Prosper Team Inc. v. Dep't of Workforce Serv.

• Decision Date: 05 May 2011
• Docket Number: No. 20100385–CA.,20100385–CA.
• Citation: 2011 UT App 142,256 P.3d 246,681 Utah Adv. Rep. 28
• Parties: PROSPER TEAM, INC., Petitioner,v.DEPARTMENT OF WORKFORCE SERVICES, WORKFORCE APPEALS BOARD; and Phillip L. Hickman, Respondent.
• Court: Utah Court of Appeals

256 P.3d 246

681 Utah Adv. Rep. 28

2011 UT App 142

PROSPER TEAM, INC., Petitioner,

v.DEPARTMENT OF WORKFORCE SERVICES, WORKFORCE APPEALS BOARD; and Phillip L. Hickman, Respondent.

No. 20100385–CA.

Court of Appeals of Utah.

May 5, 2011.

Daniel J. Anderson, Provo, for Petitioner.Suzan Pixton, Salt Lake City, for Respondent Department of Workforce Services, Workforce Appeals Board.Before Judges DAVIS, VOROS, and ROTH.

MEMORANDUM DECISION

ROTH, Judge:

¶ 1 Prosper Team, Inc. (Prosper) seeks review of the Utah Workforce Appeals Board (the Board) decision upholding an administrative law judge's (the ALJ) award of unemployment benefits to claimant, Phillip L. Hickman. The Board awarded benefits to Hickman because it concluded that Prosper terminated him without just cause. We affirm.

¶ 2 “[Unemployment] benefits will be denied if the claimant was discharged for just cause.... However, not every legitimate cause for discharge justifies a denial of benefits. A just cause discharge must include some fault on the part of the claimant.” Utah Admin. Code R994–405–201; see also Salt Lake Donated Dental Servs., Inc. v. Department of Workforce Servs., 2011 UT App 7, ¶ 5, 246 P.3d 1206 (“An employee will not be awarded unemployment benefits if the Department of Workforce Services concludes that the employee was discharged for just cause.” (internal quotation marks omitted)). To establish just cause, the employer must prove three elements: culpability, knowledge, and control. See Utah Admin. Code R994–405–202; see also Albertsons, Inc. v. Department of Emp't Sec., 854 P.2d 570, 573 (Utah Ct.App.1993) (observing that it is the employer's burden to prove just cause for terminating the employee).

¶ 3 The Board awarded Hickman unemployment benefits because it concluded that Prosper had failed to demonstrate the control and knowledge elements of just cause.¹ “To satisfy the element of control in cases involving a discharge due to unsatisfactory work performance, it must be shown the claimant had the ability to perform the job duties in a satisfactory manner.” Utah Admin. Code R994–405–202(3)(b). “[I]f the claimant made a good faith effort to meet the job requirements but failed to do so due to a lack of skill or ability and a discharge results, just cause is not established.” Id. But “continued inefficiency, repeated carelessness or evidence of a lack of care expected of a reasonable person in a similar circumstance may satisfy the element of control if the claimant had the ability to perform satisfactorily.” Id. R994–405–202(3)(a).

¶ 4 The ALJ found that Hickman's ill health and a poor economy contributed to his decline in performance between June 2009 and his discharge in October 2009. She then concluded that Prosper had not established control because “there were too many other factors [besides his ability] involved to give [Hickman] control over his sales, including the poor economy and the high unemployment rate.” The Board affirmed the ALJ's decision, adopting the ALJ's factual findings in full but making some additional conclusions. The Board stated that “[c]oinciding with [Hickman's] fall in production were the failing economy, a need for potential purchasers to more carefully consider expenditures, and health issues that caused [Hickman] to be absent or available less than full-time for a considerable period.”

¶ 5 On appeal, Prosper contends that the Board, in focusing on the role of the economy in Hickman's declining sales, made it impossible for employers to terminate any sales employees for just cause during a down market. Prosper asserts the Board should have considered Hickman's own inefficiency and lack of care as the major contributors to his slumping sales. According to Prosper, the record shows that Hickman, based on his past performance, had the necessary skills to make sales. Hickman's supervisor testified that Hickman was one of the company's top performers for the first three-and-a-half years he was employed with Prosper. In the final six months leading up to his termination, however, Hickman managed to make only two sales, a tally that was well below Prosper's expectations for him. During this time, Hickman was afforded the same opportunities as Prosper's other sales employees because calls from new customers were randomly transferred to each individual on a sales team and sales representatives were allowed to take as many calls as they could handle. Prosper also testified that the other salespeople were succeeding despite the adverse economic conditions. Prosper argues that the Board instead should have determined that Hickman's decline in performance was due to his poor decision making and attitude. For example, Hickman's supervisor testified at the hearing that Hickman would block calls from potential customers by putting his phone on “busy,” prematurely terminate calls when a potential customer showed reluctance in purchasing, and spend too much time on calls making excessive, unrelated conversation with customers. He also characterized Hickman's attitude as “not positive.” Considering this evidence, Prosper maintains that, given Hickman's undisputed ability to make sales, his decline in performance was caused by his continued inefficiency rather than any external factor, such as the economy.

¶ 6 “The Board's findings of fact, ‘if supported by evidence, are conclusive and the jurisdiction of the court is confined to questions of law.’ ” Salt Lake Donated Dental Servs., 2011 UT App 7, ¶ 3, 246 P.3d 1206 (quoting Utah Code Ann. § 35A–4–508(8)(e) (2005)). Consequently, we will reverse those findings “only if [they] are not supported by substantial evidence.” See id. (internal quotation marks omitted). After determining whether the factual support is adequate, we next review “an agency's application of the law to [the] particular set of facts.” EAGALA, Inc. v. Department of Workforce Servs., 2007 UT App 43, ¶ 9, 157 P.3d 334 (internal quotation marks omitted). In so doing, “we give a degree of deference to the agency” and “will uphold the [Board's] decision so long as it is within the realm of reasonableness and rationality.” Salt Lake Donated Dental Servs., 2011 UT App 7, ¶ 4, 246 P.3d 1206 (alteration in original) (internal quotation marks omitted).

¶ 7 The Board found that Hickman “did his best to keep a positive attitude” and that he implemented the suggestions he received from his supervisor. The record supports this finding. Before terminating him, Prosper offered Hickman additional training and coaching in an effort to improve his sales. The record contains notes made by Hickman's supervisor during these coaching sessions, which reveal that Hickman was “very motivated to change” and that he did an excellent job of following the script, sounding sincere, showing confidence, being positive, being professional, and building relationships. Hickman's supervisor further testified that a “huge contributor” to an employee's success in the company is “attitude towards the leads.” Although Prosper now contends that the Board failed to give its testimony that Hickman had a negative attitude due weight, the coaching notes are directly contrary to that testimony. And, when asked to clarify the discrepancy between the coaching notes and his testimony that Hickman's attitude was “not positive,” Hickman's supervisor focused not on an attitude problem, emphasizing that Hickman “had a great skill set, and ... a strong work ethic,” but on his concern that Hickman lacked confidence in Prosper's product. The Board not only did not ignore this testimony, but expressly acknowledged it, stating that while “[t]he supervisor believed [Hickman] did not appear to be confident about the Employer's programs or its clients ... [, Hickman] did his best to show a positive attitude.” Although Prosper has identified evidence in the record that may contradict this finding—for example, Hickman blocked calls by placing his phone on “busy” and terminated calls prematurely when he sensed reluctance from the customer—“[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,” see Salt Lake Donated Dental Servs., Inc. v. Department of Workforce Servs., 2011 UT App 7, ¶ 14, 246 P.3d 1206 (internal quotation marks omitted). So long as there is substantial evidence to support the Board's findings, we will uphold them. See Hurley v. Board of Review of Indus. Comm'n, 767 P.2d 524, 526 (Utah 1988) (recognizing that the Board's findings of fact are conclusive and will not be reversed if supported by substantial evidence, even if the record allows a different conclusion); see also Stegen v. Department of Emp't Sec., 751 P.2d 1160, 1163 (Utah Ct.App.1988) (allowing the Board to determine the weight to be given testimony and affirming the Board's conclusion that the employee had control over his conduct because although some of the reasons for...