Gibson v. Department of Employment Security
840 P.2d 780
Utah Ct. App.
1992
Check Treatment

*1 place gates along the ditch, that the landowners record does not near the fence company repair canal to of law that defen- fence to allow the as a matter establish duty their fulfilled canal. Id. Under North could have and maintain the dants Because by violating Union, then, section 73-1-15. care a fence that allows the ditch pose, we danger open And, ditches the serious acceptable. as dis- access is owner require to land- section 73-1-15 construe above, a fence not vio- cussed such would reasonably diligent ef- make a to owners 73-1-15. late section to fence. permission fort to obtain according long-reeog- summary, In that defen- does not demonstrate record law, principles property nized landlords attempt to obtain made a serious dants guests duty to their tenants and owe irrigation fence from the permission to hazards on the leased protect them from did call company. Although defendants Kinzell, 2d premises. 29 Utah Schofield company inquire about irrigation The ditch in secretary spoke only with a fencing, they premis- on defendants’ question is located not fence. they that could told them who es; hence, duty. there a clear Defen- suggest that defen- The record does subject they that will be dants' contentions that there could be small explained dants liability erecting a and criminal to civil area, suggest nor does it children They may merit. build a fence are without seeking per- persisted defendants that ditch with- fence that allows access to the higher with authori- mission from someone incurring liability. We reverse the or- out secretary. significant ty than a Given pro- and remand for der of the trial court open ditch where children danger of an opinion. ceedings consistent with this say of law that play, cannot as matter we reasonably diligent ef- defendants made HOWE, A.C.J., HALL, C.J., irriga- permission from the to obtain fort JJ., ZIMMERMAN, concur. STEWART and company.3 tion argue Finally, defendants

erecting near the ditch would sub a fence liability under North Un

ject them to civil Newell, P.2d 178

ion Canal Co. v. 1976). disagree. In North Un We

ion, compel company sued to land a canal they to remove a fence had erected

owners along of North Union’s canal. the border GIBSON, Petitioner, Meredith A. weighed assessing the court competing interests of landowners and We noted that North easement holders. DEPARTMENT OF EMPLOYMENT SE- clean, maintain, and needed access to Union and U S WEST Communi- CURITY time, canal, at the same we repair its but cations, Respondents. Inc. property recognized that the owners of the No. 910727-CA. enjoyment the use and of their should have highest degree possible. property to the Appeals of Utah. Court The court accommodated both Id. at 179. ordering the landowners Aug. sides 1992. any manner “may property use their please long they do not unrea

they prop

sonably or interfere with restrict easement.”

er use [canal owner’s] canal at 180. To ensure the easement, the court ordered

access along failing summary reasonably build a fence judgment. ed appeal This is an from 3. remand, premises rea- otherwise make the question of fact wheth- the ditch or it will be a On er, circumstances, guests. their sonably the tenants and act- safe for defendants under all *2 Alba, Eckersley Samuel David M. petitioner. City, for Salt Lake Jensen, City, for Floyd A. Salt Lake re- Communications, spondent Inc. U.S. West BENCH, BILLINGS and Before GREENWOOD, JJ.

OPINION BILLINGS, Judge: Presiding Associate (Gibson) A. Meredith Petitioner appeals decision of the Board a final Review of Industrial Commission unemployment day, the Gibsons went to Brenda Butcher’s (Board) com- denying carpet We reverse. home to borrow a cleaner. When pensation benefits. arrived, they finishing Brenda Butcher was FACTS upset. a call with her exhusband and was person told her that a named Bren- unemployment bene- Gibson filing for Prior to *3 trap fits, requested for U S WEST Commu- da had and trace order Gibson worked WEST) nications, (U for almost twen- thought might Inc. S she have made and Tolman WEST and another U S ty years. She request. Coincidentally, Brenda Butch- (Tolman), worked employee, Mary Tolman boyfriend, er’s who was also Brenda Mehl’s assistants, security Tolman full-time as exhusband, Mehl, present. Derek was trap and traces and handling court-ordered Nothing was said the matter. else about requests handling customer Gibson not know either Derek’s or the Gibson did proce- trap and trace trap and traces. Brenda’s last name. customer origin harassing dure documents 22, 1990, On December Brenda Mehl and Tolman cov- telephone calls. Gibson security reported called U S WEST another vacations. ered for one that Derek Mehl had told her he found out policy received U S WEST’S Gibson had phone trap placed on her from a about confidentiality private requiring manual friend worked at U S WEST. She told who that a vio- customer information and knew Gomez, security supervisor, David that policy could result dismiss- lation compromised employees she felt his had al. by notifying case her exhusband that a her 16, 1990, while Gibson was On December trap and trace had been established. Go- vacation, trap received a on Tolman investigate mez told her he would the mat- named request trace from a customer ter and contact her. requested Mehl. Brenda Mehl Brenda that her former trap and trace establish spoke with Gibson and Tolman to Gomez Mehl, husband, making threat- Derek was determine how the disclosure occurred. place ening phone calls to her from his determining After the disclosure was unin- normally employment. Gibson would have coincidence, tentional and an unusual he any conflict assigned the absent verbally reprimanded and Tolman Gibson However, circumstances, of interest. keep such informa- and cautioned them to Mehl’s resi- general location of Brenda fur- tion inside the office. Gomez took no dence, made Tol- and the name “Brenda” ther action Gibson and Tolman had because if man wonder Brenda Mehl was Gibson’s records. excellent work sister whose name was Brenda. Because February Brenda Mehl com- On Tolman did not know Gibson’s sister’s last Security Director plained to U S WEST’S name, she decided to call Gibson. suspended and threatened suit. U S WEST when Tolman Gibson was unavailable Tolman, pending further inves- Gibson and called, spoke so Tolman with Gibson’s hus- They discharged March tigation. were on band, employee. also a U S WEST Tolman 31, 1991. husband what his sister-in- asked Gibson’s was, her it law’s name and he told was applied un- Gibson for and was awarded why He then asked she Brenda Butcher. employment compensation benefits. After replied asked. Tolman that a customer had objected, the Administrative U S WEST trace, trap she requested hearing Judge Law held a and affirmed might that it Gibson’s was concerned be appealed U WEST award benefits. S sister. Board, the Administra- which reversed decision, determining Judge’s Gib- tive Law the substance Gibson’s husband related just cause.1 that was terminated for of the conversation to Gibson. Later son only, benefits was affirmed. 1. The Board reversed as to Gibson with dissenting. Tolman’s award of one member CULPABILITY she was not Gibson claims appeal, On cause, and, thus, she terminated argues conduct was not cul- be- unemployment benefits receive should pable an act because isolated (1) an isolated Her conduct was cause: excellent, misjudgment twenty-year an excellent, twenty-year work in an incident record, and unlikely the situation was and, therefore, sufficiently was not record repeat responds WEST itself. U S (2) suffi- did not have culpable; and she culpable Gibson’s because it knowledge her conduct violated cient seriously legitimate affected SU WEST’S policy. we reverse the Because violation, interests, single, and a isolated if find conduct was not Board and culpa- sufficiently egregious, satisfies the benefits, deny sufficiently culpable to we bility requirement. U S WEST claims Gib- knowledge. the issue of do not reach seriously company policy, ex- son violated

posing potential liability to goodwill. customer loss of OF REVIEW STANDARD pro employee’s may An conduct ineligible employee to receive An is for legitimate employer vide basis an compensation employ if the unemployment employee,- requiring terminate the without discharged if just cause ... ee “was unemployment benefits. denial of Pro- by the Utah Code found commission.” Review, Staffing, Inc. v. Board Benefit of Thus, 35-4-5(b)(1) (Supp.1991). Ann. § 439, (Utah The App.1989). 775 P.2d 443 granted has the Board discre legislature purpose Employment Security Act is of employee determining whether an tion in provide “to a cushion for the shocks and just cause. Bhatia was terminated for See rigors unemployment.” Region Logan of Sec., Employment 834 Department of Review, 427, P.2d Hosp. v. Board 723 al of (Utah 574, App.1992); Depart 577 P.2d (Utah 1986). Supreme Court 429 The Utah Swider, 448, P.2d Air Force v. 824 ment of has for a construction of this called liberal (Utah Int’l, App.1991); Inc. v. 451 Morton inefficiency good act: “mere or failure of Auditing Div. the Utah State Tax inability performance as the result of or Comm’n, n. 40 814 P.2d 588 & inadvertences, incapacity, isolated instanc 1991). we will reverse the “Accordingly, ordinary negligence, good-faith es of not con judgment if we errors in or decisions do only decision determine culpable precludes which stitute conduct Wagstaff irrational.” it is unreasonable or receiving from unem discharged employee Sec., Employment 826 compensation ployment benefits.” (Utah App.1992); P.2d accord 577; Swider, Bhatia, 824 P.2d at regulations culpability define as: Board at 451. of the conduct ... it seriousness [T]he employment affects continuance establishing whether Gibson was relationship. discharge must have The cause, U has S WEST terminated necessary poten- to avoid actual-or (1) proving: culpa the burden of Gibson’s employer’s rightful inter- tial harm to (2) knowledge expected con bility, wrongness of the conduct ests .... duct, (3) offending conduct considered the context must be Bhatia, control. See was within it affects particular and how 577; Review, v. Board 834 P.2d at Kehl If employer’s rights. 1129, 1133-34(Utah 1985); accord 700 P.2d judg- poor incident of was an isolated to -103 Admin.P. R475-5b-102 Utah Code expectation that the there is no ment and must (1991). employer establish each repeated, continued or conduct will be for the three elements order may not shown and potential harm be Bhatia, discharge necessary 834 P.2d is deny benefits. not therefore employee. 577; R475-5b-102. at Utah Code Admin.P. R475-5b-102(1)(a) (court upheld denial of em- Admin.P. benefits when

Utah Code ployee used cocaine lunch (1991). regulation which focuses on break and by admitted behavior when confronted merely inci an isolated whether conduct authorities); Swider, (court 824 P.2d at 454 dent, culpability rising to the level employee affirmed award of benefits for benefits, deny states: necessary to marijuana who smoked while on vacation Longevity prior work record are voluntarily drug entered treatment determining if act or important in program). good is an incident or a omission isolated appellate The third factor Utah’s courts judgment. employee An faith error have addressed is the seriousness and fla- historically complied with work who has See, grancy of the conduct. e.g., Grinnell single rules does not demonstrate Review, v. Board 114-15 harmful, violation, that such (Utah 1987)(court upheld denial of benefits repeated and therefore violations will be road-speed where truck driver altered a discharge harm require to avoid future governor, repeatedly speed violated the lim- employer. it, disobeyed company’s policies for consec- R475-5b-102(1)(a)(1) Utah Code Admin.P. vehicle, operating utive hours and had Kehl, marijuana system); traces of defining regulations culpability These re- (court upheld 700 P.2d at 1134 denial of *5 quire balancing employee’s past a of the compa- benefits truck where driver violated record, employee’s length the of em- ny policy by driving heavy explosives over ployment, and the likelihood the conduct authorization). a railroad track without repeated against the of will be seriousness Where the violations were inadvertent or employer. the offense and the harm to the potential unintentional with less for serious consequences, appellate Utah’s courts have case

Utah law consistent with this just declined to find a dismissal was for balancing approach. appellate Utah’s See, Review, cause. e.g., Lane v. Board historically courts have balanced several of (Utah 1986) (employee 727 P.2d 211 upholding reversing factors in or the minor); mistakenly sold beer to a Pro- culpability.2 of Board’s determination (accoun- Staffing, 775 P.2d at 444 First, have considered whether the em- we Benefit mistakenly wrong tant credited the ac- prior pattern ployee’s of behavior was con- count). sistent with the incident of misconduct. See, Bhatia, (court e.g., 834 P.2d at 578 appellate The fourth factor Utah’s courts benefits, upheld unemployment denial of have considered is the actual and determining employee’s not behavior as See, employer public. harm to the and the poor judgment an isolated incident of e.g., City Department Em- Clearfield of prior pattern consistent but with of be- Sec., (Utah ployment 445 havior, including arguing with other em- 1983) (police sodomy violation officer’s of ployees using language); and foul Nelson egregious threatening laws was Sec., Employment 801 force); integrity police Wagstaff, 826 (court App.1990) up- (potential safety P.2d at 1074 & n. 6 risk grocery held Board’s determination that jet Air created when Force mechanic re- culpable repeatedly checker was violat- using drugs). turned to work after ing coupon redemption store’s policy). weighed The final factor we have is the Second, have length strength prior we considered whether the and work rec- See, Swider, employee’s actions and e.g., admission of mis- ord. 824 P.2d at 454 (court upheld unemployment take indicate the conduct will not reoccur. award of ben- See, e.g., Wagstaff, 826 P.2d at 1073-74 efits for claimant who received numerous suggests presented appellate historically 2. The dissent we have what Utah’s factors courts checklist of factors the Board must consider persuasive examining in have found the Board's every case. We do not set forth such a manda- unemployment awards of benefits. Rather, tory recognized checklist. we have unemployment performance benefits was unreason- commendations and twenty light purposes years able broad remedial nearly disciplined); interpretation grant and the liberal never we Pro-Benefit (court upheld Act, 775 P.2d at Employment Security Staffing, employee of seven of benefits to inadequate award rel- Board’s consideration of the previous error-free work who had months denying factors in compensation. evant record). therefore, We, er- conclude the Board applied roneously the law. Utah Code See In the Board present sum, 63-46b-16(4)(d) Ann. we § following relevant made the decision hold that reverse Board’s culpability: not for cause” “just dismissal was ap- readily harm this act caused is culpable as her conduct was within boyfriend That the sister’s parent. meaning Employment Security Act.3 targeted trap person would be is a trace claimant discussed J., GREENWOOD, concurs. truly unfortunate coinci- remarkable and But coincidences dence. it is because BENCH, Presiding Judge (dissenting): knows fully one never occur because relationships au- suspects the of one’s respectfully I dissent. phone company that the confiden- dience improperly judg- case its this substitutes tiality provision phone is absolute. judgment ment for the and errone- phone who went to the client ously holds the Board’s decision is company for relief received instead because the has not unreasonable with her ex-hus- fresh source of trouble adequately that it demonstrated balanced actions. claimant’s band result majori- the factors the same manner the poorly employer, on the This reflects have them. ty would balanced *6 their completely nullifying quality the faulting adequately By the Board not partic- reputation service and to that [sic] identifies, considering the it the ma- factors ular client. jority erroneously asserts that each factor Board on harm in determin The focused every by the must be considered Board Al culpable. was ing Gibson’s conduct A of the relied case. closer review cases though potential U S demonstrated WEST re- upon by majority the reveals that the employer, an the to its interests as harm affirmed, viewing merely as rea- court has require law regulations and case balanc sonable, upon reliance the Board’s different prior ing against employee’s of harm the pres- In in different cases. no case factors record, length of and the work by majority the has there ever been ented repeated. will likelihood the conduct be holding every the five that each and one of weight, if discuss what The Board failed to In identified must be considered. factors any, gave to the unintentional nature imper- holding majority the this rec exemplary act and the missibly upon the Board’s authori- intrudes twenty years. Board nearly over The ord exists. ty to determine whether cause undisputed failed to even mention Gibson’s harm little chance the claim there was “fac- majority’s so-called Several the repeated. analy continue This would or be indicators the same simply are tors” contrary regula to the Board’s own sis is pattern An of behavior employee’s factor. Admin.P. R475-5b- tions. See Utah Code strength employ- length and the and 102(1)(a)(1). are relevant in determin- ee’s work record is like- employee’s conduct ing whether the that, although U S WEST We conclude or Similarly, the seriousness ly reoccur. right for vio- the to terminate Gibson and employee’s conduct flagrancy denial lating company policy, the Board’s origi- dissenting opinion of one of the three the is consistent with the and 3. Our determination factfinder, Judge, members. Administrative Law Board nal the the claims that the Board’s decision is employer or Gibson potential harm contrary it is to Utah question. unreasonable because essentially the same raise public R475-5b-102-l.a Administrative Code view, really two fac- my § In there are “culpability” The rule defines and by the Board: the iso- balanced tors be part: provides, relevant misconduct, and nature of the lated of the misconduct. seriousness This is the seriousness of the conduct severity of the offense as it affects unnecessarily dwells on employment relation- continuance of the was isolated. U S the misconduct whether ship_ If the conduct was an isolated nature dispute the isolated does not WEST poor judgment incident of and there is no simply The Board misconduct. of Gibson’s expectation that the conduct will con- be I, misconduct that Gibson’s accepted, as do repeated, potential may tinued or harm therefore repeated and likely not to be was not be shown and it is not therefore as the act.1 Inasmuch an isolated was necessary discharge employee. clear of the misconduct was isolated nature added.) (Emphasis uncontroverted, duty had no the Board Ny on that issue. See to make erroneously argues that the fore Comm’n, 800 P.2d v. Industrial rehn precludes finding culpabili going rule (Utah App.1990). The sole issue before an isolated inci ty when the misconduct is precluded by the Board is us is whether Supreme unequivo dent. Utah Court culpabili finding from rule 425-5b-102-1.a cally in Kehl v. Board Review held incident. ty it reviews an isolated when Comm’n, 700 P.2d 1129 Indus. R475-5b-102-1.a, 1985),that under section case, major- posture of this Given may disregard mitigating the Board factors isolated nature ity assume that the cannot longevity exemplary work rec such as considered was not of the misconduct the actual or harm to ord when clearly, record reveals the Board. The employer public great. or the considered, rejected, Gib- nature of argument that the isolated son’s Kehl; upheld supreme court outweighed the harm associat- the incident discharge operator of a forklift who violat- inescapable ed with her misconduct.2 safety procedure, it was ed a simply is that the Board conclusion years her first such violation over five isolated nature of the persuaded that the operator there no indica- a forklift *7 outweighed seriousness. A its misconduct repeat the violation. In tion that she would finding the seriousness of the miscon- issue, interpreting the rule at the court outweighed the isolated nature of the duct use of the conditional found that “[t]he ” prerequisite” to “implicit ‘can,’ is an misconduct ‘may,’ imperative the al- instead of dis- conclusion that Gibson was the Board’s finding culpability a of lows charged just cause. v. single for See Garland isolated violation. Id. at there was a 1992). Fleischmann, (Utah It magnitude P.2d 107 held that the 831 1134. The court safety may rule single to assume that of “a violation of a is therefore reasonable the potential the finding. Id. be sufficient show actually Board made such Judge initially analysis Law who majority 2. The Administrative 1. The claims that the Board's (1) contrary dissenting to subsection of rule R475-5b- Board mem- is heard this matter and a the in that the Board failed to consider very arguments 102-1.a. made made the same ber both misconduct, nature of Gibson’s unintentional her today. majority majority the is the Unless record, "undisput exemplary and the willing never consid- to assume that the Board harm claim that there was little chance the ed Law of Administrative ered the the repeated.” or be Subsection would continue dissenting arguments Judge, of its mem- or the however, (1), deals with the determination ber, conclude that the the cannot employee’s the misconduct was iso of whether arguments. Gibson’s did not consider unlikely repeated. Since the lated and to be of the incident was not in con isolated nature troversy, (1) not relevant to the subsection is analysis.

787 dentiality employer’s telephone communications, warranted of harm to the interests discharge.” The court reasoned that of confidentiality Id. Gibson’s breach inex- was pro- and trap cusable.3 U S WEST’S trace emphasis culpabili- the proper under

the gram extremely is sensitive. The nature of upon requirement should not be the ty program exposes signifi- SU WEST to rather, violations; it should number of legal case, cant risks. In this Brenda Mehl problem of the dis- address the whether threatening legal against was action U S charge “necessary avoid actual for rightful WEST the disclosure at the time employer’s harm to the wrongness of the discharged. sought ... She had trap interest.” “[t]he of must be considered context conduct and the suggestion police trace at how it particular and Derek threatening because Mehl employer’s rights.” affects the trap to kill her. The disclosure of the Derek trace caused to discontinue the calls (citations omitted). also Trotta v. See and Brenda was to collect the evi- unable Sec., 664 Employment of sought. dence Derek confronted Brenda (Utah 1983)(single 1200 absence P.2d trap request about and trace employee if may culpability establish again. eventually plead- He threatened seriously interrupt will em knows absence guilty making ed operations). terroristic threats and ployer’s Pro-Benefit Cf. injured. Review Indus. Staffing, physically Inc. Board Brenda was The of of Comm’n, (Utah App. disclosure, however, 775 P.2d 443-44 result of the could 1989)(single accounting ordinary error was easily a U have been the death of S WEST not evidence negligence and therefore did prompted Der- customer had disclosure degree culpability). of sufficient carry ek to out his threats. supreme similarly upheld court unique critical of Given the nature decision in v. Board Board’s Grinnell of U WEST is have job, S entitled to Comm’n,

Review the Indus. person unfailing judgment 1987). driver, (Utah Grinnell, a truck perfectly acceptable for position. It was U speed governor altered road that was wrongness S WEST to consider “[t]he speed limit the truck to intended to partic conduct ... the context per averaged sixty-two miles hour and had it affects the employment' ular and how per peri- sixty-six miles hour for extended rights.” employer’s Section R475-5b-102- during trip. cross-country ods Grinnell City Department 1.a. Clearfield Cf. straight twenty-one hours also drove Sec., Employment twenty-four period. Fur- during a hour (sensitive 1983) nature of law enforcement thermore, marijuana positive he tested discharge police officer who warranted supreme trip. court use act). single criminal committed that, given the facts stated holding in the same this case reasonably and “the conclusion could ra- category its decisions in Kehl Grin- tionally be drawn that Grinnell’s *8 contrary and is therefore nell sufficiently culpable that it could have applicable regulations or the caselaw. harm his em- actual caused interest,” rightful ployer’s might have reached a The fact that we previous driving “excellent.” record was justify does not a re- different conclusion added). (emphasis at “uphold its of the Board. We must versal long is within the realm decision present held in the case that The Board Grinnell, rationality.” reasonableness confidentiality U S WEST’S need as the 732 P.2d at 115. Inasmuch words, the Board de- other “absolute.” deci- has how the Board’s simply not shown given public the critical trust termined bounds, in revers- it errs regarding confi- sion exceeds these placed in S WEST U every employee situation with dismissal U S WEST that similar 3. Officials of testified they were familiar. resulted which of confidential information disclosures ing.4 the Board’s decision.

I would affirm Utah, Appellee, Plaintiff and

STATE of VIGIL, Defendant

Frank A. Appellant.

No. 910485-CA. Appeals of

Court of Utah.

Oct. 1992.

Rehearing Denied 1992. Nov. appears majority’s analysis adequate findings from the that the make vacate the It is to order 4. *9 complained agency basis for the reversal is not that the Board of and to order the to ‘make law, of, erroneously support applied adequate that the but more and more for, adequately explain applied fully how it articulate the determina did reasons [the] ’’ majority’s analysis, Under the tion made.' Adams v. Board Review law. ... Comm'n, (Utah App. be remanded to allow the Board the Indus. decision should 1991) clarify (quoting an inade & Insts. v. what the holds is Vali Convalescent Care rule, quately general Financing, articulated decision. "As a Health Care agency’s appropriate App.1990). relief for an failure to