Martin v. DWS

Martin v. DWS

IN THE UTAH COURT OF APPEALS
 

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Elizabeth Martin,

Petitioner,

v.

Department of Workforce Services, Workforce Appeals Board, and Marketstar Corp.,

Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030363-CA
 

F I L E D
(August 5, 2004)
 

2004 UT App 264

 

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Original Proceeding in this Court

Attorneys: Elizabeth Martin, Hooper, Petitioner Pro Se

Michael E. Blue and Lorin R. Blauer, Salt Lake City, for Respondents

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Before Judges Billings, Greenwood, and Orme.

GREENWOOD, Judge:

Petitioner Elizabeth Martin appeals from a decision of the Workforce Appeals Board (Board) denying her unemployment benefits. Specifically, Martin argues that the Board erred when it concluded that her employer, Marketstar Corporation (Marketstar), had established that she had been discharged for just cause.

"Benefits shall be denied if the claimant was discharged for just cause . . . ." Utah Admin. Code R994-405-201. To establish just cause for a termination, the employer bears the burden of establishing that the employee's conduct involved each of the following elements: (1) culpability; (2) knowledge; and (3) control. See Utah Admin. Code R994-405-202; see also Albertsons, Inc. v. Department of Employment Sec., 854 P.2d 570, 573 (Utah Ct. App. 1993).

While Martin concedes that she had control over the behavior that led to her termination, Martin argues that Marketstar failed to establish the elements of knowledge(1) and culpability, and that therefore, she was terminated without just cause.(2)

See Utah Admin. Code R994-405-202. When reviewing an agency's application of the law to a particular set of facts, "this court will review the agency's decision 'with only moderate deference' in determining whether it falls within the limits of reasonableness and rationality." Professional Staff Mgmt., Inc. v. Department of Employment Sec., 953 P.2d 76, 79-80 (Utah Ct. App. 1998) (citation omitted).

A. Whether Martin had Knowledge of Marketstar's Expected Conduct

An employer can establish knowledge of prohibited conduct by (1) showing that the employee was provided with a clear explanation or a written policy on what behavior was expected; or (2) showing that the conduct involved was a violation of a universal standard of behavior. See Utah Admin Code R994-405-202(2); see also Autoliv ASP, Inc. v. Department of Workforce Servs., 2001 UT App 198,¶18, 29 P.3d 7. The Board determined Marketstar had established Martin had knowledge that the conduct that led to her termination was prohibited because using Marketstar's network to e-mail photographs of naked men violates a universal standard of behavior.

We have previously held that "in today's workplace, the e-mail transmission of sexually explicit and offensive jokes, pictures, and videos constitutes a flagrant violation of a universal standard of behavior." Autoliv, 2001 UT App 198 at ¶27. Although Martin's conduct may not have been a "flagrant violation" of a universal standard of behavior,(3) id., it was nonetheless a violation of this standard. As this court has recognized, "it is 'incomprehensible' . . . that a worker could be unaware of the dangers of having sexually offensive materials . . . in a company's computer network." Id. at ¶25. Similarly, it is inconceivable that Martin would have been unaware of the dangers associated with using Marketstar's network to e-mail photographs of naked men. Indeed, Martin herself admitted that had some of her coworkers seen these photographs, they would have found them to be offensive.

Martin claims that her conduct did not violate a universal standard of behavior because the e-mails she sent "were part of the company culture" and that "[m]any employees and managers sent and received e-mails of a similar nature." However, Martin fails to cite any instances where employees who engaged in similar conduct were not terminated. Moreover, the record reveals that Marketstar consistently discharged other employees who transmitted inappropriate e-mails in the workplace. Accordingly, we conclude that the Board's decision that Martin had knowledge that the conduct that resulted in her termination violated a universal standard of behavior was not unreasonable or irrational.(4)

Martin also claims that Marketstar was required to warn her that her behavior was inappropriate prior to her termination. However, because Martin violated a universal standard of behavior, no prior warning was required to support her termination. See Utah Admin. Code R994-405-208(1)(e) ("Serious violations of universal standards of conduct may not require prior warnings to support disqualification.").

B. Whether Martin's Conduct was Culpable

Culpability is defined as conduct that is "so serious that continuing the employment relationship would jeopardize the employer's rightful interest." Utah Admin. Code R994-405-202(1). Martin argues that her conduct was not culpable because no one at Marketstar complained about the content of the e-mails that led to her termination and, therefore, Marketstar was not harmed by her actions. We disagree.

Like any other employer, Marketstar has a strong interest in preventing harassment in the workplace and in ensuring that its computer systems are used in accordance with its polices. As we have previously noted, "[e]-mail transmission of sexually explicit and offensive material such as jokes, pictures, and videos, exposes the employer to sexual harassment and sex discrimination lawsuits." Autoliv, 2001 UT App 198 at ¶26 (footnote omitted). Although it is true that no one complained about the content of Martin's e-mails, the very real possibility remained that someone would. Marketstar had the right to protect itself against such a possibility. Therefore, the Board's determination that Martin's conduct was culpable was "within the limits of reasonableness and rationality." Professional Staff Mgmt., Inc. v. Department of Employment Sec., 953 P.2d 76, 79-80 (Utah Ct. App. 1998).

Affirmed.

______________________________

Pamela T. Greenwood, Judge

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I CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

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ORME, Judge (dissenting):

I agree with the Administrative Law Judge and Commissioner Thomas L. Lewis that Martin's termination was not for just cause, principally because management personnel and other employees were engaged in "sending similar e-mails." Martin therefore "had no reason to believe that her conduct was so serious as to result in her immediate discharge."

______________________________

Gregory K. Orme, Judge

1. Martin never specifically argues that Marketstar failed to establish the element of knowledge. However, she repeatedly claims that because other Marketstar employees and Marketstar management regularly engaged in conduct similar to that which led to her discharge, she was unaware that such conduct was prohibited. Because Martin, appearing pro se, "should be accorded every consideration that may reasonably be indulged," Lundahl v. Quinn, 2003 UT 11,¶3, 67 P.3d 1000 (quotations and citations omitted), we examine whether Martin had the requisite knowledge that her conduct violated Marketstar's expectations.

2. Martin also moves this court to supplement the record with a decision from the Utah Department of Workforce Services regarding the dismissal of one of Martin's coworkers. According to Martin, this coworker engaged in conduct similar to that which resulted in Martin's termination, but Marketstar chose not terminate this individual until a later date.

Under the Utah Rules of Appellate Procedure, this court may allow the record to be supplemented. See Utah R. App. P. 11(h). However, "a motion under Rule 11(h) is appropriate only when the record must be augmented because of an omission or exclusion, or a dispute as to the accuracy of reporting, and not to introduce new material into the record." Olson v. Park-Craig-Olson, Inc., 815 P.2d 1356, 1359 (Utah Ct. App. 1991) (emphasis added) (quotations and citations omitted). Here, Martin is attempting to introduce new material into the record. Accordingly, her motion to supplement the record is denied.

3. In Autoliv ASP, Inc. v. Department of Workforce Servs., 2001 UT App 198, 29 P.3d 7, the employees claiming unemployment benefits had been terminated for sending "non-business related messages containing jokes, photos, and short videos that were sexually explicit and clearly offensive in nature." Id. at ¶9.

4. Although not addressed by the Board, we also note that Marketstar established that Martin had knowledge that her conduct was prohibited by showing that Martin had been provided with a written policy on what behavior was expected. See Utah Admin Code R994-405-202(2). Martin admitted that she was aware that Marketstar had written policies which warned employees that they could be terminated for using Marketstar's network to e-mail inappropriate material. Martin also admitted that she read these policies and signed an acknowledgment that she had done so. Finally, Martin admitted that each time she logged onto her computer, she was warned that her computer was to be used for "business purposes only in accordance with the company's policies and procedures."