Griffiths v. DWS

Griffiths v. DWS

IN THE UTAH COURT OF APPEALS

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Kim Griffiths,

Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board, and Trans-Jordan Cities,

Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030599-CA
 

F I L E D
(April 15, 2004)
 

2004 UT App 114

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Original Proceeding in this Court

Attorneys:  Kim Griffiths, Murray, Petitioner Pro Se

Suzan Pixton, Salt Lake City, for Respondent

Department of Workforce Services

H. Craig Hall, Salt Lake City, for Respondent

Trans-Jordan Cities

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Before Judges Billings, Jackson, and Thorne.

PER CURIAM:

Petitioner Kim Griffiths seeks judicial review of the Workforce Appeals Board's (the Board) decision affirming the denial of unemployment compensation. The petition is before the court on its own motion for summary affirmance. The Board and Trans-Jordan Cities support summary affirmance.

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). Just cause exists where the employer establishes knowledge, culpability, and control. See Utah Admin. Code R994-405-202.

The Administrative Law Judge (ALJ) found that Trans-Jordan Cities had policies prohibiting employees from scavenging for personal use, requiring employees to wear approved safety glasses or goggles, and prohibiting employees from leaving their posts unattended. The ALJ further found that Petitioner knew of these policies. However, Petitioner was observed taking two leather coats for personal use; he continued to wear his prescription glasses without goggles after being told his glasses were not approved safety glasses; and he left his post for lunch without a replacement. The ALJ found that by taking items from the landfill, Petitioner violated the expectations of landfill customers and created a safety hazard; by not wearing appropriate glasses, he was at risk of injury and jeopardized workers' compensation rates; and by leaving his post unattended, he created a safety hazard. The ALJ therefore concluded that culpability was established. The ALJ also concluded that Petitioner's conduct was within his control. The Board adopted the ALJ's findings and affirmed the ALJ's conclusions.

In response to this court's motion for summary affirmance, Petitioner appears to assert that he did not have knowledge of the scavenging policy. Knowledge of a policy is established where the employer "provided a clear explanation of the expected behavior or a written policy regarding the same." Autoliv ASP, Inc. v. Department of Workforce Servs., 2001 UT App 198,¶18, 29 P.3d 7. Trans-Jordan Cities had a written policy prohibiting employees from scavenging for personal use. Testimony at the hearing before the ALJ established that the policy was posted, notices regarding the policy were included with employee paychecks, and Petitioner attended meetings during which the policy was discussed. In his May 2, 2003 letter, Petitioner acknowledged that Trans-Jordan Cities had told employees that scavenging of any kind would result in termination.(1)

Under the circumstances, we cannot say that the denial of compensation to Petitioner "exceeds the bounds of reasonableness and rationality." Nelson v. Department of Employment Sec., 801
P.2d 158, 161 (Utah Ct. App. 1990) (quotations and citations omitted).

Accordingly, we affirm.

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. After the Board denied his request for rehearing, Petitioner asserted that the scavenging policy was not uniformly enforced. The assertion is not supported by the record and Petitioner waived the issue by not timely raising the issue. See Ashcroft v. Industrial Comm'n, 855 P.2d 267, 268-69 (Utah Ct. App. 1993).