AUTOLIV ASP v. DEPT. OF WORKFORCE SERV.

• Decision Date: 28 June 2001
• Docket Number: No. 20000574-CA.,20000574-CA.
• Citation: 29 P.3d 7,2001 UT App 198
• Parties: AUTOLIV ASP, INC., Petitioner, v. DEPARTMENT OF WORKFORCE SERVICES, Workforce Appeals Board; Thomas A. King; and Christopher Guzman, Respondents.
• Court: Utah Court of Appeals

29 P.3d 7

2001 UT App 198

AUTOLIV ASP, INC., Petitioner, v.DEPARTMENT OF WORKFORCE SERVICES, Workforce Appeals Board; Thomas A. King; and Christopher Guzman, Respondents.

No. 20000574-CA.

Court of Appeals of Utah.

June 28, 2001.

Janet Hugie Smith and Paul C. Burke, Ray Quinney & Nebeker, Salt Lake City, for Petitioner.

Lorin R. Blauer, Salt Lake City, for Respondent Department of Workforce Services.

Before JACKSON, P.J., and BENCH, and BILLINGS, JJ.

OPINION

BILLINGS, Judge:

¶ 1 Autoliv ASP, Inc. (Autoliv) appeals from a decision of the Workforce Appeals Board(Board) granting Christopher Guzman and Thomas King unemployment benefits.Autoliv argues that Guzman and King were discharged for just cause and are thus ineligible for unemployment benefits.We agree and thus reverse and remand.

BACKGROUND

¶ 2 Autoliv provides its over 6,000 employees with an employee handbook.The policies in the handbook that are relevant here include Autoliv's general rules of conduct, its anti-harassment policy, and its policy regarding computer usage.

¶ 3 Autoliv's general rules of conduct state:

Each employee is required to be familiar with these rules and with additional rules which apply to particular jobs and operations....In addition, each employee is expected to maintain conduct consistent with job efficiency and accepted standards of behavior for a business environment.Deviation from those standards may be cause for disciplinary action.

Disciplinary action may be taken for violation of any single rule or combination of rules, or for other improper conduct or unsatisfactory performance, and may include any of the following actions: [1] Employee discussion; [2] Notice of Caution; [3] Involuntary Suspension; [4]Termination....

....

Failure of the company to enforce any rule does not excuse any employee from his or her responsibility to comply with the rule, nor will such failure alter the company's right to take disciplinary action thereafter.

(Emphasis added.)

¶ 4 Autoliv's anti-harassment policy stated that Autoliv would not "tolerate or permit illegal harassment or retaliation of any nature within our workforce."Autoliv's policy regarding the use of its computer system specifically prohibited, "[u]se of e-mail for reasons other than transmittal of business related information," and "[c]onduct that reflects unfavorably on the corporation."

¶ 5 In June 1998, Autoliv investigated problems it had experienced with the transmission of e-mail messages through its computer system because of excessive use.It was determined that non-business related messages were contributing to the problems.As a result, a company wide e-mail was sent explaining the problem and reiterating Autoliv's e-mail policy.The e-mail stated, "e-mail is to be used for business only.We do not wish to `police' the e-mail system, so your cooperation would be appreciated.Please refrain from sending/receiving these types of messages as it is interfering with legitimate business e-mail."

¶ 6 In September 1998, Autoliv's Vice President of Human Resources sent another company wide e-mail which explained Autoliv's policy in more detail and included a warning that failure to adhere to the business only e-mail policy could result in termination.

¶ 7 In January 1999, Autoliv again reiterated its e-mail policy by sending out another company wide e-mail which stated that transmission of chain letters, jokes and stories, and non-business related announcements constituted improper use of the e-mail system.The message instructed employees, "If you receive an inappropriate E-mail, delete it and do not forward it to anyone."Finally, the message warned, "E-mail use is a benefit and abuse could lead to disciplinary action and/or termination."

¶ 8 Autoliv received a complaint from a former employee alleging that she had received offensive and sexually harassing e-mail from current Autoliv employees.Autoliv immediately began an investigation.The investigation revealed that several employees had violated Autoliv's e-mail policy by using e-mail for non-business related messages.Guzman and King were found to have violated the policy including the transmission of sexually oriented and offensive messages.¹

¶ 9 Specifically, the investigation revealed that Guzman had sent eleven non-business related messages containing jokes, photos, and short videos that were sexually explicit and clearly offensive in nature.King had sent approximately twenty-five non-business related messages containing the same type of sexually explicit and offensive content.

¶ 10 Concerned about the quantity of non-business related e-mail messages and the threat of sexual harassment lawsuits that could result from the sexual and offensive content of the messages, Autoliv terminated Guzman and King for "improper and unauthorized use of company e-mail."After unsuccessfully seeking reinstatement, Guzman and King filed applications for unemployment benefits with the Department of Workforce Services(Department).The Department found that Guzman and King had been discharged by Autoliv without just cause and thus found them eligible for benefits under section 35A-4-405(2)(a) of the Utah Employment Security Act (Act).SeeUtah Code Ann. § 35A-4-405(2)(a)(Supp.2000).Autoliv was found ineligible for relief of benefit charges under the Act.Seeid.§ 35A-4-307(1)(Supp.2000).Autoliv appealed the decisions of the Department to an Administrative Law Judge (ALJ).

¶ 11 At the hearing before the ALJ, Guzman and King admitted to sending the e-mails.They testified that they had received Autoliv's handbook and were aware of the anti-harassment policy.They also testified they probably had received the three company wide e-mail messages about Autoliv's e-mail policy.However, they claimed they most likely deleted the e-mails before reading them.Thus, both claimants testified they were unaware their conduct could result in immediate termination and did not understand why they were not warned and allowed to change their conduct.

¶ 12 The ALJ upheld the decision of the Department.The ALJ concluded, "abuse of the company e-mail was common among employees, and the employer had an obligation to the claimant[s] to issue a specific warning, maybe even a suspension (not merely a memo) notifying the claimant[s] the conduct would not be tolerated."

¶ 13 Autoliv appealed the ALJ's decisions to the Workforce Appeals Board.The Board adopted the ALJ's findings of fact and, in a 2-1 decision, concluded that while Guzman and King were culpable, the element of "knowledge" was not present and thus there was no just cause for their discharge.The Board reasoned that Autoliv's strict written policy on e-mail use differed from its actual application of that policy.The Board concluded that "[b]ecause of the difficulty of deciding when an employee's use of the e-mail becomes `excessive'[Autoliv] had an obligation to notify the claimant that his e-mail use differed significantly in content and extent from that of his co-workers and that continuing to use the e-mail as he was doing would result in a discharge."

¶ 14 Autoliv appeals.

STANDARD OF REVIEW

¶ 15 Autoliv does not contest the Board's underlying factual findings.Rather, Autoliv challenges the Board's application of the Employment Security Act to those facts.Because Autoliv does "not dispute the underlying material facts, the Board's decision `calls for application of statutes and administrative rules to a specific factual situation.'"SOS Staffing Servs., Inc. v. Workforce Appeals Bd.,1999 UT App 210, ¶ 8, 983 P.2d 581(quotingProfessional Staff Mgmt., Inc. v. Department of Employment Sec.,953 P.2d 76, 79(Utah Ct.App.1998)).

¶ 16"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."Professional Staff Mgmt.,953 P.2d at 79(citingDrake v. Industrial Comm'n,939 P.2d 177, 181(Utah1997))."The degree of deference we accord an agency's application of law to fact is ordinarily determined by a `sliding scale,' which hinges on policy concerns, the agency's expertise, and whether the issue is fact-driven or susceptible to uniform legal rules."SOS Staffing Servs., Inc.,1999 UT App 210 at ¶ 8, 983 P.2d 581(footnote omitted)(citingSierra Club v. Utah Solid & Hazardous Waste Control Bd.,964 P.2d 335, 341(Utah Ct.App.1998);Drake,939 P.2d at 181 n. 6, 182)."[B]ecause `proper application of the Employment Security Act and the relevant rules "requires little highly specialized or technical knowledge that would be uniquely within the [Board's] expertise" ..., this court will review the agency's decision "with only moderate deference."'"Id.(second alteration in original)(quotingProfessional Staff Mgmt.,953 P.2d at 79-80(quotingAllen v. Department of Employment Sec.,781 P.2d 888, 890 n. 4(Utah Ct.App.1989))).Thus, we will "`uphold [the Board's] decision so long as it is within the realm of reasonableness and rationality.'"Buick v. Department of Employment Sec.,752 P.2d 358, 360(Utah Ct.App.1988)(quotingGrinnell v. Board of Review,732 P.2d 113, 115(Utah1987));see alsoAlbertsons, Inc. v. Department of Employment Sec.,854 P.2d 570, 573(Utah Ct.App.1993).

JUST CAUSE TERMINATION

¶ 17 A claimant is ineligible for unemployment benefits if the claimant was discharged for "just cause."SeeUtah Code Ann. § 35A-4-405(2)(a)(Supp.2000).To establish "just cause," three elements must be present: culpability, knowledge, and control.SeeNelson v. Department of Employment Sec.,801 P.2d 158, 161(Utah Ct.App.1990)(citingPro-Benefit Staffing v. Board of Review,775 P.2d 439, 442(Utah Ct.App.1989));Utah Code Admin.P. R994-405-202(2000).The Board concedes the elements of culpability and control.Thus, the only issue is whether Guzman and King had "`knowledge of the conduct which the employer expected.'"Nelson,801 P.2d at 162(quotingLaw Offices of D.P. White...