Neckel v. Department of Workforce Services , 364 P.3d 65 ( 2015 )

2015 UT App 292THE UTAH COURT OF APPEALS
GEORGE W. NECKEL,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES, WORKFORCE APPEALS
BOARD; AND CONTEMPO CABINET & MILL, INC.,
Respondents.
Memorandum Decision
No. 20140901-CA
Filed December 3, 2015
Original Proceeding in this Court
David J. Holdsworth and Jeffrey D. Holdsworth,
Attorneys for Petitioner
Suzan Pixton, Attorney for Respondent Department
of Workforce Services, Workforce Appeals Board
JUDGE JOHN A. PEARCE authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.
PEARCE, Judge:
¶1 George W. Neckel seeks judicial review of the Workforce
Appeals Board’s (the Board) decision denying his application for
unemployment benefits. We conclude that substantial evidence
supports the Board’s factual determinations. We also conclude
that the Board’s decision falls within the bounds of
reasonableness and rationality. Accordingly, we decline to
disturb the Board’s decision.
¶2 Neckel worked for Contempo Cabinet & Mill, Inc.
(Contempo) as a cabinet maker. Throughout his employment
with Contempo, Neckel had concerns regarding workplace
safety and Contempo’s business practices. He sporadically
shared these concerns with his supervisor. Neckel ultimately
Neckel v. Department of Workforce Services
quit his employment with Contempo, not because of these
concerns but because of issues he had experienced with a fellow
employee (Coworker). Coworker, a twenty-eight-year-old
bodybuilder nicknamed Rambo, harassed the fifty-nine-year-old
Neckel about his age and perceived inability to work without
assistance from others. Coworker had similarly negative
interactions with other Contempo employees. By way of
example, Coworker once locked an employee in a jobsite
outhouse. On another occasion, Coworker squeezed another
employee’s shoulders so hard that Neckel believed the employee
would buckle from the pain. At least one Contempo employee
began carrying pepper spray and a taser out of fear of Coworker.
According to Neckel, Contempo’s responses to Coworker’s
actions were anemic at best.
¶3 The Friday prior to Neckel leaving Contempo’s employ,
Neckel set up fans in the workplace. Coworker told Neckel that
he did not want to “smell stinky old men,” and demanded that
Neckel turn off the fans. Neckel responded with insults, using “a
couple of choice four-letter words,” and said “some pretty nasty
stuff to [Coworker].” Coworker ran at Neckel with his fists
clenched and threatened to “kick *Neckel’s+ butt,” but Coworker
never struck Neckel. Neckel left the work area without reporting
the incident to his supervisor.
¶4 The following Monday, Neckel’s supervisor approached
him regarding the confrontation. Neckel informed his supervisor
that he could no longer work with Coworker because
Coworker’s actions made him fear for his physical safety. Neckel
then completed the workday without incident. On Tuesday,
Neckel further discussed his concerns regarding Coworker’s
hostile behavior with his supervisor. The supervisor
acknowledged Neckel’s concerns and informed Neckel that
Coworker’s employment with Contempo would be terminated.
After this conversation, Neckel returned to work.
¶5 Shortly after Neckel returned to work on Tuesday,
Coworker approached Neckel and informed him that the two
20140901-CA 2 2015 UT App 292Neckel v. Department of Workforce Services
would be working together that day. Neckel became upset and
told his supervisor that he could not work with Coworker and
was leaving. The supervisor told Neckel he needed more time to
find a replacement for Coworker, informing Neckel that
Contempo was “too short-handed right now” to fire Coworker
without obtaining a replacement. Neckel nevertheless left the
jobsite, stating, “I can’t do this . . . . I gotta go.”
¶6 The supervisor called Neckel on Wednesday and left him
a voicemail stating that the supervisor wanted to discuss the
situation. Neckel returned the supervisor’s call later in the day,
but not before he applied for unemployment benefits. When
Neckel returned the call, the supervisor informed Neckel that he
wanted to work it out and invited Neckel to come speak with the
owner’s son, who ran Contempo’s shop. Neckel told the
supervisor that he had already applied for unemployment
benefits and he did not believe the situation could be resolved.
This was the last communication Neckel had with Contempo.
Neckel never returned to work.
¶7 The Department of Workforce Services (the Department)
denied Neckel’s claim for unemployment benefits, finding that
Neckel voluntarily quit without good cause. The Department
also rejected Neckel’s argument that it would be contrary to
equity and good conscience to deny him unemployment
benefits. Neckel appealed to an Administrative Law Judge (the
ALJ), who affirmed the Department’s denial of benefits. Neckel
next appealed to the Board, which affirmed the ALJ’s decision.
Neckel now seeks judicial review.
¶8 Neckel argues that certain Board findings of fact are not
supported by substantial evidence: (1) that Neckel quit his
employment voluntarily for a reason that disqualified him from
receiving unemployment benefits; (2) that he failed to establish
good cause to quit; and (3) that the circumstances surrounding
his departure did not satisfy the equity and good conscience
standard. When reviewing an administrative agency’s findings
of fact, we do so in the light most favorable to the agency,
20140901-CA 3 2015 UT App 292Neckel v. Department of Workforce Services
Evolocity, Inc. v. Department of Workforce Servs., 2015 UT App 62,
¶ 2, 347 P.3d 1066, and we will uphold the agency’s findings if
they are supported by substantial evidence, id. ¶ 4. “Substantial
evidence is more than a mere scintilla of evidence . . . though
something less than the weight of the evidence.” Cook v. Labor
Comm’n, 2013 UT App 286, ¶ 14, 317 P.3d 464 (omission in
original) (citation and internal quotation marks omitted).
¶9 Neckel first argues that there was not substantial evidence
to support the Board’s finding that Neckel quit voluntarily. “A
separation is considered voluntary if the claimant was the
moving party in ending the employment relationship.” Utah
Admin. Code R994-405-101(1). There is no dispute that Neckel,
rather than Contempo, was the moving party in ending the
employment relationship: Neckel walked off the job in response
to his ongoing difficulties with Coworker. See Chapman v.
Industrial Comm’n, 700 P.2d 1099, 1101 (Utah 1985)
(characterizing claimant’s walking off the job after longstanding
abuse from supervisor as a voluntary quit). Neckel also declined
Contempo’s offer to attempt to preserve the employment
relationship. These facts support the Board’s finding that
Neckel’s departure from Contempo was a voluntary quit.1
¶10 Second, Neckel argues that substantial evidence does not
support the Board’s finding that he did not have good cause to
quit. Neckel, as the claimant, “has the burden to establish that
the elements of good cause . . . have been met.” Utah Admin.
Code R994-405-105. Good cause to quit is evaluated by “the
objective standard of whether a reasonably prudent person
would be justified in quitting under similar circumstances.”
1. Neckel also argues that there is not substantial evidence
supporting the Board’s determination that he quit for a
disqualifying reason. We do not separately analyze this
argument because it appears to be coextensive with Neckel’s
argument that he had good cause to quit.
20140901-CA 4 2015 UT App 292Neckel v. Department of Workforce Services
Sawyer v. Department of Workforce Servs., 2015 UT 33, ¶ 30, 345
P.3d 1253 (citation and internal quotation marks omitted). To
establish good cause, a claimant must show that continuing his
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. Further, a finding of good cause
requires that the claimant’s “separation must have been
motivated by circumstances that made the continuance of the
employment a hardship or matter of concern, sufficiently
adverse to a reasonable person so as to outweigh the benefits of
remaining employed.” Id. R994-405-102(1)(a). Even though the
employee may have been adversely affected, good cause does
not exist if the employee could have “reasonably . . . continued
working while looking for other employment,” “had reasonable
alternatives . . . to preserve the job,” or if the employee “did not
give the employer notice of the circumstances causing the
hardship thereby depriving the employer of an opportunity to
make changes that would eliminate the need to quit.” Id. R994-
405-102(1)(b). Thus, the employee “must have made a good faith
effort to work out the differences with the employer before
quitting unless those efforts would have been futile.” Id. R994-
405-102(1)(b)(iii).
¶11 Here, the Board found that Neckel’s decision to quit was
without good cause and was unreasonable, because Neckel
chose to leave work without first giving Contempo a chance to
either discharge Coworker or arrange for Neckel and Coworker
to work separately. Neckel argues that he had good cause to
make Tuesday his last day at work. Specifically, Neckel contends
he was forced to quit by Contempo’s failure to remedy the
situation and his fear for his physical safety caused by
Coworker’s actions. Neckel points to Contempo’s failures to
address his previous concerns regarding Contempo’s workplace
safety and business practices and argues that Contempo’s failure
to respond to those prior complaints left him with no reason to
20140901-CA 5 2015 UT App 292Neckel v. Department of Workforce Services
believe that Contempo would remedy his concerns for his
physical safety.
¶12 Neckel’s disagreement with the Board’s determination
does not demonstrate the absence of substantial evidence to
support the Board’s finding. Although Neckel did not report the
fan incident, his supervisor approached him on the next working
day to discuss the matter. The day after that, the supervisor
acknowledged to Neckel that Coworker’s behavior was a
problem and stated that he would seek Coworker’s discharge.
When Neckel walked off the job shortly thereafter, he did so
despite his supervisor’s plea for more time to find a replacement
for Coworker. Neckel’s refusal to allow Contempo a reasonable
opportunity to discharge Coworker or otherwise allay Neckel’s
concerns is substantial evidence supporting the Board’s finding
that Neckel did not make a good faith effort to preserve his
employment or seek to resolve his differences with Contempo.
Contempo’s intent to remedy the situation is further
demonstrated by the supervisor’s call to Neckel on the day after
Neckel walked off the job, requesting a chance to further discuss
the situation. The Board could reasonably conclude that a
“reasonably prudent person” would have continued discussions
with Contempo before quitting, especially in light of
Contempo’s expressed intent to discharge Coworker. See Sawyer,
2015 UT 33, ¶ 30 (citation and internal quotation marks omitted).
¶13 Furthermore, Neckel has not provided evidence of an
adverse effect which he could not control or prevent, requiring
the immediate termination of his employment. See Utah Admin.
Code R994-405-102. By Neckel’s own admission, the only
occasion on which Coworker physically threatened Neckel was
in response to Neckel responding to Coworker’s comment with
“choice four-letter words.” Moreover, Coworker never
physically harmed Neckel. While Neckel’s concerns about
Coworker appear to be justified, as Contempo recognized, we
hold that the Board’s finding that Neckel quit without good
20140901-CA 6 2015 UT App 292Neckel v. Department of Workforce Services
cause is supported by substantial evidence under the particular
circumstances of this case.2
¶14 Third, Neckel argues that the Board erred in finding that
the circumstances surrounding Neckel’s departure did not
satisfy the equity and good conscience standard. Neckel carries
the burden to establish that equity and good conscience requires
the payment of unemployment benefits. Utah Admin. Code
R994-405-105. “Determining what constitutes equity and good
conscience presents a mixed question of law and fact . . . .”
Hadley v. Workforce Appeals Bd., 2013 UT App 145, ¶ 9, 303 P.3d
1037 (citation and internal quotation marks omitted). Where, as
here, such a mixed question is “fact-like,” our review is
deferential to the Board. Jex v. Utah Labor Comm’n, 2013 UT 40,
¶ 15, 306 P.3d 799 (citation and internal quotation marks
omitted).
¶15 The equity and good conscience standard provides that
benefits may be awarded to the claimant when: “there are
mitigating circumstances”; “a denial of benefits would be
unreasonably harsh or an affront to fairness”; the claimant has
“acted reasonably”; and the claimant has demonstrated “a
continuing attachment to the labor market.”3 See Utah Admin.
2. To be clear, we can readily envision situations where the
aggressive actions of a coworker would provide good cause to
leave employment. We merely hold that on the facts before the
Board in this case—including Contempo’s attempt to resolve the
situation and Neckel’s departure before hearing what Contempo
would propose as a remedy—the Board’s finding is supported
by substantial evidence.
3. Here, there is no dispute regarding the claimant’s successful
attachment to the labor market, and we recognize that
Coworker’s behavior is a mitigating circumstance. Therefore, we
need only examine whether the Board’s determination that
(continued…)
20140901-CA 7 2015 UT App 292Neckel v. Department of Workforce Services
Code R994-405-103. A claimant acts reasonably “if the decision
to quit was logical, sensible, or practical. There must be evidence
of circumstances which, although not sufficiently compelling to
establish good cause, would have motivated a reasonable person
to take similar action . . . .” Id. R994-405-103(1)(a); see also Hadley,
2013 UT App 145, ¶ 9. However, we will not engage in a “free-
wheeling judicial foray into the record” to impose a decision
based on our “collective sense of equity and fairness.”4 Pritcher v.
Department of Emp't Sec., 752 P.2d 917, 919 (Utah Ct. App. 1988).
Rather, our analysis of the fact-like issue before us “must reflect
the broad discretion conferred by the legislature upon the
[Board].” Adams v. Board of Review of Indus. Comm'n, 776 P.2d 639,
642 (Utah Ct. App. 1989).
¶16 The Board affirmed the ALJ’s finding that Neckel did not
act reasonably and found no mitigating circumstances that made
a denial of benefits unduly harsh or an affront to fairness. The
ALJ stated that Neckel
could have continued his employment and given
[Contempo] adequate time to deal with concerns
without experiencing any personal harm. [Neckel]
acted unreasonably by not giving the [Contempo]
time to deal with his concerns. Because [he] did not
act reasonably an allowance of benefits cannot be
granted under the equity and good conscience
provision.
(…continued)
Neckel acted unreasonably is supported by substantial evidence,
and whether the Board’s denial of benefits was unreasonably
harsh or unfair.
4. If such a foray were permitted, at least one member of this
court’s panel would have decided in Neckel’s favor.
20140901-CA 8 2015 UT App 292Neckel v. Department of Workforce Services
Neckel disagrees, arguing that one “cannot look at his decision
to quit due to the confrontation with his coworker in a vacuum.”
He asserts that his decision to quit should be based on the entire
record, not just the isolated incident with Coworker, and that the
entire record indicates that his decision was reasonable.
¶17 The Board’s denial of benefits was within the bounds of
reasonableness and rationality, and it was not unduly harsh or
an affront to fairness. The record does not indicate that Neckel
ever approached his supervisor to complain about Coworker’s
behavior. Rather, Neckel’s supervisor raised the issue with him.
On the day Neckel left Contempo, his supervisor informed him
that the supervisor would resolve the situation by discharging
Coworker as soon as a replacement could be located. After
Neckel left, his supervisor contacted him in an effort to get
Neckel back to work. Although Contempo’s response may not
have been the definitive response that Neckel desired, it was
reasonable for the Board to conclude that Neckel should have
responded to Contempo’s attempts to remedy his concerns with
Coworker before deciding that his work situation could not be
salvaged. Neckel’s situation with Coworker may have been
uncomfortable and intimidating; however, there is no indication
in the record that Neckel was in immediate physical danger.
Even taking into account Neckel’s concerns and work history
with Contempo, evidence supports the Board’s finding that
Neckel’s decision to leave without allowing Contempo
additional time to remedy the situation was unreasonable—
especially given the supervisor’s expressed support for Neckel—
and that withholding benefits would not be unreasonably harsh
or an affront to fairness. Thus, we decline to disturb the Board’s
decision denying Neckel benefits under the equity and good
conscience standard.
¶18 Neckel argues that, here, the question of equity and good
conscience is controlled by Chapman v. Industrial Commission, 700
P.2d 1099 (Utah 1985), wherein the Utah Supreme Court held
“that as a matter of law the equity and good conscience standard
20140901-CA 9 2015 UT App 292Neckel v. Department of Workforce Services
has been satisfied.” Id. at 1102. However, Chapman addressed
circumstances that are factually distinguishable from this case. In
Chapman, an employee suffered through five years of
increasingly severe abuse by her immediate supervisor. Id. at
1100–01. The employee walked off the job on Christmas Eve after
the supervisor began screaming and swearing at her for no
reason. Id. at 1101. The employee maintained that she had not
reported her supervisor’s erratic and abusive behavior to
management because the supervisor was in poor health and the
employee did not want the supervisor to lose her job. Id. at 1102.
The supreme court concluded that, under these circumstances,
even though the employee could not demonstrate good cause for
her decision to quit, it would violate equity and good conscience
to deny her benefits. Id. Here, the Board could reasonably
conclude that on the different facts presented in this case—
Neckel’s relatively recent5 difficulties with a coworker rather
than his supervisor, which Contempo was attempting to
remedy—equity and good conscience did not require the
payment of benefits.
¶19 Neckel also argues that the Board’s overall application of
law to the facts was outside the bounds of reasonableness and
rationality. We will uphold the Board’s application of the law to
the facts “unless its determination exceeds the bounds of
reasonableness and rationality.” Brehm v. Department of Workforce
Servs., 2014 UT App 281, ¶ 12, 339 P.3d 945 (citation and internal
quotation marks omitted). For the same reasons that we have
upheld the Board’s factual findings—essentially, Neckel’s failure
to give Contempo reasonable opportunity to resolve the
situation with Coworker despite Contempo’s expressed
intention to do so—we also uphold the Board’s application of
5. The record does not indicate how long Coworker had been
mistreating Neckel and the other Contempo workers, but at oral
argument, Neckel’s counsel agreed that it was a matter of
“weeks or months,” not months or years.
20140901-CA 10 2015 UT App 292Neckel v. Department of Workforce Services
the law to the facts. The Board applied the law to the facts
reasonably and rationally, and given the deferential standard of
review, we cannot disturb the Board’s application of the law to
the facts simply because it could have reasonably reached a
contrary conclusion.
¶20 The Board’s factual determinations are supported by
substantial evidence, and its application of law to the facts was
both rational and reasonable. We therefore decline to disturb the
Board’s decision denying Neckel’s petition for unemployment
benefits.
20140901-CA 11 2015 UT App 292