Gregory v. Department of Workforce Services

2015 UT App 264
THE UTAH COURT OF APPEALS
C URTIS B. GREGORY ,
Petitioner,
v.
DEPARTMENT OF WORKFORCE S ERVICES,
Respondent.
Per Curiam Decision
No. 20150715-CA
Filed October 29, 2015
Original Proceeding in this Court
Curtis B. Gregory, Petitioner Pro Se
Suzan Pixton, Attorney for Respondent
Before JUDGES GREGORY K. O RME, J. F REDERIC VOROS JR ., and
M ICHELE M. C HRISTIANSEN .
PER CURIAM:
¶1 	Petitioner Curtis B. Gregory seeks judicial review of two
decisions of the Workforce Appeals Board (the Board) affirming
the 	Department 	of 	Workforce 	Service’s 	(the 	Department)
decisions denying benefits and imposing a fraud overpayment
and penalty.1 This case is before the court on a sua sponte
motion for summary disposition.
1. The Board issued separate decisions in two cases. In one case,
the Department found Gregory ineligible for unemployment
benefits. In the other case, the Department imposed a fraud
overpayment 	and 	penalty 	based 	upon 	a 	finding 	that 	he
knowingly withheld material information from the Department
regarding work and earnings.

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¶2 	The Department issued its decisions denying benefits and
imposing a fraud overpayment and penalty on May 1, 2015. The
decisions notified Gregory that he needed to file his appeal with
the 	Department 	on 	or 	before 	May 	18, 	2015. 	Gregory 	filed
untimely appeals of the Department’s decisions on May 28, 2015.
A hearing before an Administrative Law Judge (ALJ) on both
appeals was scheduled for June 10, 2015, to address issues that
included whether the untimely appeals would be considered.
Two hearing notices advised Gregory that by a specific time on
June 9, 2015−the day before the hearing−he must notify the
Appeals Unit to confirm his intent to participate in the hearing
and to provide a telephone number where he could be reached
for the telephonic hearing. The notices advised Gregory that if he
failed 	to 	confirm 	his 	participation, 	the 	hearing 	would 	be
cancelled, the appeals would be dismissed, and an Order of
Default would issue. The notices also advised that if there was a
conflict 	with 	the 	date 	and 	time, 	Gregory 	could 	request 	a
continuance. Finally, 	the notices 	informed Gregory that the
appeal 	decisions 	would 	be 	based 	solely 	on 	the 	evidence
presented at the hearing and that failing to participate in the
hearing may result in a decision against him.
¶3 	Gregory failed to confirm his participation in the hearing
by the time specified in the notices. The ALJ issued an Order of
Default, which advised Gregory of the procedure to reopen an
appeal. Gregory made a timely request to reopen the appeal, and
a second hearing was scheduled for June 24, 2015. Again, the
Department 	sent 	notices 	to 	Gregory 	containing 	the 	same
instructions regarding confirmation of the intent to participate in
the hearing. Gregory again failed to comply, and a second Order
of Default issued. Following another request to reopen the
appeal, a third hearing was scheduled for July 7, 2015. Gregory
again failed to timely verify his participation, and a third Order
of Default issued.

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¶4 	On July 10, 2015, Gregory filed a third request to reopen
his appeals. After his failure to participate in three scheduled
hearings, the matter was referred to the Board to consider
whether 	the 	appeals 	should 	be 	reopened. 	The 	Board 	sent
Gregory 	a 	letter 	asking 	him 	to 	advise 	the 	Board 	of 	any
circumstances that “may have caused your failure to participate
in the hearings scheduled for June 10, June 24, and July 7, 2015.”
Gregory responded that he had been working long hours and
had no time at work to be on the phone. The Board issued two
decisions on July 29, 2015, each finding that Gregory did not
show he was prevented from participating in the hearings due to
circumstances that were beyond his control or due to excusable
neglect. The Board affirmed the third Order of Default, which
left 	the 	Department’s 	decisions 	that 	denied 	benefits 	and
established an overpayment and penalty in effect. Gregory seeks
judicial review of the Board’s decisions.
¶5 	We apply a deferential standard of review to a mixed
question of fact and law when “the mixed finding is not ‘law-
like’ because it does not lend itself to consistent resolution by a
uniform body of appellate precedent” or when it “is ‘fact-like’
because the [factfinder] is in a superior position to decide it.” Jex
v. Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (alteration in
original) 	(citation 	and 	internal 	quotation 	marks 	omitted).
Therefore, we accord deference to the Board’s decision that
Gregory 	did 	not 	demonstrate 	that 	he 	was 	prevented 	from
attending any of the scheduled hearings due to circumstances
that were beyond his control or that his failure to confirm his
participation in the hearing was due to excusable neglect.
¶6 	Utah 	Administrative 	Code 	R994-508-118 	states 	that 	a
request to reopen will be granted if a party “was prevented from
appearing 	at 	the 	hearing 	due 	to 	circumstances 	beyond 	the
party’s control.” The rule further provides that a request may be
granted 	due 	to 	“mistake, 	inadvertence, 	surprise, 	excusable
neglect, or any other reason justifying relief,” and that “[t]he

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determination 	of 	what 	sorts 	of 	neglect 	will 	be 	considered
excusable 	is 	an 	equitable 	one,” 	listing 	some 	“relevant
circumstances” to be considered. Utah Admin. Code R994-508-
118(2). “Excusable neglect is not limited to cases where the
failure to act was due to circumstances beyond the party’s
control.” Id. R994-508-118(4).
¶7 	It is undisputed that Gregory missed all three of the
scheduled 	hearings 	after 	failing 	to 	call 	to 	confirm 	his
participation within the time allowed by the notices. Although
the hearing notices stated that if Gregory had a conflict, he could
request a continuance, the Board found that there was “nothing
in the record to show that once [Gregory] realized his work
schedule conflicted with the hearing times, he made any attempt
to reschedule the hearing.” Because Gregory could not “offer a
reasonable 	explanation 	for 	not 	participating 	in 	previously
scheduled hearings,” the Board denied the third request to
reopen his appeal.
¶8 	Before this court, Gregory states that he “missed each
appointment due to miscommunications and having a hard time
finding the time in between the long hours I have been working
this summer.” He did not claim before the Board that there was
any miscommunication, and accordingly, the claim before us is
untenable. 	The 	notices 	clearly 	informed 	Gregory 	of 	the
requirement 	to 	confirm 	his 	participation 	in 	the 	scheduled
hearing and the consequences of failing to do so. Gregory argues
the 	merits 	of 	his 	appeals 	from 	the 	Department’s 	decisions
despite the facts that his appeal of those decisions was not timely
and that untimeliness was an issue that would have been a
subject of the hearing before an ALJ. As the Board noted, a
determination on the merits of Gregory’s appeals cannot be
made based upon his letters and unsworn assertions. By failing
to participate in any of the three hearings scheduled to consider
his administrative appeals, Gregory also failed to provide any

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evidence that could be considered by this court in a proceeding
for judicial review.
¶9 	We decline to disturb the decisions of the Workforce
Appeals Board.