Carbon Cnty. v. Workforce Appeals Bd.

• Decision Date: 09 July 2013
• Docket Number: No. 20120251.,20120251.
• Citation: 308 P.3d 477,738 Utah Adv. Rep. 29
• Parties: CARBON COUNTY, Petitioner, v. WORKFORCE APPEALS BOARD, DEPARTMENT OF WORKFORCE SERVICES, and Wade L. Marinoni, Respondents.
• Court: Utah Supreme Court

308 P.3d 477

738 Utah Adv. Rep. 29

CARBON COUNTY, Petitioner,

v.WORKFORCE APPEALS BOARD, DEPARTMENT OF WORKFORCE SERVICES, and Wade L. Marinoni, Respondents.

No. 20120251.

Supreme Court of Utah.

July 9, 2013.

D. Scott Crook, Salt Lake City, for petitioner.

Suzan Pixton, Salt Lake City, for respondents Workforce Board of Appeals, Department of Workforce Services.

Blake A. Nakamura, Salt Lake City, for respondent Wade L. Marinoni.

On Certiorari to the Utah Court of Appeals

Associate Chief Justice NEHRING, opinion of the Court:

INTRODUCTION

¶ 1 This case concerns the award of unemployment benefits to an emergency medical technician (EMT) formerly employed by Carbon County. Carbon County appealed the decision of the Workforce Board of Appeals (Board) to the Utah Court of Appeals. The court of appeals affirmed. It explained that the Board failed to make certain critical factual findings, and that facts in the record, even if uncontested, could not form the basis for legal arguments on appeal absent such findings. We hold that the court of appeals erred in declining to consider certain uncontested facts in its legal analysis, but affirm the court's ultimate determination upholding the award of unemployment benefits.

BACKGROUND

¶ 2 Mr. Marinoni was employed by Carbon County as an EMT. He had worked as an EMT for eighteen years. He had one previous disciplinary incident in which he received a verbal warning for demanding overtime pay in a crew meeting when his supervisor told him to cover a weekend shift.

¶ 3 In 2010, while working as a first-response EMT, Mr. Marinoni received a call from a nurse in the Castleview emergency room requesting a STAT transport—meaning an immediate transport—of a patient to another hospital. Carbon County did not have a written policy instructing employees on how to conduct STAT transports. The employees who later testified regarding the incident could not recall with any certainty the last time STAT transport protocol was discussed during training. Mr. Marinoni acknowledged that the nurse told him “the patient was having an active MI ¹ with ongoing chest pain” and “they wanted to see the patient in the cath lab as soon as possible.” However, Mr. Marinoni said he did not “get the impression from [the nurse] that it was that urgent of a call.” He did not identify the request as a STAT transport because he believed that a STAT transport request was only valid if it came from a doctor. The first response team will often contact off-duty EMTs to fill regular transports so that the first response team can be available for emergencies and STAT transports. When Mr. Marinoni told the nurse that he would “go ahead and fill the transport,” the nurse “stated that was okay.” And when Mr. Marinoni called the hospital back to explain that a regular transport would arrive in about twenty minutes, another nurse told him “that would be fine.” It took approximately fifteen to twenty minutes for the off-duty EMTs to arrive and fill the transport.

¶ 4 When the off-duty EMTs arrived, they determined that the situation was serious and they needed another EMT to assist them. Mr. Marinoni ended up driving the ambulance. The other EMTs on the trip stated that Mr. Marinoni drove too fast, and when the EMTs and the patient receiving the transport expressed concern, Mr. Marinoni slowed down too much.

¶ 5 Mr. Marinoni was fired for failing to respond immediately to the transport request. He applied for and was awarded unemployment benefits. Carbon County appealed, arguing that it had established the elements of just cause required to deny a terminated employee unemployment benefits. The ALJ affirmed the award of benefits. It found that Mr. Marinoni had acted in good faith according to his understanding of his employer's protocol. Carbon County then appealed to the Board, which accepted the ALJ's findings of fact and affirmed. Carbon County next appealed to the Utah Court of Appeals, which affirmed the award. Finally, Carbon County petitioned for certiorari to this court. We granted certiorari to determine whether the court of appeals erred when it concluded that Carbon County's arguments were predicated on challenges to findings of fact and that Carbon County had failed to preserve those challenges.² We have jurisdiction under Utah Code section 78A–3–102(3)(a).

STANDARD OF REVIEW

¶ 6 On certiorari, this court reviews the court of appeals' decision for correctness.³ The court of appeals articulated the standard of review applicable to the Board's conclusions, which is also relevant to our review.⁴ “[I]t 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.” ⁵ Furthermore, appellate courts should “give deference to the initial decision maker on questions of fact because it stands in a superior position from which to evaluate and weigh the evidence and assess the credibility and accuracy of witnesses' recollections.” ⁶

¶ 7 As we recently explained in Murray v. Labor Commission, in the absence of an express grant of discretion to an agency's decision, we do not apply an abuse of discretion standard ⁷ and instead utilize the standard framework employed in the review of trial court decisions. ⁸ Our review in this case presents a mixed question of law and fact. “Mixed questions fall somewhere in the twilight between deferential review of findings of fact and searching reconsideration of conclusions of law.” ⁹ As such, the standard we employ in reviewing a mixed question “can be either deferential or non-deferential.” ¹⁰ We grant more deference in cases where “the mixed finding is not ‘law-like’ because it does not lend itself to consistent resolution by a uniform body of appellate precedent, and/or on the premise that the mixed finding is ‘fact-like’ because the trial court [or agency] is in a superior position to decide it.” ¹¹ This is such a case. Due to the fact-intensive inquiry involved at the agency level, this case “does not lend itself to consistent resolution by a uniform body of appellate precedent.” Because of the fact-intensive conclusions involved at the agency level, “the appellate court would be in an inferior position to review the ‘correctness' of the ... decision” ¹² and the Board's award of unemployment benefits to Mr. Marinoni is entitled to deference.

ANALYSIS

¶ 8 This case requires us to determine whether the court of appeals used the correct set of facts in making its legal determinations. For the reasons explained below, we conclude that the court of appeals correctly accepted the findings of fact in the ALJ decision and the Board's order because Carbon County expressly stated that it was not challenging these facts on appeal. But the court erred when it declined to consider certain undisputed facts apparent in the record. When we consider the Board's decision in light of these undisputed facts, however, we determine that the error was harmless. We therefore affirm the court of appeals on that ground.

I. THE COURT OF APPEALS ERRED WHEN IT DECLINED TO CONSIDER AN UNDISPUTED FACT APPARENT IN THE RECORD

¶ 9 First, we note that the court of appeals correctly accepted the ALJ's and the Board's factual findings. In its briefing to this court, Carbon County insists that it “did not challenge the factual findings regarding Marinoni's purported subjective beliefs, nor did it challenge the sufficiency of the factual findings made by the Board.” But in its briefing to both this court and the court of appeals, Carbon County included language challenging certain factual findings. Carbon County's briefing before this court states, “Marinoni delayed the patient's treatment by nearly one hour solely because he did not want to go on the transport,” and its brief to the court of appeals stated, “Marinoni's testimony [that he did not know the STAT protocol] is simply not credible on its face.” But the Board adopted the ALJ's findings of fact, which included that Mr. Marinoni “did not identify this as a stat transport because the request had not come from a doctor,” “did not sense any urgency from the nurse,” and was on a response team that “often contact[ed] off duty EMTs for nonemergencies or regular transports so that the first response team [could] be available for emergencies and stat transports.” When parties expressly decline to challenge factual findings, we take them at their word.¹³ The court of appeals was correct to accept the Board's factual findings, and this court is bound by them as well.

¶ 10 The court of appeals then explained that Carbon County's reliance on the fact that Mr. Marinoni “knew that the patient needing to be transported was having an active heart attack” was misplaced.¹⁴ According to the court of appeals, the Board “did not definitively determine whether Marinoni knew the patient needing to be transported was having an active heart attack,” and “Carbon County did not object to the lack of such findings in the Board's decision.” ¹⁵ The court of appeals cited A.O. v. State (State ex rel. K.F.) for the proposition that Carbon County's failure to alert the ALJ or the Board of this gap in the evidence and supplement the order with a specific finding means that Carbon County did not preserve the issue for appeal.¹⁶

¶ 11 We do not think our case law governing challenges to the specificity of a judge's factual findings is controlling in this case. In 438 Main Street v. Easy Heat, Inc., the plaintiff challenged “the sufficiency of [the judge's] findings of fact, arguing that they [were] legally insufficient because they fail[ed] to adequately disclose the steps by which he reached his ultimate conclusion on each factual issue.” ¹⁷State ex rel. K.F. also involved a challenge to a judge's ruling on the ground that the “court's findings of fact were inadequately detailed.” ¹⁸ To preserve a challenge to the legal sufficiency of a judge's...