Olson v. Department of Workforce Services

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 217
_________________________________________________________
THE UTAH COURT OF APPEALS
CHARLOTTE T. OLSON,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Per Curiam Decision
No. 20140441-CA
Filed September 11, 2014
Original Proceeding in this Court
Charlotte T. Olson, Petitioner Pro Se
Suzan Pixton, Attorney for Respondent
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., AND
SENIOR JUDGE PAMELA T. GREENWOOD.1
PER CURIAM:
¶1 Charlotte T. Olson seeks review of the Workforce Appeals
Board’s (the Board) decision denying her unemployment benefits
and establishing a fault overpayment. We do not disturb the
Board’s decision.
¶2 A claimant is not eligible to receive unemployment benefits
if she is discharged from employment for just cause. Utah Code
Ann. § 35A-4-405(2)(a) (LexisNexis Supp. 2013). If it is determined
that, by reason of a claimant’s fault, benefits are paid to which a

Olson v. Department of Workforce Service
20140441-CA 2 2014 UT App 217
claimant was not entitled, the claimant shall repay the benefits
received. See id. § 35A-4-406(4)(b) (LexisNexis 2011). In Carbon
County v. Workforce Appeals Bd., 2013 UT 41, 308 P.3d 477, the Utah
Supreme Court stated the standard of review to be used in
reviewing the Board’s decision on a request for unemployment
benefits. See id. ¶ 7. Such a determination is reviewed as a mixed
question of fact and law that is more fact-like because the “case
does not lend itself to consistent resolution by a uniform body of
appellate precedent.” Id. (citation and internal quotation marks
omitted). Accordingly, the Board’s determinations are entitled to
deference because “the appellate court would be in an inferior
position to review the correctness of the . . . decision.” Id. (citation
and internal quotation marks omitted). “Because of the fact-
intensive conclusions involved at the agency level,” the Board’s
determination that Olson was ineligible for benefits because she
was discharged for just cause and its determination of a fault
overpayment are entitled to deference. See id.
¶3 Olson was employed as a patient service representative for
Sutter Connect, LLC (Sutter). Sutter terminated Olson’s
employment following an incident in which she fell asleep in a
team meeting where other employees were present. Company
policy stated that sleeping on the job constituted misconduct. Olson
received a verbal warning on May 22, 2013, although she did not
recall that warning. She received written warnings on June 7, 2013,
and July 26, 2013. The June 7 warning cited several instances of
“appearing to be asleep” while at work and also cited negative
comments and actions made by Olson. The warning stated that
continued misconduct would result in additional disciplinary
action, including termination. The July 26 “final written warning”
cited “inappropriate conduct, specifically sleeping at your desk
while on the clock,” and other conduct. That warning stated that it
had been reported that Olson was either asleep or appeared to be
asleep on five separate occasions. The final warning also stated,
“Recurrence of this problem and/or other problems will result in
termination.”

Olson v. Department of Workforce Service
20140441-CA 3 2014 UT App 217
¶4 At a meeting on January 24, 2014, Olson fell asleep twice.
This was reported by her team leader, who was conducting the
meeting. She witnessed Olson sleeping and observed people sitting
next to her nudge her awake. The team leader testified that Olson
was sitting with her chin down and was breathing heavily with her
eyes closed. Olson denied sleeping in the meeting and testified that
she has breathing problems. She claimed that she was being
harassed and reported for sleeping on the job when she was not
actually sleeping and that the warnings stated only that she
“appeared” to be sleeping and did not prove that she was actually
sleeping in the previous incidents. She claimed that she just looked
down in the meeting and was not sleeping.
¶5 To establish just cause for termination, an employer must
establish the elements of culpability, knowledge, and control. See
Utah Admin. Code R994-405-202. The Administrative Law Judge’s
(ALJ) decision found that Olson received Sutter’s policies upon her
hire and that those policies described misconduct as including
sleeping on the job. The ALJ further found that Olson received
verbal and written warnings regarding sleeping on the job and that
she was discharged for a final incident of sleeping that occurred in
a meeting on January 24, 2014. The ALJ found that the employer
provided credible first-hand testimony that Olson had to be
nudged during the meeting to wake up and had established that
Olson was sleeping while at work. Because Sutter paid Olson while
she was sleeping for work that was not being completed, this
established the element of culpability. Olson was aware of the
employer’s expectations, establishing the element of knowledge.
Finally, Olson was in control of the behavior that led to her
dismissal. The ALJ determined that the elements for just cause
were established.
¶6 The ALJ also determined that benefits were improperly paid
due to claimant fault. Fault is established if a claimant received
benefits to which the claimant was not entitled based on providing
incorrect information or on an absence of information that the
claimant could have reasonably provided when the claimant had

Olson v. Department of Workforce Service
20140441-CA 4 2014 UT App 217
sufficient notice that the information might be reportable. Id. R994-
406-301(1). The element of materiality was satisfied because Olson
received benefits she was not entitled to receive. The element of
control was established because Olson could reasonably have
provided correct information and instead denied that she was
sleeping while at work. Knowledge was established because Olson
had “sufficient notice that the information might be reportable.”
¶7 The ALJ and the Board found the testimony provided by
Sutter to be more credible than Olson’s testimony. “It is the
province of the Board, not appellate courts, to resolve conflicting
evidence, and where inconsistent inferences can be drawn from the
same evidence, it is for the Board to draw the inferences.”
Albertsons, Inc. v. Department of Emp’t Sec., 854 P.2d 570, 575 (Utah
Ct. App. 1993) (citation and internal quotation marks omitted). The
Board rejected Olson’s argument that the prior incidents that she
was written up for involved only the appearance that she was
asleep and that Sutter had no actual proof that she was asleep. The
Board stated that given the final incident in which Olson fell asleep
during daytime hours at a meeting with other people, “it is
reasonable to conclude that the prior incidents occurred, and the
Employer was not required to provide firsthand testimony
regarding each of the incidents for which the Claimant was
warned.” After repeated warnings about misconduct including
sleeping on the job, Sutter terminated Olson after a final incident
witnessed by other participants in a meeting. We defer to the
Board’s conclusions that Olson was terminated for just cause. If
Olson had correctly reported the facts, benefits would not have
been paid, and the Board correctly assessed a fault overpayment.
¶8 Accordingly, we decline to disturb the Board’s decision.