Dinger v. Dep't of Workforce Servs.

• Citation: 300 P.3d 313
• Decision Date: 17 May 2013
• Docket Number: No. 20120093–CA.,20120093–CA.
• Parties: Carl DINGER, Petitioner, v. DEPARTMENT OF WORKFORCE SERVICES, WORKFORCE APPEALS BOARD; and Utah Transit Authority, Respondents.
• Court: Court of Appeals of Utah

300 P.3d 313

Carl DINGER, Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES, WORKFORCE APPEALS BOARD; and Utah Transit Authority, Respondents.

No. 20120093–CA.

Court of Appeals of Utah.

March 7, 2013.
Rehearing Denied May 17, 2013.

[300 P.3d 315]

Phillip W. Dyer, Benjamin R. Dyer, and B. Kent Morgan, Attorneys for Petitioner.

Jaceson R. Maughan, Attorney for Respondent Department of Workforce Services, Workforce Appeals Board.

McHUGH, Judge:

¶ 1 Carl Dinger challenges the decision of the Workforce Appeals Board (the Board) that he is ineligible for unemployment benefits following his termination from the Utah Transit Authority (UTA). We decline to disturb the Board's decision.

BACKGROUND

¶ 2 Dinger was hired as a UTA police officer on March 24, 2008, and worked there until his July 15, 2011 termination for insubordination. UTA's “Letter of Termination” indicates that the decision to fire Dinger was based on his “repeated refusal to comport [himself] in conformance with [UTA policies],” despite “five informal notices of insubordination over ... two years” and a “Written Notification for another incident of insubordination.” In addition, the Letter of Termination indicates that Dinger “refused to answer questions in connection with an Internal Affairs investigation.”

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¶ 3 Following his termination, Dinger's claim for unemployment benefits was denied on the ground that he had been terminated “for just cause.” Dinger appealed the decision, denying the allegations against him and claiming that UTA's disciplinary actions were retaliatory.

¶ 4 At an evidentiary hearing before an administrative law judge (ALJ), Dinger testified that during his tenure at UTA he had “filed numerous complaints” with UTA management and outside investigative agencies about the operations at UTA. Dinger alleged that, in response, UTA “subjected [him] to a hostile work environment” and fabricated allegations of insubordination against him. Contrary to Dinger's account of events, his supervisors testified that he had been repeatedly insubordinate during his tenure at UTA. They reported that Dinger refused to sign two semi-annual performance evaluations because they stated he was argumentative with supervisors and had “negative interactions” with other employees. One supervisor, who had rejected three of Dinger's incident reports as illegible, described a meeting on January 30, 2011, during which Dinger became argumentative. The supervisor stated, “[Dinger] was shouting at me trying to drown out what I was trying to say back to him.... So I finally had to tell him just, ‘Look, you need to leave my office.’ ” The supervisor indicated that after Dinger left, a patrol officer who had overheard the exchange reported that he had remained nearby out of concern for the supervisor's safety. Following that incident, Dinger's lieutenant sent him an email explaining that the lieutenant “had received several complaints regarding [Dinger's] behavior,” which included an argument where Dinger raised his voice “to the point of yelling” and “was heard and observed by others in the patrol room.” The lieutenant warned, “this behavior is clearly outside of department and UTA policy, which requires professional and respectful conduct when dealing with superiors and co-workers.” The email also admonished Dinger concerning his outburst about another officer's performance during a shift briefing, explaining that Dinger's conduct was “inappropriate and unprofessional.” The letter instructed Dinger regarding UTA policies on obeying orders of superiors, insubordination, and courtesy and respect for department members and warned, “Any future violation of these policies will be dealt with accordingly.”

¶ 5 Subsequently, Dinger received a written notification of insubordination. The notice alleged that on June 10, 2011, Dinger had “refused to follow a direct order when instructed to respond to a call and became argumentative and hostile when [a sergeant] raised this issue with [him].” The notice reminded Dinger that this act of insubordination was one of four that had followed a June 8, 2010 coaching session ¹ on treating supervisors and coworkers with respect and observing the chain of command. The letter concluded that “[c]oaching has failed to correct the insubordinate behavior” and warned that failure to “meet the requirements in this Written Notification” could result in “further disciplinary action up to and including termination.” Dinger testified that following this notification, the human resources director offered him $5,000, and then $15,000, “to leave [and] to hold [him] over to find another job.”

¶ 6 The testimony before the ALJ also indicated that on June 22, 2011, Dinger was instructed to appear for an internal affairs interview.² Police Chief Ross Larsen testified that the meeting was conducted “to seek specific answers [to questions] that [UTA] had ... regarding [Dinger's] conduct.” Dinger testified that he believed that he would be terminated at the meeting. At the start of the meeting, UTA read to and presented Dinger with a written warning indicating that his answers could not be used in a criminal proceeding against him and warned that his failure to answer could result in

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termination of his employment in accordance with Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).³ Dinger refused to sign this Garrity warning. Instead, he read a statement prepared by his attorney and refused to answer any questions. He was then placed on administrative leave until his July 15, 2011 termination.

¶ 7 Based on the evidence presented, the ALJ determined that Dinger had “very little notice of the meeting on June 22, 2011,” was not informed that he would be given a Garrity warning, and was not told that his job was in jeopardy or that he would be discharged if he refused to answer. The ALJ also faulted UTA for not asking Dinger whether, in the future, he might be inclined to answer its questions. Ultimately, the ALJ concluded that Dinger's refusal to answer questions was reasonable and did not amount to insubordination. As a result, the ALJ held that unemployment benefits had been improperly disallowed.

¶ 8 UTA appealed the decision to the Board, challenging the ALJ's findings of fact. In particular, UTA claimed that it gave Dinger one day's notice of the internal affairs interview and that he was warned orally and in writing at the interview that failing to answer questions could result in termination. UTA also claimed that Dinger's refusal to participate in the interview was the culmination of “a documented pattern of insubordination” and that the interview was part of an investigation into Dinger's alleged “improper workplace conduct.”

¶ 9 On December 1, 2011, the Board reversed the ALJ's decision and denied Dinger benefits on the basis that he was fired for just cause. In a December 21, 2011 letter, Dinger requested that the Board reopen the hearing to take additional evidence and reconsider its determination. The Board declined Dinger's invitation. Dinger now seeks judicial review of the Board's determination.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Dinger first asserts that he was substantially prejudiced by the Board's determination that he was terminated for just cause. We grant “great deference to an agency's findings, and will uphold them if they are supported by substantial evidence when viewed in light of the whole record before the court.” EAGALA, Inc. v. Department of Workforce Servs., 2007 UT App 43, ¶ 8, 157 P.3d 334 (citation and internal quotation marks omitted). “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,” and we will uphold the Board's decision “so long as it is within the realm of reasonableness and rationality.” Id. ¶ 9 (citation and internal quotation marks omitted).

¶ 11 Next, Dinger contends that the Board acted arbitrarily and capriciously by denying his motion to reconsider its decision. The rules promulgated by the agency afford the Board the discretion to reconsider its prior rulings. SeeUtah Admin. Code R994–508–401(2) (providing that the Board may review a prior decision and issue a new decision, if appropriate). We review the Board's denial of a request for reconsideration for abuse of discretion. See Nigohosian v. Workforce Appeals Bd., 2009 UT App 242U, para. 2, 2009 WL 2836884 (mem.).

ANALYSIS I. The Just Cause Determination

¶ 12 Dinger challenges the Board's factual findings supporting its conclusion that UTA had just cause to terminate him for insubordination. SeeUtah Code Ann. § 63G–4–403(4)(g) (LexisNexis 2011). Accordingly, we must determine whether the findings are supported by substantial evidence when viewing the record as a whole. See EAGALA, 2007 UT App 43, ¶ 8, 157 P.3d 334. “Substantial evidence is that quantum and

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quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion.” Lucas v. Murray City Civil Serv. Comm'n, 949 P.2d 746, 758 (Utah Ct.App.1997) (citations and internal quotation marks omitted).

A. Failure to Marshal

¶ 13 When challenging an agency's factual findings, “ ‘[i]t is the petitioner's duty to properly present the record, by marshaling all of the evidence supporting the findings and showing that, despite that evidence and all reasonable inferences that can be drawn therefrom, the findings are not supported by substantial evidence.’ ” EAGALA, 2007 UT App 43, ¶ 8, 157 P.3d 334 (quoting Department of the Air Force v. Swider, 824 P.2d 448, 451 (Utah Ct.App.1991)). The Board argues that Dinger did not marshal the evidence in support of the Board's findings.⁴ Dinger contends that he has properly marshaled the evidence and argues in the alternative that, to the extent that he did not, we should exercise our discretion to consider the merits of his claims. See Martinez v. Media–Paymaster Plus/Church of Jesus Christ of Latter–day...