Johnson v. Department of Employment Sec.

Decision Date08 November 1989
Docket NumberNo. 880703-CA,880703-CA
Citation782 P.2d 965
PartiesKevin R. JOHNSON, Petitioner, v. DEPARTMENT OF EMPLOYMENT SECURITY and Morton Thiokol, Inc., Respondents.
CourtUtah Court of Appeals
OPINION

Before GARFF, GREENWOOD and ORME, JJ.

GARFF, Judge:

Petitioner Kevin R. Johnson seeks review of his denial of unemployment benefits by the Board of Review of the Industrial Commission (Board). We affirm.

On September 21, 1987, Johnson, an employee of respondent Morton Thiokol, Inc., was driving a company vehicle when he was involved in an accident.

Morton Thiokol had a written drug policy, of which Johnson was aware, that required drug testing of any employee involved in an automobile accident. Under this policy, a test showing twenty or more nanograms per milliliter of marijuana metabolites was considered positive, and immediate termination could result from testing positive. Pursuant to this policy, Johnson was tested on September 21, 1987. He tested positive at 128 nanograms. As a result, Morton Thiokol imposed upon Johnson a three-day disciplinary suspension, counseling, and twelve months of probation during which he was informed that he might be subjected to random drug testing.

Johnson was again tested on November 25, 1987, sixty-five days later. This time, the test showed twenty-five nanograms of marijuana. Consequently, Morton Thiokol terminated his employment on December 11, 1987.

Johnson filed a claim for unemployment benefits, effective December 20, 1987. The Department of Employment Security (Department) allowed him unemployment benefits and charged Morton Thiokol with the associated benefit costs, finding that Morton Thiokol had not introduced sufficient evidence to establish disqualifying conduct on Johnson's part.

Morton Thiokol contested Johnson's award of benefits. A hearing was held before an administrative law judge (A.L.J.) on February 11, 1988, at which both parties were represented by counsel. It was established that Johnson was an average employee who had no reprimands or other adverse information in his employee file. The sole reason Johnson had been initially tested was the accident, for which he had not been responsible. Further, there was no evidence that Johnson had consumed marijuana on company time or premises. Johnson testified that he had not used marijuana after the first test and believed that the second test had been positive because of passive inhalation from his roommates' daily smoking in their shared apartment. The A.L.J. affirmed the Department's prior decision, finding that Johnson had not been discharged for just cause.

Morton Thiokol sought review of the A.L.J.'s decision, which the Board reversed. However, because Johnson had not been appropriately notified of the appeal, the case was reopened. The Board directed that the A.L.J. hold another hearing at which certain expert testimony could be received.

At this hearing, both parties offered expert testimony on the issue of how long marijuana metabolites remained in the body after consumption. Dr. Kerr, Morton Thiokol's medical director and drug program supervisor, testified that Morton Thiokol complied with the Utah Drug and Alcohol Testing Act, that the testing procedures followed by Morton Thiokol were designed to account for the possibility of passive inhalation as well as gradual dissipation of an illegal substance, and that only actual use of marijuana could account for Johnson's positive second test. Dr. Loveridge, an alleged expert witness called by the Board, testified that he had tested persons for marijuana who had tested positive after three months of abstinence. Both parties objected to Dr. Loveridge's qualification as an expert witness. The A.L.J. declined to rule on this objection, leaving the determination as to whether Loveridge was qualified as an expert witness to the Board. The Board found that Dr. Loveridge was not qualified as an expert on issues concerning the period of time marijuana residue remains in the human body and, therefore, disregarded his testimony, affirmed its prior decision, and denied Johnson further unemployment benefits.

Johnson brought this writ of review, raising the following issues: (1) Was the Board's decision to deny unemployment benefits to Johnson, after he tested positive for marijuana on two separate occasions in violation of Morton Thiokol's written policy, supported by sufficient evidence? (2) Does the Utah Drug and Alcohol Testing Act violate constitutional guarantees of equal protection, and was it unconstitutionally applied to Johnson?

STANDARD OF REVIEW

This action was commenced after the effective date of the Utah Administrative Procedures Act, Utah Code Ann. §§ 63-46b-1 to 63-46-22 (1988). 1 Therefore, we review the Board's decision under the new standards set forth in the Act.

Whether an employee is terminated for "just cause" is a mixed question of law and fact. Law Offices of David Paul White v. Board of Review, 778 P.2d 21, 23 (Utah Ct.App.1989). Under the UAPA, our review of mixed questions of law and fact is governed by Utah Code Ann. § 63-46b-16(4)(d) (1989), which we have previously interpreted to embrace the standard set forth in Utah Dep't of Admin. Servs. v. Public Serv. Comm'n, 658 P.2d 601, 610 (Utah 1983). See Pro-Benefit Staffing, Inc. v. Board of Review, 775 P.2d 439, 442 (Utah Ct.App.1989). Accordingly, we will not disturb the Board's application of law to its factual findings unless its determination exceeds the bounds of reasonableness and rationality. Id. However, we accord less deference to the Board's factual findings than under the old law, upholding its factual findings if they are "supported by substantial evidence when viewed in light of the whole record before the court." Grace Drilling Co. v. Board of Review, 776 P.2d 63, 67 (Utah Ct.App.1989) (quoting Utah Code Ann. § 63-46b-16(4)(g) (1988)); see also USX Corp. v. Industrial Comm'n of Utah, 781 P.2d 883, 886 (Utah Ct.App. 1989). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Grace Drilling, 776 P.2d at 68 (quoting Idaho State Ins. Fund v. Hunnicutt, 110 Idaho 257, 715 P.2d 927, 930 (1985)).

SUFFICIENCY OF THE EVIDENCE

An individual is ineligible for unemployment benefits under Utah Code Ann. § 35-4-5(b)(1) (1978), when he is "discharged for just cause or for an act or omission in connection with employment, not constituting a crime, which is deliberate, willful, or wanton and adverse to the employer's rightful interest." The purpose for establishing that a person's employment has been terminated for just cause is "to deny benefits to individuals who bring about their own unemployment by conducting themselves, with respect to their employment with callousness, misbehavior, or lack of consideration to such a degree that the employer was justified in discharging the employee." Utah Admin.R.475-5b1-1 (1987-88). We recognize, however, that even though an employer may have reason to discharge an employee, "not every cause for discharge provides a basis to deny eligibility for unemployment compensation." Champlin Petroleum Co. v. Department of Employment Sec., 744 P.2d 330, 333 (Utah Ct.App.1987) (quoting Clearfield City v. Department of Employment Sec., 663 P.2d 440, 441 (Utah 1983)).

Johnson relies upon a three-prong test for finding a discharged employee ineligible for unemployment compensation as set forth by the Utah Supreme Court in Clearfield City v. Department of Employment Sec., 663 P.2d 442-43 (Utah 1983). 2 However, section 35-4-5(b)(1) was amended to include termination for just cause as a reason for denial of benefits. Subsequently, in Kehl v. Board of Review, 700 P.2d 1129, 1133-34 (Utah 1985), the Utah Supreme Court adopted a somewhat different three-prong test as the pertinent test for finding that an employee was discharged for just cause. 3 Because just cause is at issue in the present case, we rely on the Kehl test, which requires the employer to show: (1) the employee's culpability, (2) his or her knowledge of expected conduct, and (3) that the offending conduct was within the employee's control. Id.; see also Pro-Benefit Staffing, 775 P.2d at 442.

Culpability

The Department's regulations governing just cause define culpability as "the seriousness of the conduct or the severity of the offense as it affects continuance of the employment relationship." Utah Admin.R.475-5b1-2.1.a (1987-88). 4 In determining the culpable nature of an employee's conduct, "[t]he wrongness of the conduct must be considered in the context of the particular employment and how it affects the employer's rights." Id.

Johnson asserts that he did not engage in culpable conduct and should not be denied unemployment benefits because Morton Thiokol submitted no evidence that he was impaired in performing his duties, or that he had consumed marijuana on Morton Thiokol's time or premises. He takes the position that to show just cause, Morton Thiokol must prove he was actually impaired or actually consumed marijuana on the job rather than merely showing that marijuana was present in his system.

For Johnson's acts to have been culpable, "it is sufficient that the acts were intended, the consequences were reasonably foreseeable, and that such acts have serious effect on the employee's job or the employer's interests." Utah Admin.R.475-5b1-2.3 (1987-88).

Act is Intended

The Utah Supreme Court, in Clearfield City, 663 P.2d at 444, found that an employee's acts were deliberate when they were "volitional acts by an employee who could not...

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