Stauffer v. Department of Workforce Services

2014 UT App 63
_________________________________________________________
THE UTAH COURT OF APPEALS
KYLE STAUFFER,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Memorandum Decision
No. 20130541-CA
Filed March 20, 2014
Original Proceeding in this Court
Kyle Stauffer, Petitioner Pro Se
Kathleen Bounous, Attorney for Respondent
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.
DAVIS, Judge:
¶1 Kyle Stauffer challenges the Workforce Appeals Board’s (the
Board) decision denying him unemployment benefits on the basis
that he was an independent contractor. We decline to set aside the
Board’s decision.
¶2 In May 2009, Stauffer approached Salt Lake Private
Detectives/Statewide Process Servers (Employer) about working as
a process server. Prior to being hired by Employer and occasionally
throughout his association with Employer, Stauffer also served
process for various other companies. In the summer of 2012,
Employer terminated its association with Stauffer, and in August
of that year, Stauffer filed for unemployment benefits.

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¶3 Employer argued against an award of unemployment
benefits, claiming that Stauffer was an independent contractor
rather than an employee. An auditor was assigned to the case and
determined that Stauffer was not an independent contractor. A
hearings officer affirmed the auditor’s determination, and an
administrative law judge (ALJ) affirmed the hearings officer.
Finally, Employer appealed the ALJ’s decision to the Board. The
Board reversed the ALJ, concluding that Stauffer was an
independent contractor. Stauffer now seeks review of that decision.
¶4 First, Stauffer asserts that the Board exceeded its discretion
by weighing the evidence and making credibility determinations.
In doing so, he assumes that the Board was bound by the same
standard of review as an appellate court reviewing the decision of
an agency and that the Board was therefore precluded from
reversing the ALJ’s decision unless it determined that the ALJ’s
findings were not supported by substantial evidence. See, e.g., Drake
v. Industrial Comm’n, 939 P.2d 177, 181 (Utah 1997) (explaining that
appellate courts reverse an administrative agency’s findings of fact
“only if the findings are not supported by substantial evidence”);
Albertsons, Inc. v. Department of Emp’t Sec., 854 P.2d 570, 575 (Utah
Ct. App. 1993) (“It is not [the appellate court’s] role to judge the
relative credibility of witnesses.”). However, an administrative
appeals board is not bound by that standard and may request and
consider additional evidence, Utah Code Ann. § 35A-1-304(2)
(LexisNexis 2011), render a decision on issues falling outside the
scope of the appeal, Utah Admin. Code R994-508-305(1), and
“make its own findings on the credibility of the evidence
presented,” United States Steel Corp. v. Industrial Comm'n, 607 P.2d
807, 811 (Utah 1980). See Uintah Cnty. v. Department of Workforce
Servs., 2014 UT App 44, ¶¶ 3–4 (rejecting the petitioner’s argument
that the Board was prohibited from making its own credibility
determinations contrary to those of the ALJ). Thus, the Board did
not exceed its discretion in reweighing the evidence and making its
own credibility findings in reaching its decision.

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20130541-CA 3 2014 UT App 63
¶5 Stauffer next asserts that the Board’s findings were not
supported by substantial evidence. “When a petitioner challenges
an agency’s findings of fact, we are required to uphold the findings
if they are supported by substantial evidence when viewed in light
of the whole record before the court.” VanLeeuwen v. Industrial
Comm’n, 901 P.2d 281, 284 (Utah Ct. App. 1995) (citations and
internal quotation marks omitted). See generally Acosta v. Labor
Comm'n, 2002 UT App 67, ¶ 29, 44 P.3d 819 (“Substantial evidence
has been defined as that quantum and quality of relevant evidence
that is adequate to convince a reasonable mind to support a
conclusion.” (citation and internal quotation marks omitted)). “[A]
party challenging the Board’s findings of fact must marshal[] all of
the evidence supporting the findings and show that despite the
supporting facts, and in light of the conflicting or contradictory
evidence, the findings are not supported by substantial evidence.”
Grace Drilling Co. v. Board of Review of the Indus. Comm'n, 776 P.2d
63, 68 (Utah Ct. App. 1989) (emphasis omitted).
¶6 In order to demonstrate that a person is an independent
contractor, an employer must demonstrate both that the person “is
customarily engaged in an independently established trade,
occupation, profession, or business of the same nature as that
involved in the contract of hire for services” and that the person
“has been and will continue to be free from control or direction
over the means of performance of those services.” Utah Code Ann.
§ 35A-4-204(3) (LexisNexis 2011); see also Utah Admin. Code R994-
204-303 (outlining factors relevant to a determination of whether an
individual is an independent contractor). The Board’s findings of
fact included the following findings regarding Stauffer’s
relationship with Employer: (1) Stauffer “represented himself to the
Employer as a process server operating under his own business”
and “informed the Employer he was providing similar services for
other companies”; (2) Stauffer “was paid a flat rate per paper
served” and “listed Stauffer Co., LLC on his invoices to the
Employer”; (3) Stauffer “did not provide private investigative
services for the Employer”; (4) Stauffer “purchased and used his
own vehicle, paid for the fuel expenses and maintenance of the

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20130541-CA 4 2014 UT App 63
vehicle,” “paid for his own cell phone and service plan,” and
“purchased a GPS system to help him locate addresses where
papers needed to be served”; (5) Stauffer “provided similar services
to other clients” while working for Employer and represented
himself to at least one of those clients as operating under Stauffer
Co., LLC; (6) Stauffer “was not required to work a certain schedule
or set hours”; (7) weekly meetings held by Employer for its process
servers were optional, and Employer did not provide formal
training at these meetings; and (8) Stauffer submitted worksheets
to Employer listing “the services completed and the charges for
each service” in order to receive payment. Based on these findings,
the Board determined that Stauffer’s process-serving business was
independently established and that Employer did not direct or
control Stauffer in the performance of his services.
¶7 Stauffer challenges the Board’s findings that he represented
himself to Employer as operating his own business—Stauffer Co.,
LLC—and providing services to other companies; that he listed
Stauffer Co., LLC on his invoices to Employer; that he submitted
only one document into evidence in support of his claim that he
provided services other than process serving to Employer; that he
conducted business for another client using a service paper with
Employer’s name on it; and that he was paid by submitting a list of
services completed and charges for those services to Employer. The
Board concedes that two of its findings—that Stauffer had listed
Stauffer Co., LLC on his invoices to Employer and that he
submitted only one document evidencing his provision of other
services to Employer—were not supported by substantial evidence,
but we agree with the Board that these two minor errors are
harmless and do not undermine its decision.
¶8 As to the other challenged findings, Stauffer has failed to
marshal the evidence supporting them and merely challenges the
Board’s determination that Employer’s owner was a more credible
witness than Stauffer. See Grace Drilling, 776 P.2d at 68. As
discussed above, it is within the Board’s authority to “make its own
findings on the credibility of the evidence presented,” regardless of

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the ALJ’s credibility findings. United States Steel, 607 P.2d at 811.
We will defer to the Board’s findings so long as “there is substantial
evidence furnishing a reasonable basis for such findings.” Id. at 810.
Here, Employer’s owner testified that Stauffer had represented
himself as the owner of Stauffer Co., LLC when he first solicited
Employer as a client and that he informed Employer that he was
doing process service for other companies. Additionally, evidence
was presented that Stauffer represented himself to other clients as
the owner of Stauffer Co., LLC. Employer’s owner also testified
that Stauffer had inappropriately used a service paper with
Employer’s name when serving process for another employer and
that Stauffer provided a worksheet listing his services in order to
be paid by Employer. The testimony from Employer’s owner
constituted substantial evidence supporting the above-challenged
findings, and we will not second-guess the Board’s credibility
determinations. See Albertsons, 854 P.2d at 575.
¶9 In sum, it was within the Board’s authority to weigh the
conflicting evidence and make its own credibility determinations,
even though its determinations were contrary to those of the ALJ.
Furthermore, the findings Stauffer challenges were either harmless
or supported by substantial evidence. Accordingly, we decline to
disturb the Board’s decision reversing the ALJ and denying
Stauffer unemployment benefits.