Gray v. Department of Workforce Services

2015 UT App 248
THE UTAH COURT OF APPEALS
K ENNETH L. GRAY ,
Petitioner,
v.
DEPARTMENT OF WORKFORCE S ERVICES,
Respondent.
Per Curiam Decision
No. 20150420-CA
Filed October 1, 2015
Original Proceeding in this Court
Kenneth L. Gray, Petitioner Pro Se
Suzan Pixton, Attorney for Respondent
Before JUDGES GREGORY K. O RME, J. F REDERIC VOROS JR ., and
JOHN A. PEARCE.
PER CURIAM:
¶1 	Kenneth L. Gray seeks review of the final decision of the
Workforce Appeals Board (the Board). Gray asserts that the
Board erred in determining that he quit his position without
good cause, thereby making him ineligible for unemployment
benefits and also requiring him to pay back benefits that he had
already received.
¶2 	The 	Board’s 	decision 	concerning 	whether 	a 	person
voluntarily quit his employment and the associated inquiries
concerning that person’s qualification for benefits are mixed
questions of fact and law that are more fact-like because the case
“does not lend itself to consistent resolution by a uniform body
of appellate precedent.” Carbon County v. Workforce Appeals Bd.,
2013 UT 41, ¶ 7, 308 P.3d 477 (citation and internal quotation
marks 	omitted). 	“Because 	of 	the 	fact-intensive 	conclusions
involved at the agency level,” the Board’s determination in such

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matters is entitled to deference. Id. “When a petitioner challenges
an agency’s findings of fact, we are required to uphold the
findings if they are supported by substantial evidence when
viewed in light of the whole record before the court.” Stauffer v.
Department of Workforce Servs., 2014 UT App 63, ¶ 5, 325 P.3d 109
(citations and internal quotation marks omitted).
¶3 	Gray argues that the Board erred in denying him benefits
on the basis that he had voluntarily quit his employment. Gray
admits 	that 	he 	quit 	his 	employment,1 	but 	he 	claims 	that
extenuating circumstances forced him to quit. A claimant who
voluntarily quits employment may still be entitled to benefits if
he shows good cause for the separation or if denying benefits
would be contrary to equity and good conscience. See Utah
Admin Code. R994-405-101(3).
To establish good cause, a claimant must show
that 	continuing 	the 	employment 	would 	have
caused an adverse effect which the claimant could
not control or prevent. The claimant must show
that an immediate severance of the relationship
was necessary. Good cause is also established if a
claimant left work which is shown to have been
illegal or to have been unsuitable new work.
1. Gray argues briefly that he was constructively discharged, i.e.,
that his employer made his work environment so hostile that it
could reasonably foresee that Gray would quit. Gray does not
separately analyze this claim and supports it with the same facts
and arguments supporting his position that he had good cause
to quit his job. Under the circumstances, we see no reason to
separately analyze the constructive discharge claim as it mirrors
the arguments Gray makes to support his claim that he had good
cause to quit his employment.

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Id. R994-405-102. Further, even if an adverse effect is shown,
good cause may not be found if the claimant reasonably could
have continued working while looking for other employment.
See id. R994-405-102(1)(b).
¶4 	Gray 	asserts 	that 	he 	had 	good 	cause 	to 	end 	his
employment with the State of Utah’s Department of Technology
Services (Employer). Specifically, Gray argues that Employer
added time-consuming clerical data-entry tasks to his job which
were not required when he was hired and which he could not
perform due to arthritic conditions in his hands. Gray contends
that because of this he had no option but to quit his job. The
Board found that Gray’s contentions were not supported by
the evidence. Evidence adduced at Gray’s hearing supports the
Board’s 	decision. 	Specifically, 	after 	issues 	arose 	concerning
whether certain tasks were being completed, Gray’s supervisor
asked that after performing those tasks Gray input a time log
into a spreadsheet. Gray’s supervisor estimated that performing
the 	underlying 	tasks 	and 	inputting 	the 	information 	into 	a
spreadsheet would take approximately one to two hours. Gray
refused to perform this task, arguing initially that it was a
clerical function that was not part of his job duties. He later
asserted that he could not perform the new task because it
required hours of typing which he could not perform due to his
arthritis.
¶5 	In response to Gray’s claim that he could not perform the
new 	duty 	because 	of 	a 	medical 	condition, 	the 	matter 	was
referred to Employer’s human resources department (HR). HR,
in 	turn, 	sent 	Gray 	an 	email 	inviting 	him 	to 	apply 	for 	an
accommodation 	under 	the 	Americans 	with 	Disabilities 	Act
(ADA). 	HR 	also 	sent 	Gray 	all 	the 	information 	and 	forms
necessary 	to 	apply 	for 	the 	accommodation. 	Gray 	refused,
claiming 	that 	it 	would 	be 	dishonest 	to 	seek 	an 	ADA
accommodation. Gray never adequately explained why it would
be dishonest to seek such an accommodation given the physical

Gray v. Department of Workforce Services
20150420-CA 	4 	2015 UT App 248
limitations he claimed. Gray’s supervisor also testified that in
response to Gray’s complaints concerning the time and effort
required to perform the new task, he performed the task himself.
He indicated that the new task required only an additional 550
characters to be typed per day and added only about twenty to
thirty minutes of extra work. The Board found this testimony
to be credible 	while 	conversely determining that Gray had
consistently exaggerated the amount of typing necessary to
complete 	the 	new 	assignments. 	Because 	the 	new 	typing
requirement was minimal and because Gray was welcome to
apply for an accommodation, if indeed he was unable to perform
the work, the Board found that Gray did not have good cause to
quit his employment. He could have remained employed and
performed the work, sought an accommodation, or sought some
other way to remedy his concerns. Based on the totality of
circumstances, 	we 	cannot 	say 	that 	the 	Board 	abused 	its
discretion in determining that Gray did not have good cause to
quit his employment.
¶6 	Additionally, the Board determined that denying benefits
in 	this 	case 	would 	not 	be 	contrary 	to 	equity 	and 	good
conscience. 	See 	id. 	R994-405-103. 	To 	meet 	this 	standard, 	a
claimant must demonstrate that his actions were reasonable and
that there were mitigating circumstances that would make the
denial of benefits an affront to fairness. See id. R994-405-103(1)(a).
The Board concluded that Gray’s failures to attempt to perform
the new assignment, to exhaust his opportunities to resolve the
issue with Employer, and to seek an ADA accommodation, were
not reasonable. Accordingly, the Board found that Gray failed to
meet the standards of the equity and good conscience exception.
Gray has provided us with no evidence to demonstrate that the
Board abused its discretion in so finding.
¶7 	Gray makes three additional arguments that were not
preserved 	during 	the 	administrative 	process: 	(1) 	the 	Board
denied him due process in adjudicating him guilty of fraud; (2)

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the Board’s decision cannot stand because a representative of
Employer provided “impeachable falsified testimony;” and (3)
one of Employer’s witnesses was unqualified because she lacked
personal knowledge of the facts presented. In order to preserve
an argument, it must be raised in such a manner as to allow the
court or agency an opportunity to correct any error. See State v.
Briggs, 2006 UT App 448, ¶ 4, 147 P.3d 969 (stating that claimed
errors must be brought to the attention of the district court to
give the court an opportunity to correct any error). Because Gray
failed to establish that he raised these issues before the Board, he
fails to demonstrate that the issue is preserved for review. See
Holman v. Callister, Duncan & Nebeker, 905 P.2d 895, 899 (Utah Ct.
App. 1995). We will therefore not consider those arguments.
¶8 	Accordingly, we decline to disturb the decision of the
Board.