Tillett v. DWS

Tillett v. DWS

IN THE UTAH COURT OF APPEALS
 

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Romaldo S. Tillett,

Petitioner,

v.

Department of Workforce Services and Workforce Appeals Board,

Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20031001-CA
 

F I L E D
(September 23, 2004)
 

2004 UT App 323

 

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Original Proceeding in this Court

Attorneys: Kenneth B. Grimes Jr., Salt Lake City, for Petitioner

    Tiffany Vincent, Salt Lake City, for Respondents

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Before Judges Davis, Greenwood, and Jackson.

DAVIS, Judge:

        Romaldo S. Tillett seeks review of a decision of the Workforce Appeals Board (Board) affirming a decision of a Department of Workforce Services (Department) Administrative Law Judge (ALJ) requiring Tillett to repay an overpayment of unemployment insurance benefits and pay a fraud penalty. We affirm.

    Tillett argues that the ALJ and the Board erred by determining that Tillett committed fraud in obtaining benefits. To show that a claimant has committed fraud, the Department must establish the following three elements by a preponderance of the evidence: (1) materiality, (2) knowledge, and (3) willfulness. See Utah Admin. Code R994-405-502(1)-(3), -503(2)-(3). Tillett concedes that the Department established materiality, but he argues that it failed to establish knowledge or willfulness.

    To demonstrate knowledge, the Department must establish that "[a] claimant must have known or should have known the information submitted to the Department was incorrect or that he failed to provide information required by the Department." Utah Admin. Code R994-405-502(2). This rule also provides that "[a] claimant has an obligation to read material provided by the Department or to ask a Department representative when he has a question about what information to report." Id. There was conflicting evidence presented at Tillett's hearing concerning whether he received an Unemployment Insurance Claimant Guide (Claimant Guide) shortly after opening his claim for benefits. Tillett testified that he did not, but there was other evidence in the record indicating that he did. The Board's decision states:

[T]he Board finds convincing evidence that [Tillett] received the Claimant Guide shortly after opening his claim for benefits. According to the Benefit Filing History, when [Tillett] filed for benefits on January 16, 2003, for the week ending January 11, 2003, [he] was specifically asked if he received the Claimant Guide, to which he responded[,] "[Y]es."

Because there is substantial evidence in the record to support this finding, we will not overturn it.(1) See Utah Code Ann. § 63-46b-16(4)(g) (1997) (providing that an appellate court will overturn an agency's factual findings only if they are "not supported by substantial evidence when viewed in light of the whole record before the court"). This finding and the relevant information contained in the Claimant Guide(2) demonstrate that Tillett "kn[ew] or should have known the information submitted to the Department was incorrect or that he failed to provide information required by the Department." Utah Admin. Code R994-405-502(2). Therefore, the Department established the element of knowledge.(3)

    The Department also established the element of willfulness. "Willfulness is established when a claimant files claims or other documents containing false statements, responses or deliberate omissions." Utah Admin. Code R994-405-502(3). In his brief, Tillett does not dispute that he provided inaccurate information to the Department when he filed his claims for benefits.(4) Because Tillett does not dispute that his benefit claims contained "false statements[ or] responses," "[w]illfulness [was] established." Id.

    Because we conclude that the Department established the three required elements by a preponderance of the evidence, see Utah Admin. Code R994-405-502(1)-(3), -503(2)-(3), we affirm the determination that Tillett committed fraud in obtaining benefits.

    Tillett also argues that the ALJ and the Board failed to consider whether R994-405-503(1) of the Utah Administrative Code precluded a determination that Tillett committed fraud in obtaining benefits. That rule provides, in relevant part, that "[i]f the Department has sufficient evidence to assess a disqualification prior to paying benefits, a fraud disqualification shall not be assessed even if the documents submitted by the claimant contain false statements or deliberate omissions." Utah Admin. Code R994-405-503(1). Tillett asserts that when he applied for benefits, he informed the Department that he was working and of the number of hours he was working. Based upon this assertion, Tillett argues that the Department had "sufficient evidence to assess a disqualification prior to paying benefits" and, therefore, the ALJ and the Board were precluded from determining that he committed fraud in obtaining benefits. Id. This argument is without merit. Even if Tillett informed the Department that he was working and of the number of hours he was working, the Department could not have determined whether he was eligible for partial benefit payments if he did not also inform the Department of his weekly earnings. See Utah Admin. Code R994-401-301(1)-(3) (allowing for partial benefit payments, but requiring that claimants report all weekly "work and earnings" so that their eligibility for partial payments can be determined (emphasis added)). Because R994-405-503(1) is not applicable to the facts of this case, it did not preclude the ALJ and the Board from determining that Tillett committed fraud in obtaining benefits.

    Affirmed.

______________________________

James Z. Davis, Judge

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WE CONCUR:

______________________________

Pamela T. Greenwood, Judge

______________________________

Norman H. Jackson, Judge

1. Tillett correctly asserts that there is evidence in the record contrary to this finding. However, we cannot overturn the finding on that basis. See Questar Pipeline Co. v. Utah State Tax Comm'n, 850 P.2d 1175, 1178 (Utah 1993) ("[W]hen reviewing an agency's decision, [we do] not conduct a de novo credibility determination or reweigh the evidence.").

2. According to the Board's decision, the Claimant Guide provides: (1) "[a]ll work and earnings while claiming benefits must be reported for the week in which you work"; (2) such work and earnings "includes full[-] or part-time work for any employer"; (3) "[f]ailure to report all work and earnings, including part-time or temporary work, could result in penalties" for fraud; (4) a claimant should contact the Department if he or she has "any questions about reporting work and earnings"; and (5) a claimant is "responsible for any inaccurate or incomplete information" he or she provides to the Department.

3. In his argument, Tillett asserts that the ALJ and the Board failed to consider his testimony that he was misled by inaccurate information provided to him by a Department representative concerning his eligibility for benefits. In its decision, the ALJ stated that it was "not persuaded by that testimony." Because the ALJ clearly considered Tillett's testimony, his assertion is without merit. Moreover, we cannot review the ALJ's assessment of the credibility of Tillett's testimony. See Questar Pipeline Co., 850 P.2d at 1178 ("[W]hen reviewing an agency's decision, [we do] not conduct a de novo credibility determination or reweigh the evidence.").

4. In fact, while conceding that the Department established the element of materiality, Tillett admits that he provided "inaccurate information" to the Department.