Vijil v. WFSV , 2012 UT App 74 ( 2012 )

IN THE UTAH COURT OF APPEALS
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Daniel S. Vijil, ) PER CURIAM DECISION
)
Petitioner, ) Case No. 20110160‐CA
)
v. )
) FILED
Department of Workforce Services, ) (March 15, 2012)
Workforce Appeals Board; and Smitty’s )
Golden Steak, ) 2012 UT App 74)
Respondents. )
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Original Proceeding in this Court
Attorneys: David J. Holdsworth, Sandy, for Petitioner
Amanda B. McPeck, Salt Lake City, for Respondent Workforce Appeals
Board
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Before Judges McHugh, Voros, and Orme.
¶1 Daniel S. Vijil petitions for review of the decision of the Workforce Appeals
Board (the Board) affirming the denial of unemployment benefits because Vijil was
discharged for just cause. We decline to disturb the Board’s decision.
¶2 This court will reverse an administrative agency’s findings of fact “only if the
findings are not supported by substantial evidence.” Drake v. Industrial Comm’n, 939
P.2d 177, 181 (Utah 1997). “Substantial evidence is that quantum and quality of relevant
evidence that is adequate to convince a reasonable mind to support a conclusion.”
Smith v. Workforce Appeals Bd., 2011 UT App 68, ¶ 9, 252 P.3d 372. The determination of
whether an employer had just cause to terminate an employee is a mixed question of
law and fact. See id. This court will uphold the Board’s decision applying law to facts
“so long as it is within the realm of reasonableness and rationality.” See Arrow Legal
Solutions Grp., PC v. Workforce Servs., 2007 UT App 9, ¶ 6, 156 P.3d 830.
¶3 A claimant is ineligible for unemployment benefits if he or she was discharged
for just cause. See Utah Code Ann. § 35A‐4‐405(2)(a) (2011). To establish just cause for
terminating employment, the elements of knowledge, culpability, and control must be
shown. See Utah Admin. Code R994‐405‐202. Although Vijil acknowledges that the
element of knowledge has been established based on a disciplinary letter he received
shortly before his discharge, he contends that there is not substantial evidence to show
culpability or control.
¶4 Culpability is established if the conduct causing the discharge is “so serious that
continuing the employment relationship would jeopardize the employer’s rightful
interest.” Id. R994‐405‐202(1). Vijil argues that his absence for one shift was not so
serious as to warrant discharge. However, the record shows that Vijil was discharged
based on a lengthy pattern of attendance problems, which culminated in his missing a
shift and failing to follow previously prescribed procedures. Although the missed shift
led to his discharge, it was the final incident, not the only one.
¶5 There was substantial record evidence to support a finding of culpability. Vijil’s
employer testified at a hearing before an administrative law judge (ALJ) regarding the
circumstances of Vijil’s discharge. He stated that Vijil had received a written warning
regarding his attendance and other issues. That disciplinary letter set out the
expectations and the procedures for Vijil to follow if he was unable to appear for work.
Vijil was required to obtain prior approval from a manager before missing a shift or
having someone cover a shift for him. The employer also testified that Vijil had been
late or absent for over 100 of his approximately 170 scheduled shifts in 2010, and was
often substantially late. On the day of Vijil’s final missed shift, Vijil had not obtained
prior approval, did not notify a manager that he would be gone that day, and had
covered only part of his shift. He also did not notify a manager that someone would
cover the later part of his shift.
¶6 These facts are sufficient to establish culpability. The record shows that Vijil had
a poor attendance record, which disrupted the operation of the restaurant. The final
missed shift caused additional disruption, lack of line coverage, and a waste of
resources in trying to cover for Vijil’s unexpected absence. An employer has a rightful
interest in having employees show up for work on time. Here, Vijil’s unreliability
jeopardized the employer’s rightful interest by disrupting the efficient operation of
business.
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¶7 The element of control is established by showing that the conduct causing the
discharge was within the employee’s control. See id. R994‐405‐202(3). Vijil’s failure to
obtain prior approval for his absence was within his control. Vijil stated that he was
absent because he had a doctor’s appointment, so he necessarily had prior notice of his
need for time off. He was aware of the procedures he was to follow to obtain prior
approval for such an absence. He had the managers’ cell phone numbers so he could
reach them directly. He had ample opportunity to speak with the managers to
coordinate time off. Overall, there is substantial evidence to support that Vijil’s conduct
and failure to follow the required procedures was within his control.
¶8 Vijil acknowledges that there was some evidence to support the findings of
culpability and control but argues that there was not substantial evidence because his
own testimony differed from that of his employer. Even though he disputes the facts as
found, however, there is support for them in the record through his employer’s
testimony. The ALJ made a specific credibility determination, finding the employer’s
testimony to be more credible and realistic. Appellate courts will not reassess an
agency’s credibility determinations or reweigh the evidence in a proceeding where
conflicting evidence is presented. See Questar Pipeline v. Utah Tax Comm’n, 850 P.2d
1175, 1178 (Utah 1993). Rather, it is the agency’s prerogative to assign weight to
conflicting witness testimony. See id. In its decision, the Board deferred to the ALJ’s
credibility determination, and given the credible testimony of the employer, there is
ample record evidence to support the findings of culpability and control.
¶9 Overall, there is substantial evidence to support the Board’s factual findings, and
its determination that Vijil was discharged for just cause is reasonable and rational.
Accordingly, we uphold the Board’s decision.
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Carolyn B. McHugh,
Presiding Judge
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J. Frederic Voros Jr.,
Associate Presiding Judge
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Gregory K. Orme, Judge
20110160‐CA 3