IN THE SUPREME COURT, STATE OF WYOMING

2020 WY 90

 APRIL TERM, A.D. 2020

July 13, 2020

JESSE GERBER,

Appellant

(Petitioner),

v.

STATE OF WYOMING, ex rel., 

DEPARTMENT OF WORKFORCE 

SERVICES, UNEMPLOYMENT 

INSURANCE COMMISSION,

Appellee

(Respondent).

S-19-0225

Appeal from the District Court of Laramie County

The Honorable Steven K. Sharpe, Judge

Representing Appellant:

Bernard Q. Phelan, Phelan Law Office, Cheyenne, Wyoming.

Representing Appellee:

Bridget Hill, Wyoming Attorney General; Michael J. McGrady, Deputy Attorney 

General; James C. Demers, Senior Assistant Attorney General; Peter Howard, 

Senior Assistant Attorney General. 

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers 

are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 

82002, of any typographical or other formal errors so that correction may be made before final publication 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 not qualify for the exception

return “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 Commission’s decision denying Mr. Gerber unemployment 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 Wyoming Department of Workforce 

Services paid for the program. Wyo. Stat. Ann. § 9-2-2601; Workforce Innovation and 

Opportunity Act, Pub. 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 Medical 

Center (VA), hired Mr. Gerber as a health technician. Later, in April 2018, he was 

accepted into LCCC’s nursing program. In May, he asked his employer to arrange

alternate hours or a new position to support his school schedule. The VA could not

accommodate this request. Mr. Gerber resigned and submitted a claim for unemployment 

benefits. 

[¶4] The Department of Workforce Services, Unemployment Insurance Division

(Division) denied his claim because he had “left work voluntarily without good cause 

attributable to [his] employment.” Mr. Gerber asked for a contested case hearing, 

claiming he was eligible for benefits under the “returning to approved training” exception 

in Wyo. Stat. Ann. § 27-3-311(a)(i)(B). The hearing examiner affirmed the Division’s 

decision, finding he had voluntarily left his employment and did not qualify for the 

exception. Mr. Gerber appealed, and the Commission affirmed. The district court upheld

the Commission’s decision. Mr. Gerber timely appealed to this Court.

STANDARD OF REVIEW

[¶5] “In unemployment insurance cases, we review the decision of the Commission 

without considering the decisions of the deputy, the hearing officer or the district court.” 

Clark v. State ex rel., Dep’t of Workforce Servs., 2016 WY 89, ¶ 8, 378 P.3d 310, 312 

(Wyo. 2016); see also State v. Kinneman, 2016 WY 79, ¶ 11, 377 P.3d 776, 779 (Wyo. 

2016). Our review is governed by Wyo. Stat. Ann. § 16-3-114(c):
2

(c) To the extent necessary to make a decision and when 

presented, the reviewing court shall decide all relevant 

questions of law, interpret constitutional and statutory 

provisions, and determine the meaning or applicability of the 

terms of an agency action. In making the following 

determinations, the court shall review the whole record or 

those parts of it cited by a party and due account shall be 

taken of the rule of prejudicial error. The reviewing court 

shall:

. . .

(ii) Hold unlawful and set aside agency action, findings 

and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or 

otherwise not in accordance with law . . . .

Wyo. Stat. Ann. § 16-3-114(c)(ii)(A) (LexisNexis 2019).

[¶6] While we would normally review the Commission’s findings of fact under the 

substantial evidence standard, the facts here are not contested. In this case, we are

required to interpret the applicable statutes. Statutory interpretation is a matter of law

subject to de novo review. In re CRA, 2016 WY 24, ¶ 15, 368 P.3d 294, 298 (Wyo. 

2016).

ANALYSIS

[¶7] Mr. Gerber contends the Commission misinterpreted the statutory exception to the 

general rule that a voluntary termination of one’s employment disqualifies a claimant for 

benefits. The primary goal of statutory interpretation “is to determine the legislature’s 

intent, giving due regard to the purpose and policy behind the enactment.” Clark, ¶ 13, 

378 P.3d at 314; Kunkle v. State ex rel. Wyoming Workers’ Safety & Comp. Div., 2005 

WY 49, ¶ 11, 109 P.3d 887, 889–90 (Wyo. 2005). “The language of the statute is always 

our starting point.” Clark, ¶ 14, 378 P.3d at 314.

We . . . construe each statutory provision in pari materia, 

giving effect to every word, clause, and sentence according to 

their arrangement and connection. To ascertain the meaning 

of a given law, we also consider all statutes relating to the 

same subject or having the same general purpose and strive to 

interpret them harmoniously. We presume that the legislature

has acted in a thoughtful and rational manner with full 
3

knowledge of existing law, and that it intended new statutory 

provisions to be read in harmony with existing law and as part 

of an overall and uniform system of jurisprudence. When the 

words used convey a specific and obvious meaning, we need 

not go farther and engage in statutory construction.

Herrick v. Jackson Hole Airport Bd., 2019 WY 118, ¶ 20, 452 P.3d 1276, 1282 (Wyo. 

2019) (citations omitted).

[¶8] Mr. Gerber maintains the Commission misapplied the phrase “returning to 

approved training” in Wyo. Stat. Ann. § 27-3-311(a)(i)(B). This provision states in 

relevant part:

(a) An individual shall be disqualified from benefit 

entitlement beginning with the effective date of an otherwise 

valid claim . . . if the department finds that he:

(i) Left his most recent work voluntarily without good 

cause attributable directly to his employment, except:

. . .

(B) If returning to approved training[1] which 

meets 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 of 

suitable work;

Wyo. Stat. Ann. § 27-3-311(a)(i)–(iii) (LexisNexis 2019). Mr. Gerber acknowledges that

he voluntarily quit his job but argues, because the nursing program is on the list of the 

Division’s approved training programs, he left his employment for the purpose of

1 The Commission does not contest that the LCCC nursing program may be an approved training 

program. It is uncontested that Mr. Gerber did not seek approval from the Division prior to enrolling in 

the nursing program.
4

“returning to” approved training.

2

 We look to Wyo. Stat. Ann. § 27-3-307 to determine if

Mr. Gerber’s enrollment in a nursing program meets these requirements.

Wyo. Stat. Ann. § 27-3-307—Exceptions to Unemployment Eligibility Requirements

[¶9] Each subsection of Wyo. Stat. Ann. § 27-3-307 begins by identifying the specific

subsections in § 27-3-311 for which compliance is excused:

(a) Notwithstanding W.S. 27-3-306(a)(i) and (iii)[3] or 27-

3-311(a)(ii) and (iii) or any federal law relating to availability

for, active search for, failure to apply for or refusal to accept 

suitable work, an otherwise eligible individual is eligible for 

benefits for any week if he is:

(i) Enrolled in a training program approved by the 

department pursuant to subsection (b) of this section;[4]

or

(ii) In training approved under federal law.

. . .

2 On appeal, Mr. Gerber abandons his argument below that he left work involuntarily due to the VA’s 

inability to accommodate his work schedule.

3 Wyo. Stat. Ann. § 27-3-306(a)(i) and (iii) contain requirements that a claimant actively seek work and 

remain able to and available for work.

4 Subsection (b) provides:

(b) Standards for training program approval under subsection (a) of 

this section are:

(i) Licensed or accredited by the appropriate agency;

(ii) Preparation for job skills for occupations with good

employment opportunities;

(iii) Individual interest, aptitude and motivation determined 

necessary by the department to complete the course successfully;

(iv) Regular class attendance, satisfactory progress in course 

work and individual compliance with other training requirements 

of the institution;

(v) Training is to prepare an individual for entry level or 

upgraded employment in a recognized skilled vocational or 

technical occupation and such training is designed to facilitate the 

learning of particular skills; and

(vi) Current skills of the individual are obsolete or offer minimal 

employment opportunities.

Wyo. Stat. Ann. § 27-3-307(b)(i)–(vi) (LexisNexis 2019).
5

(c) Notwithstanding W.S. 27-3-311(a)(i), an otherwise

eligible individual is eligible for benefits in any week if he:

(i) Is in training approved under federal law; or

(ii) Left work to enter approved training if the work is 

not suitable, as defined under federal law.

(d) Notwithstanding W.S. 27-3-306(a)(i) and (iii) or 27-3-

311(a)(i) through (iii) or any federal law relating to 

availability for, active search for, failure to apply for or 

refusal to accept suitable work, an otherwise eligible 

individual is eligible for benefits for any week if he is not 

receiving wages or compensation while participating in 

training in an apprenticeship program approved by the 

department . . . .

Wyo. Stat. Ann. § 27-3-307(a), (c)–(d) (LexisNexis 2019) (emphasis added).

[¶10] Mr. Gerber relies on Wyo. Stat. Ann. § 27-3-307(a)(i). This subsection of the 

statute conditionally excuses compliance with § 27-3-311(a)(ii) and (iii). Subsections 

(a)(ii) and (iii) require a claimant to seek work and remain available to work and are not 

at issue here. What Mr. Gerber seeks is an exception from the disqualifying act of

leaving work “voluntarily without good cause attributable directly to his employment”

under Wyo. Stat. Ann. § 27-3-311(a)(i). Relevant exceptions to subsection (a)(i) are

addressed in § 27-3-307(c) and (d).

[¶11] “Parties are bound by the theories they advanced below.” Crofts v. State ex rel.

Dep’t of Game & Fish, 2016 WY 4, ¶ 19, 367 P.3d 619, 624 (Wyo. 2016) (citation 

omitted). “We have repeatedly held that in an appeal from an administrative ruling, we 

will not consider arguments not raised below.”5

 Air Methods/Rocky Mountain Holdings, 

LLC v. State ex rel. Dep’t of Workforce Servs., Workers’ Comp. Div., 2018 WY 128, 

¶¶ 21–22, 432 P.3d 476, 482–83 (Wyo. 2018). In this case, Mr. Gerber did not raise the 

application of Wyo. Stat. Ann. § 27-3-307(c) or (d) to the Commission or to this Court.

Therefore, the Commission did not abuse its discretion 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 appellate court’s review of administrative action to “issues set forth in the

petition and raised before the agency.” Accordingly, we have routinely held that, with the exception of 

jurisdictional or certain fundamental issues, issues raised for the first time on appeal from an 

administrative decision will not be considered. State ex rel., Dep’t of Family Servs. v. Kisling, 2013 WY 

91, ¶ 14, 305 P.3d 1157, 1162 (Wyo. 2013); BP Am. Prod. Co. v. Dep’t of Revenue, 2006 WY 27, ¶ 18, 

130 P.3d 438, 462 (Wyo. 2006).
6

[¶12] Even if he had raised the correct statutory authority, Mr. Gerber would not be 

eligible for unemployment benefits under the applicable exception, Wyo. Stat. Ann. § 27-

3-307(c).

6

[¶13] Wyo. Stat. Ann. § 27-3-307(c) mandates that the claimant be (i) “in training

approved under federal law” or (ii) that the claimant “[l]eft work to enter approved 

training if the work is not suitable, as defined under federal law.” Turning our attention 

to § 27-3-307(c)(i), multiple training programs are available under federal law.

7 Mr. 

Gerber claims, and we agree, if he is eligible for unemployment benefits due to approved 

federal training, his eligibility derives from Wyoming’s implementation of the Workforce 

Innovation and Opportunity Act (WIOA), 29 U.S.C.A. §§ 3101–3255 (West 2015).

8

[¶14] The Division has approved WIOA training for eligible participants in the nursing 

program. However, eligibility for approval under the WIOA unambiguously requires

certain actions.

[¶15] Eligibility for WIOA approved training requires:

Except as provided in clause (ii), funds allocated to a local 

area for adults under paragraph (2)(A) or (3), as appropriate, 

of section 3173(b) of this title, and funds allocated to the local 

area for dislocated workers under section 3173(b)(2)(B) of 

this title, shall be used to provide training services to adults 

and dislocated workers, respectively—

(I) who, after an interview, evaluation, or 

assessment, and career planning, have been

6 Wyo. Stat. Ann. § 27-3-307(d) is specific to apprenticeship programs which are not at issue in this case. 7 “According to the Office of Management and Budget, the Federal Government has 47 different 

employment and training programs spread across 15 different government agencies.” The Council of 

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

Performance, Executive Summary (June 2019), https://www.whitehouse.gov/wp-content/uploads/2019/

06/Government-Employment-and-Training-Programs.pdf. 8 Mr. Gerber does not argue his claim is based on training approved under any other federal law. In 

Harvey, the appellant failed to indicate whether his argument was based on the federal or state 

constitution. Harvey v. State, Dep’t of Transp., 2011 WY 72, ¶ 8, 250 P.3d 167, 171 (Wyo. 2011). We 

noted: “[A] litigant must provide a precise, analytically sound approach when advancing an argument to 

independently interpret the state constitution.” Id. (quoting Vasquez v. State, 990 P.2d 476, 484 (Wyo.

1999)). Therefore, we did not conduct a separate analysis under the Wyoming Constitution. Here, Mr. 

Gerber argued only that his training was approved under WIOA. Accordingly, we consider only the 

provisions of WIOA under our analysis of Wyo. Stat. Ann. § 27-3-307(c)(i).
7

determined by a one-stop operator or one-stop 

partner, as appropriate, to--

(aa) be unlikely or unable to obtain or retain 

employment, that leads to economic selfsufficiency or wages comparable to or higher than 

wages from previous employment, through the 

career services described in paragraph (2)(A)(xii);

(bb) be in need of training services to obtain or 

retain employment that leads to economic selfsufficiency or wages comparable to or higher than 

wages from previous employment; and

(cc) have the skills and qualifications to 

successfully participate in the selected program of 

training services[.]

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 either an interview, evaluation, or assessment, 

and career planning or any other method through which the one-stop center or partner can 

obtain enough information to make an eligibility determination to be determined eligible 

for training services”).

[¶16] The WIOA requires a determination by a one-stop partner9 that the training is 

appropriate prior to qualifying for federally approved training. The record is clear: Mr. 

Gerber lacked approval prior to his enrollment in the nursing program. Accordingly, Mr. 

Gerber was not “returning to” “training approved under federal law,” as required by the

plain language of Wyo. Stat. Ann. §§ 27-3-311(a)(i)(B) and 27-3-307(c)(i). His 

enrollment in a nursing program absent the required determination does not meet the 

conditions of the statutory exception.

[¶17] Mr. Gerber also does not qualify under Wyo. Stat. Ann. § 27-3-307(c)(ii)—the 

claimant “[l]eft work to enter approved training if the work is not suitable, as defined 

under federal law.” WIOA does not provide a definition of “suitable work.” The only

federal definition of “suitable work” is found in the Federal-State Extended 

Unemployment Compensation Act. This definition states in relevant part, “The term 

‘suitable work’ means, with respect to any individual, any work which is within such

individual’s capabilities . . . .” 26 U.S.C.A. § 3304 (West 2018), Temporary Extended 

9 In Wyoming, the one-stop partner is Wyoming Department of Workforce Services. Wyo. Stat. Ann. 

§ 9-2-2018.
8

Unemployment Compensation Act of 2002 § 201(h)(4)(A).

10 Under the plain meaning of 

this definition, Mr. Gerber’s job with the VA was suitable and he does not argue 

otherwise. He does not qualify under subsection (ii) conditioning benefits on leaving 

“work” that was “not suitable.”

[¶18] Applying the plain meaning of Wyo. Stat. Ann. §§ 27-3-311 and 27-3-307, and 

considering the relevant federal law, we conclude the Commission correctly determined

Mr. Gerber was not eligible for employment benefits. Affirmed.

10 The Trade Act of 1974, 19 U.S.C. § 2291–98 (“Trade Act”) was intended, in part, “to provide adequate 

procedures to safeguard American industry and labor against unfair or injurious import competition, and

to assist industries, firm[s], workers, and communities to adjust to changes in international trade flows.”

19 U.S.C.A. § 2102 (West 1975). To that end, it “authorizes the Secretary of Labor to contract with state 

employment agencies to administer the federal benefits program. Dislocated workers can apply to DOL 

through the state agency for reimbursement of their training costs.” Hampe v. Butler, 364 F.3d 90, 91 (3d 

Cir. 2004); see also 19 U.S.C.A. § 2275 (West 2015). Mr. Gerber’s employment was not adversely 

affected by “injurious import competition.”

The Trade Act contains a definition of “suitable employment.” The Trade Act does not define 

“suitable work.” The Trade Act defines “suitable employment” “with respect to a worker, work of a 

substantially equal or higher skill level than the worker’s past adversely affected employment, and wages 

for such work at not less than 80 percent of the worker’s average weekly wage.” 19 U.S.C.A. § 2296 

(West 2015) (emphasis added). The term “‘adversely affected employment’ means employment in a firm, 

if workers of such firm are eligible to apply for adjustment assistance under this part” and “‘adversely 

affected worker’ means an individual who, because of lack of work in adversely affected employment, 

has been totally or partially separated from such employment.” 19 U.S.C.A. § 2319 (West 2015). Thus, 

even were we to apply this definition of suitable employment, Mr. Gerber did not claim “adversely 

affected employment” as the basis for a comparison of wages.