Pender v. WFSV

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IN THE UTAH COURT OF APPEALS ooOoo Sharon L. Pender, Petitioner, v. Department of Workforce Services, Respondent. ) ) ) ) ) ) ) ) ) PER CURIAM DECISION Case No. 20101039 CA F I L E D (March 17, 2011) 2011 UT App 79 Original Proceeding in this Court Attorneys: Sharon L. Pender, Ogden, Petitioner Pro Se Jaceson R. Maughan, Salt Lake City, for Respondent Before Judges Davis, Voros, and Roth. ¶1 Sharon L. Pender seeks judicial review of the Workforce Board of AppealsÊ¹s (Board) November 3, 2010 decision. This matter is before the court on a sua sponte motion for summary disposition. We affirm. ¶2 Pender challenges the Board s decision adopting the Administrative Law Judge s (ALJ) factual finding that she unlawfully took funds from her employer. We construe this as a challenge to the sufficiency of the evidence. The Board affirmed the ALJ s decision after determining that the ALJ was in the best position to consider conflicting testimony and resolve credibility issues between the parties. The Board also determined that if there is evidence in the record to support a credibility finding made by the ALJ, the Board will not substitute its own judgment for that of the ALJ unless there is a showing of clear error. ¶3 An agencyÊ¹s findings of fact are accorded substantial deference and will not be overturned if based on substantial evidence, even if another conclusion from the evidence is permissible. See Hurley v. Board of Review of Indus. CommÊ¹n, 767 P.2d 524, 526 27 (Utah 1988). This court will defer to the factual findings of the ALJ when there is conflicting evidence as the ALJ is in the best position to judge the credibility of witnesses. See Albertsons, Inc. v. Department of Emp t Sec., 854 P.2d 570, 575 (Utah Ct. App. 1993). We will not disturb the BoardÊ¹s application of law to its factual findings unless its determination exceeds the bounds of reasonableness and rationality. See Johnson v. Department of Emp t Sec., 782 P.2d 965, 968 (Utah Ct. App. 1989). ¶4 The record contains substantial evidence supporting the ALJ s determination that Pender unlawfully took money from her employer. Based on this substantial evidence, and the ALJ s ability to best assess conflicting evidence, we cannot say that the Board erred in adopting the ALJ s factual determinations and affirming the ALJ s decision. ¶5 Accordingly, the BoardÊ¹s decision is affirmed. ____________________________________ James Z. Davis, Presiding Judge ____________________________________ J. Frederic Voros Jr., Judge ____________________________________ Stephen L. Roth, Judge 20101039 CA 2

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