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.
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¶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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20150715-CA 3 2015 UT App 264

¶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 ‘lawlike’ 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 
Gregory v. Department of Workforce Services

20150715-CA 4 2015 UT App 264

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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20150715-CA 5 2015 UT App 264

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.