Uintah County v. Department of Workforce Services

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2014 UT App 44
_________________________________________________________
THE UTAH COURT OF APPEALS
UINTAH COUNTY,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES, WORKFORCE
APPEALS BOARD,
Respondent.
Memorandum Decision
No. 20130193-CA
Filed February 21, 2014
Original Proceeding in this Court
Kristin A. Van Orman and Jonathan A. Stearmer,
Attorneys for Petitioner
Suzan Pixton, Attorney for Respondent
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGE JOHN A. PEARCE and SENIOR JUDGE RUSSELL W.
BENCH concurred.1
DAVIS, Judge:
¶1 Uintah County (the Employer) seeks review of the
Workforce Appeals Board’s decision to reverse the administrative
law judge’s (ALJ) ruling that the Uintah County Correctional
Department had just cause to discharge Denile Gale (Claimant). We
do not disturb the Board’s decision.

Uintah County v. Department of Workforce Services
20130193-CA 2 2014 UT App 44
¶2 Employer terminated Claimant in December 2011 for
violating a policy regarding the distribution of medication to
inmates. Claimant filed a claim for unemployment benefits, which
the Department of Workforce Services denied after determining
that there had been just cause for Claimant’s termination. See Utah
Admin. Code R994-405-201 (“[Unemployment b]enefits will be
denied if the claimant was discharged for just cause . . . .”); id. R994-
405-202 (explaining that a just cause determination requires
satisfaction of three specific elements—culpability, knowledge, and
control over the conduct at issue—and providing detailed
definitions of each element). Claimant appealed the denial to the
ALJ, who also determined that Claimant had been fired for just
cause and was ineligible for unemployment benefits. Claimant
appealed the ALJ’s decision to the Board, which overturned the
ALJ’s ruling based primarily on its finding that Claimant’s
testimony was credible.
¶3 The Employer first argues that the Board is not in a position
to second-guess the ALJ’s credibility determinations because the
Board was “not present at the hearing” when Claimant testified
and because it is “this Court’s clear precedent that it is the ALJ’s
province to make credibility determinations.” The Board admits in
its appellate brief that it “generally finds the ALJ in the best
position to consider conflicting testimony and resolve credibility
issues between the parties” but that “the Board is the ultimate trier
of facts in an unemployment case.” We agree with the Board.
¶4 Here, the Board is permitted by statute to request and accept
additional evidence and is authorized, on the basis of such
evidence, to “reverse the findings, conclusions, and decision of the
[ALJ].” Utah Code Ann. § 35A-1-304(2) (LexisNexis 2011); see also
Utah Admin. Code R994-508-305(3). Likewise, “[t]he Board has the
discretion to consider and render a decision on any issue in the case
even if it was not presented at the hearing [with an ALJ] or raised
by the parties on appeal.” Utah Admin. Code R994-508-305(1); see
also id. R994-508-101(5) (“The scope of the appeal is not limited to
the issues stated in the appeal.”). To read into these provisions a

Uintah County v. Department of Workforce Services
2. The Employer acknowledges that hearsay evidence is admissible
in administrative proceedings but argues that the Board
impermissibly based its ruling entirely on hearsay evidence (i.e.,
Claimant’s testimony of what he was told by the medical officer).
See Utah Code Ann. § 63G-4-206(1)(c) (LexisNexis 2011) (providing
for the admissibility of hearsay evidence in administrative
proceedings); id. § 63G-4-208(3) (“In formal adjudicative
proceedings[,] . . . [a] finding of fact that was contested may not be
based solely on hearsay evidence unless that evidence is admissible
under the Utah Rules of Evidence.”); Utah R. Evid. 801(c)(2)
(continued...)
20130193-CA 3 2014 UT App 44
caveat that the Board cannot question an ALJ’s credibility
determinations would undermine the flexibility permitted by the
statute. Indeed, in a ruling that has since been applied in other
administrative contexts, our supreme court declared that an
administrative appeals board may, “in its review of the record
made before the [ALJ], . . . 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 also United States Steel,
607 P.2d at 810 (“[T]here is nothing in our statutes which limits the
power of the Commission itself in reviewing and adopting or
reversing the findings of its [ALJ].”); Vali Convalescent & Care Insts.
v. Division of Health Care Fin., 797 P.2d 438, 449 (Utah Ct. App. 1990)
(determining that the Division of Health Care Financing could
enter its “own findings on the evidence of record and reach a
different decision [than the hearing examiner] so long as it was
reasonable”); Red Cliffs Reg’l, Inc. v. Labor Comm’n, 1999 UT App
388U, para. 5 (mem.) (applying the rule from United States Steel).
Because it is not this court’s “role to judge the relative credibility of
witnesses,” we defer to the Board’s credibility determination. See
Albertsons, Inc. v. Department of Emp’t Sec., 854 P.2d 570, 575 (Utah
Ct. App. 1993).
¶5 The Employer also challenges the Board’s determination on
the ground that it is not supported by substantial evidence. We2

Uintah County v. Department of Workforce Services
2. (...continued)
(defining “hearsay” as a statement offered “to prove the truth of
the matter asserted in the statement”); Prosper, Inc. v. Department of
Workforce Servs., 2007 UT App 281, ¶ 11, 168 P.3d 344 (explaining
that the rule that findings of fact “be supported by a residuum of
legally competent evidence” means that findings “cannot be based
solely on inadmissible hearsay,” not that hearsay cannot
“constitute legally competent evidence”). However, even assuming
Claimant’s testimony was hearsay, the Employer’s argument fails
because the Board’s determination was supported by substantial
legally competent evidence, see infra ¶¶ 8–9.
20130193-CA 4 2014 UT App 44
defer to the Board’s factual findings “if they are supported by
substantial evidence when viewed in light of the whole record
before the court.” See id. at 574 (citations and internal quotation
marks omitted); see also Murray v. Labor Comm'n, 2013 UT 38,
¶¶ 19–20, 308 P.3d 461. “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.” Acosta v.
Labor Comm'n, 2002 UT App 67, ¶ 29, 44 P.3d 819 (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 The Employer has not satisfied its marshaling burden on
appeal. Rather, it has simply reargued its position that “Claimant’s
only defense is his own, self-serving, hearsay statement that he was
given permission to violate the policy by the medical officer” and
that this hearsay statement is explicitly refuted by the medical
officer’s letter, stating that she “did not authorize any [prescription]
Ibuprofen 800mg to be given nor did [she] have approval to

Uintah County v. Department of Workforce Services
3. Interestingly, the Employer seeks to undermine the testimony
from Claimant that it labels as “inadmissible hearsay” with its own
arguably inadmissible hearsay evidence. See Utah R. Evid. 801(c)
(“‘Hearsay’ means a statement that: (c)(1) the declarant does not
make while testifying at the current trial or hearing; and (c)(2) a
party offers in evidence to prove the truth of the matter asserted in
the statement.”).
20130193-CA 5 2014 UT App 44
administer ‘someone else’s medication’ to another [inmate].” The3
Employer’s appellate briefing rejects the Board’s findings based on
the conflicting evidence in the record, the relative strengths of the
evidence supporting its position, and the shortcomings of the
evidence relied on by the Board. However, this is not what is meant
by “marshaling.”
¶7 To satisfy its marshaling burden, the Employer needed to
“marshal all of the evidence supporting the [Board’s] findings,” not
simply the evidence supporting its preferred interpretation. See
Atlas Steel, Inc. v. Utah State Tax Comm'n, 2002 UT 112, ¶ 41, 61 P.3d
1053. When a party challenging a factual finding fails to “marshal
the evidence in support of that finding, we assume[] that the record
supports the finding[].” Heber City Corp. v. Simpson, 942 P.2d 307,
312 (Utah 1997) (first alteration in original) (citation and internal
quotation marks omitted); see also Whitear v. Labor Comm'n, 973 P.2d
982, 985 (Utah Ct. App. 1998) (“We have shown no reluctance to
affirm when the petitioner has failed to meet its marshaling
burden.”).
¶8 Here, in addition to finding credible Claimant’s testimony
that the medical officer instructed him to give out prescription-
strength ibuprofen pills to inmates requesting over-the-counter
pills because that was all the Employer had in stock, the Board
found credible Claimant’s testimony “that the Employer often
retained prescription medication such as ibuprofen to use after an
inmate left the facility” to keep as “on stock medications.” The
Board noted that the Employer “failed to provide credible firsthand

Uintah County v. Department of Workforce Services
20130193-CA 6 2014 UT App 44
testimony that this was not the case” and “failed to call the medical
officer as a witness to counter the Claimant’s testimony.” Further,
Claimant testified that he understood the medication policy as
requiring an inmate’s signature when the inmate is provided with
his own prescription medication but that no signature is required
when an inmate is given over-the-counter drugs. Because these
ibuprofen pills, though prescription strength, were meant to act as
“on hand stock” to satisfy requests for the over-the-counter variety,
Claimant believed no signature was required. The Employer
attempted to rebut this testimony with evidence of its new medical
directive, which requires a signature every time any medication—
prescription or otherwise—is given out. However, the Employer
could not definitively prove that Claimant had actual knowledge
of all of the details of the new directive because there was no record
that Claimant attended any of the training sessions explaining the
new directive.
¶9 Accordingly, the Board determined that Claimant believed
he was providing medication in accordance with the medical
officer’s instructions and thereby complying with the Employer’s
expectations, making “his most serious misconduct . . . his failure
to properly document his actions.” The Board then considered
Claimant’s work history with the Employer, noting that Claimant
“seems to have been an excellent employee” who had never
“received a warning or been disciplined for this sort of misconduct
or for any misconduct” during his sixteen-year employment with
the Employer. In light of his clean employment record, the Board
concluded that the incident at issue was an isolated one “or a good
faith error in judgment” and that the Employer “could have
corrected the Claimant’s conduct with a warning or a suspension.”
Accordingly, the Board held that the Employer did not satisfy the
culpability element of the just cause analysis. See Utah Admin.
Code R994-405-202(1) (“If the conduct was an isolated incident of
poor judgment and there was no expectation it would be continued
or repeated, potential harm may not be shown.”).

Uintah County v. Department of Workforce Services
20130193-CA 7 2014 UT App 44
¶10 Because the Employer has not properly marshaled the
evidence, we assume that the record supports the Board’s finding
that Claimant’s testimony was credible and that the Employer
failed to establish culpability. We decline to disturb the Board’s
decision.