Whited v. Utah Dept. of Human Serv., and the Career Serv. Review Board

Whited v. Utah Department of Human Services, and the Career Services Review Board, Case No. 981412-CA, Filed October 8, 1998. IN THE UTAH COURT OF APPEALS ----ooOoo----

AMENDED MEMORANDUM DECISION1 (Not For Official Publication) 

Steven Whited, Petitioner, 

v. 

Utah Department of Human Services, and the Career Service Review Board, Respondents. 

Case No. 981412-CA

F I L E D (October 8, 1998)   -----  

Original Proceeding in this Court

Attorneys: Philip C. Patterson, Ogden, for Petitioner

Jan Graham and Stephen G. Schwendiman, Salt Lake City, for Respondents -----  

Before Judges Davis, Wilkins, and Orme.

PER CURIAM:

This case is before the court on its own motion for summary disposition. We affirm the Career Service Review Board's Decision and Final Agency Action.

Petitioner seeks review of the decision of the Career Service Review Board ("CSRB") sustaining the decision of the Department of Human Services ("DHS") dismissing petitioner from employment "for cause" and "to advance the interests of public service." Petitioner asserts that the sanction of dismissal was excessive, disproportionate and an abuse of discretion under the facts of the case.

In reviewing a decision of the CSRB, this court must determine whether the CSRB appropriately reviewed the DHS's action to determine whether there is factual support for the charges, and, if so, whether the sanction of dismissal is so disproportionate to those charges that it amounts to an abuse of discretion. Lunnen v. Utah Dept. Of Trans., 886 P.2d 70, 72 (Utah Ct. App. 1994).

Pursuant to CSRB rules and regulations codified in the Utah Administrative Code, a career service employee may be disciplined for "incident[s] involving intimidation, physical harm or threats of physical harm against co-workers, management or the public." Utah Admin. Code 477-11-1(1)(f) (1997). Discipline may include written reprimand, suspension, demotion or dismissal. Utah Admin. Code 477-11-1(3)(1997). This court acknowledges that the discipline imposed for employee misconduct is within the sound discretion of the imposing agency. Lucas v. Murray City Civ. Serv. Comm'n, 949 P.2d 746, 761 (Utah Ct. App. 1997).

In the case at hand, petitioner was dismissed for misconduct. Specifically, petitioner was demanding, combative, hostile, and argumentative in meetings and telephone conversations with co-workers, supervisors and nondepartmental personnel to the point of causing them to fear for their safety, leave their own offices, lock their doors and call for protection. The CSRB properly determined that such misconduct constitutes intimidation under Rule 477-11-1(1)(f). Further, the CSRB properly determined that the sanction imposed by DHS for the misconduct was not excessive, disproportionate or an abuse of discretion, given the chronic and extreme nature of the misconduct in light of several warnings received and disregarded by petitioner regarding the inappropriateness and likely consequences of his behavior. The misconduct, in itself, contravenes such basic and commonly understood rules of workplace behavior that any reasonable employee would have known that it was unacceptable and could result in disciplinary action.

Accordingly, we decline to disturb the CSRB's decision.
 
 
 
 

______________________________

James Z. Davis,

Presiding Judge
 
 
 
 

______________________________

Michael J. Wilkins,

Associate Presiding Judge
 
 
 
 

______________________________

Gregory K. Orme, Judge
 
 

_________________________________________________________________

1. This Amended Memorandum Decision replaces the Memorandum Decision in Case No. 981412-CA issued on October 8, 1998.