Jacobson v. DWS

Jacobson v. DWS

IN THE UTAH COURT OF APPEALS

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Stan S. Jacobson,

Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board, and The Basement II, Inc.,

Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030219-CA
 

F I L E D
(November 14, 2003)
 

2003 UT App 394

 

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Original Proceeding in this Court

Attorneys:  Stan S. Jacobson, Ogden, Petitioner Pro Se

Michael R. Medley, Salt Lake City, for Respondent

Department of Workforce Services

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Before Judges Jackson, Bench, and Davis.

PER CURIAM:

Petitioner Stan S. Jacobson seeks review of the Workforce Appeals Board's (the Board) decision affirming the denial of unemployment benefits. The petition is before the court on its own motion for summary affirmance because "it plainly appears that no substantial question is presented." Utah R. App. P. 10(e).

Jacobson has not addressed the ground for summary affirmance. Rather, Jacobson summarily contends that he "met all of the requirements." A claimant is ineligible for unemployment benefits if the claimant "left work voluntarily without good cause." Utah Code Ann. § 35A-4-405(1)(a) (2001). "A separation is considered voluntary if the claimant was the moving party in ending the employment relationship." Utah Admin. Code R994-405-101.

The Board upheld the Administrative Law Judge's (ALJ) finding that Jacobson was the moving party and conclusion that Jacobson left work voluntarily.(1) Jacobson has not demonstrated that the finding that he was the moving party is "not supported by substantial evidence when viewed in light of the whole record." Utah Code Ann. § 63-46b-16(4)(g) (1997). Moreover, Jacobson's testimony supports the finding. Jacobson testified that he was dissatisfied with his job situation, wanted to obtain his commercial driver license, and therefore asked his employer to lay him off although he was on the work schedule and work was available. Further, because "[t]he circumstances of the separation as found by the Department, determine whether it was a quit or a discharge," the "conclusions on the employer's record, the separation notice or the claimant's report are not controlling." Utah Admin. Code R994-405-204. Therefore, even if Jacobson's employer agreed to lay him off, that does not undermine the conclusion that he left work voluntarily. Jacobson asserts that his employer "plan[ned] to get rid of" him. Although the Employer Notice of Claim indicates that his employer would have discharged Jacobson if he had not quit, "[t]he test for voluntariness in leaving employment is not the willingness of the employer that the unemployment claimant continue working, but rather the willingness of the claimant to continue." SOS Staffing Servs., Inc. v. Workforce Appeals Bd., 1999 UT App 210,¶10, 983 P.2d 581 (alteration in original) (quotations, emphasis, and citation omitted); accord Robinson v. Department of Employment Sec., 827 P.2d 250, 253 (Utah Ct. App. 1992); see also West Jordan v. Morrison, 656 P.2d 445, 446 (Utah 1982) (noting week in which claimant leaves work controls eligibility determination). Therefore, the conclusion that Jacobson left work voluntarily was reasonable.

Jacobson does not contend the Board exceeded its discretion by concluding that he did not have good cause to leave and by declining to apply the equity and good conscience exception. See Utah Code Ann. § 35A-4-405(1)(b)-(c). The record establishes that the Board acted within its discretion.

Accordingly, we affirm the Board's decision.

______________________________

Norman H. Jackson,

Presiding Judge

______________________________

Russell W. Bench, Judge

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James Z. Davis, Judge

1. The Department of Workforce Services (the Department) initially concluded that Jacobson's employer discharged him for inappropriate behavior in conflict with his employer's rightful interests. Jacobson appealed to the Department's appeals section. Following a hearing, the ALJ concluded that Jacobson left work voluntarily without good cause. The ALJ had authority to so conclude. See Utah Code Ann. § 35A-4-406(3)(b) (2001) (authorizing ALJ to "affirm, modify, or reverse" the Department's eligibility determination).