Wintle-Butts v. Career Service Review Office

2013 UT App 187
_________________________________________________________

THE UTAH COURT OF APPEALS

DORI WINTLE‐BUTTS,
Petitioner,
v.
CAREER SERVICE REVIEW OFFICE AND DEPARTMENT OF
TECHNOLOGY SERVICES,
Respondents.

Opinion
No. 20110574‐CA
Filed July 26, 2013

Original Proceeding in this Court

Grant W.P. Morrison and Court J. Klekas II,
Attorneys for Petitioner
John E. Swallow and Stanford E. Purser, Attorneys
for Respondent Department of Technology
Services

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES JAMES Z. DAVIS and CAROLYN B. MCHUGH
concurred.

CHRISTIANSEN, Judge:

¶1 Petitioner Dori Wintle‐Butts seeks review of the Career
Service Review Office (CSRO) Administrator’s (the Administrator)
determination that CSRO lacked jurisdiction to consider Wintle‐
Butts’s employment grievance. We approve the Administrator’s
decision.

BACKGROUND
Wintle‐Butts v. CSRO

¶2 Wintle‐Butts has been an employee of the Department of
Human Services (DHS) since 1983. On September 20, 2010, Wintle‐
Butts transferred from her position with DHS to a position with the
Department of Technology Services (DTS) with a corresponding
increase in pay from $40.40 to $46.27 per hour. As with all new hires
to DTS, Wintle‐Butts’s employment offer was conditioned upon
successful completion of a criminal background check.

¶3 On September 23, 2010, Wintle‐Butts received a letter from
her supervisor at DTS indicating that she had failed to pass the
required background check and was being placed on paid
administrative leave until a final decision could be made regarding
the status of her employment. Five days later, Wintle‐Butts signed
a letter entitled “Request for Transfer,” in which she requested
transfer from her position with DTS to her former position with
DHS, which became effective that same day. By signing the transfer
request, Wintle‐Butts specifically agreed to “waive any and all right
[she] might have to grieve the transfer or the decrease in salary.”

¶4 On October 5, 2010, consistent with the grievance process for
career service employees, see generally Utah Code Ann. § 67‐19a‐402
(LexisNexis 2011), Wintle‐Butts filed with DTS a grievance
challenging her “[w]rongful dismissal on September 28, 2010, of
[her] conditional employment under the provisions of the DTS
Policy and Procedure 2000‐0014 Background Investigations.”
Wintle‐Butts’s former supervisor at DTS reviewed her grievance
and determined that he was “not authorized” to reverse the DTS
employment decision.1 On October 14, Wintle‐Butts advanced her
grievance to the Executive Director of DTS (Director), who denied

1
It is unclear from the record if or when Wintle‐Butts
received the denial of her grievance at this stage. However,
because Wintle‐Butts was entitled under the grievance process to
advance her grievance after receipt of the denial, or after five
working days had passed without a response, our analysis is not
affected.

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Wintle‐Butts v. CSRO

her grievance, explaining that Wintle‐Butts was “not eligible . . . to
use the grievance procedures.” In addition, the Director noted that
any claim of procedural error was moot because Wintle‐Butts was
“not qualified for the IT Analyst III position because [the Bureau of
Criminal Identification] denied [her] the access necessary to do the
job.”

¶5 Wintle‐Butts then advanced her grievance to CSRO, and a
prehearing conference was scheduled before the Administrator on
December 1, 2010. At the conference, the Administrator elected to
schedule a formal hearing to determine if CSRO had authority to
review Wintle‐Butts’s grievance. See id. § 67‐19a‐202 (setting forth
the scope of authority of CSRO). In advance of the formal hearing,
Wintle‐Butts filed a Verified Request For Finding Of Jurisdiction By
Administrator, arguing that because she was a career service
employee, CSRO had jurisdiction over her grievance. DTS filed a
motion to dismiss, asserting that because Wintle‐Butts was
“transferred” from her position at DTS back to a position with DHS,
her alleged grievance did not fall within any of the statutory
categories over which CSRO has jurisdiction pursuant to Utah Code
section 67‐19a‐202. In her response to DTS’s motion to dismiss,
Wintle‐Butts argued that her placement on paid administrative
leave constituted a dismissal by DTS, thereby giving CSRO
jurisdiction over her grievance.

¶6 At the hearing, Wintle‐Butts argued that she was dismissed
from DTS or, alternatively, that she was demoted or suspended.
Wintle‐Butts also argued that her transfer back to DHS was not
voluntary because the request was signed under circumstances of
duress or coercion as a result of her dismissal. On June 7, 2011, the
Administrator issued his decision, concluding that because Wintle‐
Butts was “transferred” from her position at DTS back to a position
with DHS, her grievance did not fall within any of the categories set
forth in Utah Code section 67‐19a‐202 over which CSRO has
jurisdiction. The Administrator also concluded that Wintle‐Butts
was not under duress and was not coerced when she signed the

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Wintle‐Butts v. CSRO

request for transfer. Wintle‐Butts seeks judicial review of the
Administrator’s final decision.

ISSUE AND STANDARD OF REVIEW

¶7 Wintle‐Butts argues that the Administrator erred when he
determined that CSRO did not have jurisdiction over her grievance.
The determination whether a personnel matter falls within CSRO’s
jurisdiction requires interpretation or application of a statute. See
Utah Code Ann. § 67‐19a‐202. Thus, we may grant relief only if “the
agency has erroneously interpreted or applied the law.” Id. § 63G‐4‐
403(4)(d). Because review under subsection (4)(d) does not “imply
a specific standard of review,” we are “free to apply our traditional
approach in selecting the appropriate standard of review” based on
“whether the [agency]’s decision qualifies as a finding of fact, a
conclusion of law, or a determination of a mixed question of law
and fact.” See Murray v. Labor Comm’n, 2013 UT 38, ¶¶ 23–24. “The
issue of whether an agency has jurisdiction is a question of law,
which we review for correctness.” Mendoza v. Labor Commʹn, 2007
UT App 186, ¶ 5, 164 P.3d 447 (citing Stokes v. Flanders, 970 P.2d
1260, 1262 (Utah 1998)).2

ANALYSIS

I. This Court Has Jurisdiction To Review the
Administrator’s Decision.

¶8 “[A]s a threshold matter, we must first determine whether
this court has subject matter jurisdiction to [review] the [agency

2
Because our analysis of CSRO’s jurisdiction is
dispositive, we need not reach the question of whether
Wintle‐Butts’s request for transfer was valid and we do not
review the Administrator’s decision on that issue.

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Wintle‐Butts v. CSRO

action].” Pleasant Grove City v. Orvis, 2007 UT App 74, ¶ 4, 157 P.3d
355. The Utah Administrative Procedures Act provides for judicial
review by this court or the Utah Supreme Court of agency actions
resulting from formal adjudicative proceedings. Utah Code Ann.
§ 63G‐4‐403(1) (LexisNexis 2011).

¶9 Here, the Administrator designated the hearing on CSRO’s
jurisdiction over Wintle‐Butts’s claim as a formal proceeding. The
parties were afforded the opportunity to conduct limited discovery,
file responsive pleadings, and argue their cross‐motions. See id.
§§ 63G‐4‐204 to ‐206. Following the hearing, the Administrator
entered findings of fact and a decision dismissing Wintle‐Butts’s
grievance for lack of jurisdiction. See id. § 63G‐4‐208. Wintle‐Butts
then timely filed a petition for review within thirty days after the
Administrator issued his decision. See Utah R. App. P. 14(a). We
have little difficulty concluding that this proceeding satisfied the
requirements of a formal adjudicative proceeding, and we therefore
have jurisdiction to review the Administrator’s decision. See Utah
Code Ann. § 63G‐4‐403(1).

II. The Administrator Correctly Determined that CSRO Does Not
Have Jurisdiction To Review Wintle‐Butts’s Grievance.

¶10 Wintle‐Butts argues that the Administrator erred in
determining that CSRO did not have jurisdiction over her grievance
against DTS. CSRO is an independent appellate forum “established
to provide state civil service employees with a tribunal for
appealing personnel decisions outside of the agency for which
they work.” Olson v. Utah Dep’t of Health, 2009 UT App 303, ¶ 8, 221
P.3d 863. It is the final administrative body to which a career
service employee’s grievance regarding certain employment issues
may be advanced for review. Utah Code Ann. § 67‐19a‐202(1)(a)
(LexisNexis 2011). See generally id. § 67‐19a‐402 (setting forth the
grievance procedure for career service employees). Once a
grievance is advanced to CSRO, the Administrator must make an
initial determination of “(i) whether the employee is a career service
employee and is entitled to use the grievance system; (ii) whether

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Wintle‐Butts v. CSRO

the office has authority to review the grievance; and (iii) whether
the employee has been directly harmed.” Utah Code Ann. § 67‐19a‐
403(2)(a).
¶11 The parties both accept, and we agree, that upon her transfer
to DTS, Wintle‐Butts remained a career service employee by
operation of Utah Code section 63F‐1‐106(4)(a).3 However, while
career service status is a necessary element of CSRO jurisdiction, it
is not sufficient alone to establish CSRO’s jurisdiction over an
employee’s grievance.

¶12 The scope of CSRO’s authority to review grievances is
strictly limited to the personnel matters enumerated in Utah Code
section 67‐19a‐202(1)(a). Id. § 67‐19a‐202(1)(b) (“The office may not
review or take action on . . . a personnel matter not listed in
Subsection (1)(a) . . . .”). CSRO may therefore review only
grievances founded upon

(i) a dismissal;
(ii) a demotion;
(iii) a suspension;
(iv) a reduction in force;
(v) a dispute concerning abandonment of position;

3
Section 63F‐1‐106(4)(a) provides,
An employee of an executive branch agency who
was a career service employee as of July 1, 2005
who is transferred to [DTS] continues in the em‐
ployee’s career service status during the
employee’s service to [DTS] if the duties of the
position in the new department are substantially
similar to those in the employee’s previous posi‐
tion.
Utah Code Ann. § 63F‐1‐106(4)(a) (LexisNexis 2011). The parties
agree that Wintle‐Butts’s duties in her position at DTS were to be
substantially similar to her duties at DHS.

20110574‐CA 6 2013 UT App 187
Wintle‐Butts v. CSRO

(vi) a wage grievance if an employee is not placed
within the salary range of the employee’s current position;
(vii) a violation of a rule adopted under Chapter 19,
Utah State Personnel Management Act; or
(viii) [the equitable administration of certain benefits].
Id. § 67‐19a‐202(1)(a). Because CSRO is a tribunal of limited subject
matter jurisdiction, Wintle‐Butts bore the burden of “present[ing]
sufficient facts to invoke the limited jurisdiction of [CSRO].” See
Olson, 2009 UT App 303, ¶ 13 (citation and internal quotation marks
omitted). Wintle‐Butts now argues that CSRO has jurisdiction
because she was either demoted or dismissed by DTS, or because
DTS violated a rule guaranteeing to her certain procedural rights.

A. Wintle‐Butts Was Not Demoted by DTS.

¶13 Wintle‐Butts first argues that she was demoted by DTS and
that CSRO therefore had jurisdiction to hear her grievance.4 Both

4
DTS argues that Wintle‐Butts failed to sufficiently raise
the issue of “demotion” before CSRO and therefore the argu‐
ment was not properly preserved for review by this court.
Wintle‐Butts argues that preservation in this case is governed by
a less stringent “level of consciousness” standard, which she
satisfied. We do not agree with Wintle‐Butts that the “level of
consciousness” standard is applicable to formal administrative
proceedings. See Badger v. Brooklyn Canal Co., 966 P.2d 844, 847
(Utah 1998) (applying “level of consciousness” standard to an
informal hearing before the state engineer). Rather, to preserve
an issue for judicial review it must be “‘raised in a timely fash‐
ion’” before the agency, and be “‘specifically raised’” with “‘sup‐
porting evidence or relevant legal authority.’” See Dinger v.
Department of Workforce Servs., 2013 UT App 59, ¶ 28, 300 P.3d
313 (quoting 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801) (holding that the preservation rule is applicable to
review of agency decisions “when the issue raised on appeal
(continued...)

20110574‐CA 7 2013 UT App 187
Wintle‐Butts v. CSRO

Utah Code section 67‐19‐3(7)(a) and Utah Administrative Code
R477‐1‐1(31) define demotion as a “disciplinary action resulting in
a reduction of an employee’s current actual wage.” See Utah Code
Ann. § 67‐19‐3(7)(a) (LexisNexis 2011); Utah Admin. Code R477‐1‐
1(31).5

1. Wintle‐Butts’s Transfer Back to DHS Was Not a Disciplinary
Action Taken by Management Under Utah Administrative
Code R477‐11.

¶14 To arrive at her argument that she was demoted by DTS,
Wintle‐Butts conflates DTS’s action in placing her on administrative
leave with her subsequent voluntary transfer back to DHS.
Demotion, however, is premised on a “disciplinary action” that is
“taken by management under Rule R477‐11.” Utah Admin. Code
R477‐1‐1(31), (36). As the Administrator correctly observed, a
transfer is “[a]n action not mandated by management moving an
employee from one job or position to another job or position with
an equal or lesser salary range maximum for which the employee
qualifies,” and such a transfer “may include a decrease in actual
wage.” Id. R477‐1‐1(99).

4
(...continued)
could have been resolved in the administrative setting” (citation
and internal quotation marks omitted)). Nonetheless, with
respect to her demotion argument, we conclude that Wintle‐
Butts sufficiently raised this issue before the Administrator so
that CSRO had an opportunity to rule on the issue. See Columbia
HCA v. Labor Comm’n, 2011 UT App 210, ¶ 6, 258 P.2d 640
(mem.).
5
Throughout this opinion we cite the 2010 version of the
Utah Administrative Code, which was in effect at the time
Wintle‐Butts was placed on paid administrative leave and dur‐
ing the course of the subsequent grievance proceedings.

20110574‐CA 8 2013 UT App 187
Wintle‐Butts v. CSRO

¶15 We agree with the Administrator that Wintle‐Butts’s transfer
back to DHS fits squarely within the agency’s definition of a
transfer and was not a disciplinary action taken by DTS under
R477‐11.6 See id. R477‐1‐1(36). Indeed, Wintle‐Butts’s request to
transfer back to DHS was not in any sense an action “taken by
management” and therefore cannot be the basis for a demotion. See
id. R477‐1‐1(31), (36). Wintle‐Butts also repeatedly argued to the
Administrator that she was not grieving her transfer back to DHS,
but was grieving only what she then characterized as her dismissal
from DTS. For purposes of Wintle‐Butts’s demotion argument, we
therefore consider only the action taken by DTS—placement of
Wintle‐Butts on paid administrative leave.

2. DTS’s Placement of Wintle‐Butts on Paid Administrative
Leave Was Not a Disciplinary Action.

¶16 Wintle‐Butts contends that DTS’s action in placing her on
administrative leave when she failed her background check was
disciplinary because the action was taken when she no longer met
the requirements of her position. See Utah Admin. Code
R477‐11‐1(1) (“Agency management may discipline any employee
for . . . no longer meet[ing] the requirements of the position . . . .”).
Indeed, disciplinary action is defined as “[a]ction taken by
management under Rule R477‐11.” Id. R477‐1‐1(36). However,
placement on paid administrative leave is not one of the
disciplinary actions provided for in R477‐11, but rather
administrative leave is governed by R477‐7‐7. Compare id. R477‐11‐
1(4)(a)–(d) (providing for disciplinary action by reprimand,

6
Wintle‐Butts also challenges the Administrator’s determi‐
nation that her request for transfer back to DHS was freely
signed and not coerced. Even if we were to determine that
Wintle‐Butts’s transfer was coerced, it would not affect our
conclusion that her transfer was not a demotion within the
regulatory definition and does not otherwise serve as a basis for
CSRO to exercise jurisdiction over Wintle‐Butts’s grievance. See
Utah Code Ann. § 67‐19a‐202(1) (LexisNexis 2011).

20110574‐CA 9 2013 UT App 187
Wintle‐Butts v. CSRO

suspension without pay, demotion, or dismissal), with id. R477‐7‐
7(1), (1)(a)(iv), (1)(b)(v) (providing for paid administrative leave for
reasons “consistent with agency policy”). Moreover, in his letter
placing Wintle‐Butts on paid administrative leave, Wintle‐Butts’s
supervisor specifically explained, “This leave is in accordance with
[rule] R477‐7‐7.”

¶17 Wintle‐Butts argues that the denial letter from the Director
proves that DTS’s actions were disciplinary because the letter refers
to R477‐11 and states that Wintle‐Butts “no longer meet[s] the
requirements of the position.” We do not agree that the letter
conclusively demonstrates that Wintle‐Butts was subject to
disciplinary action. Rather, the letter explains the Director’s view
that any procedural errors in the handling of Wintle‐Butts’s
conditional employment with DTS were moot because Wintle‐Butts
“no longer [met] the requirements of the position” under R477‐11.
However, this recognition by the Director that Wintle‐Butts could
have been disciplined under R477‐11 does not demonstrate that she
was disciplined. See Utah Admin. Code R477‐11‐1(1) (“Agency
management may discipline any employee for . . . no longer
meet[ing] the requirements of the position . . . .” (emphasis added)).
Rather, Wintle‐Butts’s supervisor indicated that Wintle‐Butts was
placed on leave in accordance with R477‐7‐7 and made no mention
of disciplinary action or R477‐11. Because the evidence Wintle‐Butts
has advanced does not demonstrate otherwise, we conclude that
her placement on administrative leave was not an action taken by
management under R477‐11. Accordingly, Wintle‐Butts has failed
to demonstrate that she was subject to a “disciplinary action”
within the meaning of Utah Administrative Code R477‐1‐1(36).

3. DTS’s Placement of Wintle‐Butts on Paid Administrative
Leave Did Not Result in a Reduction of Her Current Actual
Wage.

¶18 The record also shows that DTS’s placement of Wintle‐Butts
on paid administrative leave did not result “in a reduction of
[Wintle‐Butts]’s current actual wage.” See id. R477‐1‐1(31). Wintle‐

20110574‐CA 10 2013 UT App 187
Wintle‐Butts v. CSRO

Butts’s hourly rate was increased to $46.27 on September 20, 2010,
when she transferred to DTS. Her hourly rate was not reduced until
September 28, 2010, when she transferred back to DHS. It does not
appear from the record that DTS’s placement of Wintle‐Butts on
paid administrative leave on September 23, 2010, had any effect on
her then‐current actual wage, and she has introduced no evidence
to the contrary. Thus, Wintle‐Butts cannot demonstrate that DTS’s
actions resulted in a reduction of her then‐current actual wage.

¶19 Because Wintle‐Butts has not demonstrated either that she
was subject to disciplinary action or that such action resulted in a
reduction in her current actual wage, we conclude that Wintle‐Butts
was not demoted when DTS placed her on paid administrative
leave. Thus, the Administrator did not err in determining that
Wintle‐Butts was not demoted, and that CSRO did not have
jurisdiction over Wintle‐Butts’s grievance on this basis.

B. Wintle‐Butts Did Not Adequately Brief Her Dismissal
Argument.

¶20 Wintle‐Butts next argues that CSRO has jurisdiction over her
grievance because she was dismissed by DTS. However, Wintle‐
Butts fails to develop this argument beyond bare assertions that her
employment with DTS “ceased to exist” when she was placed on
administrative leave and that she was thereby separated from state
employment. Wintle‐Butts does not address the relevant
administrative definition of dismissal or the Administrator’s
determination that she was never separated from state
employment. As DTS correctly points out, Wintle‐Butts has failed
to adequately brief this issue, and we therefore do not consider it
further.7 See Utah R. App. P. 24(a)(9) (listing requirements for

7
Wintle‐Butts’s brief includes the heading, “Whether
Grievant was suspended or dismissed.” However, Wintle‐Butts
never argues that she was suspended in her briefs to this court.
To the extent she has raised suspension as a ground for CSRO’s
(continued...)

20110574‐CA 11 2013 UT App 187
Wintle‐Butts v. CSRO

arguments in an appellant’s briefs); State v. Lamb, 2013 UT App 5,
¶ 11, 294 P.3d 639 (“‘It is well established that a reviewing court
will not address arguments that are not adequately briefed.’”
(quoting State v. Thomas, 961 P.2d 299, 304 (Utah 1998))).
C. Wintle‐Butts Failed to Preserve Her Rules Violation
Argument Before CSRO.

¶21 Wintle‐Butts also argues that CSRO has jurisdiction over her
grievance because DTS violated its own rules by failing to afford
her due process and an opportunity to respond to DTS’s proposed
action regarding her employment. See Utah Code Ann.
§ 67‐19a‐202(1)(a)(vii) (LexisNexis 2011); Utah Admin. Code R477‐
11‐1(3) (“All disciplinary actions of career service employees shall
be governed by principles of due process and Title 67, Chapter
19a.”). However, Wintle‐Butts failed to preserve this argument
because she did not present it to CSRO. “We have consistently held
that issues not raised in proceedings before administrative agencies
are not subject to judicial review except in exceptional
circumstances.” See Sullivan v. Board of Oil, Gas & Mining, 2008 UT
44, ¶ 14, 189 P.3d 63 (citation and internal quotation marks
omitted).

¶22 Wintle‐Butts contends that this issue was preserved in her
statement of grievance, in which she alleged that she was
wrongfully dismissed and that her dismissal “was not within the
provisions of the policy and without [her] right to appeal as a career
service employee under Utah Code 63F‐1‐106.” While we agree that
Wintle‐Butts raised the issue of wrongful dismissal before CSRO,
Wintle‐Butts has not demonstrated, and we see nothing in the
record to support the contention, that she ever argued to CSRO that
DTS’s alleged violation of its rules was an independent basis for
CSRO jurisdiction under Utah Code section 67‐19a‐202(1)(vii).

7
(...continued)
jurisdiction over her grievance, we decline to address it as inade‐
quately briefed. See Utah R. App. P. 24(a)(9); State v. Lamb, 2013
UT App 5, ¶ 11, 294 P.3d 639.

20110574‐CA 12 2013 UT App 187
Wintle‐Butts v. CSRO

Because the Administrator did not address this issue in his decision,
Wintle‐Butts faults the Administrator for “fail[ing] to put 2 and 2
together” to determine that the alleged violation of her due process
rights granted jurisdiction to CSRO. However, the onus was on
Wintle‐Butts to specifically raise this issue to CSRO so that it could
have been adjudicated. See Dinger v. Department of Workforce Servs.,
2013 UT App 59, ¶ 28, 300 P.3d 313. Because Wintle‐Butts did not
preserve this argument before CSRO, we do not address it further.

CONCLUSION

¶23 Wintle‐Butts has failed to demonstrate that she was demoted
or to properly raise any other ground upon which CSRO could
exercise jurisdiction. Therefore we need not address her arguments
regarding whether CSRO’s jurisdiction survived her subsequent
voluntary transfer or the validity of her transfer or grievance
waiver. We conclude that the Administrator did not err in
dismissing Wintle‐Butts’s grievance for lack of jurisdiction and
accordingly approve the Administrator’s decision.

20110574‐CA 13 2013 UT App 187