Stegen v. Department of Employment Sec., 870254-CA

• Decision Date: 25 March 1988
• Docket Number: No. 870254-CA,870254-CA
• Citation: 751 P.2d 1160
• Parties: Mark E. STEGEN, Plaintiff, v. DEPARTMENT OF EMPLOYMENT SECURITY and Cereal Foods, Inc., Defendants.
• Court: Utah Court of Appeals

Page 1160

751 P.2d 1160

Mark E. STEGEN, Plaintiff, v.DEPARTMENT OF EMPLOYMENT SECURITY and Cereal Foods, Inc., Defendants.

No. 870254-CA.

Court of Appeals of Utah.

March 25, 1988.

Mark E. Stegen, pro se.

David L. Wilkinson, Atty. Gen., Alan Hennebold(Argued), Sp. Asst. Atty. Gen., Dept. of Employment Sec., Salt Lake City, for defendants.

Before BENCH, GARFF and ORME, JJ.

OPINION

GARFF, Judge:

Plaintiff, Mark E. Stegen, appeals the decision of the Board of Review of the Industrial Commission(Board) which determined that plaintiff was discharged from his employment at Cereal Food Processors, Inc.(Cereal) for reasons disqualifying him for unemployment benefits pursuant to Utah Code Ann. § 35-4-5(b)(1)(1987).

Plaintiff was employed by Cereal from May 31, 1985 to January 26, 1987 as a laborer, earning $10.69 per hour.His employment was terminated for violations of Cereal's attendance rules, which violations the Department of Employment Security(Department), the Appeal Referee (Referee), and the Board determined to constitute "just cause" within the meaning of Utah Code Ann. § 35-4-5(b)(1).

Between June 2, 1986 and January 26, 1987, plaintiff was absent from work approximately twenty-five days due to health problems, court appearances and personal business.During this same period, he was late or left early on approximately sixteen occasions.His immediate supervisor gave him a verbal warning on September 12, 1986.

In December, plaintiff was absent five days and tardy four times.He received a written warning on December 9, 1986, dated October 28, 1986, and a follow-up written warning dated December 31, 1986.He was advised at the time of each warning that further disciplinary action would be initiated if his attendance record did not improve.On January 5, 1987, after reporting to work thirty-three minutes late, plaintiff and his union representative met with his supervisor to discuss his attendance record.

In January 1987, plaintiff called in sick on the 10th, asked for time off to attend to personal problems on the 15th, and called on the 16th to report that he would be late because of an electrical power outage.Plaintiff was suspended for three days beginning January 16, 1987.He was warned that any further absences or tardiness would result in additional disciplinary action and that his past usage of doctors' excuses was excessive.

Plaintiff failed to report to work on January 21, 1987.He called approximately four and one-half hours into his shift, explaining that he had broken out with a rash and would be unable to work.A doctor examined him that day, treated the condition with medication, and released him to return to work on the next day, January 22, 1987.

Plaintiff was scheduled to meet with management and his union steward concerning his attendance record on January 23, 24, and 27, 1987.Plaintiff failed to keep any of these appointments.On January 27, 1987, he learned through a friend that he had been fired.He reported to work on January 29, 1987 to pick up his check, and was officially notified of his termination.Plaintiff filed a grievance with the union, appealing his separation from the company.The union rejected his grievance.

On March 16, 1987, the Department denied plaintiff unemployment benefits, determining that he was discharged from Cereal for just cause within the meaning of Utah Code Ann. § 35-4-5(b)(1).Plaintiff appealed the Department's decision.A hearing was held before the Referee on April 23, 1987.The Referee affirmed the Department's determination.Plaintiff pursued an administrative appeal to the Board.On June 17, 1987, the Board affirmed the Referee's decision.Plaintiff petitioned for a writ of review with this Court, pursuant to Utah Code Ann. § 35-4-10(i)(1987), contending that the Board's findings of fact were unsupported because they were based on inconsistent and controverted evidence.

Plaintiff raises two issues on appeal: (1) whether the Board's findings of fact are supported by substantial evidence, and (2) whether the Board's application of Utah Code Ann. § 35-4-5(b)(1) to the findings of fact are within the limits of reasonableness and rationality.

The standard of review is set forth in Utah Code Ann. § 35-4-10(i), ¹ which reads, in relevant part, as follows: "In any judicial proceeding under this section, the findings of the commission and the board of review as to the facts if supported by evidence are conclusive and the jurisdiction of the court is confined to questions of law."The Utah Supreme Court has consistently interpreted this provision to mean that the greatest degree of deference is extended to the Commission's findings on questions of basic fact and are to be sustained if supported by "evidence of any substance whatever."Kennecott Copper Corp. Employees v. Department of Employment Sec., 13 Utah 2d 262, 372 P.2d 987, 989(1962).They are to be set aside only if they are so without foundation in fact that they"must be deemed capricious and arbitrary."Utah Dep't. of Admin. Serv. v. Public Serv. Comm'n., 658 P.2d 601, 609(Utah1983).

Notwithstanding plaintiff's attack upon the credibility of Cereal's evidence, a review of the record shows substantial evidence supporting the Board's findings of fact.Plaintiff's allegations that Cereal retroactively documented his attendance records and that various items of evidence on record contradicted one another do not rise to the level of demonstrating that the Board's decision was arbitrary and capricious.Furthermore, plaintiff's own testimony substantiates the recorded attendance information, retroactively drafted or not.In reviewing this decision, it is not this Court's position to substitute its own judgment by "[choosing] between conflicting facts" nor to overturn the Board's findings unless they are without substantial support in the record.Northwest Foods Ltd. v. Board of Review, 731 P.2d 470, 471-72(Utah1986).Accordingly, we deem the Board's findings of fact to be conclusive.

This case involves the application of Utah Code Ann. § 35-4-5(b)(1)(1987), which provides that an employee is ineligible for benefits if discharged for just cause.To establish just cause, the Utah Supreme Court has determined that the employer must show that the employee was at fault using three basic factors: culpability, knowledge and control.Grinnell v. Board of Review, 732 P.2d 113, 114(Utah1987);Kehl v. Board of Review, 700 P.2d 1129, 1133-34(Utah1985).When...