Aitken v. DHS

IN THE UTAH COURT OF APPEALS
 

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Royene Aitken,

Petitioner,

v.

Department of Human Services and Career Service Review Board,

Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040387-CA
 

F I L E D
(June 16, 2005)
 

2005 UT App 267

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Original Proceeding in this Court

Attorneys: Justin R. Elswick and Justin D. Heideman, Provo, for Petitoner

Mark L. Shurtleff and Brent A. Burnett, Salt Lake City, for Respondents

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Before Judges Bench, Davis, and Jackson.

BENCH, Associate Presiding Judge:

    Royene Aitken appeals the decision of the Career Service Review Board (the CSRB) affirming the termination of her employment on the ground that she abandoned her position as a nurse at the Utah State Hospital (the Hospital).

    Aitken first argues that the CSRB erred in declining to enter default judgment against the Department of Human Services (the Department) where the Department failed to timely file a Step 6 brief supporting its appeal of the hearing officer's decision. The resolution of this issue hinges on the application of R137-1-22(2)(a) of the Utah Administrative Code, which required the Department to file a brief thirty days after the CSRB received the hearing transcript. See Utah Admin. Code R137-1-22(2)(a) (2003). "[W]e will not disturb the agency's interpretation or application of the [rule] unless its determination exceeds the bounds of reasonableness and rationality." Ashcroft v. Industrial Comm'n, 855 P.2d 267, 269-70 (Utah Ct. App. 1993) (second alteration in original) (quotations and citation omitted). Here, we conclude that the CSRB did not exceed the bounds of reasonableness and rationality by allowing an extension of time for the filing of the Step 6 brief. As the Department notes, R137-1-22(2)(a) "only sets out the time frame for the filing of Step 6 briefs, it does not establish the sanction, if any, that should be applied if a brief is filed late." Moreover, the CSRB complied with R137-1-22(2)(f), which allows modification of the briefing schedule for good cause, when it determined that there was "substantial uncertainty as to whether counsel for the Department ever in fact received notice of the . . . scheduling order."(1) See Utah Admin. Code R137-1-22(2)(f) (2003).

    Next, Aitken contends that the CSRB erred in finding that she abandoned her position. Where the CSRB's decision "involves principles of general law, we review [its] conclusion[s] for correctness, granting no deference to [its] decision." Holland v. Career Serv. Review Bd., 856 P.2d 678, 682 (Utah Ct. App. 1993). Under R477-12-2 of the Utah Administrative Code, "[e]mployees who are absent from work for three consecutive working days and are capable of providing proper notification to their supervisor, but do not, shall be considered to have abandoned their position." Utah Admin. Code R477-12-2 (2003). Furthermore, the Hospital has a policy requiring direct patient care workers to inform their supervisors of anticipated absences two hours before a scheduled shift. This procedure must be followed each day an employee is absent. Direct patient care workers are to use this procedure in the case of "illness or extreme emergencies only." If an employee is absent and fails to follow this procedure for three consecutive days, the Hospital considers the employee to have abandoned the position.

    Aitken argues that this procedure did not apply to her situation. According to Aitken, because she expressed dissatisfaction with her new assignment the day before her first absence, her supervisors were on notice of her intent not to work her assigned shift.(2) Moreover, Aitken contends that the Hospital's policy only requires employees to give notice of absences resulting from illness or extreme emergencies. We disagree. The policy clearly allows direct patient care workers to miss scheduled shifts only in the event of illness or emergency. Aitken's expressions of dissatisfaction with her new assignment did not excuse her from her scheduled shift, nor from her duty to contact her supervisor according to the policy and R477-12-2.

    Therefore, we affirm the decision of the CSRB.

______________________________

Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

______________________________

James Z. Davis, Judge

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Norman H. Jackson, Judge

1. In its final order, the CSRB indicated that the Department had shown "excusable neglect" in failing to file the brief according to the schedule. However, it is unnecessary for us to consider whether the Department showed excusable neglect because the rule allows the CSRB to modify the schedule for "good cause" alone. See Utah Admin. Code R137-1-22(2)(f) (2003).

2. Specifically, Aitken informed her supervisors that she could not fill the new assignment because of an aversion to working with geriatric patients. Conflicting testimony was presented as to whether Aitken also informed her supervisors that the assignment change would prevent her from giving proper care to her disabled daughter.