Dinger v. Department of Workforce Services, Workforce Appeals Board , 2013 Utah App. LEXIS 68 ( 2013 )


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    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
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    Dinger 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.”
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    Dinger 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                 
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    Dinger 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
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    Dinger 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‐
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    Dinger 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)).
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    Dinger 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                  
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    Dinger 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                 
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    Dinger 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                 
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    Dinger 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                 
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    Dinger 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                 
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    Dinger 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                 
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    Dinger 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‐
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    Dinger 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 59
    Dinger 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                 
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    Dinger 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 59
    Dinger 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                 
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    Dinger 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                 
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    Dinger v. Dept. of Workforce Services
    ____________________
    20120093‐CA                    20                 
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