Gibson v. Department of Employment Security

BENCH, Presiding Judge

(dissenting):

I respectfully dissent. The majority in this case improperly substitutes its judgment for the Board’s judgment and erroneously holds that the Board’s decision is unreasonable because the Board has not adequately demonstrated that it balanced the factors in the same manner the majority would have balanced them.

By faulting the Board for not adequately considering the factors it identifies, the majority erroneously asserts that each factor must be considered by the Board in every case. A closer review of the cases relied upon by the majority reveals that the reviewing court has merely affirmed, as reasonable, the Board’s reliance upon different factors in different cases. In no case presented by the majority has there ever been a holding that each and every one of the five factors identified must be considered. In so holding in this case, the majority imper-missibly intrudes upon the Board’s authority to determine whether just cause exists.

Several of the majority’s so-called “factors” are simply indicators of the same factor. An employee’s pattern of behavior and the length and strength of the employee’s work record are relevant in determining whether the employee’s conduct is likely to reoccur. Similarly, the seriousness or flagrancy of the employee’s conduct and *786the potential harm to the employer or the public raise essentially the same question. In my view, there are really only two factors to be balanced by the Board: the isolated nature of the misconduct, and the seriousness of the misconduct.

The majority unnecessarily dwells on whether the misconduct was isolated. U S WEST does not dispute the isolated nature of Gibson’s misconduct. The Board simply accepted, as do I, that Gibson’s misconduct was not likely to be repeated and therefore was an isolated act.1 Inasmuch as the isolated nature of the misconduct was clear and uncontroverted, the Board had no duty to make findings on that issue. See Nyrehn v. Industrial Comm’n, 800 P.2d 330, 335 (Utah App.1990). The sole issue before us is whether the Board is precluded by rule 425-5b-102-1.a from finding culpability when it reviews an isolated incident.

Given the posture of this case, the majority cannot assume that the isolated nature of the misconduct was not considered by the Board. The record clearly, reveals that the Board considered, and rejected, Gibson’s argument that the isolated nature of the incident outweighed the harm associated with her misconduct.2 The inescapable conclusion is that the Board simply was not persuaded that the isolated nature of the misconduct outweighed its seriousness. A finding that the seriousness of the misconduct outweighed the isolated nature of the misconduct is an “implicit prerequisite” to the Board’s conclusion that Gibson was discharged for just cause. See Garland v. Fleischmann, 831 P.2d 107 (Utah 1992). It is therefore reasonable to assume that the Board actually made such a finding. Id.

Gibson claims that the Board’s decision is unreasonable because it is contrary to Utah Administrative Code § R475-5b-102-l.a (1991). The rule defines “culpability” and provides, in relevant part:

This is the seriousness of the conduct or the severity of the offense as it affects continuance of the employment relation-ship_ If the conduct was an isolated incident of poor judgment and there is no expectation that the conduct will be continued or repeated, potential harm may not be shown and therefore it is not necessary to discharge the employee.

(Emphasis added.)

Gibson erroneously argues that the foregoing rule precludes a finding of culpability when the misconduct is an isolated incident. The Utah Supreme Court unequivocally held in Kehl v. Board of Review of Indus. Comm’n, 700 P.2d 1129 (Utah 1985), that under section R475-5b-102-1.a, the Board may disregard mitigating factors such as longevity and exemplary work record when the actual or potential harm to the employer or the public is great.

In Kehl; the supreme court upheld the discharge of a forklift operator who violated a safety procedure, even though it was her first such violation in over five years as a forklift operator and there was no indication that she would repeat the violation. In interpreting the rule at issue, the court found that “[t]he use of the conditional ‘may,’ instead of the imperative ‘can,’ ” allows a finding of culpability even though there was a single isolated violation. Id. at 1134. The court held that the magnitude of “a single violation of a safety rule may be sufficient to show that the potential *787harm to the employer’s interests warranted discharge.” Id. The court reasoned that

the proper emphasis under the culpability requirement should not be upon the number of violations; rather, it should address the problem of whether the discharge was “necessary to avoid actual or potential harm to the employer’s rightful interest.” ... “[t]he wrongness of the conduct must be considered in context of the particular employment and how it affects the employer’s rights.”

Id. (citations omitted). See also Trotta v. Department of Employment Sec., 664 P.2d 1195, 1200 (Utah 1983) (single absence may establish culpability if employee knows absence will seriously interrupt employer’s operations). Cf. Pro-Benefit Staffing, Inc. v. Board of Review of Indus. Comm’n, 775 P.2d 439, 443-44 (Utah App.1989) (single accounting error was ordinary negligence and therefore did not evidence sufficient degree of culpability).

The supreme court similarly upheld the Board’s decision in Grinnell v. Board of Review of the Indus. Comm’n, 732 P.2d 113 (Utah 1987). Grinnell, a truck driver, altered a road speed governor that was intended to limit the speed of his truck to sixty-two miles per hour and had averaged sixty-six miles per hour for extended periods during a cross-country trip. Grinnell also drove for twenty-one hours straight during a twenty-four hour period. Furthermore, he tested positive for marijuana use during the trip. The supreme court stated that, given the facts of the case, “the conclusion could reasonably and rationally be drawn that Grinnell’s conduct was sufficiently culpable that it could have caused actual or potential harm to his employer’s rightful interest,” even though his previous driving record was “excellent.” Id. at 115 (emphasis added).

The Board held in the present case that U S WEST’S need for confidentiality was “absolute.” In other words, the Board determined that given the critical public trust placed in U S WEST regarding the confidentiality of telephone communications, Gibson’s breach of confidentiality was inexcusable.3 U S WEST’S trap and trace program is extremely sensitive. The nature of the program exposes U S WEST to significant legal risks. In this case, Brenda Mehl was threatening legal action against U S WEST for the disclosure at the time Gibson was discharged. She had sought the trap and trace at the suggestion of the police because Derek Mehl had been threatening to kill her. The disclosure of the trap and trace caused Derek to discontinue the calls and Brenda was unable to collect the evidence sought. Derek confronted Brenda about the trap and trace request and threatened her again. He eventually pleaded guilty to making terroristic threats and Brenda was not physically injured. The result of the disclosure, however, could just have easily been the death of a U S WEST customer had the disclosure prompted Derek to carry out his threats.

Given the unique and critical nature of the job, U S WEST is entitled to have a person of unfailing judgment in Gibson’s position. It was perfectly acceptable for U S WEST to consider “[t]he wrongness of the conduct ... in the context of the particular employment' and how it affects the employer’s rights.” Section R475-5b-102-1.a. Cf. Clearfield City v. Department of Employment Sec., 663 P.2d 440, 443 (Utah 1983) (sensitive nature of law enforcement warranted discharge of police officer who committed single criminal act). The Board’s holding in this case is in the same category as its decisions in Kehl and Grin-nell and is therefore not contrary to the applicable regulations or the caselaw.

The fact that we might have reached a different conclusion does not justify a reversal of the Board. We must “uphold its decision so long as it is within the realm of reasonableness and rationality.” Grinnell, 732 P.2d at 115. Inasmuch as the majority simply has not shown how the Board’s decision exceeds these bounds, it errs in revers*788ing.4

I would affirm the Board’s decision.

. The majority claims that the Board's analysis is contrary to subsection (1) of rule R475-5b-102-1.a. in that the Board failed to consider the unintentional nature of Gibson’s misconduct, her exemplary work record, and the "undisputed claim that there was little chance the harm would continue or be repeated.” Subsection (1), however, deals only with the determination of whether the employee’s misconduct was isolated and unlikely to be repeated. Since the isolated nature of the incident was not in controversy, subsection (1) is not relevant to the analysis.

. The Administrative Law Judge who initially heard this matter and a dissenting Board member both made the very same arguments made by the majority today. Unless the majority is willing to assume that the Board never considered the findings of the Administrative Law Judge, or the arguments of its dissenting member, the majority cannot conclude that the Board did not consider Gibson’s arguments.

. Officials of U S WEST testified that similar disclosures of confidential information resulted in employee dismissal in every situation with which they were familiar.

. It appears from the majority’s analysis that the basis for the reversal is not that the Board erroneously applied the law, but that the Board did not adequately explain how it applied the law. Under the majority’s analysis, the Board’s decision should be remanded to allow the Board to clarify what the majority holds is an inadequately articulated decision. "As a general rule, the appropriate relief for an agency’s failure to make adequate findings is to vacate the order complained of and to order the agency to ‘make more adequate findings in support of, and more fully articulate [the] reasons for, the determination ... made.' ’’ Adams v. Board of Review of the Indus. Comm'n, 821 P.2d 1, 8 (Utah App. 1991) (quoting Vali Convalescent & Care Insts. v. Department of Health Care Financing, 797 P.2d 438, 450 (Utah App.1990).