubordination. Therefore, there
is substantial evidence to support the Board’s finding that Dinger
had the ability to control his actions.
C. Reasonableness and Rationality
¶26 Dinger further argues that the Board abused its discretion in
concluding that UTA had just cause to terminate him because UTA
did not follow its progressive discipline policy. See Utah Code Ann.
§ 63G‐4‐403(4)(h) (LexisNexis 2011). “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.” EAGALA, Inc. v. Department of
Workforce Servs., 2007 UT App 43, ¶ 9, 157 P.3d 334 (citation and
internal quotation marks omitted). Dinger’s argument is based on
the fact that several of the allegations of insubordination resulted
in “coaching sessions,” which are defined by UTA policy as “non‐
disciplinary.” While Dinger is correct, he points to nothing in the
UTA policy that required it to move immediately to disciplinary
action. Furthermore, the Board properly considered those non‐
disciplinary attempts to cure Dinger’s behavioral issues in assess‐
ing UTA’s conduct. Rather than immediately pursuing disciplinary
action, UTA tried to modify Dinger’s behavior through less formal
means. It was only after those informal efforts failed that UTA
provided Dinger with a written notification that his behavior, if
uncorrected, could result in termination. Dinger does not explain
how UTA’s attempt at leniency violated its policies or undermines
the Board’s conclusions.
20120093‐CA 13 2013 UT App 59Dinger v. Dept. of Workforce Services
¶27 Once UTA gave Dinger written notification, it could
discipline him as it deemed appropriate for future violations. UTA
Corporate Policy Number 6.3.1 states that a “Written Notification
. . . sets clear expectations and may include consequences if
performance does not improve.” The notice specifically indicated
that Dinger could be terminated if he failed “to obey all lawful
orders.” Yet, after receiving this warning, Dinger refused UTA’s
order to participate in the Garrity interview. Additionally, the
policy states that it is a flexible tool to be used “on a case by case
basis,” that it does not create a contract, and that it does not “alter
the employment‐at‐will relationship.” The Board’s decision does
not exceed the bounds of reason or rationality simply because UTA
attempted to correct Dinger’s behavior through non‐disciplinary
coaching sessions before issuing a written notification of insubordi‐
nation.
II. Voluntary Separation for Good Cause
¶28 Dinger argues for the first time on appeal that he should be
eligible for benefits because he quit for good cause. “When a party
raises an issue on appeal without having properly preserved the
issue below, we require that the party articulate an appropriate
justification for appellate review.” State v. Winfield, 2006 UT 4, ¶ 14,
128 P.3d 1171 (citation and internal quotation marks omitted); see
also Utah R. App. P. 24(a)(9). Dinger asserts that he preserved this
argument in his request for reconsideration, in which he moved to
present additional evidence so that the Board could fulfill its duty
to consider all facts relevant. However, the request makes no
mention of any theory that suggests Dinger’s dismissal should be
treated as voluntary under the circumstances. Our preservation
rule requires that an issue “be raised in a timely fashion[,] . . .
specifically raised[,] and . . . [that] the challenging party . . .
introduce supporting evidence or relevant legal authority.” 438
Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (first and
third alteration in original) (citation and internal quotation marks
omitted). “The preservation rule applies in agency appeals ‘when
the issue raised on appeal could have been resolved in the adminis‐
20120093‐CA 14 2013 UT App 59Dinger v. Dept. of Workforce Services
trative setting.’” Rosen v. Saratoga Springs City, 2012 UT App 291,
¶ 31, 288 P.3d 606 (quoting ABCO Enters. v. Utah State Tax Comm’n,
2009 UT 36, ¶¶ 10–11, 211 P.3d 382 (elaborating on scenarios in
which the preservation rule applies in agency appeals)); see also In
re Anderson, 2004 UT 7, ¶ 47, 82 P.3d 1134 (per curiam) (“In agency
appeals, . . . it is logical to require matters that may be dispositive
to be presented in the first instance to the agency, so that it may
consider them at the time of reaching its decision.”). A general
reference to “all facts relevant” was not sufficient to put the Board
or UTA on notice that Dinger intended to raise the new theory that
he had voluntarily quit for good cause. Thus, the issue is
unpreserved.
¶29 Alternatively, Dinger argues that the Board plainly erred by
not determining on its own motion that Dinger was eligible for
unemployment benefits because he left for good cause or that
denying him benefits would be against equity and good
conscience. See Utah Admin. Code R994‐405‐101 to ‐103. “Plain
error requires the showing of a harmful error that should have
been obvious to the district court, or in this case, the Board.” See
Utah Chapter of Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 26, 226
P.3d 719. To establish plain error, Dinger must show that “(i) an
error exists; (ii) the error should have been obvious to the [Board];
and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for [Dinger].”
See State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (citation and internal
quotation marks omitted).
¶30 We first evaluate whether this theory should have been
obvious to the Board. To establish obviousness, Dinger “must show
that the law governing the error was clear at the time the alleged
error was made.” See id. Dinger cites no authority to support his
position that it should have been obvious to the Board that he quit
for good cause because of a hostile work environment.
Additionally, the Board rejected Dinger’s factual assertions
concerning UTA’s motivation, instead finding that UTA’s
allegations against Dinger were credible. See supra ¶¶ 20–21; see also
20120093‐CA 15 2013 UT App 59Dinger v. Dept. of Workforce Services
Davis v. Department of Workforce Servs., 2012 UT App 158, ¶ 6, 280
P.3d 442 (“[W]e defer to the Board’s assessment of credibility and
resolution of conflicting evidence.” (citation and internal quotation
marks omitted)). Accordingly, the Board did not plainly err when
it did not find that Dinger voluntarily quit for good cause.
III. The Garrity Interview
¶31 Next, Dinger argues that the Board exceeded the bounds of
reasonableness and rationality when it determined that his refusal
to answer questions in the Garrity interview constituted
insubordination. In support of his argument, Dinger contends that
UTA has no policy regarding Garrity warnings and that it used the
warning as a pretext to fire him in violation of statutory protections
for whistleblowers.
¶32 Before we address Dinger’s argument, we pause to clarify
the nature of a Garrity warning. In Garrity v. New Jersey, 385 U.S.
493 (1967), police officers under internal investigation for allegedly
fixing traffic tickets were interviewed by their department about
the allegations. Id. at 494. Before the interview, they were notified
that they could be terminated if they refused to answer questions,
but that any answers could also be used as evidence against them
in any criminal prosecution. Id. The officers answered the
questions, and over their objections, some of those answers were
used against them in a subsequent criminal proceeding. Id. at 495.
On appeal from their convictions, the Supreme Court equated
requiring a police officer to choose between sacrificing his career or
his Fifth Amendment right against self‐incrimination with coercion,
stating that it was “‘likely to exert such pressure upon an
individual as to disable him from making a free and rational
choice.’” Id. at 497 (quoting Miranda v. Arizona, 384 U.S. 436, 464–65
(1966)). Thus, the court held that “the protection of the individual
under the Fourteenth Amendment against coerced statements
prohibits use in subsequent criminal proceedings of statements
obtained under threat of removal from office.” Id. at 500.
20120093‐CA 16 2013 UT App 59Dinger v. Dept. of Workforce Services
¶33 In response to this decision, police departments routinely
engage in the practice of advising officers who are the subject of an
internal investigation that their answers will not be used in any
criminal prosecution, while also warning the subject of the
investigation that the refusal to answer questions may be grounds
for termination. Here, there is no evidence to suggest that Dinger
was under investigation as a result of any suspicion that he was
engaged in criminal activity. Thus, he is correct that the Garrity
warning was likely unnecessary. See Harmon v. Ogden City Civil
Serv. Comm’n, 2007 UT App 336, ¶ 17, 171 P.3d 474. However, he
has pointed us to nothing that would prevent UTA from issuing
the Garrity warning in the unlikely event that the interview
uncovered unexpected criminal activity.
¶34 We next consider Dinger’s argument that the Garrity
interview was merely a pretext to shield UTA from the
whistleblower statute. In support of his claim that the interview
was a pretext, Dinger argues that the “very people against whom
[Dinger] filed complaints intended to conduct an internal affairs
interview on the precise topics that were the focus of his
complaints.” The Board counters that the testimony before the ALJ
supported UTA’s claim that it terminated Dinger for several acts of
insubordination, of which refusing to participate in the interview
was the final culminating act. Indeed, UTA indicated that it
delayed its termination of Dinger so that it could first “deal with
the allegations so that he wouldn’t be able to say it was
retaliatory.”
¶35 The Utah Legislature has provided protections to employees
who report wrongdoing by their employers. Specifically, Utah
Code section 67‐21‐3(1)(a) provides,
An employer may not take adverse action against an
employee because the employee . . . communicates in
good faith the existence of any waste of public funds,
property, or manpower, or a violation or suspected
violation of a law, rule, or regulation adopted under
20120093‐CA 17 2013 UT App 59Dinger v. Dept. of Workforce Services
the law of this state, a political subdivision of this
state, or any recognized entity of the United States.
Utah Code Ann. § 67‐21‐3(1)(a) (LexisNexis 2011) (emphasis
added).
¶36 From its plain language, section 67‐21‐3(1)(a) evidences the
Utah Legislature’s intent to protect employees who in good faith
report their employers’ violations from disciplinary action
instigated by the employer because of the report. See id. However,
nothing in the statute suggests that an employee who has made a
good faith report of his employer’s violation is shielded against
legitimate disciplinary actions. See id. Instead, the protection
afforded by the statute is dependent upon whether the employer’s
adverse actions against the employee were taken because the
employee reported the violation. Here, the Board rejected Dinger’s
characterization of UTA’s motives, instead finding that UTA
disciplined Dinger because of his repeated acts of insubordination.
As a result, Dinger has not established that he was terminated
because of his complaints against UTA employees. Cf. Baird v. Cutler,
883 F. Supp. 591, 606 (D. Utah 1995) (holding there was no violation
of Utah Code section 67‐21‐3 where reprimands did not mention
the subject of the complaint but did “reference . . . [the employee’s]
failure to follow the proper reporting procedures and protocol”).
IV. Dinger’s Request for Reconsideration
¶37 Finally, Dinger asserts that the Board abused its discretion
in refusing to remand the matter to the ALJ for the introduction of
additional evidence and to reconsider its eligibility determination
in light of that new evidence.5 See Utah Code Ann. § 63G‐4‐302
5. In the request, Dinger asserts that his attorney was originally cut
off by the ALJ during questioning to support his theory that he was
terminated in retaliation for “raising wrongdoing of UTA such as
(continued...)
20120093‐CA 18 2013 UT App 59Dinger v. Dept. of Workforce Services
(LexisNexis 2011). The basis of Dinger’s argument is that the record
before the Board was incomplete because UTA introduced only
three of his performance evaluations. However, we decline to
consider this argument because it is not adequately briefed as a
challenge to the Board’s decision to decline his request for
reconsideration. See generally Utah R. App. P. 24(a)(9) (“The
argument shall contain the contentions and reasons of the appellant
with respect to the issues presented[.]”); State v. Garner, 2002 UT
App 234, ¶ 8, 52 P.3d 467 (“It is well established that Utah appellate
courts will not consider claims that are inadequately briefed.”).
Although Dinger makes vague references to the adequacy of the
record before the Board, he does not directly challenge the Board’s
denial of his request for reconsideration on this ground. That
argument is addressed only in his reply brief, and we decline to
consider it. See generally Utah R. App. P. 24(c) (“Reply briefs shall
be limited to answering any new matter set forth in the opposing
brief.”); Coleman ex rel. Schefski v. Stevens, 2000 UT 98, ¶ 9, 17 P.3d
1122 (“[W]e will not consider matters raised for the first time in the
reply brief.”).
CONCLUSION
¶38 The Board’s findings are supported by substantial evidence
and its application of the law to the facts does not exceed the
bounds of reason and rationality. We decline to reach Dinger’s
argument regarding reconsideration because it is inadequately
briefed. Accordingly, we do not disturb the Board’s decision
denying Dinger unemployment benefits.
5. (...continued)
officers criminally mistreating UTA riders . . . and reporting false
UTA ridership numbers in order to increase federal funding for
UTA . . . .” Although Dinger acknowledged the ALJ later invited
him to ask those questions, he did not do so “because it was
evident that the ALJ was deciding in [Dinger’s] favor.”
20120093‐CA 19 2013 UT App 59Dinger v. Dept. of Workforce Services
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