2022 UT App 50
THE UTAH COURT OF APPEALS
TIMOTHY MAHONEY,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES AND TROON GOLF LLC,
Respondents.
Opinion
No. 20200884-CA
Filed April 14, 2022
Original Proceeding in this Court
Timothy Mahoney, Petitioner Pro Se
Amanda B. McPeck, Attorney for Respondent
Department of Workforce Services
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
RYAN M. HARRIS and RYAN D. TENNEY concurred.
POHLMAN, Judge:
¶1 Timothy Mahoney seeks judicial review of a Workforce
Appeals Board (the Board) decision denying him unemployment
insurance benefits. Mahoney contends that the Board “ignored
evidence and testimony,” “assumed facts not in evidence,” and
“made conclusions that are contradictory to evidence and
testimony.” We set aside the Board’s decision and instruct it to
reconsider Mahoney’s claim.
Mahoney v. Department of Workforce Services
BACKGROUND 1
¶2 Mahoney was employed by Troon Golf LLC (Employer) as
a general manager of its resort property in St. George, Utah. The
property is made up of twenty-eight individual bungalows, with
one bungalow functioning as a welcome center where guests
check in. In March 2020, because of the COVID-19 pandemic, the
welcome center was closed to outside guests and the resort
instead provided contactless check-in and check-out. It also
eliminated “same-day turnovers” so that “a sanitation worker
[could] disinfect the bungalows before [the] housekeeping staff
cleaned and prepared them for other customers.” 2 This
adjustment “lowered the risk of [the] housekeeping staff being
exposed to the COVID-19 virus.” During this time, Mahoney
provided masks for himself and his co-workers, but “guests and
owners were not required to wear masks.” In addition, the
1. In reviewing a decision of the Board, we recite the facts in the
light most favorable to the Board’s findings. Utah Paiute Tribal
Housing Auth. Inc. v. Department of Workforce Services, 2019 UT App
191, ¶ 2 n.1, 454 P.3d 865. “But we present conflicting evidence to
the extent necessary to address the issues raised on [review].” See
Lundahl Farms LLC v. Nielsen, 2021 UT App 146, ¶ 2 n.2, 504 P.3d
735; see also Carbon County v. Department of Workforce Services, 2012
UT App 4, ¶ 9, 269 P.3d 969 (“In applying the substantial evidence
test, we review the whole record before the court, and consider
both evidence that supports the Board’s findings and evidence
that fairly detracts from them.” (cleaned up)), aff’d sub nom. Carbon
County v. Workforce Appeals Board, 2013 UT 41, 308 P.3d 477.
2. Having a “same-day turnover” means that one guest will check
out of a bungalow on the same day another guest checks in. Same-
day turnovers increase occupancy rates but shorten the time
available for cleaning staff to prepare the units for new guests.
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Mahoney v. Department of Workforce Services
sanitation worker used “a Tyve[k] suit, gloves and a face shield”
as well as a “disinfectant fogger.” 3
¶3 Near the end of May 2020, Employer instructed Mahoney
to “return to same-day turnovers for rooms.” Mahoney did not
want to disinfect rooms “moments after” guests left, nor did he
“want to have to order someone to do that.” Mahoney claimed
that as same-day turnovers increased, the responsibility for
disinfecting rooms “would fall more and more on” him instead of
the sanitation worker. Mahoney was concerned that these
changes could unnecessarily expose him and his staff to COVID-
19. He was also worried about contracting the disease and
potentially infecting his wife, whose medical condition placed her
at an increased risk of serious illness if she contracted COVID-19.
¶4 At the same time, Employer “insisted” that Mahoney
reopen the welcome center. Accordingly, Mahoney worked to
ensure that the welcome center “had all the proper precautions in
place,” like “[f]loor signage for social distancing” and the
installation of plexiglass between the guests and the front-desk
employee. However, Employer demanded that Mahoney open
the welcome center to guests in June 2020, before those
precautions were in place. Specifically, the plexiglass was not “in
place when [Employer] insisted the welcome center be open” and
there is no evidence in the record that the floor signage had
arrived. Further, D.H., “the manager of the owner organization,”
entered the welcome center “on an almost daily basis,” “refused
3. The Board found that Employer provided its employees with
“N100 masks, Tyvek suits, face shields, and professional-grade
foggers.” While Mahoney testified about an N100 mask, Tyvek
suit, face shield, and disinfectant fogger that he (on one occasion)
and the sanitation worker used to disinfect the units, there is no
evidence in the record that Employer provided multiple face
shields, Tyvek suits, and foggers, or that such equipment was
generally available to all employees.
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Mahoney v. Department of Workforce Services
to wear a mask,” and “failed to properly social distance.” He also
ignored Mahoney’s request that when they were together he “step
away and please wear a mask.”
¶5 Mahoney was concerned about re-opening the welcome
center because guests came “from all over the country including
places that still had stay-at-home orders in effect and . . . places
that were considered hot spots for COVID.” He was also
specifically concerned about D.H., who would not wear a mask or
socially distance even after returning from traveling to a “high-
risk area[].”
¶6 Although Mahoney did not tell Employer he was
considering quitting, he expressed “extreme displeasure” and
“strong objections” to reopening the welcome center and
resuming same-day turnovers. Employer was not receptive to
these concerns and moved forward with its plans. As a result,
Mahoney quit and began looking for another job.
¶7 Following his resignation, Mahoney filed a claim for
unemployment insurance benefits. The Utah Department of
Workforce Services denied his claim, finding that Mahoney failed
to “establish good cause for leaving.” Mahoney appealed the
denial and, after a hearing, 4 the denial was affirmed by an
Administrative Law Judge (the ALJ). The ALJ determined that
Mahoney had “not shown he faced an unpreventable harm by
remaining at work, and ha[d] not met his burden of proving he
had good cause to voluntarily end his employment.” Further, the
ALJ declined to award Mahoney benefits under the equity and
good conscience standard because “[i]t was not reasonable or
practical for [him] to quit his job to pursue employment where his
risk of contracting COVID-19 would be the same or greater than
the risk he faced by continuing to work for the Employer,” and
4. Mahoney was the only witness to testify at the hearing.
Employer chose not to appear.
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Mahoney v. Department of Workforce Services
because Mahoney’s “decision to quit did not involve any
mitigating circumstances suggesting a denial of benefits was an
affront to fairness.”
¶8 Mahoney appealed the ALJ’s decision to the Board. The
Board upheld the ALJ’s decision, explaining that Mahoney “failed
to produce persuasive evidence that remaining employed created
a hardship outside of his control.” And while the Board was
“sympathetic” to Mahoney’s health-related concerns, it also
found that the “denial of benefits is not an affront to fairness”
because the “decision to quit and look for other work in this
field—where he does not seem likely to find anything appreciably
safer—was not logical, sensible, or practical.” Thus, the Board
affirmed the decision to deny Mahoney’s claim for
unemployment insurance benefits.
¶9 Mahoney seeks judicial review of the Board’s decision.
ISSUES AND STANDARD OF REVIEW
¶10 Mahoney challenges the Board’s denial of unemployment
insurance benefits on the bases that the Board overlooked
material evidence and made factual findings that are not
supported by substantial evidence.
¶11 This court’s authority to review the Board’s decision is
derived from the Administrative Procedures Act. Utah Code Ann.
§ 63G-4-403(1) (LexisNexis 2019). The Act provides, among other
things, that we may grant relief if we determine that the Board
“substantially prejudiced” a person by not deciding “all of the
issues requiring resolution” or by basing its decision upon a
factual determination “that is not supported by substantial
evidence when viewed in light of the whole record before the
court.” Id. § 63G-4-403(4)(c), (g); see also Davis v. Department of
Workforce Services, 2012 UT App 158, ¶ 2, 280 P.3d 442; Benson v.
Peace Officer Standards & Training Council, 2011 UT App 220, ¶ 22,
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Mahoney v. Department of Workforce Services
261 P.3d 643. “Substantial evidence exists where more than a mere
scintilla, though something less than the weight of the evidence,
supports the Board’s findings.” Prosper Team, Inc. v. Department of
Workforce Services, 2011 UT App 246, ¶ 4, 262 P.3d 462 (cleaned
up). This is met “when a reasonable mind might accept as
adequate the evidence supporting the” relevant findings. Id.
(cleaned up).
¶12 “A person is substantially prejudiced by an agency action
if that challenged action was not harmless.” Foye v. Labor Comm'n,
2018 UT App 124, ¶ 31, 428 P.3d 26. “An error will be harmless if
it is sufficiently inconsequential that there is no reasonable
likelihood that the error affected the outcome of the proceedings.”
Smith v. Department of Workforce Services, 2010 UT App 382, ¶ 17,
245 P.3d 758 (cleaned up).
ANALYSIS
¶13 Claimants who voluntarily quit their employment may be
entitled to unemployment insurance benefits if they can show
“good cause for the separation or if denying benefits would be
contrary to equity and good conscience.” Gibson v. Department of
Workforce Services, 2017 UT App 107, ¶ 3, 400 P.3d 1152 (per
curiam); see also Utah Code Ann. § 35A-4-405(1)(a)–(b)
(LexisNexis 2019); Utah Admin. Code R994-405-101(3).
¶14 To establish good cause, a claimant must first “show that
continuing the employment would have caused an adverse effect
which the claimant could not control or prevent.” Utah Admin.
Code R994-405-102. An adverse effect exists when the separation
is “motivated by circumstances that made the continuance of the
employment a hardship or matter of concern, sufficiently adverse
to a reasonable person so as to outweigh the benefits of remaining
employed.” Id. R994-405-102(1)(a). This standard requires a
showing of “actual or potential physical, mental, economic,
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Mahoney v. Department of Workforce Services
personal or professional harm caused or aggravated by the
employment.” Id. Second, a claimant must also show “that an
immediate severance of the employment relationship was
necessary.” Id. R994-405-102. A claimant will not be able to make
this showing “if the claimant: (i) reasonably could have continued
working while looking for other employment, (ii) had reasonable
alternatives that would have made it possible to preserve the job
. . . , or, (iii) did not give the employer notice of the circumstances
causing the hardship.” Id. R994-405-102(1)(b).
¶15 Additionally, even if the good cause standard is not met,
“benefits may be allowed under the provisions of the equity and
good conscience standard if” “there are mitigating
circumstances,” “a denial of benefits would be unreasonably
harsh or an affront to fairness,” and the claimant “acted
reasonably” and “demonstrated a continuing attachment to the
labor market.” Id. R994-405-103(1)(a)–(b).
¶16 Here, the Board determined that Mahoney “failed to
produce persuasive evidence that remaining employed created a
hardship outside of his control.” Mahoney challenges this
determination and the findings of fact that support it. In
particular, he attacks findings about returning to same-day
turnovers and reopening the welcome center. He also complains
that the Board overlooked related evidence that D.H. declined
Mahoney’s requests to abide by social distancing guidelines in the
welcome center and to wear a mask. In other words, Mahoney
asserts that there is insubstantial evidence to support the Board’s
factual findings and thus its ultimate determinations.
¶17 We begin by addressing Mahoney’s challenges to the
Board’s factual findings and conclude that certain of the Board’s
findings are not supported by substantial evidence and that other
material facts were overlooked. We then address whether the
Board’s errors were material to its decision and thus substantially
prejudiced Mahoney.
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Mahoney v. Department of Workforce Services
I. The Board’s Factual Findings
A. Same-Day Turnovers
¶18 Beginning in March 2020, based on “research . . . that said
that coronavirus can survive in the air for two or three hours,” the
resort suspended same-day turnovers and instead “required 24
hours in between occupancies.” And in May 2020, the resort
arranged for a sanitation worker to disinfect the bungalows with
a professional grade hospital fogger before the housekeeping staff
would be allowed to clean and prepare the units for new
occupants. Specifically, the sanitation worker would put on a
Tyvek suit, N100 mask, face shield, and gloves, and disinfect the
rooms in the evening so that the housekeeping staff could return
in the morning and “feel safe and comfortable that [Employer
was] eliminating exposure for them.”
¶19 In late May 2020, Employer insisted that Mahoney “return
to same-day turnovers.” Mahoney thought this decision was
“irresponsible.” He testified that as same-day turnovers
increased, the responsibility for disinfecting bungalows “would
fall more and more on” him instead of the sanitation worker.
Mahoney explained he did not want to disinfect the units
“moments after” guests left, nor did he “want to have to order
someone to do that.” Despite Mahoney’s concerns, Employer
implemented the change.
¶20 In support of his claim for benefits, Mahoney asserted that
this change in policy created a hardship for him. But the Board
disagreed. It found that his concern that he would be placed “at
an unreasonable risk of infection” by having to enter a bungalow
“soon after a guest checked out” was unconvincing because
Employer “provided extensive protection to the workers as they
cleaned the rooms, including N100 masks and Tyvek suits.” And
“[g]iven such protection,” the Board found that Mahoney “did not
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Mahoney v. Department of Workforce Services
persuasively show that he or other workers were significantly
placed at risk by entering a room to fog it.”
¶21 Mahoney challenges these findings as unsupported by
substantial evidence. He argues that the Board “made an incorrect
assumption about the availability and prevalence of proper
[personal protective equipment],” explaining that Employer did
not provide multiple Tyvek suits and other protective equipment
for its employees. Rather, Mahoney asserts that he provided a
singular Tyvek suit, N100 mask, and face shield from his own
“personal supply.” 5
¶22 We agree with Mahoney that the Board made an incorrect
assumption about the availability of protective equipment
necessary for the disinfecting of the bungalows. Mahoney
testified that the sanitation worker used a N100 mask, Tyvek suit,
face shield, and a disinfectant fogger, and that Mahoney himself
put on the equipment when he filled in for the sanitation worker
on one occasion. But there is no evidence in the record that
Employer provided multiple face shields, Tyvek suits, and
foggers, or that the equipment was generally available to all
employees. Thus, there is an absence of support in the record for
the Board’s finding that with the return to same-day turnovers,
Mahoney and his staff would have “extensive protection” as they
prepared the rooms for new guests.
5. There is a lack of clarity in the record about who provided the
protective gear worn while disinfecting the bungalows. Mahoney
argues that he provided the equipment from his own personal
supply, but Mahoney did not testify to that during the hearing
before the ALJ. Thus, we cannot fault the Board for finding that
Employer (rather than Mahoney) provided this equipment.
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Mahoney v. Department of Workforce Services
B. The Welcome Center
¶23 Mahoney next challenges the Board’s findings that with the
reopening of the welcome center in June 2020, Employer “planned
to enforce social distancing guidelines in the center” and arranged
“to install plexiglass shields in between the guests and the front-
desk employee.” In challenging this finding, Mahoney contends
that the Board neglected to acknowledge that the welcome center
was going to be reopened without the plexiglass installed and that
far from enforcing social distancing guidelines, D.H. himself was
dismissive of Mahoney’s requests that D.H. wear a mask and
socially distance during their interactions. Mahoney’s complaint
is well taken.
¶24 While the Board’s findings are not inaccurate on their
face—Employer did plan to enforce social distancing guidelines
in the welcome center and install plexiglass shields between its
employees and guests—the Board failed to account for the current
and immediate risk to Mahoney from guests and Employer alike.
Specifically, when asked “what was unsafe about” reopening the
welcome center, Mahoney testified that not having plexiglass in
place before reopening impelled his resignation because he would
be “forced to have . . . face-to-face unmasked contact with guests
and . . . [the] owners.” This concerned him because guests came
“from all over the country including places that still had stay-at-
home orders in effect and . . . places that were considered hot spots
for COVID.” Mahoney explained that without the plexiglass
shields in place, he was concerned about his safety, the safety of
his employees, and the safety of his wife, who “is considered a
high-risk person.” Further, Mahoney testified that he felt unsafe
because, regardless of whether Employer intended to display
signage encouraging social distancing among the guests,
Employer was not abiding by the recommended guidelines. In
particular, D.H. visited with Mahoney “on an almost daily basis”
but refused to wear a mask or socially distance.
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Mahoney v. Department of Workforce Services
¶25 Unfortunately, the Board made no findings on these issues,
which Mahoney testified drove him to resign. Instead, the Board
focused on the precautions Employer anticipated taking
regarding the welcome center, but it did not address Mahoney’s
complaints that Employer insisted on opening the welcome center
without these precautions in place and that D.H.’s daily
interactions with Mahoney were inconsistent with Employer’s
stated intentions. And while it is possible that the Board did not
credit Mahoney’s testimony on these points, there is nothing in
the record to suggest that is the case. Neither the ALJ nor the
Board suggested that they found Mahoney not credible; indeed,
his testimony was supported, in part, by contemporaneous
emails, and there was no rebuttal on these points by Employer.
II. The Board’s Analysis
¶26 To demonstrate that he was entitled to unemployment
insurance benefits, Mahoney was required to show good cause for
his separation or that denying him benefits would be contrary to
equity and good conscience. See Gibson v. Department of Workforce
Services, 2017 UT App 107, ¶ 3, 400 P.3d 1152 (per curiam).
Mahoney attempted to meet his burden by showing that his
health (and the health of his wife) was at risk because of the
decisions made by Employer. He complained that Employer was
reinstating same-day turnovers, requiring him (and others) to
clean rooms without sufficient time to sanitize them. He also
complained that he would be required to interact with out-of-state
guests before appropriate precautions were in place with the
reopening of the welcome center. And he complained that,
despite Employer’s assurances that it would enforce social
distancing guidelines in the welcome center, D.H. interacted with
Mahoney daily while refusing to wear a mask or socially distance.
¶27 The Board ultimately determined that Mahoney did not
meet his burden and “did not show he was placed at an
unreasonable risk of infection in the workplace.” But the Board
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Mahoney v. Department of Workforce Services
made that determination based on at least one factual finding that
was unsupported by substantial evidence and without addressing
two of Mahoney’s chief complaints. Specifically, as discussed
above, the Board erroneously determined that “Employer
provided extensive protection to the workers as they cleaned the
rooms.” See supra ¶¶ 20–22. Further, in finding that Employer
intended to install plexiglass shields and post floor signage
encouraging social distancing in the welcome center, the Board
failed to address Mahoney’s complaint that the welcome center
would reopen without the plexiglass installed and that D.H., the
manager of the owner organization, would not wear a mask or
socially distance when interacting with Mahoney. See supra ¶¶ 23–
25.
¶28 We conclude that Mahoney was prejudiced by the Board’s
unsupported factual determination and its failure to address all
the issues presented. Each of these complaints were material to
Mahoney’s resignation and therefore relevant to the question of
whether Mahoney is entitled to unemployment insurance benefits
under either the good cause or the equity and good conscience
standards. Thus, there is a reasonable likelihood that but for the
Board’s errors the outcome of this proceeding would have been
different. See Smith v. Department of Workforce Services, 2010 UT
App 382, ¶ 17, 245 P.3d 758. We accordingly set aside the Board’s
decision and remand this matter for a full consideration of
Mahoney’s complaints.
CONCLUSION
¶29 The Board made at least one factual finding lacking
substantial evidence, and it declined to address two of Mahoney’s
complaints. In our view, these errors were significant enough to
perhaps have made a difference to the outcome. Accordingly, we
set aside the Board’s decision and remand this matter to the Board
for reconsideration.
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