Carnagie v. Department of Workforce Services

2013 UT App 193
_________________________________________________________
THE U TAH COURT OF A PPEALS
SCOTT C ARNAGIE ,
Petitioner,
v.
WORKFORCE A PPEALS BOARD, D EPARTMENT OF WORKFORCE
SERVICES, AND BRICK OVEN –P ROVO , LLC,
Respondents.
Memorandum Decision
No. 20120258‐CA
Filed August 1, 2013
Original Proceeding in this Court
Christopher D. Greenwood, Attorney for Petitioner
Amanda B. McPeck, Attorney for Respondent
Workforce Appeals Board, Department of
Workforce Services
Michael W. Spence and Jonathan G. Pappasideris,
Attorneys for Respondent Brick Oven–Provo, LLC
J UDGE WILLIAM A. T HORNE J R . authored this Memorandum
Decision, in which J UDGES STEPHEN L. R OTH
and MICHELE M. C HRISTIANSEN concurred.
THORNE, Judge:
¶1 	Scott Carnagie seeks judicial review of a decision of the
Workforce Appeals Board (the Board) affirming the denial of his
claim for unemployment benefits. We decline to disturb the
Board’s decision.
¶2 	Carnagie began working for Brick Oven–Provo, LLC or one
of its affiliates (collectively, Brick Oven) in 2000. New owners
purchased Brick Oven in 2008. At this time, Carnagie was a
regional manager overseeing multiple restaurants, and Brick Oven

Carnagie v. Department of Workforce Services
20120258‐CA 	2013 UT App 193	2
offered him a 10% ownership share in the company’s Provo
restaurant if he would stay on with the new owners. This interest
was to vest after a period of years. In December 2010, Brick Oven
reassigned Carnagie to be the general manager of the Provo
location.
¶3 	On October 4, 2011, Brick Oven sent Carnagie an email
asking him to respond to various allegations, including Carnagie’s
alleged failure to post and adhere to his work schedule as required
by company policy. The email demanded that Carnagie provide
Brick Oven with a copy of his schedule immediately and stated,
“[We] will be monitoring this very closely. If you fail, in any[ ]way
to adhere to this schedule, you will immediately be let go.” On
October 6, after consulting with his attorney, Carnagie informed
Brick Oven that the issues regarding his work schedule had already
been resolved; Brick Oven replied that same day that they had not
been. On October 7, Brick Oven suspended Carnagie with pay for
refusing to answer the prior allegations, giving him until October
10 to provide a response. On October 11, Carnagie attempted to
return to work but was informed by Brick Oven that he should
leave the premises and not return until he had responded to the
allegations. On October 12, Brick Oven suspended Carnagie
indefinitely and without pay until such time as it received
Carnagie’s responses.
¶4 	On October 24, Brick Oven emailed Carnagie, stating, “We
haven’t heard anything from you over the past 10 days. We
presume that you have resigned yourself and are unwilling to
answer the allegations against you.” In the email, Brick Oven stated
its desire to “sit down with [Carnagie] and discuss a fair parting.”
Carnagie 	contacted 	his 	attorney, 	who 	directed 	him 	not 	to
personally respond to the October 24 email. On October 26, Brick
Oven emailed Carnagie and informed him that it was accepting his
“voluntary resignation.” Sometime at or near the end of October,
Brick Oven received an email response from Carnagie’s attorney,
the exact date and contents of which are not in the record.

Carnagie v. Department of Workforce Services
20120258‐CA 	2013 UT App 193	3
¶5 	Carnagie filed for unemployment benefits on October 27,
which the Department of Workforce Services denied. Carnagie
appealed this decision to an Administrative Law Judge (ALJ), who
affirmed the denial of benefits after a hearing at which both
Carnagie and Jeff Creer, one of Brick Oven’s new owners, appeared
and testified. The ALJ made factual findings and concluded that
Carnagie had voluntarily quit his employment when he failed to
respond to Brick Oven’s reasonable requests. The ALJ also
concluded that Carnagie had quit without good cause and that it
would not be contrary to equity or good conscience to deny him
benefits. Carnagie appealed to the Board, which adopted the ALJ’s
findings 	and 	conclusions, 	made 	additional 	findings 	and
conclusions, and again affirmed the denial of benefits.
¶6 	Carnagie challenges the Board’s denial of benefits on judicial
review, arguing that he did adequately respond to Brick Oven’s
requests, that he did not voluntarily quit, that he should not be
penalized for following his attorney’s advice, and that equity and
good conscience did require the payment of benefits. “Whether the
[Board] correctly or incorrectly denied benefits is ‘a traditional
mixed question of law and fact.’” Jex v. Labor Comm’n, 2013 UT 40,
¶ 15 (quoting Murray v. Labor Commʹn, 2013 UT 38, ¶ 34). We apply
a deferential standard of review to a mixed question of fact and law
when it “does not lend itself to consistent resolution by a uniform
body of appellate precedent” or when “the [factfinder] is in a
superior position to decide it.” Id. (citation and internal quotation
marks omitted). “The [Board’s] decision denying benefits is
accordingly entitled to deference.” Id. ¶ 16.
¶7 	There is substantial evidence in the record to support the
Board’s ultimate determination that Carnagie failed to adequately
respond to Brick Oven’s requests and, as a result, voluntarily quit
his employment. As of October 7, 2011, Carnagie was on notice that
Brick Oven was not satisfied with his prior response and was
requesting written statements about his work schedule and hours.
However, it is undisputed that Carnagie did not personally
respond to that request prior to Brick Oven’s “accepting” his
voluntary resignation on October 26.

Carnagie v. Department of Workforce Services
1. We further note that, in administrative proceedings, “[w]hen a
party is in possession of evidence but fails to introduce the
evidence, an inference may be drawn that the evidence does not
support the party’s position.” See Utah Admin. Code R994‐508‐
109(9).
2. Carnagie was on notice as of Brick Oven’s October 4 email that
Brick Oven expected him to immediately provide a copy of his
schedule to Brick Oven, to post and adhere to that schedule, and
that failure to do so “in any[ ]way” would result in his termination.
(continued...)
20120258‐CA 	2013 UT App 193	4
¶8 	Carnagie argues that he responded through his attorney as
evidenced by Creer’s admission at the hearing that Carnagie’s
attorney “sent something at the end of October.” However,
Carnagie did not put his attorney’s response into the record, giving
the ALJ and the Board no way of determining that it was actually
responsive to Brick Oven’s request and was not merely a further
general denial of wrongdoing.1 Further, Creer testified that the
attorney’s response came “after [Carnagie] stopped working for the
company.” Thus, there was no evidence before the Board that
Carnagie had made a timely, satisfactory response through his
attorney to Brick Oven’s request prior to his termination.
¶9 	Carnagie also challenges the Board’s determination that he
voluntarily quit. Rule R994‐405‐204(3) of the Utah Administrative
Code states that “[i]f the claimant refused or failed to follow
reasonable 	requests 	or 	instructions, 	and 	knew 	the 	loss 	of
employment would result, the separation is a quit.” Utah Admin.
Code R994‐405‐204(3). Carnagie was suspended with pay on
October 7, suspended without pay on October 11, and informed on
October 24 that Brick Oven perceived that he had “resigned
himself,” all over Carnagie’s refusal to respond to allegations that
he was not posting and adhering to his work schedule as required
by Brick Oven. In light of the eminent reasonableness of Brick
Oven’s request, Carnagie’s failure to respond, and the clear
implication 	that 	such 	failure 	would 	result 	in 	the 	loss 	of
employment, 2 we see no basis upon which to disturb the Board’s

Carnagie v. Department of Workforce Services
2. (...continued)
Brick Oven’s election to apply progressive discipline—i.e., suspend
Carnagie—in lieu of immediate termination did nothing to rescind
this notice that termination would be the ultimate result if Carnagie
failed to resolve his scheduling issues.
20120258‐CA 	2013 UT App 193	5
conclusion that Carnagie “chose to disregard a reasonable request,
knowing that discharge would result, rendering the separation a
voluntary quit.”
¶10 	Next, 	Carnagie 	argues 	that 	the 	Board 	impermissibly
determined that Carnagie should have disregarded his attorney’s
advice and personally responded to Brick Oven’s request for
information. We see no such determination by the Board. Rather,
the Board concluded,
[Carnagie] was certainly within his rights to request
that his attorney assist him in responding to the
allegations against him. However, once [Carnagie]
was 	aware 	[Brick 	Oven] 	had 	not 	received
communication from his attorney, [Carnagie] could
have reasonably contacted [Brick Oven] to simply
state that he was not resigning, but he was working
with his attorney to resolve the situation. [Carnagie]
did not do so and apparently did not instruct his
attorney to do so. The Board finds that choice to be
unreasonable under the circumstances . . . .
Thus, the Board determined only that Carnagie acted unreasonably
in failing to communicate, either personally or through counsel, to
inform Brick Oven that he was not voluntarily quitting after
receiving notice that Brick Oven was interpreting his actions as a
voluntary quit. The Board’s determination in this regard is entitled
to our deference, see Jex, 2013 UT 40, ¶ 15, and we decline to disturb
it.
¶11 	Carnagie’s final challenge to the substance of the Board’s
decision is his argument that even if his departure was a voluntary

Carnagie v. Department of Workforce Services
20120258‐CA 	2013 UT App 193	6
quit without good cause, equity and good conscience demand the
payment 	of 	benefits. 	See 	Utah 	Admin. 	Code 	R994‐405‐103
(governing the allowance of benefits for reasons of equity and good
conscience). In order for benefits to be allowed under the equity
and good conscience standard, a claimant must have “acted
reasonably,” meaning “the decision to quit was logical, sensible, or
practical.” Id. R994‐405‐103(1)(a).
¶12 	Carnagie argues that he acted reasonably in light of his
reliance on his attorney and his concern that Brick Oven was
attempting to deprive him of his unvested ownership interest in
the 	Provo 	restaurant. 	However, 	the 	Board 	rejected 	these
arguments, stating,
[Carnagie] 	and 	the 	owners 	had 	a 	strained
relationship, and, as acknowledged above, it was
reasonable for [Carnagie] to request his attorney’s
assistance on the matter. However, as explained
previously, it was not reasonable for [Carnagie] not
to ensure the owners received his response to the
allegations against him. The fact that [Carnagie] was
afraid the primary owners were attempting to divest
him of his ownership interest made it all the more
unreasonable for [Carnagie] to refuse to personally
respond to [Brick Oven], if only to simply state, “I am
not resigning.” Allowing [Brick Oven] to presume he
had quit only hastened the divestment. [Carnagie’s]
actions are not the actions of a reasonable person
under the circumstances.
The Board’s determination that Carnagie acted unreasonably is
entitled to our deference, see Jex v. Labor Comm’n, 2013 UT 40, ¶ 15,
and we decline to disturb the Board’s determination.
¶13 	Carnagie also complains that the ALJ violated rules R994‐
508‐117 and ‐118 of the Utah Administrative Code and other
administrative procedures when she refused to reopen the hearing
upon his request to admit additional evidence about the precise

Carnagie v. Department of Workforce Services
3. Carnagie also requested that the ALJ reopen the hearing to allow
his attorney to testify that the attorney did not represent Carnagie
at the original hearing, despite his presence at that hearing. On
judicial review, Carnagie suggests that his self‐representation at the
hearing may have given the ALJ “an affirmative duty to elicit all
relevant facts, including those favorable and unfavorable to the
party that is not represented.” Nelson v. Department of Emp’t Sec.,
801 P.2d 158, 163 (Utah Ct. App. 1990) (citation and internal
quotation marks omitted). However, in the administrative context,
such a duty arises only when there is but one self‐represented
party, see id., and in this case, Brick Oven also appeared without
counsel through its owner, Creer.
4. Ordinarily, “[w]e review the Board’s decision rather than the
ALJ’s.” Wood v. Labor Comm’n, 2012 UT App 26, ¶ 4, 270 P.3d 568
(mem.). Here, however, Carnagie argues that the ALJ violated
specific administrative rules governing requests to reopen and, in
doing so, undermined the Board’s review process. Under these
circumstances, we elect to address Carnagie’s argument.
20120258‐CA 	2013 UT App 193	7
timing of his attorney’s late‐October 2011 response to Brick Oven. 3
However, rules R994‐508‐117 and ‐118 allow a party to request the
reopening of a hearing only when the party failed to participate in
the hearing, either personally or through a representative. See Utah
Admin. Code R994‐508‐117(2). Otherwise, an ALJ may reopen a
hearing on his or her own motion if necessary to take continuing
jurisdiction “or if the failure to reopen would be an affront to
fairness.” See id. R994‐508‐117(5).4
¶14 	Carnagie argues that even if he was not allowed to make a
request to reopen because he personally participated in the hearing,
the ALJ nevertheless actually considered his request, and her
refusal to reopen the hearing must therefore be evaluated against
the requirements set out in rule R994‐508‐118. See id. R994‐508‐118
(governing requests to reopen made by a nonparticipating party).
We 	disagree. 	Although 	Carnagie’s 	request 	appears 	to 	have
prompted a notation in the record by the ALJ, the notation did not
purport to recognize and deny Carnagie’s request. Rather, the

Carnagie v. Department of Workforce Services
5. Among the reasons stated in the ALJ’s notation were that
Carnagie 	elected 	to 	go 	forward 	with 	the 	hearing 	without
representation, that he was given adequate time to ask questions at
the hearing, and that the ALJ had “asked him if he had anyone else
he wanted to testify and he told me no.”
20120258‐CA 	2013 UT App 193	8
notation stated, “I am not reopening the hearing,” along with the
ALJ’s reasons for not doing so.5 This is entirely consistent with the
ALJ 	considering 	reopening 	the 	hearing 	upon 	her 	own
motion—albeit at the prompting of Carnagie—and deciding
against it for the reasons stated. See id. R994‐508‐117(5).
¶15 	Carnagie has not demonstrated that the ALJ’s decision
somehow exceeded her discretion and was an “affront to fairness”
under rule R994‐508‐117(5). Further, the Board made its own
determinations that Carnagie had received notice prior to the
hearing that he was required to present all relevant evidence at the
hearing and that he failed to do so. Under these circumstances, we
see no grounds to disturb the Board’s ultimate decision merely
because Carnagie was not allowed to present additional evidence
at an additional hearing after failing to do so at the initial hearing
and having indicated to the ALJ at the initial hearing that he had no
further witnesses.
¶16 	In sum, Carnagie has not demonstrated any substantive
reason for us to disturb the Board’s decision, nor has he shown that
the ALJ’s refusal to reopen the hearing constituted a violation of
agency rules or procedures entitling him to relief. Accordingly, we
decline to disturb the Board’s decision affirming the denial of
Carnagie’s claim for unemployment benefits.