### IN THE SUPREME COURT, STATE OF WYOMING

20 20 WY 90

APRIL TERM, A.D. 20 20

July 13, 2020

JESSE GERBER,

Appellant (Petitioner),

v.

STATE OF WYOMING, ex rel.,

DEPARTMENT OF WORKFORCE SERVICES, UNEMPLOYMENT INSURANCE COMMISSION,

Appellee (Responde nt)

. S

- 19

- 0225

Appeal from the District Court of Lar amie County

The Honor ab le Steven K. Sharpe , Judge

Representing Appellant: Bernard Q. Phelan, Phelan Law Office

, Cheyenne, Wyoming

.

Rep re senting Appellee: Bridget Hill, Wyoming Attorney General; Mic hae l J

. McGrady , Deputy Attorney General; James C. Demers , S en ior Assistant Attorney General ; Peter Howard

, Senior Assistant Attorney General

.

Before DAVIS, C.J., and F OX , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revis ion b e f ore publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of a n y typographical or other formal errors so that correction may be made before final publ ica ti o n in the permanent volume.1 GRAY , Justice.

[¶1] Jesse Gerber appeals the denial of his request for unemployment benefits . The Department of Workforce Services

, Unemployment Insurance Commission (Commission) determined he left work voluntarily and did no t q uali f y for the exception

r eturn “ to approved training which meets the requirements of W

. S

. 27

- 3

- 307

, ” as required by Wyo. Stat. Ann. § 27

- 3

- 311(a)( i )(B). He claims the Commission erred as a
matter of law

. We affirm.

ISSUE

[¶2] Does the Commis sion’s decis ion den y ing Mr. Gerber unemp l oyment benefits
conform with the law?

FACTS

[¶3] In 2014

, Mr. Gerber completed a four

- week certified nursing assistant program at Laramie County Community College (LCCC). The Wyomin g Department o f Workforce
Service s paid for the pro gram

. Wyo. Stat. Ann. § 9

- 2

- 2601 ; Workforce Innovation and Opportunity Act, P ub

. L. No. 113

– 128 , 128 Stat. 1425 (2014) ; 29 U.S.C. A. § 3112 (West 2016)

. In August 2016, the Department of Veterans Affairs, d /b/a Cheyenne VA Me d ical Center (VA)

, hire d Mr

. G erber as a health technician

. Later, in April 2018, he w as accepted into LCCC’s nursing program

. In May, h e asked his employer to arrange
alternate hours or a new position to support his school schedul e. The VA could not
accommodate t his request. Mr . G erber resigned and submitted a claim for une mployment
benefits.

[¶4] The Department of Workforce Services

, Unemployment Insurance Division ( Division) deni ed hi s c laim be cause he had “ left work voluntarily without good cause attributable to [his] employment

. ” Mr. Gerber asked for a contested case hearing

, cla iming he was eligible for benefits under t he “return ing to appr oved trainin g” exception

i n Wyo

. S tat. An n. § 27

- 3

- 311(a)( i )(B). T he hearing examiner affirmed the Division’s decision, finding he had vol u nta rily left his employm ent and did not qualify for the exception. Mr. Gerb er appealed

, and the Commission affirmed

. T he di st ric t c ourt up held
the C o mmission ’ s decision

. Mr. Gerber timely appealed to this Court.

STANDARD OF REVIEW

[¶5] “ In unemployment in s ura nce cases, we review the decision of the Commission
witho ut considering th e de cisions of the depu ty, the h ear ing o ff ic er or t he district court. ”
Clark v. S tate ex rel., Dep ’ t of Workforce Servs. , 2016 WY 89, ¶ 8, 378 P.3d 310, 312 (Wyo. 2016) ; s ee als o S t ate v. Kinneman

, 2016 WY 79, ¶ 11, 377 P.3d 776 , 779 (Wyo

. 2016)

. O ur rev iew is governed by Wyo. Stat. An n. § 1 6

- 3

- 11 4(c) :2 ( c) To the extent necessary to make a decision and when presented, t he reviewing court shall decide all relevant questions of l a w , interpret constitutional and statutory provisions, and det ermine the meanin g or applicabilit y of t he

terms of an ag en cy action

. In making the following determinations, the court shall review th e whole record or those parts of it cited by a party and d u e a ccount shall be taken of the rule of prejudicial error. T he reviewing cour t
sh all:

. . .

(ii) Ho ld u nl aw fu l and s et aside agency action, findings
and conclusions found to be:

(A) Arbitrary, capricio us, an abuse of discretion or
otherwise not in ac cordance with law

. . . .

Wyo. Stat. Ann. § 16

- 3

- 114(c) (i i)(A) (LexisNexis 201 9).

[¶6] W hile w e woul d normall y revi ew t he Commis si on’s findings of fact under the
substantial evidence standard , the facts here are not contested

. In this case, we are

requ i re d to interpret the applicable statu tes. Statutory inter pretation is a matter of law subject to de n ovo revie w. In r e CR A

, 2016 W Y 24, ¶ 15, 368 P.3d 294, 29 8 (Wyo. 2016).

ANALYSIS

[¶7] Mr. Gerber contends the Commission misinterpreted the stat utory excep t ion to the general rule that a volunt ary termination of on e’s employment disqua lifies a claimant for
b enefits. Th e primary goal of statutory interpretation “ is to determine the legislature’s intent, giving due regard to the p urpose and polic y behind the e nac tment. ” Clark

, ¶ 13,
378 P.3d at 31 4 ; Kunkle v. State ex rel. Wy oming Workers ’ S afety & C om p. D iv

. , 2 005

WY 49 , ¶ 11, 109 P.3d 887, 889

– 90 (Wyo. 2005 ). “ The language of the statute is always our starting point. ” Cla rk

, ¶ 14

, 378 P.3d at 31 4.

We

. . . c onstrue each sta tutory provision in p ari materia

, giving e ffect to every word, cl ause, and s ente nc e ac cording t o their arrangement and connection. To ascertain the meaning of a given law, we also consider all statu tes relating to the

same subject or h a vin g the same gener al purpose and strive to interpret them ha rmoniously. We presume that the l egis la tu re has ac te d in a thoughtful and rational manner with full3 knowledge of existing law, and that it intended new statu tory provisions to be r ead in harmon y wi th existing law and as part
of an ove rall and uniform syst em of jurisprudence. W h en the

w or ds u se d co nvey a sp ecific and obvious meaning, we need not go farther and engage in statutory construction

.

Herrick v. Jacks on Hole Airport Bd.

, 2019 WY 118, ¶ 20, 452 P.3d 1276, 1282 (Wyo. 2019) (ci tations omitted)

.

[¶8] Mr . Gerber maintains the Commissio n misap p li ed t he ph r as e “returning to approved training” in Wyo

. Stat. Ann. § 27

- 3

- 311 (a) ( i )(B)

. This provision states in relevant part :

(a) An ind ividu al shall b e d isqualified from benefit
entitlement beginning with the eff ective date of an other wise
vali d clai m

. . . if th e department finds that he:

(i) Left his most recent work voluntarily without good cause attributable directly to his employment , exc ept:

. . .

(B) If returning to approve d training [ 1 ] which

me ets the requirements of W.S. 27

- 3

- 307 ;

. . .

(ii) Failed without good cause to apply for available suitable work;

(iii) Failed without good cause to accept any offer o f
suitab l e w ork;

Wyo. Stat. Ann. § 27

- 3

- 311 (a)(i)

– (iii ) ( LexisNexis 2019 )

. M r

. Gerber acknowledges that
he v oluntaril y qu it his j ob but argues, b ecause the nursing program is on the list of the
Division ’ s approved t raining program s , he left his employme nt for th e pu rpose of

1 T h e Commission does not contest t hat the LCCC nursing program may be a n a p pr ove d trainin g

program

. I t is uncontes ted that Mr. Gerb er di d n ot s eek approval from th e D ivi sio n pri or to enr ol ling in
the n ursing program.4 “returning to ” approved training

. 2 We look to W yo. S tat

. Ann. § 27

- 3

- 307 to d etermine i f

Mr . Gerber ’ s e nrollme n t in a nursing program meets these requirements.

W yo

. S tat

. Ann. § 2 7

- 3

- 307

— Exceptions to Unemplo y ment Eligib ility Requirement s

[¶9] E a c h s ubsection of W yo. S tat

. Ann. § 27

- 3

- 307 begins by identif ying the speci fic

s ubsecti ons in § 27

- 3

- 311 for which com pliance i s excu se d :

(a) Notwith s tanding W.S. 27

- 3

- 306(a)(i) and (iii) [ 3 ] or 27

- 3

- 311(a)(ii) and (iii) or any federal la w relating to availabi l ity for, active search for, failure to appl y for or refusal to a cce pt
suit able wor k, a n otherwise eligible individual is eligi ble for
bene fits fo r any week if he is:

(i) Enrolled in a training program approved by th e department pursu ant to subsection (b) of this section; [ 4 ]

or

(ii) In training approved under federal law.

. . .

2 On appeal

, Mr. Ge rber abandon s his argument below tha t he le ft work invol untari ly due t o the VA’s
inab ility to accomm odate his work schedule.

3 Wyo. Sta t. An n. § 27

- 3

- 306(a) ( i ) and ( ii i ) contain req uireme nt s that a claima nt actively see k work and

r emain a b le to and availabl e for w ork.

4 Subsection (b) provides: (b) St andards for training program a pproval under subsecti on (a) of

thi s sect ion a re: (i) Licen sed o r accredi ted by the ap propriat e agency; ( ii) Pr epa ration for job skill s for occupatio ns with good

emp l oyment opportuniti es; (iii) Individual interest, aptitude an d motivation determined

necess ary by the department to complete t h e cou rse s uccessfully; (iv ) R egular c lass attendan ce, sati sfactory pr ogress in course work and ind ividual complia nce with oth er t r aining requirement s of the institution; (v) Training is to p repare an individual for entry level or upgraded emp loyment in a r ecogn ized skilled vocat ion al or techn ical occupati on and s uch trainin g is d esi gned to facilitate t he learning of particular s kill s ; and (vi) Current skills o f the individual are obsolete or offer minimal employment oppor tunities. Wyo. Stat. Ann. § 27

- 3

- 3 0 7(b) ( i)

– (vi) (Lexis Nexis 2019)

.5 (c ) Notwith st an ding W.S. 27

- 3

- 3 11( a)(i)

, a n ot herwise eligible individual is eligible for benefits in any week if he:

(i) Is in training approved und er federal law; or

(ii) L eft work to enter approved training if the work is
not suitable

, as defined und er fe deral law

.

( d) Notwit hstandin g W.S. 27

- 3

- 3 06(a)(i ) and (iii) or 27

- 3

- 311(a)(i) through (iii) or any federal law relating to availability for, activ e search for, failure t o ap ply for or refusal to accept suitable work, an otherwise eli g ible
individual is el igible fo r benefits f or any w e ek if he is not

rec e iving wages or compensation while participating in training in an apprenticeship program approved by the department

. . . .

Wyo. Stat. Ann. § 27

- 3

- 307 ( a )

, (c)

– (d) ( LexisNe xis 2019 ) (emphasis ad d ed)

.

[¶10] Mr. G erber rel ie s on W yo

. S tat

. Ann. § 2 7

- 3

- 307 (a)(i)

. This s ubse ction of the

statute conditionally excuses compliance with § 27

- 3

- 3 11(a)(ii) and (iii)

. Subsections (a)(ii) a nd (iii) require a claimant t o seek work and remain available to wo rk and are no t

at issue here

. What Mr

. Gerbe r seeks is an exception fr om the disqu alifying act of

l e aving work “ voluntarily wit hout good cause attributable directly to his employment ”
und e r W yo. Stat. Ann. § 27

- 3

- 311(a)( i )

. Relevant exceptions to subsection (a)(i) are

a dd ressed in § 2 7

- 3

- 307 (c) and (d)

.

[¶11] “ P arties are boun d by the theories they advanced below. ” C rofts v. State ex rel. Dep ’ t of Game & Fish

, 2016 WY 4, ¶ 1 9

, 367 P.3d 619, 6 2 4 (Wy o

. 2016) (citation omitted)

. “ We have repeatedly held that in an appeal from a n administrativ e ruling, we will not consider arguments not raised below

. ” 5 Air Methods/Rocky Mountain Holdings, LLC v. State ex rel. Dep ’ t of Wor kforce Servs., Workers ’ Com p. Div.

, 2018 WY 128, ¶¶ 21

– 22, 432 P.3d 476, 482

– 83 (Wyo. 2018) . In this c ase, M r. Gerber did n ot raise the application of W yo

. S tat

. Ann. § 2 7

- 3

- 307 (c) or (d) to the Commission or to this Court

. Therefore, the Commission did not abuse its di s cretio n in finding Mr . Gerber did not qualify for unemployment benefits under § 27

- 3

- 307 (a)( i)

.

5 W.R.A.P. 12.09(a) limits an appellat e cour t’s review o f administrative action to “issues set forth in the petition and raised before the agency.” Accordingly, we have routinely he ld that, with the exception of jur isdictional o r c er tain fundamental issues, issues raised for the first time on appea l f rom an adm inistrative decision will not be considered. Stat e ex rel.

, Dep ’ t of Fam i ly Servs. v. Kisling , 2013 WY 91, ¶ 14, 305 P.3d 1157 , 1162 (Wyo. 2013); BP Am. Prod. Co. v. Dep ’ t of Re venue , 2006 WY 27, ¶ 18, 130 P.3d 438, 462 (Wyo. 2006).6 [¶12] Even if he had ra ised the correct statutory authority, Mr. Gerb er wou l d not be
eli gible for unemployment benefits un der th e applicable except ion

, W yo. S tat. Ann

. § 2 7

- 3

- 307 (c)

. 6

[¶13] W yo

. S tat

. Ann. § 2 7

- 3

- 307 (c ) mandat e s that the claimant be (i ) “ in tr a ining approved under fe deral law ” or (ii) th at t h e clai mant “ [ l ] eft work to enter approved

tr aining if the work is not su itable, as defined und er f ederal law

. ” Turning o u r a ttention

to § 27

- 3

- 307 (c) ( i )

, multi ple training programs are available un der feder al law

. 7 Mr.

Ge rb er clai ms , and we a gree, if h e is e ligible for unemployment benefits d ue to approved federal training

, his eligibility derives fr om Wyoming ’ s implementa t ion of t he Workforce
Innovation a nd Op portunity Act (WIOA)

, 29 U.S.C.A. §§ 3101

– 3255 ( West 2 015)

. 8

[¶14] T he Divis i on has a pproved W IOA training for eligible participants in the n ursing

program. Howe ver, eligibilit y for approval u nder the W IOA unambiguously requir es certain actions.

[¶15] E ligib i lity for W IOA ap proved training re quir es :

Except a s provided i n claus e (ii), funds allocated to a local area for adults under paragraph (2)(A) or (3), a s appropri ate, of section 3173(b) of this title, and f unds allocated to the lo cal
area for dislocated workers und er sec tion 3173(b)(2)( B) of this title, s hall be used to pro v i de tr aining services to adults and dislocated workers, respectively

—

(I) who, af te r an inte rview, evaluation, or assessment, and caree r planning, hav e been

6 W yo. St at. Ann. § 2 7

- 3

- 307 (d) is s pec ific to appre nticeship pr ograms wh ich are not at issue in this case

. 7 “ According to the Office of Management and Bu dget, the Federal Governme nt h as 47 dif fer en t

emp l oyment and training programs spread across 15 differe nt gov ern ment agencies

. ” The Council of

Ec onomic Advisers

, Government Employment and Training Programs: Assessing the Evidence on their Performance

, Executive Summ ary (June 2 019)

, https://www.whitehouse.gov/wp

- content/uplo ads /2 019/
06/ Govern ment

- Empl oymen t

- and

- Tra ining

- Programs.pdf

. 8 Mr. Gerber does n ot argue his c laim is based on training ap p roved under any other federal law

. In

H

a rvey , the a ppell ant failed to indicate whether his argument was bas ed on the f ed era l or s tate

c onstitution

. H a rvey v. State , Dep ’ t o f Tran sp. , 2011 WY 72, ¶ 8, 250 P.3d 16 7, 171 (Wyo. 2011) . We
noted : “ [ A ] litiga nt must provide a precise, a nalytically sound a p proach when advancing an arg ument to indepe ndently interpret the state con sti tu tion.” Id

. ( quoting Vasquez v. State

, 990 P. 2d 476 , 484 (Wyo. 1999) )

. Therefore , we d id not cond uct a separate ana lys is under th e Wyoming C onstitution. Here, Mr.

G erber argued only t h at his training was approved under WIOA. A ccordingly , we consider on ly the provisions of W IO A under our anal ysis o f W y o

. S tat

. Ann. § 27

- 3

- 307 (c) (i).7 de termined by a one

- stop o perator or one

- sto p partner , as ap pr opr iate, to

--

(a a) be unlike ly or u n a ble t o obtain or retain employment, that leads to economic self

sufficiency or wa ge s compara ble to or higher than wages from previous e mployment, thr ough t h e career services described in par agra ph (2)( A)(xii);

(bb) be i n n eed of traini ng services to obta i n or

r etain employment that leads to economic self

sufficiency or wages comparable t o or high er than wages from previous employment; and

(cc) have t he ski lls and qualifications to

succ essfull y pa rticipa te in the select ed pr ogram of

trai ning service s [.]

29 U.S.C.A. § 3174 ( West 2019) (emphasis added) ; see also 20 C.F.R. § 680.220 (2016) ( “ an individual must at a minimum receive e ither a n inte rvi ew, evaluation, or assessment,
and c areer planning or any other m ethod thr ough wh ic h the one

- stop cent er or partner can obtain enough i n forma tion to make an eligibility determination to be determined eligible
for training services ” ).

[¶16] Th e WIOA req uires a d etermination b y a one

- stop p artner 9 that the training is

appr opri ate p r ior to qua li fying for federally approved tr aining. The reco r d i s cle ar : Mr.
Gerber lacked approval prior to his enrollment in the nursing pr ogram

. A ccordingly, Mr.
Gerber was not “ ret urnin g to ” “ training appr oved under federal law

, ” as re quired by the plain langua ge of W yo. St at. Ann. § § 2 7

- 3

- 3 11(a)(i) (B) an d 2 7

- 3

- 307( c ) (i )

. H is enrollment in a nursing program absent the req uired determination d o e s n o t meet the
conditions of the st atu tory exception.

[¶17] M r. Gerber als o d oes no t qualify un der W yo. S tat. A nn

. § 27

- 3

- 307 ( c) ( i i )

— the
cla imant “ [ l ] e ft wo rk to enter approved train ing if the w ork i s not su itable, as defined
und er federal la w

. ” WIOA doe s not provide a definition of “ su i table work

. ” T he only
federal de finit ion of “ suitable work ” is foun d in the Fe d eral

- Sta te Extended Unemployment C ompen s ation Act

. This definition states in r e levant part, “ The term

‘ suitable work ’ means , wi th respect to any individual, any work which is withi n such

in dividual ’ s capabi lit ies

. . . . ” 26 U.S.C.A. § 3304 (West 2018) , Te mp orary E x te nded

9 In Wyoming

, the one

- st op part ner is Wyomi ng De partment of Workforce Ser vices

. W yo. Stat. Ann. § 9

- 2

- 2018.8 Une mployment Compensation Act of 20 02 § 20 1 (h)(4)(A)

. 10 Under the plain meaning of
this definition

, Mr. Gerber ’ s job with the VA was suitable and he does n o t argu e othe rwi se

. H e d oes not qualify under subsect io n ( ii ) condi t i on ing benefits on lea ving

“ work ” that was “ not sui table. ”

[¶18] Applying the p lain meaning of Wyo. Stat. Ann. §§ 2 7

- 3

- 311 and 2 7

- 3

- 307

, and considering the relevant federal law, we conclude the Commissio n corre ctly determined

Mr . Gerber was not e ligible fo r empl o y ment be nef i t s. Af firmed.

10 T he Trade Act of 197 4

, 19 U.S.C. § 2291

– 98 (“ T rade Act”) was intended, in p art, “ to provide adequate

pr ocedur es t o safeguard American industry and labor against unfair or injurious impo rt compe tition, and
to assist indus tries, f irm [s]

, workers, and communities to adj ust to ch a n ges in international tra de flows

. ”

19 U .S.C.A. § 2 10 2 ( West 19 75 ) . To that end, it “ a utho rizes the Secretary of Labor to contract with state employment agencies to admi nister the federal benefits program

. Disloc ated w orkers can apply to DOL through t he state a g ency for reimbursemen t o f their traini n g cost s

. ” Hampe v. Butler , 364 F. 3d 90, 91 (3d

C ir. 2004) ; s ee also 19 U.S.C.A. § 2275 ( W e s t 2 0 1 5 )

. Mr. Gerber ’ s employment w as not adverse ly
affec ted by “ injurious impor t competition

. ”
The Trad e Ac t contains a defini t ion of “ su itable employ me nt

. ” The Trade Ac t do es no t define

“ suitable work

. ” T he Trade A c t defines “ suitable employment ” “ with respect to a wo rker, work of a subst antia lly e qual or higher s k ill level than t he worker ’ s past adversely a ffected employment, a n d wages
for such work at not less than 8 0 per ce n t of the worker ’ s av erage week ly wage. ” 19 U.S.C.A. § 2296 ( West 2015 ) (e mphasis added )

. The term “ ‘ adverse ly affected empl oyment ’ means employm ent in a firm,

if workers of such firm are eligible to apply for ad j ustment assistance u nder this part ” and “ ‘ ad ver se ly

aff ected w orker ’ mea ns an individua l w ho, because of lack of work in adversely affected employmen t

, has been totall y or partially separ ated from such em ployment. ” 19 U.S.C.A. § 2319 ( Wes t 2015 )

. Thus,

even were we t o apply this definition of suit able emp lo yment , M r. Ger ber did not claim “ adver sel y affected employment ” as the basis for a compa r ison of wages.