Preferred Hot Oil v. WFSV

2015 UT App 84
THE UTAH COURT OF APPEALS
PREFERRED H OT O IL, LLC,
Petitioner,
v.
DEPARTMENT OF WORKFORCE S ERVICES AND JACK A. DAVIS,
Respondents.
Memorandum Decision
No. 20140499-CA
Filed April 9, 2015
Original Proceeding in this Court
Daniel S. Sam, Attorney for Petitioner
Suzan Pixton, Attorney for Respondent Department
of Workforce Services
JUDGE J. F REDERIC VOROS JR . authored this Memorandum
Decision, in which J UDGES J AMES Z. DAVIS and
M ICHELE M. C HRISTIANSEN concurred.
VOROS, Judge:
¶1 	Preferred Hot Oil, LLC (Employer) seeks review of a
decision of the Utah Workforce Appeals Board upholding an
award of unemployment benefits to Jack A. Davis (Claimant).
We decline to disturb the Board’s ruling.
¶2 	Claimant worked for Employer from January through
July of 2013. Claiming that he had been laid off, Claimant
sought, and the Department of Workforce Services awarded,
unemployment benefits. Employer appealed, claiming that it did
not 	terminate 	Claimant 	but 	that 	he 	voluntarily 	quit. 	The
Administrative Law Judge presiding over the appeal found that
Employer had terminated Claimant due to a reduction in force
and thus affirmed the award of benefits. Employer appealed the
ALJ’s decision to the Board. The Board adopted the findings of

Preferred Hot Oil, LLC v. Department of Workforce Services
the ALJ and affirmed. Employer now seeks review of the Board’s
decision.
¶3 	An 	employee 	who 	voluntarily 	quits 	his 	or 	her
employment 	without 	good 	cause 	is 	not 	eligible 	for
unemployment benefits. See Utah Code Ann. § 35A-4-405(1)(a)
(LexisNexis 2011). However, “[w]hen a worker is separated due
to a reduction of the workforce, regardless of business conditions
requiring the separation, the worker is eligible for benefits and
the 	employer 	is 	liable 	for 	charges.” 	Utah 	Admin. 	Code
R994-306-101 	(2013). 	Employer 	contends 	that 	Claimant
voluntarily quit his job as a super-heater truck driver without
good cause and that the evidence presented at the hearing before
the ALJ does not support the Board’s finding that Employer
discharged Claimant through a reduction in force. Accordingly,
the sole issue before us is whether Claimant voluntarily quit or
Employer discharged him through a reduction in force.1
¶4 	“‘Whether 	the 	[Board] 	correctly 	or 	incorrectly 	denied
benefits 	is 	a 	traditional 	mixed 	question 	of 	law 	and 	fact.’”
Carnagie v. Workforce Appeals Bd., 2013 UT App 193, ¶ 6, 308 P.3d
561 (alteration in original) (quoting Jex v. Labor Comm’n, 2013 UT
40, ¶ 15, 306 P.3d 799). “[M]ixed questions can either be law-like
or fact-like.” Sawyer v. Department of Workforce Servs., 2015 UT 33,
¶ 11. “Law-like mixed questions are reviewed de novo, while
fact-like mixed questions are reviewed deferentially.” Id.
1. Employer also contends for the first time on appeal that
Claimant does not qualify for unemployment benefits due to a
“lack of efforts in securing re-employment.” However, “Utah
law requires parties to preserve arguments for appellate review
by raising them first in the forum below—be it a trial court or an
administrative tribunal.” Columbia HCA v. Labor Comm’n, 2011
UT App 210, ¶ 6, 258 P.3d 640. Because Employer did not raise
this 	issue 	in 	the 	administrative 	proceeding, 	we 	decline 	to
address it. See id.
20140499-CA 	2 	2015 UT App 84

Preferred Hot Oil, LLC v. Department of Workforce Services
¶5 	To 	determine 	“whether 	a 	lower 	tribunal’s . . .
determination is either law-like or fact-like, we first look to prior
cases in which [our supreme court has] articulated a standard of
review for this question.” Id. ¶ 15. In Sawyer v. Department of
Workforce Services, the Department of Workforce Services denied
Sawyer’s 	request 	for 	unemployment 	benefits 	because 	it
determined she voluntarily quit without good cause. 2015 UT 33,
¶ 1. 	There, 	the 	supreme 	court 	held 	that 	whether 	Sawyer
voluntarily quit without good cause was “a fact-like mixed
question of law and fact” that the court reviewed deferentially.
Id.; see also Carbon County v. Workforce Appeals Bd., 2013 UT 41,
¶ 7, 	308 	P.3d 	477 	(holding 	that 	given 	the 	fact-intensive
conclusions involved at the agency level, “the Board’s award of
unemployment 	benefits . . . is 	entitled 	to 	deference”).
Accordingly, the issue here—whether Claimant voluntarily quit
without 	good 	cause, 	or 	whether 	Employer 	discharged 	him
through a reduction in force—is a fact-like question we review
deferentially.
¶6 	When, 	as 	here, 	a 	party 	brings 	“a 	challenge 	to 	an
administrative agency’s finding of fact [that determination] is
reviewed for substantial evidence.” Provo City v. Utah Labor
Comm’n, 2015 UT 32, ¶ 8 (citing Murray v. Utah Labor Comm’n,
2013 UT 38, ¶ 19, 308 P.3d 461). “Substantial evidence exists
when the factual findings support more than a mere scintilla of
evidence . . . though 	something 	less 	than 	the 	weight 	of 	the
evidence.” Martinez v. Media-Paymaster Plus/Church of Jesus Christ
of Latter-Day Saints, 2007 UT 42, ¶ 35, 164 P.3d 384 (alteration in
original) (citation and internal quotation marks omitted). Thus,
“[i]n 	conducting 	a 	substantial 	evidence 	review, we 	do 	not
reweigh the evidence and independently choose which inference
we find to be the most reasonable.” Provo City, 2015 UT 32, ¶ 8
(citation and internal quotation marks omitted). “Instead, we
defer to an [administrative agency’s] findings because when
reasonably conflicting views arise, it is the [agency’s] province to
draw inferences and resolve these conflicts.” Id. (alterations in
original) (citation and internal quotation marks omitted).
20140499-CA 	3 	2015 UT App 84

Preferred Hot Oil, LLC v. Department of Workforce Services
¶7 	The ALJ based her findings of fact solely on the testimony
of Claimant and his supervisor. Claimant testified that Employer
discharged him due to a lack of work. The supervisor testified
that work slowed down during the summer so he sent Claimant
and others home early on a rotating basis. Thus, Employer
argues it did not discharge Claimant but merely reduced his
hours.
¶8 	Given 	the 	conflicting 	testimony, 	“[t]he 	Board’s
decision. . . turned 	on 	a 	credibility 	determination.” 	Davis 	v.
Department of Workforce Servs., 2012 UT App 158, ¶ 6, 280 P.3d
442. The ALJ found, and the Board agreed, that “Claimant’s
testimony is more credible than Employer’s.” Accordingly, the
ALJ 	concluded, 	and 	the 	Board 	agreed, 	that 	“Claimant 	is
unemployed due to a lack of available work. The Claimant
is allowed benefits due to a reduction in force” and Employer is
liable for charges.
¶9 	In its brief, Employer parses the testimony presented to
the 	ALJ 	and 	argues 	in 	effect 	that 	the 	ALJ 	misunderstood
testimony that, correctly understood, better supports Employer’s
position. We conclude that the testimony presented to us on the
cold record is susceptible to either interpretation. In such cases,
“[i]t is not our role to judge the relative credibility of witnesses.”
Davis, 2012 UT App 158, ¶ 6. (citation and internal quotation
marks omitted). “Therefore, [w]hen the evidence is disputed, as
it was here, we defer to the Board’s assessment of credibility and
resolution of conflicting evidence.” Id. (alteration in original)
(citation 	and 	internal 	quotation 	marks 	omitted). 	Given 	the
credibility 	determinations 	made 	in 	this 	case, 	we 	hold 	that
substantial 	evidence 	supports 	the 	finding 	that 	Employer
discharged Claimant through a reduction in force.
¶10 	Accordingly, we decline to disturb the Board’s ruling.
20140499-CA 	4 	2015 UT App 84