Davis v. Department of Workforce Services

2015 UT App 93_________________________________________________________
THE UTAH COURT OF APPEALS
HOLLY DAVIS,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES AND IFCO SYSTEMS,
Respondents.
Memorandum Decision
No. 20131109-CA
Filed April 16, 2015
Original Proceeding in this Court
Michael E. Bulson, Attorney for Petitioner
Amanda B. McPeck, Attorney for Respondent
Department of Workforce Services
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE
concurred.
CHRISTIANSEN, Judge:
¶1 Holly Davis seeks review of a decision of the Department
of Workforce Services’ Workforce Appeals Board (the Board)
affirming a denial of unemployment-insurance benefits. The
Board denied benefits to Davis because it concluded that she had
been discharged from her employment for just cause. We decline
to disturb the Board’s ruling.
¶2 Davis worked as a truck driver for IFCO Systems between
October 2011 and September 2013. On April 17, 2012, Davis was
backing a truck with a trailer onto a dock when the trailer door
swung open and hit a roll-up door. The incident caused $1,700 in
Davis v. Department of Workforce Services
damage, and Davis was ‚disciplined for substandard work.‛
Davis received a written warning stating, ‚You must take care
when driving. You should always double check trailer doors and
ensure they are secured before backing onto a dock.‛1
¶3 On August 16, 2013, Davis was delivering a trailer to a
repair shop when she backed the trailer into a shop customer’s
trailer, causing approximately $2,500 in damage. The repair shop
notified IFCO of the accident. Soon thereafter, the facility general
manager of IFCO spoke with Davis and showed her photos of
the damage to both trailers. Davis said she was unaware she had
hit another trailer, but she recognized she ‚must have done it‛
and apologized for the incident. The manager talked to Davis
again some time later, ‚letting her know the cost of the damage
that [IFCO] had to repair on that trailer.‛
¶4 On August 29, 2013, Davis was involved in a third
accident. Davis and another truck driver were attempting to
park their trucks in a delivery area when the trucks collided and
Davis’s ‚mud flap caught *the other truck’s+ bumper and pulled
[the] bumper forward.‛ Later that day, Davis was issued a
written warning for the August 16 accident. This form stated
that the facility general manager had ‚made [Davis] aware of
[the August 16] incident and informed her [that] because of the
cost of the damage she would receive discipline‛ and that ‚*a+ny
1. Davis denies that she ever received a written warning for this
incident. The Board, relying on IFCO’s assistant general
manager’s testimony, found that Davis received a written
warning after the April 17, 2012 incident. However, the Board
ultimately did not rely on this finding in determining that Davis
had knowledge of the conduct her employer expected of her.
Accordingly, we need not decide whether there was substantial
evidence to support this factual finding, because it has no
bearing on our decision.
20131109-CA 2 2015 UT App 93Davis v. Department of Workforce Services
future issues will result in additional disciplinary action up to
and including termination.‛
¶5 On September 3, 2013, Davis received a write-up for the
August 29 incident. The write-up stated,
This is *Davis’s+ 2nd incident in less than 30 days in
which [she] hit another vehicle causing vehicle
damage. After investigation of this incident and
based on witness statements [Davis] could have
prevented this incident. Due to the frequency of
these incidents and the property damage caused
[Davis’s+ employment will be terminated effective
9/3/13.
IFCO discharged Davis that same day.
¶6 Davis applied for unemployment benefits after her
termination. Her claim for benefits was denied. Davis appealed
that decision, and an Administrative Law Judge (the ALJ) held a
telephonic hearing on the matter. The ALJ affirmed the denial of
unemployment benefits and found that IFCO had established
just cause for Davis’s termination. Davis sought review of the
ALJ’s decision. The Board affirmed the ALJ’s decision denying
benefits. Davis now petitions this court for review.
¶7 Davis argues that the Board erred in concluding that
IFCO established just cause to terminate her employment.
Whether an employee was terminated for just cause is a fact-like
mixed question, ‚and we apply a deferential standard of review
to a lower tribunal’s resolution of this issue.‛ Sawyer v.
Department of Workforce Servs., 2015 UT 33, ¶¶ 16, 25. The Board’s
findings of fact, ‚if supported by evidence, are conclusive,‛ Utah
Code Ann. § 35A-4-508(8)(e) (LexisNexis 2011), and we will
allow those findings to stand unless ‚the findings are not
supported by substantial evidence,‛ Drake v. Industrial
Comm'n, 939 P.2d 177, 181 (Utah 1997). Substantial evidence is
20131109-CA 3 2015 UT App 93Davis v. Department of Workforce Services
‚such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.‛ Record v. Workforce Appeals
Bd., 2011 UT App 340, ¶ 19, 263 P.3d 1210 (citation and internal
quotation marks omitted).
¶8 An employee is ineligible for unemployment insurance
benefits if the Board concludes that the employee was
discharged for just cause. Utah Code Ann. § 35A-4-405(2)(a)
(LexisNexis Supp. 2013); Autoliv ASP, Inc. v. Department of
Workforce Servs., 2001 UT App 198, ¶ 17, 29 P.3d 7. ‚To establish
‘just cause,’ three elements must be present: culpability,
knowledge, and control.‛ Autoliv, 2001 UT App 198, ¶ 17; see also
Utah Admin. Code R994-405-202. ‚The employer must establish
each of the three elements . . . for the Board to deny benefits.‛
Gibson v. Department of Emp’t Sec., 840 P.2d 780, 783 (Utah Ct.
App. 1992). Here, Davis challenges only the Board’s
determination regarding the element of knowledge.
¶9 Davis argues that IFCO failed to establish the knowledge
element because, while she knew that ‚incidents resulting in
damages would have a negative effect on her employment,‛ she
did not ‚anticipate . . . being fired, when there had been no clear
explanation or written policy stating that a future incident
would result in termination.‛ According to Davis, to satisfy the
knowledge element, ‚a clear explanation of expected behavior‛
must contain a ‚clear warning that a further incident would
result in immediate termination.‛
¶10 Davis’s interpretation of the knowledge element is not
borne out by the language of the rule. Rule R994-405-202(2) of
the Utah Administrative Code defines the element of
knowledge:
The claimant must have had knowledge of the
conduct the employer expected. There does not need
to be evidence of a deliberate intent to harm the
employer; however, it must be shown the claimant
20131109-CA 4 2015 UT App 93Davis v. Department of Workforce Services
should have been able to anticipate the negative
effect of the conduct. Generally, knowledge may
not be established unless the employer gave a clear
explanation of the expected behavior or had a written
policy, except in the case of a violation of a
universal standard of conduct. A specific warning
is one way to show the claimant had knowledge of
the expected conduct. After a warning the claimant
should have been given an opportunity to correct
the objectionable conduct. If the employer had a
progressive disciplinary procedure in place at the
time of the separation, it generally must have been
followed for knowledge to be established, except in
the case of very severe infractions, including
criminal actions.
Utah Admin. Code R994-405-202(2) (emphases added).
¶11 Here, the element of knowledge is not dependent on
whether Davis knew what type of accidents or what number of
accidents would result in discipline or termination. Rather,
Davis need only have known what conduct was expected of her
and that her failure to adhere to that conduct would be
detrimental to IFCO. The rule explains that ‚[t]here 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. (emphases
added). Thus, ‚the negative effect‛ contemplated by the rule is
not the effect the conduct might have on the employee’s work
status, but rather the negative effect or harm caused to the
employer by the conduct.2 We therefore agree with the Board
2. Though Davis does not dispute the element of culpability, rule
R994-405-202’s definition of culpability comports with the
language used to define knowledge. To establish the employee’s
culpability, ‚*t+he conduct causing the discharge must be so
(continued...)
20131109-CA 5 2015 UT App 93Davis v. Department of Workforce Services
that the knowledge element ‚does not require that a claimant
know her job is in jeopardy, merely that she understands her
actions are harmful to the Employer’s rightful interests.‛ The
Board found that Davis ‚should have been able to anticipate that
repeatedly causing property damage was harmful to *IFCO’s+
rightful interests.‛ Davis does not directly challenge this finding.
Indeed, she recognizes that the facility general manager spoke to
her shortly after the August 16 accident, that he showed her
pictures of the damage to the trailers, and that she ‚accepted
responsibility‛ for the accident.3 Accordingly, substantial
evidence supported the Board’s finding that Davis should have
been able to anticipate that IFCO’s rightful interests would be
harmed if Davis continued to cause accidents and property
damage.
¶12 Davis next argues that the element of knowledge was not
supported by substantial evidence because she did not receive a
‚clear explanation of expected behavior.‛ The knowledge
element generally ‚may not be established unless the employer
gave a clear explanation of the expected behavior.‛ Utah Admin.
Code R994-405-202(2). Davis’s supervisor reviewed the August
(…continued)
serious that continuing the employment relationship would
jeopardize the employer’s rightful interest.‛ Utah Admin. Code
R994-405-202(1) (emphasis added). This standard is consistent
with our conclusion that the ‚negative effect of the conduct‛ for
purposes of knowledge is the harm or adverse effect to the
employer or its rightful interests, not to the employee or her
interests. See Utah Admin. Code R994-405-201 (‚Benefits will be
denied if the claimant was discharged for just cause or for an act
or omission in connection with employment . . . which was . . .
adverse to the employer’s rightful interest.‛).
3. According to the evidence presented by IFCO, Davis’s three
accidents caused approximately $7,200 in damages.
20131109-CA 6 2015 UT App 93Davis v. Department of Workforce Services
16 incident with Davis and showed her photographs of the
damage. The Board found that ‚*Davis+ should have realized the
accident was unacceptable based upon that conversation alone,
even if the general manager did not specifically state [that] she
would receive a written warning.‛ In her brief, Davis concedes
that she knew the accident ‚‘was unacceptable based upon that
conversation alone.’‛ Yet after this concession, Davis claims that
she nevertheless did not receive ‚a clear explanation of expected
behavior, because the facility general manager did not inform
her that another accident would result in termination. However,
as we determined above, the rule requires only that the
employee receive an explanation of the ‚conduct the employer
expected,‛ not an explanation of the consequences an employee
may face if he or she fails to perform as expected. See supra ¶ 11.
Davis’s concession that she knew the accident was unacceptable
based on her conversation with the facility general manager
demonstrates that she knew what conduct was expected by the
employer and had received a clear explanation of this expected
behavior after meeting with the facility general manager.
Additionally, Davis’s own testimony that ‚*o+f course, *IFCO+
wouldn’t want us to have incidents I’m sure‛ demonstrates that
she knew the specific conduct—i.e., not having accidents and
causing property damage—her employer expected of her.4
4. Davis does not challenge the Board’s determination that the
elements of culpability and control were satisfied. While the rule
does not require that an employee have knowledge of the
particular consequences that may arise from her conduct, such as
termination, we note that the elements of culpability and control
do protect employees from being discharged without just cause
in cases where their conduct was only minor or infrequent. For
example, Utah Administrative Rule R994-405-202(1) provides
that ‚*i+f the conduct was an isolated incident of poor judgment
and there was no expectation it would be continued or repeated,
potential harm may not be shown.‛ Utah Admin. Code R994-
405-202(1). And the employer must prove that the conduct was
(continued...)
20131109-CA 7 2015 UT App 93Davis v. Department of Workforce Services
¶13 Davis further argues that she had no opportunity to
change her conduct. After issuing a warning, the employer must
give the employee ‚an opportunity to correct the objectionable
conduct.‛ Utah Admin. Code R994-405-202(2). We are not
persuaded that Davis had no opportunity to correct her conduct.
The Board found, and Davis admits, that the facility general
manager spoke to her about her August 16 accident shortly after
it occurred. Because we conclude that this conversation was a
clear explanation of expected behavior, Davis has failed to
demonstrate that she was not provided an opportunity to correct
‚the objectionable conduct‛ before she was terminated for
another accident two weeks later.
¶14 Finally, Davis claims that IFCO failed to follow its own
‚progressive disciplinary procedure.‛ ‚If the employer had a
progressive disciplinary procedure in place at the time of the
separation, it generally must have been followed for knowledge
to be established, except in the case of very severe infractions,
including criminal actions.‛ Id. However, there is no evidence in
the record that IFCO had a progressive discipline policy in place
during Davis’s employment. Davis asserts that IFCO had a
progressive discipline policy because the forms used by IFCO to
keep track of an employee’s disciplinary record state, ‚Describe
discipline action taken including actions prescribed to correct
problem, disciplinary action taken, and further actions to be
taken should future problems develop.‛ According to Davis, this
‚progressive disciplinary procedure‛ was not followed and ‚*i+t
(…continued)
within the claimant’s control because ‚*i+solated instances of
carelessness or good faith errors in judgment are not sufficient to
establish just cause for discharge‛ and only ‚continued
inefficiency, repeated carelessness or evidence of a lack of care
expected of a reasonable person in a similar circumstance may
satisfy the element of control if the claimant had the ability to
perform satisfactorily.‛ Id. R994-405-202(3).
20131109-CA 8 2015 UT App 93Davis v. Department of Workforce Services
may be inferred from this wording that not every infraction
should trigger termination.‛ And even assuming this was
IFCO’s disciplinary policy, IFCO followed it. The employer’s
‚disciplinary policy‛ described future disciplinary actions,
stating that ‚[a]ny future issues will result in additional
disciplinary action up to and including termination.‛ Davis was
not terminated on her first infraction; her discipline-action report
shows that she committed approximately six offenses while
employed by IFCO, three of which resulted in property damage
to her employer. Davis was only terminated after she was
involved in the August 29 accident a mere two weeks after the
August 16 accident.
¶15 Accordingly, the Board’s finding that IFCO established
Davis’s knowledge of the conduct expected of her is supported
by substantial evidence. We decline to disturb the Board’s
decision.
_____________
20131109-CA 9 2015 UT App 93