Whipple v. DWS

Whipple v. DWS

IN THE UTAH COURT OF APPEALS
 

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Maria Whipple,

Petitioner,

v.

Workforce Appeals Board, Department of Workforce Services,
and Bluff City Trading,

Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040684-CA
 

F I L E D
(December 16, 2004)
 

2004 UT App 479

 

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Original Proceeding in this Court

Attorneys: Peter L. Flangas, Las Vegas, Nevada, for Petitioner

Michael R. Medley, Salt Lake City, for Respondents

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Before Judges Billings, Bench, and Greenwood.

PER CURIAM:

    Petitioner Maria Whipple seeks judicial review of the decision disqualifying her from receiving unemployment compensation based upon her discharge for just cause. The case is before the court on a sua sponte motion for summary disposition.

    An individual is ineligible for unemployment benefits when he or she is discharged for "just cause." Utah Code Ann. § 35A-4-405(2)(a) (2001). Factors to be considered in determining whether just cause exists are culpability, knowledge, and control. See Utah Admin. Code R994-405-202. We uphold the agency's findings of fact if they are supported by substantial evidence when reviewed in light of the whole record before the court. See VanLeeuwen v. Industrial Comm'n, 901 P.2d 281, 284 (Utah Ct. App. 1995). "An agency's application of law to its findings of fact will not be disturbed unless its determination 'exceeds the bounds of reasonableness and rationality.'" Johnson v. Department of Employment Sec., 782 P.2d 965, 968 (Utah Ct. App. 1989) (citations omitted).

    To successfully challenge the Workforce Appeals Board's (Board) findings of fact, Whipple must demonstrate that the challenged findings are not "supported by substantial evidence when viewed in light of the whole record before the court." Grace Drilling Co. v. Board of Review, 776 P.2d 63, 67 (Utah Ct. App. 1989). She has not undertaken this burden. Instead, she contends before this court, as she did in the agency, that there is simply no evidence to support the findings on insubordination. She argues that she was successful in her job, as measured by the increase in Internet sales for the employer, that she completed the required number of hours, and that she was a valued employee.

    Whipple and the employer executed an agreement based upon her proposal, which described her job responsibilities, salary, and work hours. The agreement stated that she would work "on Mondays to Fridays from the hours of 8:30 am to 2:30 pm, a period of 6 hours daily." It is significant to note that Whipple agreed to specific work hours that were relied upon by the employer. Whipple admitted that the employer discussed her tardiness and related issues with her on at least three occasions. Similarly, she admitted that she told the employer that she should not be held to the same requirements as other employees. She also admitted that she did not want to listen to the employer's concerns about her job performance on the day of her termination because she did not want to be "called on the carpet" and that she expressed this to the employer. Whipple fails to demonstrate that the factual findings are not supported by substantial evidence in the record as a whole.

    Both the Administrative Law Judge (ALJ) and the Board focused on insubordination, rather than tardiness alone, as just cause for the termination. The ALJ concluded that Whipple was discharged "because she refused to follow the employer's instructions and refused to discuss any of the employer's concerns with the employer." The Board specifically noted that the tardiness alone would not establish just cause "since the employer repeatedly condoned -- albeit reluctantly -- the claimant's adamant refusal to abide by its attendance policy." However, disregard of the employer's instructions created problems with other employees and undermined the employer's authority. The Board concluded that "[t]he employer had a legitimate and ongoing concern with the claimant's flaunting of its attendance policy, which caused disruption in the workplace and created morale problems with the claimant's coworkers."

    "In determining when insubordination becomes disqualifying conduct, a disregard of the employer's rightful and legitimate interests is of major importance." Utah Admin. Code R994-405-208. The employer had a legitimate interest in having Whipple abide by the attendance requirements in the agreement, be present at daily meetings, and be engaged in the employer's business pursuits during work hours, rather than her personal pursuits. Her refusal to comply with the employer's requirements caused morale problems with other employees, compounded by her dismissive attitude about the problems. Whipple's conduct damaged the employer and was culpable. She had knowledge of what was expected of her under the agreement, she simply chose not to comply. Finally, Whipple had control over her own actions, including the refusal to discuss the employer's concerns. Under the circumstances, the Board's determination that Whipple was terminated for just cause is reasonable and rational.

    We affirm the Board's decision that Whipple be disqualified from receiving unemployment benefits.

______________________________

Judith M. Billings,

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge