Olson v. Department of Workforce Services , 769 Utah Adv. Rep. 48 ( 2014 )


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    2014 UT App 217
    _________________________________________________________
    THE UTAH COURT OF APPEALS
    CHARLOTTE T. OLSON ,
    Petitioner,
    v.
    DEPARTMENT OF WORKFORCE SERVICES,
    Respondent.
    Per Curiam Decision
    No. 20140441-CA
    Filed September 11, 2014
    Original Proceeding in this Court
    Charlotte T. Olson, Petitioner Pro Se
    Suzan Pixton, Attorney for Respondent
    Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., AND
    SENIOR JUDGE PAMELA T. GREENWOOD .1
    PER CURIAM:
    ¶1    Charlotte T. Olson seeks review of the Workforce Appeals
    Board’s (the Board) decision denying her unemployment benefits
    and establishing a fault overpayment. We do not disturb the
    Board’s decision.
    ¶2      A claimant is not eligible to receive unemployment benefits
    if she is discharged from employment for just cause. Utah Code
    Ann. § 35A-4-405(2)(a) (LexisNexis Supp. 2013). If it is determined
    that, by reason of a claimant’s fault, benefits are paid to which a
    1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
    special assignment as authorized by law. See generally Utah Code
    Jud. Admin. R. 11-201(6).
    Olson v. Department of Workforce Service
    claimant was not entitled, the claimant shall repay the benefits
    received. See id. § 35A-4-406(4)(b) (LexisNexis 2011). In Carbon
    County v. Workforce Appeals Bd., 
    2013 UT 41
    , 
    308 P.3d 477
    , the Utah
    Supreme Court stated the standard of review to be used in
    reviewing the Board’s decision on a request for unemployment
    benefits. See id. ¶ 7. Such a determination is reviewed as a mixed
    question of fact and law that is more fact-like because the “case
    does not lend itself to consistent resolution by a uniform body of
    appellate precedent.” Id. (citation and internal quotation marks
    omitted). Accordingly, the Board’s determinations are entitled to
    deference because “the appellate court would be in an inferior
    position to review the correctness of the . . . decision.” Id. (citation
    and internal quotation marks omitted). “Because of the fact-
    intensive conclusions involved at the agency level,” the Board’s
    determination that Olson was ineligible for benefits because she
    was discharged for just cause and its determination of a fault
    overpayment are entitled to deference. See id.
    ¶3      Olson was employed as a patient service representative for
    Sutter Connect, LLC (Sutter). Sutter terminated Olson’s
    employment following an incident in which she fell asleep in a
    team meeting where other employees were present. Company
    policy stated that sleeping on the job constituted misconduct. Olson
    received a verbal warning on May 22, 2013, although she did not
    recall that warning. She received written warnings on June 7, 2013,
    and July 26, 2013. The June 7 warning cited several instances of
    “appearing to be asleep” while at work and also cited negative
    comments and actions made by Olson. The warning stated that
    continued misconduct would result in additional disciplinary
    action, including termination. The July 26 “final written warning”
    cited “inappropriate conduct, specifically sleeping at your desk
    while on the clock,” and other conduct. That warning stated that it
    had been reported that Olson was either asleep or appeared to be
    asleep on five separate occasions. The final warning also stated,
    “Recurrence of this problem and/or other problems will result in
    termination.”
    20140441-CA                        2                
    2014 UT App 217
    Olson v. Department of Workforce Service
    ¶4     At a meeting on January 24, 2014, Olson fell asleep twice.
    This was reported by her team leader, who was conducting the
    meeting. She witnessed Olson sleeping and observed people sitting
    next to her nudge her awake. The team leader testified that Olson
    was sitting with her chin down and was breathing heavily with her
    eyes closed. Olson denied sleeping in the meeting and testified that
    she has breathing problems. She claimed that she was being
    harassed and reported for sleeping on the job when she was not
    actually sleeping and that the warnings stated only that she
    “appeared” to be sleeping and did not prove that she was actually
    sleeping in the previous incidents. She claimed that she just looked
    down in the meeting and was not sleeping.
    ¶5     To establish just cause for termination, an employer must
    establish the elements of culpability, knowledge, and control. See
    Utah Admin. Code R994-405-202. The Administrative Law Judge’s
    (ALJ) decision found that Olson received Sutter’s policies upon her
    hire and that those policies described misconduct as including
    sleeping on the job. The ALJ further found that Olson received
    verbal and written warnings regarding sleeping on the job and that
    she was discharged for a final incident of sleeping that occurred in
    a meeting on January 24, 2014. The ALJ found that the employer
    provided credible first-hand testimony that Olson had to be
    nudged during the meeting to wake up and had established that
    Olson was sleeping while at work. Because Sutter paid Olson while
    she was sleeping for work that was not being completed, this
    established the element of culpability. Olson was aware of the
    employer’s expectations, establishing the element of knowledge.
    Finally, Olson was in control of the behavior that led to her
    dismissal. The ALJ determined that the elements for just cause
    were established.
    ¶6     The ALJ also determined that benefits were improperly paid
    due to claimant fault. Fault is established if a claimant received
    benefits to which the claimant was not entitled based on providing
    incorrect information or on an absence of information that the
    claimant could have reasonably provided when the claimant had
    20140441-CA                      3               
    2014 UT App 217
    Olson v. Department of Workforce Service
    sufficient notice that the information might be reportable. 
    Id.
     R994-
    406-301(1). The element of materiality was satisfied because Olson
    received benefits she was not entitled to receive. The element of
    control was established because Olson could reasonably have
    provided correct information and instead denied that she was
    sleeping while at work. Knowledge was established because Olson
    had “sufficient notice that the information might be reportable.”
    ¶7     The ALJ and the Board found the testimony provided by
    Sutter to be more credible than Olson’s testimony. “It is the
    province of the Board, not appellate courts, to resolve conflicting
    evidence, and where inconsistent inferences can be drawn from the
    same evidence, it is for the Board to draw the inferences.”
    Albertsons, Inc. v. Department of Emp’t Sec., 
    854 P.2d 570
    , 575 (Utah
    Ct. App. 1993) (citation and internal quotation marks omitted). The
    Board rejected Olson’s argument that the prior incidents that she
    was written up for involved only the appearance that she was
    asleep and that Sutter had no actual proof that she was asleep. The
    Board stated that given the final incident in which Olson fell asleep
    during daytime hours at a meeting with other people, “it is
    reasonable to conclude that the prior incidents occurred, and the
    Employer was not required to provide firsthand testimony
    regarding each of the incidents for which the Claimant was
    warned.” After repeated warnings about misconduct including
    sleeping on the job, Sutter terminated Olson after a final incident
    witnessed by other participants in a meeting. We defer to the
    Board’s conclusions that Olson was terminated for just cause. If
    Olson had correctly reported the facts, benefits would not have
    been paid, and the Board correctly assessed a fault overpayment.
    ¶8     Accordingly, we decline to disturb the Board’s decision.
    20140441-CA                      4                
    2014 UT App 217
                                

Document Info

Docket Number: 20140441-CA

Citation Numbers: 2014 UT App 217, 335 P.3d 928, 769 Utah Adv. Rep. 48, 2014 Utah App. LEXIS 219, 2014 WL 4472765

Judges: Orme, Voros, Greenwood

Filed Date: 9/11/2014

Precedential Status: Precedential

Modified Date: 11/13/2024