2015 UT App 93

_________________________________________________________

THE UTAH COURT OF APPEALS

HOLLY DAVIS,

Petitioner,

v.

DEPARTMENT OF WORKFORCE SERVICES AND IFCO SYSTEMS,

Respondents.

Memorandum Decision

No. 20131109-CA

Filed April 16, 2015

Original Proceeding in this Court

Michael E. Bulson, Attorney for Petitioner

Amanda B. McPeck, Attorney for Respondent

Department of Workforce Services

JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum 

Decision, in which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE 

concurred.

CHRISTIANSEN, Judge:

¶1 Holly Davis seeks review of a decision of the Department 

of Workforce Services’ Workforce Appeals Board (the Board) 

affirming a denial of unemployment-insurance benefits. The 

Board denied benefits to Davis because it concluded that she had 

been discharged from her employment for just cause. We decline 

to disturb the Board’s ruling.

¶2 Davis worked as a truck driver for IFCO Systems between 

October 2011 and September 2013. On April 17, 2012, Davis was 

backing a truck with a trailer onto a dock when the trailer door 

swung open and hit a roll-up door. The incident caused $1,700 in 
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damage, and Davis was ‚disciplined for substandard work.‛ 

Davis received a written warning stating, ‚You must take care 

when driving. You should always double check trailer doors and 

ensure they are secured before backing onto a dock.‛1

¶3 On August 16, 2013, Davis was delivering a trailer to a 

repair shop when she backed the trailer into a shop customer’s 

trailer, causing approximately $2,500 in damage. The repair shop

notified IFCO of the accident. Soon thereafter, the facility general 

manager of IFCO spoke with Davis and showed her photos of 

the damage to both trailers. Davis said she was unaware she had 

hit another trailer, but she recognized she ‚must have done it‛ 

and apologized for the incident. The manager talked to Davis 

again some time later, ‚letting her know the cost of the damage 

that [IFCO] had to repair on that trailer.‛

¶4 On August 29, 2013, Davis was involved in a third

accident. Davis and another truck driver were attempting to 

park their trucks in a delivery area when the trucks collided and

Davis’s ‚mud flap caught *the other truck’s+ bumper and pulled 

[the] bumper forward.‛ Later that day, Davis was issued a 

written warning for the August 16 accident. This form stated 

that the facility general manager had ‚made [Davis] aware of 

[the August 16] incident and informed her [that] because of the 

cost of the damage she would receive discipline‛ and that ‚*a+ny 

 

1. Davis denies that she ever received a written warning for this 

incident. The Board, relying on IFCO’s assistant general 

manager’s testimony, found that Davis received a written

warning after the April 17, 2012 incident. However, the Board 

ultimately did not rely on this finding in determining that Davis 

had knowledge of the conduct her employer expected of her. 

Accordingly, we need not decide whether there was substantial 

evidence to support this factual finding, because it has no 

bearing on our decision.
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20131109-CA 3 2015 UT App 93

future issues will result in additional disciplinary action up to 

and including termination.‛

¶5 On September 3, 2013, Davis received a write-up for the 

August 29 incident. The write-up stated, 

This is *Davis’s+ 2nd incident in less than 30 days in 

which [she] hit another vehicle causing vehicle 

damage. After investigation of this incident and 

based on witness statements [Davis] could have 

prevented this incident. Due to the frequency of 

these incidents and the property damage caused 

[Davis’s+ employment will be terminated effective 

9/3/13.

IFCO discharged Davis that same day.

¶6 Davis applied for unemployment benefits after her 

termination. Her claim for benefits was denied. Davis appealed 

that decision, and an Administrative Law Judge (the ALJ) held a 

telephonic hearing on the matter. The ALJ affirmed the denial of 

unemployment benefits and found that IFCO had established 

just cause for Davis’s termination. Davis sought review of the 

ALJ’s decision. The Board affirmed the ALJ’s decision denying 

benefits. Davis now petitions this court for review.

¶7 Davis argues that the Board erred in concluding that 

IFCO established just cause to terminate her employment.

Whether an employee was terminated for just cause is a fact-like 

mixed question, ‚and we apply a deferential standard of review 

to a lower tribunal’s resolution of this issue.‛ Sawyer v. 

Department of Workforce Servs., 2015 UT 33, ¶¶ 16, 25. The Board’s 

findings of fact, ‚if supported by evidence, are conclusive,‛ Utah 

Code Ann. § 35A-4-508(8)(e) (LexisNexis 2011), and we will 

allow those findings to stand unless ‚the findings are not 

supported by substantial evidence,‛ Drake v. Industrial 

Comm'n, 939 P.2d 177, 181 (Utah 1997). Substantial evidence is 
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20131109-CA 4 2015 UT App 93

‚such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.‛ Record v. Workforce Appeals 

Bd., 2011 UT App 340, ¶ 19, 263 P.3d 1210 (citation and internal 

quotation marks omitted).

¶8 An employee is ineligible for unemployment insurance 

benefits if the Board concludes that the employee was 

discharged for just cause. Utah Code Ann. § 35A-4-405(2)(a)

(LexisNexis Supp. 2013); Autoliv ASP, Inc. v. Department of 

Workforce Servs., 2001 UT App 198, ¶ 17, 29 P.3d 7. ‚To establish 

‘just cause,’ three elements must be present: culpability, 

knowledge, and control.‛ Autoliv, 2001 UT App 198, ¶ 17; see also

Utah Admin. Code R994-405-202. ‚The employer must establish 

each of the three elements . . . for the Board to deny benefits.‛ 

Gibson v. Department of Emp’t Sec., 840 P.2d 780, 783 (Utah Ct. 

App. 1992). Here, Davis challenges only the Board’s 

determination regarding the element of knowledge.

¶9 Davis argues that IFCO failed to establish the knowledge 

element because, while she knew that ‚incidents resulting in 

damages would have a negative effect on her employment,‛ she 

did not ‚anticipate . . . being fired, when there had been no clear 

explanation or written policy stating that a future incident 

would result in termination.‛ According to Davis, to satisfy the 

knowledge element, ‚a clear explanation of expected behavior‛ 

must contain a ‚clear warning that a further incident would 

result in immediate termination.‛ 

¶10 Davis’s interpretation of the knowledge element is not

borne out by the language of the rule. Rule R994-405-202(2) of 

the Utah Administrative Code defines the element of 

knowledge:

The claimant must have had knowledge of the 

conduct the employer expected. There does not need 

to be evidence of a deliberate intent to harm the 

employer; however, it must be shown the claimant 
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should have been able to anticipate the negative 

effect of the conduct. Generally, knowledge may 

not be established unless the employer gave a clear 

explanation of the expected behavior or had a written 

policy, except in the case of a violation of a 

universal standard of conduct. A specific warning 

is one way to show the claimant had knowledge of 

the expected conduct. After a warning the claimant 

should have been given an opportunity to correct 

the objectionable conduct. If the employer had a 

progressive disciplinary procedure in place at the 

time of the separation, it generally must have been 

followed for knowledge to be established, except in 

the case of very severe infractions, including 

criminal actions.

Utah Admin. Code R994-405-202(2) (emphases added).

¶11 Here, the element of knowledge is not dependent on 

whether Davis knew what type of accidents or what number of 

accidents would result in discipline or termination. Rather, 

Davis need only have known what conduct was expected of her 

and that her failure to adhere to that conduct would be 

detrimental to IFCO. The rule explains that ‚[t]here does not 

need to be evidence of a deliberate intent to harm the employer; 

however, it must be shown the claimant should have been able 

to anticipate the negative effect of the conduct.” Id. (emphases 

added). Thus, ‚the negative effect‛ contemplated by the rule is 

not the effect the conduct might have on the employee’s work 

status, but rather the negative effect or harm caused to the 

employer by the conduct.

2 We therefore agree with the Board 

 

2. Though Davis does not dispute the element of culpability, rule 

R994-405-202’s definition of culpability comports with the 

language used to define knowledge. To establish the employee’s 

culpability, ‚*t+he conduct causing the discharge must be so 

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that the knowledge element ‚does not require that a claimant 

know her job is in jeopardy, merely that she understands her 

actions are harmful to the Employer’s rightful interests.‛ The 

Board found that Davis ‚should have been able to anticipate that 

repeatedly causing property damage was harmful to *IFCO’s+ 

rightful interests.‛ Davis does not directly challenge this finding. 

Indeed, she recognizes that the facility general manager spoke to 

her shortly after the August 16 accident, that he showed her 

pictures of the damage to the trailers, and that she ‚accepted 

responsibility‛ for the accident.3 Accordingly, substantial 

evidence supported the Board’s finding that Davis should have 

been able to anticipate that IFCO’s rightful interests would be 

harmed if Davis continued to cause accidents and property 

damage.

¶12 Davis next argues that the element of knowledge was not 

supported by substantial evidence because she did not receive a 

‚clear explanation of expected behavior.‛ The knowledge 

element generally ‚may not be established unless the employer 

gave a clear explanation of the expected behavior.‛ Utah Admin. 

Code R994-405-202(2). Davis’s supervisor reviewed the August 

 

(...continued)

serious that continuing the employment relationship would 

jeopardize the employer’s rightful interest.‛ Utah Admin. Code 

R994-405-202(1) (emphasis added). This standard is consistent 

with our conclusion that the ‚negative effect of the conduct‛ for 

purposes of knowledge is the harm or adverse effect to the 

employer or its rightful interests, not to the employee or her 

interests. See Utah Admin. Code R994-405-201 (‚Benefits will be 

denied if the claimant was discharged for just cause or for an act 

or omission in connection with employment . . . which was . . . 

adverse to the employer’s rightful interest.‛).

3. According to the evidence presented by IFCO, Davis’s three 

accidents caused approximately $7,200 in damages.
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20131109-CA 7 2015 UT App 93

16 incident with Davis and showed her photographs of the 

damage. The Board found that ‚*Davis+ should have realized the 

accident was unacceptable based upon that conversation alone, 

even if the general manager did not specifically state [that] she 

would receive a written warning.‛ In her brief, Davis concedes 

that she knew the accident ‚‘was unacceptable based upon that 

conversation alone.’‛ Yet after this concession, Davis claims that 

she nevertheless did not receive ‚a clear explanation of expected 

behavior, because the facility general manager did not inform 

her that another accident would result in termination. However, 

as we determined above, the rule requires only that the 

employee receive an explanation of the ‚conduct the employer

expected,‛ not an explanation of the consequences an employee 

may face if he or she fails to perform as expected. See supra ¶ 11.

Davis’s concession that she knew the accident was unacceptable 

based on her conversation with the facility general manager 

demonstrates that she knew what conduct was expected by the 

employer and had received a clear explanation of this expected 

behavior after meeting with the facility general manager. 

Additionally, Davis’s own testimony that ‚*o+f course, *IFCO+ 

wouldn’t want us to have incidents I’m sure‛ demonstrates that 

she knew the specific conduct—i.e., not having accidents and

causing property damage—her employer expected of her.4

 

4. Davis does not challenge the Board’s determination that the 

elements of culpability and control were satisfied. While the rule 

does not require that an employee have knowledge of the 

particular consequences that may arise from her conduct, such as 

termination, we note that the elements of culpability and control 

do protect employees from being discharged without just cause 

in cases where their conduct was only minor or infrequent. For 

example, Utah Administrative Rule R994-405-202(1) provides 

that ‚*i+f the conduct was an isolated incident of poor judgment 

and there was no expectation it would be continued or repeated, 

potential harm may not be shown.‛ Utah Admin. Code R994-

405-202(1). And the employer must prove that the conduct was 

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¶13 Davis further argues that she had no opportunity to 

change her conduct. After issuing a warning, the employer must 

give the employee ‚an opportunity to correct the objectionable 

conduct.‛ Utah Admin. Code R994-405-202(2). We are not 

persuaded that Davis had no opportunity to correct her conduct. 

The Board found, and Davis admits, that the facility general 

manager spoke to her about her August 16 accident shortly after 

it occurred. Because we conclude that this conversation was a 

clear explanation of expected behavior, Davis has failed to 

demonstrate that she was not provided an opportunity to correct 

‚the objectionable conduct‛ before she was terminated for 

another accident two weeks later.

¶14 Finally, Davis claims that IFCO failed to follow its own 

‚progressive disciplinary procedure.‛ ‚If the employer had a 

progressive disciplinary procedure in place at the time of the 

separation, it generally must have been followed for knowledge 

to be established, except in the case of very severe infractions, 

including criminal actions.‛ Id. However, there is no evidence in 

the record that IFCO had a progressive discipline policy in place

during Davis’s employment. Davis asserts that IFCO had a 

progressive discipline policy because the forms used by IFCO to 

keep track of an employee’s disciplinary record state, ‚Describe 

discipline action taken including actions prescribed to correct 

problem, disciplinary action taken, and further actions to be 

taken should future problems develop.‛ According to Davis, this 

‚progressive disciplinary procedure‛ was not followed and ‚*i+t 

 

(...continued)

within the claimant’s control because ‚*i+solated instances of 

carelessness or good faith errors in judgment are not sufficient to 

establish just cause for discharge‛ and only ‚continued 

inefficiency, repeated carelessness or evidence of a lack of care 

expected of a reasonable person in a similar circumstance may 

satisfy the element of control if the claimant had the ability to 

perform satisfactorily.‛ Id. R994-405-202(3).
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20131109-CA 9 2015 UT App 93

may be inferred from this wording that not every infraction 

should trigger termination.‛ And even assuming this was 

IFCO’s disciplinary policy, IFCO followed it. The employer’s 

‚disciplinary policy‛ described future disciplinary actions,

stating that ‚[a]ny future issues will result in additional 

disciplinary action up to and including termination.‛ Davis was 

not terminated on her first infraction; her discipline-action report

shows that she committed approximately six offenses while 

employed by IFCO, three of which resulted in property damage

to her employer. Davis was only terminated after she was 

involved in the August 29 accident a mere two weeks after the 

August 16 accident. 

¶15 Accordingly, the Board’s finding that IFCO established 

Davis’s knowledge of the conduct expected of her is supported 

by substantial evidence. We decline to disturb the Board’s 

decision.

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