Brenner v. Department of Workforce Services

2016 UT App 80THE UTAH COURT OF APPEALS
PATRICK MONROE BRENNER,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Per Curiam Decision
No. 20151078-CA
Filed April 28, 2016
Original Proceeding in this Court
Patrick Monroe Brenner, Petitioner Pro Se
Amanda B. McPeck, Attorney for Respondent
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
STEPHEN L. ROTH.
PER CURIAM:
¶1 Patrick Monroe Brenner seeks judicial review of the
Workforce Appeals Board’s (Board) decision affirming the denial
of unemployment benefits and finding that Brenner was
discharged from his employment for just cause. We decline to
disturb the Board’s decision.
¶2 “Whether an employee is terminated for just cause is a
mixed question of law and fact.” Brehm v. Workforce Appeals
Board, 2014 UT App 281, ¶ 12, 339 P.3d 945. “Nevertheless, due
to the fact-intensive inquiry involved at the agency level, cases
involving unemployment benefits do not lend [themselves] to
consistent resolution by a uniform body of appellate precedent.”
Carbon County v. Workforce Appeals Board, 2013 UT 41, ¶ 7, 308
P.3d 477 (citation and internal quotation marks omitted).
Therefore, these cases are more “fact-like” than “law-like,” and
the Board’s decision to award or deny unemployment benefits is
Brenner v. Department of Workforce Services
entitled to deference. See id. Accordingly, within the context of
unemployment benefits, “we will not disturb the Board’s
application of law to its factual findings unless its determination
exceeds the bounds of reasonableness and rationality.” Johnson v.
Department of Employment Sec., 782 P.2d 965, 968 (Utah Ct. App.
1989).
¶3 Brenner provided computer support services for
AlphaGraphics, Inc. (Employer). On September 16, 2015,
Brenner’s computer support team received a suspicious email.
Brenner’s supervisor informed Brenner that the email was
suspicious, and it looked like it could be a malicious phishing
email. The Administrative Law Judge (ALJ) and Board
determined that Brenner’s supervisor specifically instructed
Brenner to mark the email as spam and close the case out.
However, rather than follow his supervisor’s instructions,
Brenner opened the email, as well as the email’s attachment, and
downloaded the computer virus onto Employer’s computer,
causing it to become encrypted. Employer was required to spend
approximately eight hours resolving the problems caused by the
computer virus. When Employer learned that Brenner had not
followed his supervisor’s instructions, but instead opened the
suspicious email and the attachment, Employer discharged
Brenner.
¶4 Brenner challenges the Board’s decision affirming the
denial of benefits and finding that he was discharged for just
cause. To establish just cause for an employment termination,
the elements of culpability, knowledge, and control must be
shown. See Utah Admin. Code R994-405-202. Culpability is
established if the conduct causing the discharge is “so serious
that continuing the employment relationship would jeopardize
the employer’s rightful interest.” Id. R994-405-202(1). The Board
determined that Employer had a rightful interest in requiring
employees to follow reasonable instructions from their
supervisors and protecting itself from computer viruses. The
20151078-CA 2 2016 UT App 80Brenner v. Department of Workforce Services
Board found that Brenner did not follow his supervisor’s
instructions, and his failure to follow instructions exposed
Employer’s computer system to a serious virus. Furthermore,
Employer was harmed financially after it was required to spend
nearly a day repairing the damage from the computer virus. The
Board determined that Brenner’s conduct was sufficiently
serious to warrant his discharge in order to protect Employer’s
rightful interests.
¶5 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 that the claimant should have been
able to anticipate the negative effect of the conduct.” Id.
¶6 Brenner argues that he was not instructed how to handle
the suspicious email. However, the Board determined that
Employer’s testimony was more credible than Brenner’s
testimony. Both the ALJ and the Board determined that the
element of knowledge was established because Employer’s
credited testimony established that Employer gave Brenner
specific instructions to mark the email as suspicious and “close it
out as spam.” Given Brenner’s assertion that he lacked
familiarity with phishing attempts, the Board determined that
Brenner should have been careful to follow Employer’s
instructions for resolving the suspicious email. The Board also
determined that Brenner knew that opening a suspicious email,
which could download a computer virus onto Employer’s
computer would harm Employer.
¶7 The element of control is established by showing that the
conduct causing the discharge was within the employee’s
control. See id. R994-405-202(3). The Board determined that
Brenner was in control of the conduct that resulted in his
discharge because Brenner was instructed not to open the
20151078-CA 3 2016 UT App 80Brenner v. Department of Workforce Services
suspicious email and its attachment. Despite the instructions,
Brenner chose to open the email and its attachment, which
downloaded a computer virus. The Board also determined that
Brenner was not prevented from complying with Employer’s
instructions.
¶8 The Board’s factual findings are supported by substantial
evidence in the record, and the Board’s decision that Brenner
was discharged for just cause is both reasonable and rationale.
Accordingly, we decline to disturb the Board’s decision.
20151078-CA 4 2016 UT App 80