Carbon County v. Department of Workforce Services

right dismiss] motion to follows a the case when sub seeking to dismiss abruptly complete inactivity." period of Max stantial par counsel for both appeared new after (Utah Rushton, 779 P.2d v. negotiations back getting serious ties were field (Orme, J., denied, concurring), cert. Ct.App.) track, Cheek's have blindsided seems to 1989). (Utah recognize And P.2d 33 we attorney. ample opportuni that Cheek "had more than {15 warning that his case Cheek had no ty" prosecute the case between death sen- faced an imminent against Bulloch again, light But 2010. See id. at 240. late for Cheek to until it was too tence consistently pace slow of the case for so actions, which actions sufficiently alter his many years, which seems to have been satis adequate up reasonably believed to be Cheek immediately factory sides until before to both impa- time. Had Bulloch shown until that filed, agree dismiss was the motion to earlier, warning to move on or Cheek tience injustice will suffer more if the that Cheek out, pro- this case would have perhaps move than Bulloch will if it is not. case is dismissed Further, had differently. Cheek gressed with a 1 18 The trial court's concern case entirely with either failed to communicate suggested in which its file little had period court for an extensive Bulloch or the years happened nearly seven is under- motion, immediately Bulloch's prior to dismissing Rather than the case standable. justified in have been more eourt would also have, however, outright, the court could at weeks before Bulloch dismissing. But mere being presented with evidence upon least dismiss, meeting sought extrajudicial correspondence prog- and other dispute, property in together, inspecting the ress, "drop fixed an imminent dead" date is- discussing plans to resolve insurance required specified to take which Cheek sue, actively negotiations with pursuing having pain of the case dismissed. actions on one another. outright dismissal of the case was too But an Next, Westing looking to the fourth T16 all of the cireumstances. aggressive under factor, been agree there has house Accordingly, we reverse the trial in this case. After prejudice to Bulloch some grant of Bulloch's motion to dismiss court's all, been a named defendant Bulloch has for trial prosecute. for failure to We remand years, incurring eight this lawsuit for over may proceedings now be or such Boseman, v. along way. Rohan costs Cf. appropriate. ("[Nlot prejudiced L. ROTH T20 CONCUR: STEPHEN would have granting the dismissal WE CHRISTIANSEN, they M. and MICHELE incurred [defendant]s denied, costs(.]"), Judges. cert.

2002). Additionally, Bulloch contends that perpetually loom pending this lawsuit surely had an effect on

ing over its head has making periodic risk decision

Bulloch's However, rings this contention assessments. UT 4 2012 App pending If this lawsuit's somewhat hollow. COUNTY, Petitioner, CARBON burdensome, Bulloch would status was so in communi urgency with more have acted DEPARTMENT OF WORKFORCE SER- appearing than cating with Cheek rather Board; VICES, Appeals slow-moving progress of the with the content Marinoni, Respondents. Wade L. case, promptly responded more would have discovery would have filed requests, and No. 20110109-CA. years earlier. to dismiss some its motion Appeals of Utah. Court of Westinghouse Finally, the fifth 6, 2012. Jan. injustice that will result factor looks to the 1, 2012. Rehearing Denied March A court must be dismissing from the case. dismissing case for failure to cautious "except declining to do so

prosecute, perhaps Crook, City, for Peti-

D. Seott Salt Lake tioner. Pixton, City, Respon- Lake for

Suzan Salt Services. dent Nakamura, City, Salt Lake for Blake A. Respondent L. Marinoni. Wade DAVIS, VOROS, Judges Before CHRISTIANSEN. MEMORANDUMDECISION T4 An eligible individual is not to receive unemployment benefits if discharged from CHRISTIANSEN, Judge: employment "just his or her cause." See {1 seeks review of the 85A-4-405(2)(a) § Utah Code Ann. (Supp. (the Board) Appeals Board's deci- 2011); Utah Admin. Code R994-405-201. unemployment awarding sion insurance ben- every legitimate "[Nlot discharge cause for county employee, efits to a former Wade L. justifies a denial of benefits." Utah Admin. Marinoni. We affirm. Code R994-405-201. To establish that Mar- justly inoni was terminated employ from his T2 The Board's factual establish ment, prove had to employed by that Marinoni had been Marinoni's conduct in imme emergency an medical technician diately (EMT) personally and to requested eighteen years,. for August transport involved each of following ele transported a patient complaining Marinoni (1) (2) (38) culpability, ments: knowledge, and pains to Hospital. of chest Castleview Later control. See id. R994-405-202 (listing the day, that same he received a call from Nurse required prove cause); elements (the nurse) to id. Lex Hospital Black at Castleview (establishing R994-405-208 employ requesting a transport STAT for the same cause); patient Valley Regional prove just to the Utah er carries the burden Medical see also Autoliv in Provo. discussing Center After the re- ¶ 198, 17, UT nurse, quested transport with the Marinoni Workforce P.3d 7. "did not believe emergency this was an situa- personally tion." Instead of responding im-

mediately County I. Carbon hospital, Failed to Marinoni called Marshal employees Support two other on-call Evidence to to take the Factual Find- Thereafter, transport. ings It County Challenges Appeal. on Carbon ter- minated Marinoni taking "for not the call appeal, T5 On County Carbon chal thereby causing delay himself and a in the lenges some of the findings, Board's factual reaching ambulance hospital." At the but properly it has not marshaled the evi termination, time of Marinoni's Carbon supports dence that challenged findings.1 County did not have a policy written on 2(a)(9); R.App. See Utah P. Bhatia v. De handling such STAT calls and had not had Sec., partment Emp't training formal for some time. (Utah Ct.App.1992) (stating that party

13 The Board determined that challenging agency's Carbon findings an "prop must County had not carried prove erly record, its burden to present marshaling all of just cause for Marinont's termination because the evidence supporting the findings and prove it failed to that, that his culpa- showing conduct was despite that evidence and all ble, that he acted with of Carbon reasonable inferences that can be drawn County's expectations, therefrom, and that he was in findings supported by are not (internal control of the conduct that led to his termi- substantial evidence" quotation Therefore, omitted)). nation. the Board Instead, concluded that marks County Carbon Marinoni was entitled to unemployment ben- reargues support the facts that its version of efits. Carbon appeals, challenging challenges the events and credibility de findings Board's factual legal and deter- terminations made the administrative law arguing (ALJ) minations and that it judge generally Board. See Marinoni, justly that it terminated rendering Mountain, Maple Friends Inc. Maple 11, 112, City, ton him ineligible unemployment 228 benefits. Specifically, County challenges Carbon ing" the ad- transport on to a STAT judge findings ministrative law and Board's any "hald] failed to show consistent understand- if urgent Marinoni "had considered the call to be transport policy prior of its to [Marinoni's] STAT, needing an ambulance he and the separation"; and that Marinoni's re- employee duty, response on as the first garding understanding policy his of the team, would have done the that Car- transport"; credible. bon had not conducted "consistent train- needing ("[A] patient to be challenged findings with knew trans of the recital heart ported was an active attack not attempt reargue [does the facts an delaying medical treatment could knew that marshaling requirement]. This fulfill facts, patient. How cause substantial harm to the reviews retry the it does not court ever, County's Therefore, reliance on these facts appellants error. them for clear misplaced. has not indi is light in a present the evidence must first cated where the Board made these critical and not to the trial court most favorable Furthermore, findings,. light in a construe the evidence attempt object to the lack of such did Then, appellants their case. favorable to In re findings in the Board's decision. See findings contradict explain why those must 4, 1161-63, KF., UT (citations weight of the evidence." the clear adequacy (requiring party challenging omitted)); quotation internal findings appeal preserve Stewart, Chen v. by bringing trial the lack of issue in the merely present ("Appellants cannot court's attention and to the trial excerpts from the carefully facts and selected stating "wholly necessary for a position [when of their record challenge and thus afford the trial party to they sim marshaling the Nor can evidence]. opportunity alleged court an to correct points to or review evidence that ply restate inadequately findings in or error of detailed contrary finding finding a to an alternate or provide meaningful appellate re der to (citations finding of fact." the trial court's (internal quota the court's decision" (determin view of Bhatia, omitted)); P.2d at 579 834 omitted)). generally See Olsen v. tion improper agency's findings were ing that the Comm'n, 70, 126, 249 Labor challenging party ly marshaled when the general pres (applying In re KF'.'s sup findings "emphasiz{ed] the evidence that principles appeal to an from an ervation to position, and left it to the court ported his decision). delayed agency's actually supported the sort out what evidence omitted)). (internal quotation marks findings" definitively Although 1 the Board did not 8 pa- determine whether Marinoni knew County failed to 16 Because Carbon needing having transported tient to be marshal, normally would not properly attack, Board did find an active heart if the review the whole record to determine testimony" "provided credible that Marinoni supported by findings factual are Board's emergency that he did not consider it an Instead, sim evidence. we would substantial situation, not consider the nurse's call to did accept findings "the Board's as conclu ply urgent, and did not consider the nurse's be supports and assume that the evidence sive" request transport. a Carbon to be for STAT Bhatia, findings. See 834 the Board's factual County essentially challenges these factual However, the dissent P.2d at 579. so, by doing In determinations the Board. County's of Carbon has addressed the merits marshal properly does not Carbon the whole record. argument, we must review find- supports that the evidence only points to the evidence ings but instead Findings No II. The Board Made supports contrary position. See Bha- Patient Marinoni Knew the Was tig, P.2d at 579. Having Active Heart Attack. an Even if had County argues it estab T9 T7 Carbon knowledge to marshaled the evidence, culpability2 both seeking lished to over findings, Carbon turn the Board's because he justify Marinoni's termination element, cause, to the element of As 2. As to the County argues delay responding argues that Marinoni's volitional that Marinoni's immediately to a call conduct of not patient experiencing transport an a transport patient active heart a an attack violated a universal standard active heart " continuing the em- 'so serious that attack of conduct. jeopardize' ployment relationship [Carbon (Quoting County's] rightful Ad- interest." Utah R994-405-202(1).) min. Code heavy a burden. and consider both supports "[T]his bears evidence that grants great agency's findings deference to an find fairly Board's and evidence that de uphold agency Swider, ings, and will action if the tracts from them." 824 P.2d at 451. 'supported facts, stated, are substantial evi reviewing this court has light dence when viewed of the whole It is place not this court's to "substitute its record before the court'" judgment reasonably as between two con- (Utah Swider, Air Force v. views, flicting though may even have § Ct.App.1991)(quoting Utah Code Ann. 63- come to a different conclusion had the case (1989) (current 46b-16(4)(g) version at Utah come before us for de novo review." Simi- (2008) 68G-4-408(1), § (M)(g) Code Ann. Board, larly, province "[it is the (granting jurisdiction this court and the au courts, appellate conflicting to resolve evi- thority grant ageney if "the action relief dence, and where inconsistent inferences fact, upon based a determination of made or evidence, can be drawn from the same it is implied by agency, supported that is not for the Board to draw the inferences." light substantial evidence when viewed in EAGALA, Inc. court"))). of the whole record before the "Substantial evidence is more than a mere (alteration in original) (quoting Grace Drill though something scintilla of ... Co., 68). ing 776 P.2d at weight less than the of the evidence. Sub stantial evidence relevant Initially, is such evidence as might accept a mind adequate reasonable before acknowledged veracity the ALJ Drilling conclusion." Grace Co. request written statement from the nurse Review, v. Board transport acknowledged STAT (omission (citations Ct.App.1989) that the nurse's statement indicated that the omitted). quotation and internal marks "In patient nurse told Marinoni that "[the was test, applying the substantial we an active ongoing MI with chest pain."5 testifying court, about these state- review 'whole record' before the concerning improper 4. The nurse's statements driving during the trans- his transport. port request hearing Though at alleged poor driving introduced was not through termination, he had letter written after the County incident. basis for his Carbon offered testify hearing. The nurse did not at the "[dJuring evidence and the Board found that employee complained drive another [Mari- that 5. The dissent classifies the nurse's statement as driving noni] was too fast so he slowed down." "undisputed" request as "clear." See Importantly, County challenge Carbon does not However, although Marinoni did not Thus, particular finding infra appeal. this on we dispute what the nurse said in his written state should not delve into record to determine ment, testimony Marinoni's about what those finding supported by whether the sufficient statements to him, meant which Swider, evidence. See Air Force v. of credible, clearly disputed Board found the mean 448, (Utah Ct.App.1991). 824 P.2d Addition ing Making of the nurse's statements. factual ally, object did not to the Board's weight given determinations based on the to the driving lack of consideration of Marinoni's as a conflicting testimony clearly responsibility is justify adequacy reason to termination or to the Board, of the ALJ and the as this court does not K.F., findings. generally See In re 2009 UT credibility reweigh make determinations or con 4, ¶¶ 61-63, Furthermore, 201 P.3d 985. flicting evidence. See EAGALA, Inc. v. Depart specific regard statements made other EMTs Servs., ment 2007 UT of Workforce driving only Marinoni's are not absent from Instead, simply 157 P.3d 334. we look to the argued the Board's but also are not evidence and determine whether "a reasonable County's brief. Ball v. Public Serv. Cf. might accept [the mind adequate evidence] as (In Co.), Questar Comm'n re Gas 2007 UT support Drilling a conclusion." Grace Co. v. ("[We long 175 P.3d 545 have held that Review, (Utah Ct.App. Board of 'mak[e] blanket assertions improper 1989) (internal omitted). quotation marks responsibility leav{e] the to the court to ferret out Similarly, the dissent's reliance support on Marinoni's evidence from the record to [them].'" alleged (second, third, unprofessional driving during original) the trans- and fourth alterations in port (citation omitted)). Thus, support justly that he was searching terminated is the record misplaced. See 30. Both the ALJ for facts that the Board did not find and the infra and the Board argue determined that Carbon scope did not exceeds the of this Robison, improper response terminated Marinoni generally for his court's review. See State v. 65, ¶¶ 16, 22, request transport (stating nurse's for a and not for Swider, at findings, Board's see ments, "[al he received stated that Marinoni challenged factual de Hospital uphold the Board's from Castleview transports" of lot now examine Carbon He also We pain." chest terminations. "routine involved that light legal arguments the call County's consider he did not testified convey any the nurse did Board's factual determinations. urgent because request demeanor in his voice or urgency Instead, simply the nurse transport.

ing the Legal Applied the Correct III. The Board said that he when Marinoni responded "OK" Reasonably Determined Standard and to trans finding someone" County Failed to Establish "work on that Carbon testimo patient. Given port Culpability. a reasonable

ny, [that] "relevant evidence agency's review an 112 "When we adequate" exists might accept as mind particular set of the law to a application of findings facts," agency's decision "will review the nurse's consider the Marinoni did not only moderate deference." Autoliv with transport. require a STAT urgent or to be Co., P.2d at 68. Drilling See Grace (internal 198, ¶ 16, 29 P.3d 7 {11 Importantly, because omitted). "Thus, we will quotation marks about clear direction given Marinoni had not long as it is uphold decision so [the Board's] made a STAT respond when a nurse how to and ra the realm of reasonableness within the ALJ and transport request, both (alteration (inter tionality." Id. assertion credible Marinoni's Board found omitted). quotation nal the call was a STAT did not think that he County argues that the Board T 13 Carbon response. requiring his immediate emergency legal in deter- wrong standard applied squarely are credibility determinations Such mining Marinoni's actions were cul- whether See Board's duties. the ALJ and within determined that Carbon pable. The Board Comm'n, 939 P.2d Drake v. Industrial be- had not 1997) ("We give deference conduct was prove it "did not cause fact questions decision maker initial only discharge op- harmful so position from superior in a it stands given reasoned that Mari- tion." The Board weigh the evidence and evaluate and which to eighteen years employment with no noni's accuracy credibility of wit the and assess "testimony and Marinoni's similar conduct recollections."); Valcarce v. Fitz nesses' cf. fully understand [Carbon that he did not (Utah 1998)("Trial P.2d gerald, 961 him to treat this County]'s policy requiring in deter accorded wide latitude courts are transport, a lesser form of disci- as a STAT They in the best matters. are mining factual to ensure have been sufficient pline should credibility of the wit assess the position to The Board against any problems." future gain proceeding of the and to a sense nesses that Marinoni also determined whole."). Given the ALJ and Board's as a determinations, testimony that he did not provided credible ev credibility the substantial emergency. this was a STAT That findings, believe supported the Board's idence by telephone testimony is bolstered the give to the "great deference" we County simply before carried its burden jurisdictional for reasons "'that than 'other develop facts on normally ALJ the Board to those appeals] or should not search court of rely and had Carbon unargued which it now wants us to reasons to for and unbriefed record challenged County properly the Board's judgment'" and dis- [district] reverse a engaging appeal, them in couraging appeals we could consider of [from "the court Notwithstanding sympathetic analysis. our our thinking without the] exercise of critical engaged participation of the whose affairs bear some of the view, Carbon must delayed responsibility Marinoni's reaction directly product for of that will be affected because, second, (first, as the Board to the call thinking" alterations in and third found, employees omitted)). given (citation had not Nevertheless, STAT trans- how to handle a sympathetic clear direction on to the dis- we are it port request nurse-a situation required from a to re- An EMT should be sent's view. impor- agree, argues, is of critical now and spond quickly possible when asked to trans- as tance. Had port patient who a heart attack. hospital with the nurse. past employment [Mari- call When history with told nurse he would "work on noni] seriousness of his actions in not immedi finding transport, someone" do the ately responding to a STAT call in accor replied truly "OK." If this nurse had been County's dance with Carbon poli unwritten emergency, it cy. an seems the nurse would See Southeastern Utah Ass'n Local of something Bd., have said else. v. Appeals Gov'ts 20, ¶¶ 9, 11, (discussing culpability, 114 To establish weighed how the Board the seriousness of causing discharge [tlhe conduct must employee's actions twenty years with her continuing employ- be so serious that discipline-free of history work and affirming relationship jeopardize ment the em- employ determination that the ployer's rightful If interest. the conduct ee's culpable actions were not because "a poor judgment was an isolated incident of strong discipline form of short of termination expectation and there was no it would be prevented would have future harm to the repeated, potential may continued or harm employer"); see also Mineral Res. Int'l Inc. prior not be shown. The claimant's work Servs., UT of Workforce important record is an factor in determin- 184U, (mem.) para. 2009 WL 1964982 ing whether the conduct was an isolated ("The reasonably Board ... concluded that good judgment. incident or a faith error in employee because [the had not disclosed employer might An not be able to demon- specific, information, confidential financial violation, single strate that a even though potential harm employee's from [the harmful, repeated by long-term would be great conduct was require not so as to dis employee with an pattern charge."); Bhatia v. Emp't complying employer's with the rules. Sec., 577-79 & n. 3 instance, depending this on the seriousness Ct.App.1992) (affirming the Board's decision conduct, may necessary not be employee violated a universal stan employer to discharge the claimant to dard of employee care when the was insubor avoid future harm. dinate storming busy out of a restaurant R994-405-202(1). Utah Admin. Code As using vulgar language supervi after his County recognized, the focus of the employee sor told the to return to work and culpability analysis is "whether discharge his concerns would be shortly addressed necessary potential avoid actual or when this was not an "isolated incident of harm employer's rightful interest." poor judgment" during employ Review, See Kehl v. Board ee's employment seven months of he had (Utah 1985); Depart accord Fieeiki v. previously vulgar used language argued ment with employees supervisors). (mem.). 122P.3d 706

$15 Although takes credibility 116 Given its determi issue with the nations, Board's statement that Carbon application Board's of the un County prove "did not that the conduct challenged findings was to the law was "within so harmful that discharge only op was the the realm of rationality" reasonableness and tion," when in determining in County entirety, that Carbon read its the Board did not applied legal the correct standard in weigh prove that Marinoni's culpable.6 actions were Although give 6. the dissent would like though may us to more even we have come to a different weight potential for harm caused Mari- conclusion had the case come before us for de actions, 129, noni's see this court's review infra novo review.' '[i]t is the of Similarly, province is limited to whether the Board's determination Board, courts, appellate not to resolve con- given findings was reasonable and not wheth flicting evidence, and where inconsistent infer- weighed er we would have the evidence differ evidence, can ences be drawn from the same it is ently or come to different conclusion if we (altera- for the Board to draw the inferences.'" reviewing were the Board's decision de novo. (citation omitted) in (quoting tion Grace EAGALA, Department See v. Inc. Review, 63, Drilling Co. v. Board Servs., 43,¶ 16, of ("It App 2007UT 157P.3d334 is (Utah Ct.App.1989))). place not this judgment court's to 'substitute its views, reasonably conflicting as between two R994-405-202(2). The Department Utah Admin. Code See Autoliv of County determined that Carbon failed Board 198, App UT Workforce omitted).7 (internal knowledge element when it marks to establish quotation P.3d 7 Thus, prove Board's determination that Marinoni received either a affirm the did not we expected of County explanation failed establish clear of behavior that Carbon just of cause. to STAT calls or a written culpability element him regarding employer's expectations. policy that Carbon Board's Determination IV. The findings that Carbon The Board's establish Knowledge to Establish County Failed County policy how did not have a written of the Realm of Reason- Is Also "Within Mari- transport handle a STAT until after Rationality." ableness and conflicting and that testi noni's termination mony given when the last formal about knowledge, Carbon 117 To establish transport procedures had training on STAT "provided a clear prove had to Marinont's occurred. The Board also found expected or a explanation of the behavior credible, specifically testimony his responding to STAT policy" written about ¶ 18; that a STAT must that he believed from nurses.8 See id. see also calls way knowledge to establish concept cases on which 8. The alternative This is discussed ¶¶ 24-29. prove flagrant that "the conduct involved is a In Martin dissent relies. See infra Services, 2004 UT violation of a universal standard of behavior." of (mem.), re ASP, Inc., WL 1752833 this court 264U, 2004 See Autoliv omitted); (internal reasonably quotation acted whether the Board see viewed R994-405-202(2). employee determining terminated that an Code also Utah Admin. As culpable just acted in a cause because she ¶ 7 above, 3, discuss see & n. supra argument violated a universal standard of manner she bases its about a violation of Martin, paras. "[the 9. In Board See id. care. the universal standard on facts that employer] had established [that determined Moreover, the Board. the Board made found by employee's] led to regarding the conduct legal no determination whether Mari- using [the violated such a universal standard. noni's actions termination was prohibited photo computer] employer's network to e-mail the universal Because the Board did not address graphs universal stan naked men violates a relies on undeter standard Also, para. in Bhatia v. dard." Id. 4. facts, mined we are limited in our review. Employment Security, P.2d Ct. of App.1992), not limit our The dissent asserts that should accepted factu court the Board's this findings of lack of critical but review because findings regarding a universal standard of al undisputed rely evidence to on the record instead properly mar Bhatia had not behavior because legal necessary make the conclusion at This evidence. See id. 579-80. shaled the the conclusion that Carbon upheld determi as reasonable the Board's just cause element angrily walking "in that Bhatia's conduct nation demonstrating 'by violated a uni that Marinoni busy job of a shift at a in the middle off ¶¶ 30-31. However, See versal standard. business, leaving employer's infra crucial time for the above, supra 110 & n. as we discuss see and his use others to assume his responsibilities, be is not and we would undisputed, vulgarity hearing of customers" within the required credibility to make determinations the universal standard. See id. at violated weigh reach the determination the evidence to reviewing case, we are not 579. this dissent, supra 111. Further advanced see of a board's universal standard reasonableness more, the dissent relies on Smith v. Workforce the Board here did not determination because Board, Appeals Instead, we are make such a determination. analysis. its universal standard See whether infra asked to determine Bhatia, which we exam Similar to Martin and determination, unchallenged based on the cause ¶ 16 analysis, supra see n. ined in our findings, was reasonable. affirmed Board's decision. 6, the Smith court ¶ 372. In Smith, 1, 2011 UT 252 P.3d See Inc. v. De 7. The dissent relies on Autoliv App so, doing wheth court did not address Services, Smith partment 2001 UT of Workforce driving suspended knowingly license er on culpability analysis. See to 29 P.3d violate a universal standard because However, ¶ 28. analysis spe Autoliv's was infra (12. it would. See id. conceded that determining knowledge cifically limited to Autoliv, analysis. prong just court addressed whether of the cause See Thus, the Smith knew 198, ¶ 17, factual determination that Smith Board's Additionally, P.3d 7. driving suspended sup was on a license he was reversing conclusion, Board's the Autoliv evidence, relying ported by while on the record unchallenged applied determination that Smith's findings, relying the ALJ's rather than on facts see id. ¶¶ 13, 16, the Board. that were not found See id. 18. was not credible. doctor, that he made a cardial infarction is a heart be verified attack. See Clinic, Mayo http://www.mayoclinic.com/ judgment because the STAT call did not call - - (last a doctor and the nurse did not come from visited health/heart-attack/D800094 - - 14, 2011); and "that he believed urgent, Health, sound he was Dec. National Institutes http://www.nIm.nih.gov/medlineplus/encey/ following County's] policy and be [Carbon authority experience lievedhe had the and (last 14, 2011); visited Dee. article/000195.htm the call from determine whether the nurse" Merriam-Webster, Medical, http://www. - - should be treated as a STAT call. Based on merriam-webster.com/medical/myocardial% unchallenged findings, these the Board ra (last 14, 2011). 20infarction visited Dec. Not- tionally County concluded that Carbon failed withstanding request, support- this clear carry provide its burden to either a clear rationale, information as to its source and explanation expected behavior or a performed Marinoni neither a STAT trans- Thus, policy.9 written we affirm the Board's port requested speak nor with the doctor. County determination that Carbon failed to not, testified, why When really asked he "I knowledge prong just establish the cause. get impression didn't from [the nurse] [¶ 8 conclusion, urgent affirm it In was that of a call. And Board's then it, determination that Marinoni go is entitled to when I told him I would ahead and fill unemployment benefits because Carbon okay." he stated that was just failed to establish cause. 22 Marinoni's misconduct did not end at point, however. He up driving ended

{19 DAVIS, I CONCUR: JAMES Z. patient to Provo. The other two EMTs Judge. in the ambulance with pa Marinoni and the VOROS, Presiding Judge Associate tient on that drive described his conduct on (dissenting): trip.1 EMTs, According to these Marino- respectfully I my judg- dissent. them, in[,] ni told your one of "Get ass I'm ment, it is unreasonable to conclude that driving."2 He "slammed the ambulance into Claimant Marinoni culpable Wade was not gear whip[ped] the ambulance out of the and that his conduct here did not violate a lot," hospital parking throwing patient universal standard of conduct. and the two EMTs around in the back. The patient complained following driving undisputed.

121 The facts are made the pressure they on her chest request, At a doctor's worse. Once Nurse Lex Black called the Carbon Garage Ambulance highway, on the other two EMTs speedometer; checked the transport. a STAT one said Marinoni an- Marinoni asked, driving "Why swered the call and between 90 and per the STAT 95 miles transport?" replied patient Black "[the hour, the other driving said he was between an active MI ongoing per Finally, with chest 95 and 100 miles hour.3 one of pain Marinoni, and Dr. Frischknecht ... wanted the EMT's told "Slow down before you According patient kill us."4 to one of the in the cath lab [in ASAP." Provol "MI" "myocardial EMTs, means myo- infaretion." A Marinoni then slowed to 60 or 65 Because we affirm the Board's 1. Their except accounts were uncontroverted determinations, separately we do not noted in the footnotes. address the Board's control determination. See EAGALA, Inc. v. 2. Marinoni later testified that he did not remem- 334; Albertsons, exactly ber what he said to this EMT. Sec., Emp't (''The Ct.App.1993) failure to establish 3. Marinoni later testified that he didn't recall any one of the three factors is fatal to ... testified, driving; how fast he was he also (omission "I employer's] claim of cause." going don't think I was (internal 90-95 miles an quotation hour." alteration in omitted)). However, in order for Carbon prevail appeal, to should, argues as the dissent 4. Marinoni later testified that all he remembered would need to establish saying her was that he needed to slow down. that the Board was incorrect on each of the three cause, requirements just including of control. loudly enough "swore employee who any faster taurant go "and did per hour miles hear and walked off his customers to for [patient]." a critical with shift, employer in a serious bind putting the terminat Marinoni was I 23 I believe offending violated a possibly customers" violat this conduct just cause ed for Id. at 579-80 standard of conduct. universal The of conduct. standard ed a universal omitted). (internal quotation marks prove there was the burden to employer "has claimant," discharging the for cause ASP, Department Inc. v. 125 Autoliv of R994-405-208, which is Admin. Code Utah Services, 198, App UT Workforce culpa met: are if three elements 7, especially relevant because there is P.3d conduct, and expected bility, knowledge of decision that an aside the Board's we set conduct, offending see id. control over knowledge of the con- employee did not have R994-405-202; Depart Autoliv him. See id. 125. In this expected of duct ment case, employees sent co- pre-Martin two knowledge may "Generally, 7. non-business-related emails "con- workers gave employer unless not be established taining jokes, photos, and short videos that behavior expected of the explanation a clear sexually explicit clearly offensive in the case of policy, except had a or written " 'incomprehen- 1 9. found it nature." Id. We - of con standard of a universal a violation to hold that a worker sible' for the Board R994-405-202(2). Code Utah Admin. duct." dangers of the of could be unaware of universal standards violations of "Serious materials, including videos sexually offensive warning sup require prior do not conduct acts, between co-work- depicting sexual sent Id. R994-405- disqualification." a port - company's computer network." Id. ers in a 208(1)(e). 1125. of of a universal standard 24 Violations admittedly But our cases at least as rare. Marinoni's conduct was are conduct are instructive. establishing violations such conduct in these cases. The flagrant as the Board, 2011 Appeals In Smith v. complicated. Workforce question here is not When core agreed parties UT an active heart attack patient experiencing a company car employee to drive a that for an moved, should decide wheth- needs to be who violates a universal suspended license on sufficiently urgent to re- er the situation ¶ 12. In Mar conduct. See id. standard of treating physi- quire transport: a STAT Services, tin v. nurse, of cian, ambulance driver? I or the 264U, 2004 WL that, however frankly find it inconceivable (mem.), the Board's determina approved question, even many people were asked that inconceivable that em tion that "it is the ambulance single one would choose the dan have been unaware of ployee] would Accordingly, I fail to see how Mari- driver. using employer's gers [her with associated lacked that his noni could have photographs network to e-mail email] inappropriate. conduct was para. 6. And in Bhatia v. naked men." Id. at culpabilityis at least T27 The existence of Security, 834 Employment approved culpability, Ct.App.1992), "[the To establish as obvious. pizza res that a causing discharge the Board's determination must be so conduct facts, not, quote specific tedly, does not "the reciting foregoing I have that brief In EMTs," majority opinion, Supra by into the 110 n. "deive[d] made stated statements find- [Board's] to determine whether the record driv summarize them. Marinoni's but it does ing supported evidence." Su- sufficient argument. ing discussed in oral Ac was also locating require pra facts 1 10 n. 5. Nor did these cordingly, majority's to State v. reference "searching for facts that the Board the record Robison, inapt. UT See State v. Robison is argue...." did not did not find 22-25, ¶¶ (reversing the court merely upon quoted I1 have Id. reversing appeals trial court "on a finding Board relied in that "another which the briefed, preserved, legal theory that had not been employee complained was driv- [Marinoni] argued"). event, while or any This evidence fast so he slowed down." too disturbingly unprofessional, driving I would record, pages which are appears two exemplary. even if it had been reverse County's opening Admit- in Carbon brief. cited Corp. Co., Sheep v. Newton continuing employment serious that rela (Utah 1989). tionship jeopardize employer's "However, a remand is not rightful interest." Utah Admin. Code R994- necessary if the the record is 405-202(1). Measuring jeopardy undisputed appellate fairly court can employer's rightful "require[s] interest a bal properly resolve the case on the record record, employee's past ancing of the work before it." Id. employee's length employment, Indeed, Autoliv, this court reversed repeated the likelihood the conduct will be ground Board on the employee's against the seriousness offense and the behavior violated a universal standard of con (Gibson employer." Depart harm to the duct notwithstanding the Board itself had Sec., Emp't ment only [employer "focused on the policy] alter Ct.App.1992). analysis." native in its Autoliv Martin, In approved we that, although determination no one even ¶ 198, 19, App 29 P.3d 7. normally "We would complained employee's about emails of reverse and remand to allow the Board to men, very possibility naked "the real re consider [universal alterna standard] App mained someone would." 2004 UT tive," "However," we stated. Id. we contin 264U, (mem.). para. 2004 WL 1752833 In ued, "our review of persuades the record us Bhatia, approved the Board's determina that the claimants' conduct violated a univer tion of where the restaurant em sal any standard of behavior and other deter ployee's vulgarity "possibly" offended cus mination would be unreasonable." Id. I departure tomers and his "unauthorized here, would follow especially this course busy placed the middle of a shift unexpected demonstrating where the facts vi pressure on the restaurant staff." 834 P.2d olation of a universal standard of conduct Autoliv, at In agreed 579. with the (with were either not respect controverted sexually explicit Board's conclusion that his respond failure to the initial workplace offensive emails in the "could have for a transport) STAT seriously or not con subjected employer to sexual harassment (with respect troverted driving).6 to his claims." 2001 UT 29 P.3d 7. reasons, 1 32 For foregoing I would set minimizing 29 Without dangers posed aside the Board's determination on the possibility that a might coworker com- ground that it exceeds the limits of reason- plain emails, about or even sue over offensive ableness. employee's or that an vulgarity might be customers, overheard or abrupt that his

departure would leave his coworkers in a during busy shift,

bind potential harm

here is of a altogether different and more

serious order. At merely stake was not loss money, customers or loss of but loss of life. 2012UT 20 potential This harm outweighs culpabil- ity factors and renders the Board's determi- LLC; GUNN HILL DAIRY PROPERTIES, nation unreasonable. Cherniske; Dairy, Inc.; Michael J. Aztex Finally, majority, Bell; unlike the I Margaret do not Bell; Thomas H. H. believe that the Tony Santos; Board's failure to Santos; enter find Laura Joe Vivei ings key precludes ros; facts appellate Viveiros; Tony Cabral; review. Robert The absence of Dairy, LLC; on a critical Andrade; issue "is Crossroads Joe usually an error requires Andrade; a remand for Milk-King Dairy, LLC; Gloria purpose of allowing Myers; Harker; Hyrum trial court Ron Jonothan findings." Flying Harker; make such Harker; Diamond Oil Merrill Gardner Fami- addition, Autoliv, employer like the Car- Board. See 2001 UT 29 P.3d 7. County preserved bon this issue before the

Case Details

Case Name: Carbon County v. Department of Workforce Services

Court Name: Court of Appeals of Utah

Date Published: Jan 6, 2012

Citation: 269 P.3d 969

Docket Number: 20110109-CA

Court Abbreviation: Utah Ct. App.