Feldman v. Dept. of Workforce Services et al

----ooOoo---- Richard A. Feldman,

Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board, and Feature Films for Families,

Respondents. )
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) MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981635-CA

F I L E D
(January 7, 1999)

1999 UT App 003

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Original Proceeding in this Court

Attorneys:
Richard A. Feldman, Salt Lake City, Petitioner Pro Se
Susan Pixton, Salt Lake City, for Respondent
Workforce Appeals Board

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Before Judges Wilkins, Bench, and Orme.

PER CURIAM:

Petitioner Richard A. Feldman seeks judicial review of a decision of the Workforce Appeals Board. This case is before the court on a sua sponte motion for summary affirmance.

Feldman challenges the Board's factual findings. "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.' "Van Leeuwen v. Industrial Com'n, 901 P.2d 281, 184 (Utah Ct. App. 1995)(citing Utah Code Ann. § 63-46b-16(4)(g)(1994)). A petitioner challenging the findings "must marshal all of the evidence supporting the findings and show that despite the supporting facts, the [agency's] findings are not supported by substantial evidence." Id. (citing First Nat'l Bank v. County Bd. of Equalization, 799 P.2d 1163, 1165 (Utah 1990)).

Feldman has not met the burden of marshaling the evidence and demonstrating that the findings are not supported by substantial evidence. He first contends that "because the employer tolerated his tardiness and unexcused absences, he did not know that this behavior would actually result in termination." The record reflects, however, that he received several warnings about his attendance problems and was placed on probation, which he successfully completed, before being terminated. Substantial evidence supports the Board's findings that Feldman had knowledge of his employer's expectations and had the ability to conform his behavior to those expectations. Thus, the Board interpreted the employer's tolerance as an attempt to retain an otherwise good employee. After repeated warnings and unsuccessful attempts to resolve the problem, the employer's only reasonable alternative was to discharge petitioner.

Feldman next contends that it was established that the employer's documentation of his attendance was not accurate. At the hearing, he suggested two inaccuracies indicating he was present at work when he was actually absent. Although noting that it would have been preferable to submit the actual time cards, the Board stated that the summaries "were not without foundation." The Board further noted that Feldman admitted he had been tardy, and the employer submitted four written warnings, signed by Feldman, discussing the attendance problems. Under the circumstances, the Board properly found that the employer had just cause to terminate Feldman.

The Board's order denying Feldman's claim for benefits is affirmed.
 

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Michael J. Wilkins, Presiding Judge
 

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Russell W. Bench, Judge
 

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Gregory K. Orme, Judge