2015 UT App 84

THE UTAH COURT OF APPEALS

PREFERRED HOT OIL, LLC,

Petitioner,

v.

DEPARTMENT OF WORKFORCE SERVICES AND JACK A. DAVIS,

Respondents.

Memorandum Decision

No. 20140499-CA

Filed April 9, 2015

Original Proceeding in this Court

Daniel S. Sam, Attorney for Petitioner

Suzan Pixton, Attorney for Respondent Department 

of Workforce Services

JUDGE J. FREDERIC VOROS JR. authored this Memorandum 

Decision, in which JUDGES JAMES Z. DAVIS and 

MICHELE M. CHRISTIANSEN concurred.

VOROS, Judge:

¶1 Preferred Hot Oil, LLC (Employer) seeks review of a 

decision of the Utah Workforce Appeals Board upholding an 

award of unemployment benefits to Jack A. Davis (Claimant).

We decline to disturb the Board’s ruling.

¶2 Claimant worked for Employer from January through 

July of 2013. Claiming that he had been laid off, Claimant

sought, and the Department of Workforce Services awarded, 

unemployment benefits. Employer appealed, claiming that it did 

not terminate Claimant but that he voluntarily quit. The 

Administrative Law Judge presiding over the appeal found that 

Employer had terminated Claimant due to a reduction in force

and thus affirmed the award of benefits. Employer appealed the 

ALJ’s decision to the Board. The Board adopted the findings of 
Preferred Hot Oil, LLC v. Department of Workforce Services

the ALJ and affirmed. Employer now seeks review of the Board’s 

decision.

¶3 An employee who voluntarily quits his or her 

employment without good cause is not eligible for 

unemployment benefits. See Utah Code Ann. § 35A-4-405(1)(a)

(LexisNexis 2011). However, “[w]hen a worker is separated due 

to a reduction of the workforce, regardless of business conditions 

requiring the separation, the worker is eligible for benefits and

the employer is liable for charges.” Utah Admin. Code

R994-306-101 (2013). Employer contends that Claimant 

voluntarily quit his job as a super-heater truck driver without

good cause and that the evidence presented at the hearing before 

the ALJ does not support the Board’s finding that Employer 

discharged Claimant through a reduction in force. Accordingly, 

the sole issue before us is whether Claimant voluntarily quit or 

Employer discharged him through a reduction in force.1

¶4 “‘Whether the [Board] correctly or incorrectly denied 

benefits is a traditional mixed question of law and fact.’” 

Carnagie v. Workforce Appeals Bd., 2013 UT App 193, ¶ 6, 308 P.3d 

561 (alteration in original) (quoting Jex v. Labor Comm’n, 2013 UT 

40, ¶ 15, 306 P.3d 799). “[M]ixed questions can either be law-like 

or fact-like.” Sawyer v. Department of Workforce Servs., 2015 UT 33, 

¶ 11. “Law-like mixed questions are reviewed de novo, while 

fact-like mixed questions are reviewed deferentially.” Id. 

1. Employer also contends for the first time on appeal that 

Claimant does not qualify for unemployment benefits due to a 

“lack of efforts in securing re-employment.” However, “Utah 

law requires parties to preserve arguments for appellate review 

by raising them first in the forum below—be it a trial court or an 

administrative tribunal.” Columbia HCA v. Labor Comm’n, 2011 

UT App 210, ¶ 6, 258 P.3d 640. Because Employer did not raise 

this issue in the administrative proceeding, we decline to 

address it. See id.

20140499-CA 2 2015 UT App 84

 
Preferred Hot Oil, LLC v. Department of Workforce Services

¶5 To determine “whether a lower tribunal’s . . . 

determination is either law-like or fact-like, we first look to prior 

cases in which [our supreme court has] articulated a standard of 

review for this question.” Id. ¶ 15. In Sawyer v. Department of 

Workforce Services, the Department of Workforce Services denied 

Sawyer’s request for unemployment benefits because it 

determined she voluntarily quit without good cause. 2015 UT 33,

¶ 1. There, the supreme court held that whether Sawyer 

voluntarily quit without good cause was “a fact-like mixed 

question of law and fact” that the court reviewed deferentially.

Id.; see also Carbon County v. Workforce Appeals Bd., 2013 UT 41, 

¶ 7, 308 P.3d 477 (holding that given the fact-intensive 

conclusions involved at the agency level, “the Board’s award of 

unemployment benefits . . . is entitled to deference”). 

Accordingly, the issue here—whether Claimant voluntarily quit 

without good cause, or whether Employer discharged him 

through a reduction in force—is a fact-like question we review 

deferentially.

¶6 When, as here, a party brings “a challenge to an 

administrative agency’s finding of fact [that determination] is 

reviewed for substantial evidence.” Provo City v. Utah Labor 

Comm’n, 2015 UT 32, ¶ 8 (citing Murray v. Utah Labor Comm’n, 

2013 UT 38, ¶ 19, 308 P.3d 461). “Substantial evidence exists 

when the factual findings support more than a mere scintilla of 

evidence . . . though something less than the weight of the 

evidence.” Martinez v. Media-Paymaster Plus/Church of Jesus Christ 

of Latter-Day Saints, 2007 UT 42, ¶ 35, 164 P.3d 384 (alteration in 

original) (citation and internal quotation marks omitted). Thus,

“[i]n conducting a substantial evidence review, we do not 

reweigh the evidence and independently choose which inference 

we find to be the most reasonable.” Provo City, 2015 UT 32, ¶ 8 

(citation and internal quotation marks omitted). “Instead, we 

defer to an [administrative agency’s] findings because when 

reasonably conflicting views arise, it is the [agency’s] province to 

draw inferences and resolve these conflicts.” Id. (alterations in 

original) (citation and internal quotation marks omitted). 

20140499-CA 3 2015 UT App 84
Preferred Hot Oil, LLC v. Department of Workforce Services

¶7 The ALJ based her findings of fact solely on the testimony 

of Claimant and his supervisor. Claimant testified that Employer 

discharged him due to a lack of work. The supervisor testified 

that work slowed down during the summer so he sent Claimant 

and others home early on a rotating basis. Thus, Employer 

argues it did not discharge Claimant but merely reduced his 

hours.

¶8 Given the conflicting testimony, “[t]he Board’s

decision. . . turned on a credibility determination.” Davis v.

Department of Workforce Servs., 2012 UT App 158, ¶ 6, 280 P.3d 

442. The ALJ found, and the Board agreed, that “Claimant’s 

testimony is more credible than Employer’s.” Accordingly, the 

ALJ concluded, and the Board agreed, that “Claimant is 

unemployed due to a lack of available work. The Claimant 

is allowed benefits due to a reduction in force” and Employer is 

liable for charges.

¶9 In its brief, Employer parses the testimony presented to 

the ALJ and argues in effect that the ALJ misunderstood 

testimony that, correctly understood, better supports Employer’s 

position. We conclude that the testimony presented to us on the 

cold record is susceptible to either interpretation. In such cases, 

“[i]t is not our role to judge the relative credibility of witnesses.” 

Davis, 2012 UT App 158, ¶ 6. (citation and internal quotation 

marks omitted). “Therefore, [w]hen the evidence is disputed, as 

it was here, we defer to the Board’s assessment of credibility and 

resolution of conflicting evidence.” Id. (alteration in original) 

(citation and internal quotation marks omitted). Given the 

credibility determinations made in this case, we hold that 

substantial evidence supports the finding that Employer 

discharged Claimant through a reduction in force. 

¶10 Accordingly, we decline to disturb the Board’s ruling.

20140499-CA 4 2015 UT App 84