2015 UT App 264
THE UTAH COURT OF APPEALS
CURTIS B. GREGORY,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Per Curiam Decision
No. 20150715-CA
Filed October 29, 2015
Original Proceeding in this Court
Curtis B. Gregory, Petitioner Pro Se
Suzan Pixton, Attorney for Respondent
Before JUDGES GREGORY K. ORME, J. FREDERIC VOROS JR., and
MICHELE M. CHRISTIANSEN.
PER CURIAM:
¶1 Petitioner Curtis B. Gregory seeks judicial review of two
decisions of the Workforce Appeals Board (the Board) affirming
the Department of Workforce Service’s (the Department)
decisions denying benefits and imposing a fraud overpayment
and penalty. 1 This case is before the court on a sua sponte
motion for summary disposition.
1. The Board issued separate decisions in two cases. In one case,
the Department found Gregory ineligible for unemployment
benefits. In the other case, the Department imposed a fraud
overpayment and penalty based upon a finding that he
knowingly withheld material information from the Department
regarding work and earnings.
Gregory v. Department of Workforce Services
¶2 The Department issued its decisions denying benefits and
imposing a fraud overpayment and penalty on May 1, 2015. The
decisions notified Gregory that he needed to file his appeal with
the Department on or before May 18, 2015. Gregory filed
untimely appeals of the Department’s decisions on May 28, 2015.
A hearing before an Administrative Law Judge (ALJ) on both
appeals was scheduled for June 10, 2015, to address issues that
included whether the untimely appeals would be considered.
Two hearing notices advised Gregory that by a specific time on
June 9, 2015−the day before the hearing−he must notify the
Appeals Unit to confirm his intent to participate in the hearing
and to provide a telephone number where he could be reached
for the telephonic hearing. The notices advised Gregory that if he
failed to confirm his participation, the hearing would be
cancelled, the appeals would be dismissed, and an Order of
Default would issue. The notices also advised that if there was a
conflict with the date and time, Gregory could request a
continuance. Finally, the notices informed Gregory that the
appeal decisions would be based solely on the evidence
presented at the hearing and that failing to participate in the
hearing may result in a decision against him.
¶3 Gregory failed to confirm his participation in the hearing
by the time specified in the notices. The ALJ issued an Order of
Default, which advised Gregory of the procedure to reopen an
appeal. Gregory made a timely request to reopen the appeal, and
a second hearing was scheduled for June 24, 2015. Again, the
Department sent notices to Gregory containing the same
instructions regarding confirmation of the intent to participate in
the hearing. Gregory again failed to comply, and a second Order
of Default issued. Following another request to reopen the
appeal, a third hearing was scheduled for July 7, 2015. Gregory
again failed to timely verify his participation, and a third Order
of Default issued.
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Gregory v. Department of Workforce Services
¶4 On July 10, 2015, Gregory filed a third request to reopen
his appeals. After his failure to participate in three scheduled
hearings, the matter was referred to the Board to consider
whether the appeals should be reopened. The Board sent
Gregory a letter asking him to advise the Board of any
circumstances that “may have caused your failure to participate
in the hearings scheduled for June 10, June 24, and July 7, 2015.”
Gregory responded that he had been working long hours and
had no time at work to be on the phone. The Board issued two
decisions on July 29, 2015, each finding that Gregory did not
show he was prevented from participating in the hearings due to
circumstances that were beyond his control or due to excusable
neglect. The Board affirmed the third Order of Default, which
left the Department’s decisions that denied benefits and
established an overpayment and penalty in effect. Gregory seeks
judicial review of the Board’s decisions.
¶5 We apply a deferential standard of review to a mixed
question of fact and law when “the mixed finding is not ‘law-
like’ because it does not lend itself to consistent resolution by a
uniform body of appellate precedent” or when it “is ‘fact-like’
because the [factfinder] is in a superior position to decide it.” Jex
v. Labor Comm’n, 2013 UT 40, ¶ 15, 306 P.3d 799 (alteration in
original) (citation and internal quotation marks omitted).
Therefore, we accord deference to the Board’s decision that
Gregory did not demonstrate that he was prevented from
attending any of the scheduled hearings due to circumstances
that were beyond his control or that his failure to confirm his
participation in the hearing was due to excusable neglect.
¶6 Utah Administrative Code R994-508-118 states that a
request to reopen will be granted if a party “was prevented from
appearing at the hearing due to circumstances beyond the
party’s control.” The rule further provides that a request may be
granted due to “mistake, inadvertence, surprise, excusable
neglect, or any other reason justifying relief,” and that “[t]he
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Gregory v. Department of Workforce Services
determination of what sorts of neglect will be considered
excusable is an equitable one,” listing some “relevant
circumstances” to be considered. Utah Admin. Code R994-508-
118(2). “Excusable neglect is not limited to cases where the
failure to act was due to circumstances beyond the party’s
control.” Id. R994-508-118(4).
¶7 It is undisputed that Gregory missed all three of the
scheduled hearings after failing to call to confirm his
participation within the time allowed by the notices. Although
the hearing notices stated that if Gregory had a conflict, he could
request a continuance, the Board found that there was “nothing
in the record to show that once [Gregory] realized his work
schedule conflicted with the hearing times, he made any attempt
to reschedule the hearing.” Because Gregory could not “offer a
reasonable explanation for not participating in previously
scheduled hearings,” the Board denied the third request to
reopen his appeal.
¶8 Before this court, Gregory states that he “missed each
appointment due to miscommunications and having a hard time
finding the time in between the long hours I have been working
this summer.” He did not claim before the Board that there was
any miscommunication, and accordingly, the claim before us is
untenable. The notices clearly informed Gregory of the
requirement to confirm his participation in the scheduled
hearing and the consequences of failing to do so. Gregory argues
the merits of his appeals from the Department’s decisions
despite the facts that his appeal of those decisions was not timely
and that untimeliness was an issue that would have been a
subject of the hearing before an ALJ. As the Board noted, a
determination on the merits of Gregory’s appeals cannot be
made based upon his letters and unsworn assertions. By failing
to participate in any of the three hearings scheduled to consider
his administrative appeals, Gregory also failed to provide any
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Gregory v. Department of Workforce Services
evidence that could be considered by this court in a proceeding
for judicial review.
¶9 We decline to disturb the decisions of the Workforce
Appeals Board.
20150715-CA 5 2015 UT App 264