Nave v. WFSV , 280 P.3d 449 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Rodger D. Nave, ) PER CURIAM DECISION
)
Petitioner, ) Case No. 20120134‐CA
)
v. ) FILED
) (June 1, 2012)
Department of Workforce Services, )
) 2012 UT App 156Respondent. )
‐‐‐‐‐
Original Proceeding in this Court
Attorneys: Rodger D. Nave, West Jordan, Petitioner Pro Se
Suzan Pixton, Salt Lake City, for Respondent
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Before Judges Davis, Thorne, and Roth.
¶1 Rodger D. Nave seeks judicial review of a decision of the Workforce Appeals
Board (the Board) denying him unemployment benefits because he voluntarily quit his
job without good cause. See Utah Code Ann. § 35A‐4‐405(1) (2011). “To establish good
cause, a claimant must show that continuing the employment would have caused an
adverse effect which the claimant could not control or prevent” and “that an immediate
severance of the employment relationship was necessary.” Utah Admin. Code
R994‐405‐102. We do not disturb the Board’s decision.
¶2 Nave left work on October 5, 2011, and applied for unemployment benefits the
same day. Nave testified in a hearing before an Administrative Law Judge (ALJ) that
the working environment had been hostile for over a year before he decided to quit.
The ALJ asked Nave several times to describe specific incidents that led him to quit.
The Board concluded that his complaints were either too remote in time or too vague to
explain the decision to leave work on October 5. Similarly, although Nave complained
before the Board that he went home from work every night with a headache due to
carbon dioxide levels at work, he testified at the hearing that he had complained to his
supervisor about the situation and he no longer had the headaches after March 2011.
Because Nave had complained about stress and workload issues, the employer offered
him a transfer to another of the employer’s locations where he could do the same work
at the same pay and rank but the workload would not be as substantial. Nave testified
that he did not take this position because the management would be the same at both
locations. However, Nave could not explain why accepting a position at the other
location would not have solved his problems with the stress of the workload and the
alleged belittling he experienced at work.
¶3 The Board concluded that Nave had not met his burden to establish good cause
for quitting his employment by demonstrating a hostile work environment. The Board
reasoned that the only specific example of allegedly belittling behavior had occurred six
months prior to Nave quitting, two of the three people he identified as participants
were no longer employed by the company, his complaints were treated seriously by the
employer, and he failed to provide the employer with an opportunity to address the
concerns. Finally, the Board concluded that after Nave complained about stress from
the workload and treatment by other employees, the employer offered to allow him to
transfer to a different location where he would not be in contact with the offending
co‐workers and there would be less stress. The Board concluded that Nave did not act
reasonably when he refused the transfer and quit.
¶4 Before this court, Nave complains that the ALJ did not allow him to fully present
his reasons for quitting. Specifically, Nave complains that the ALJ did not allow Nave’s
witness to testify. However, as the ALJ and the Board both determined, the proposed
witness was a former employee who had no firsthand knowledge of the events that
precipitated Nave’s decision to quit in October 2011. Nave also complains that the ALJ
cut him off, did not allow him to complete his thoughts, and moved too quickly from
topic to topic. However, the ALJ’s conduct of the hearing demonstrates that the ALJ’s
actions that Nave perceived as preventing him for presenting his case were actually an
attempt to direct Nave to the facts and evidence that would be relevant to the issues
before the ALJ. Nave was not prejudiced in the presentation of his case.
¶5 Before both the Board and this court, Nave has attempted to raise new
arguments regarding the grounds for his decision to quit and his reasons for refusing an
offer to transfer. For example, he claims for the first time that the transcript of the
hearing before the ALJ contains omissions, that he himself took actions to address the
20120134‐CA 2
carbon dioxide issues, and that because the volume of customers would have been
lower at the other location, his wages would have decreased if he had agreed to
transfer. Although Nave was informed in the hearing brochure, in the notice of
hearing, and through the ALJ’s statements that any evidence must be presented at the
hearing and no new evidence would be considered in an appeal to the Board, Nave
attempted to introduce new claims and evidence throughout the proceedings before the
Board and continues to do so before us. As the Board explained at length in its decision,
the time to present all evidence and claims was at the hearing before an ALJ when all
parties would have an opportunity to present evidence and cross‐examine witnesses.
We do not consider evidence and claims presented for the first time before this court.
See Brown & Root Indust. Serv. v. Industrial Comm’n, 947 P.2d 671, 677 (Utah 1997) (“We
have consistently held that issues not raised in proceedings before administrative
agencies are not subject to judicial review except in exceptional circumstances.”).
¶6 We disturb the Board’s findings of fact only if they are “not supported by
substantial evidence when viewed in light of the whole record before the court.” Utah
Code Ann. § 63G‐4‐403(4)(g) (2011). “It is not our role to judge the relative credibility of
witnesses.” Albertsons, Inc. v. Department of Emp’t Sec., 854 P.2d 570, 575 (Utah Ct. App.
1993); see also Prosper Team, Inc. v. Department of Workforce Servs., 2011 UT App 246, ¶ 10,
262 P.3d 462 (deferring to the Board’s advantaged position to assess the claimant’s
credibility). We will not disturb the Board’s application of the law to the facts as long as
it is “within the realm of reasonableness and rationality.” EAGALA, Inc. v. Department of
Workforce Servs., 2007 UT App 43, ¶ 9, 157 P.3d 334 (internal quotation marks omitted).
The Board’s factual findings are supported by substantial evidence in the record as a
whole, and the Board’s determinations that Nave quit his employment without good
cause and did not demonstrate that a denial of benefits was contrary to equity and good
conscience are reasonable and rational. Accordingly, we do not disturb the Board’s
decision.
____________________________________
James Z. Davis, Judge
____________________________________
William A. Thorne Jr., Judge
____________________________________
Stephen L. Roth, Judge
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