2022 UT App 110
THE UTAH COURT OF APPEALS
MARIE BINGHAM,
Petitioner,
v.
DEPARTMENT OF WORKFORCE SERVICES,
Respondent.
Opinion
No. 20210763-CA
Filed September 9, 2022
Original Proceeding in this Court
Marie Bingham, Petitioner Pro Se
Robert D. Andreasen, Attorney for Respondent
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.
ORME, Judge:
¶1 Marie Bingham seeks judicial review of the decision by the
Appeals Board (the Board) of the Department of Workforce
Services (the Department) affirming the decision of the
Department's Administrative Law Judge (the ALJ). The ALJ’s
decision reversed the Department’s denial of all unemployment
benefits for Bingham. The ALJ ruled that Bingham was entitled to
a portion of those benefits by reason of disruptions attributable to
the COVID-19 pandemic that were beyond her control. But the
ALJ affirmed the denial of benefits during a time when Bingham
avoided work out of concern that she was not yet vaccinated
against COVID-19. We decline to disturb the Board’s decision.
Bingham v. Department of Workforce Services
BACKGROUND
¶2 Bingham worked as a part-time sales lead at a women’s
clothing store (Employer) until March 2020, when the COVID-19
pandemic forced Employer to close its doors and to furlough
Bingham. In response, Bingham opened a claim for
unemployment insurance benefits with the Department. Once she
opened her claim, Bingham was provided with a claimant guide
that informed her that she would “be held responsible for
knowing the information in this guide.” The guide also instructed
that to receive benefits, Bingham was “required to be able and
available for full-time work.”
¶3 In August 2020, Employer reopened for business and
requested that Bingham return to work. Bingham worked two
four-hour shifts and temporarily stopped filing for
unemployment benefits, but Employer was again forced to
furlough her due to a lack of customers and the resulting decrease
in staffing needs.
¶4 Bingham then reopened her claim for unemployment
benefits with the Department. The Department again sent her the
claimant guide that informed her that to obtain these benefits, she
“must be able and available to accept full-time work.” And when
filing her weekly claim in early December, Bingham
acknowledged receiving the claimant guide.
¶5 From August 2020 until January 2021, Bingham regularly
contacted Employer to inquire if work shifts were available for
her, but none were, and Bingham continued filing for and
receiving weekly unemployment benefits during this time.
¶6 During the last week of January 2021, one of Employer’s
managers called and “asked if [Bingham] would work a few hours
for an associate” who had to miss work. Because the shift was only
for four hours, and due to the heightened danger COVID-19
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Bingham v. Department of Workforce Services
presented to Bingham given her advanced age, she and the
manager “mutually agreed” that because she would soon be able
to obtain the COVID-19 vaccine, “it might not be a great idea for
such a few hours to be back in there in a danger[ous] situation.”
Thus, she did not cover the shift. When later asked at a hearing
before the ALJ if she could have gone in to cover the shift,
Bingham responded that she “preferred not to.”
¶7 In February, Employer offered another shift to Bingham,
but Bingham again declined because she still had not received the
vaccine, which she was scheduled to get on March 13, 2021.
Again, as Bingham later testified, she and Employer “discussed
the fact that I was 79 years of age and had not yet been vaccinated,
. . . and we mutually considered it to be too dangerous for me to
return to work until I was fully vaccinated.” After this call,
Employer placed Bingham on “a non-medical personal leave of
absence”1 until the end of May 2021. Bingham returned to work
on June 5, 2021, when she was “fully vaccinated.”
1. Given the relative consensus of science at the time, Bingham’s
age—which put her just behind “healthcare personnel”
and those admitted to long-term care facilities in terms
of vaccination priority, with the CDC recommending vaccination
for people 65 and older before full re-entry into everyday life—it
is unclear why Employer considered the leave of absence to
be “non-medical.” See Cory Stieg, When Dr. Fauci and Other
Experts Say You Can Expect to Get Vaccinated for Covid-19,
CNBC (Dec. 14, 2020), https://www.cnbc.com/2020/12/14/whogets-the-covid-vaccine-first-timeline-and-priority-explained.html
[https://perma.cc/7NAJ-JG5J] (reporting that in December 2020,
“healthcare personnel” would be first in line to receive the
vaccine, followed by those admitted to long-term care facilities,
and that those “65 and older are also recommended to get the
vaccine early if supplies are limited”). See also COVID-19 Risks and
(continued…)
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Bingham v. Department of Workforce Services
¶8 Bingham continued to file weekly claims for
unemployment benefits with the Department until May 15. When
filing her weekly claim for the last week of January 2021, Bingham
responded “No” when asked if she had “refuse[d] an offer of
work.” And on every weekly claim she filed through May 15, she
was asked, “Were you able and available for full-time work
without any restrictions?” Each time Bingham answered, “Yes.”
In April 2021, Employer responded to an inquiry from the
Department about Bingham’s work status. Employer stated that
Bingham “is currently on an approved leave of absence.”2 In total,
Vaccine Information for Older Adults, Centers for Disease Control
& Prevention (Aug. 4, 2021), cdc.gov/aging/covid19/covid19-
older-adults.html [https://perma.cc/QVP8-YMDG] (explaining
that “[o]lder adults are more likely to get very sick from
COVID-19” and should “[g]et vaccinated as soon as possible” to
“resume activities that [they] did prior to the pandemic”).
2. The parties have not detailed, nor is it apparent from the record,
what the exact particulars of this leave of absence were. It is clear
that in February, however, Employer placed Bingham on “a
non-medical personal leave of absence” until the end of May,
when she was expected to be “fully vaccinated.” Thus, Employer
held Bingham’s job open for her to return to but was likely not
providing monetary benefits to her, given that she was claiming
unemployment benefits each week during this period. This is in
line with the common understanding of what constitutes a leave
of absence. See Reagan Outdoor Advert., Inc. v. Lundgren, 692 P.2d
776, 778 (Utah 1984) (“Two elements of a leave of absence that
distinguish it from a termination of employment are permission
to leave work and an intent to return.”); Cooper Valves, LLC v.
ValvTechnologies, Inc.,
531 S.W.3d 254, 264 (Tex. Ct. App. 2017) (“A
leave of absence is not a complete separation from employment
and connotes a continuity of the employment status.”) (quotation
simplified); Leave of absence, Black’s Law Dictionary (11th ed. 2019)
(continued…)
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Bingham v. Department of Workforce Services
from September 6, 2020, until May 15, 2021, Bingham received
$12,426 in unemployment benefits.
¶9 In reviewing Bingham’s case in June 2021, the Department
determined that Bingham voluntarily “quit for personal reasons”
and “failed to show good cause in quitting.” The Department then
denied unemployment benefits to Bingham under Utah Code
section 35A-4-405(1) from September 2020 through May 2021, and
after determining under Utah Code section 35A-4-406(4) that the
fault lay with Bingham for receiving $12,426 in benefits that she
was not entitled to, it required her to remit the full amount.
¶10 Bingham appealed this decision to the ALJ. A telephonic
hearing was subsequently held in which Bingham participated
with the help of an “Informal Representative.”3 At the hearing, the
(defining leave of absence as “[a] worker’s temporary absence
from employment or duty with the intention to return”).
3. The Department’s website explains representation at hearings
before an ALJ as follows:
Most parties at the hearing represent
themselves. The Administrative Law Judge (ALJ)
will explain the hearing process, question the
parties or witnesses, and help you ask questions if
needed. You have the right to be represented by any
person at your own expense. The person does not
need to be a lawyer.
If you choose to hire a representative, contact
your representative immediately to give that person
time to prepare for the hearing. It is your
responsibility to notify your representative of the
time of the hearing and to pay any fees charged to
you. (Non-Attorneys representing claimants may
(continued…)
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Bingham v. Department of Workforce Services
Department presented numerous exhibits to prove its case,
including voicemails, emails, summaries of phone calls, and
notes. The ALJ accepted the exhibits after Bingham’s
representative stated that he had no objections. During the
hearing, Bingham testified consistent with the facts laid out
above, and her representative was allowed to ask questions and
make a final statement.
¶11 During the telephonic hearing, Bingham’s representative
informed the ALJ that Bingham has difficulty hearing and that
“she can hear better if . . . you’re not talking on speaker phone.”
A few moments later, the following exchange between the ALJ
and Bingham took place:
[The ALJ]: I understand that there might be some
times where you wouldn’t be able to hear me. Are
you having any trouble hearing me now?
[Bingham]: I’m okay . . . it’s understanding. I hear,
it’s the understanding. [Y]ou did go fast but that’s
okay. I think I got pretty much all of it so . . . I think
I’m ok at the moment, yes.
[The ALJ]: Alright, so Ms. Bingham with that in
mind, will you be sure to stop me and tell me if there
is something that you don’t understand or if you
need me to repeat it?
[Bingham]: Oh, Your Honor, I appreciate that.
Thank you.
NOT bill for their services without the ALJ's prior
approval of their fees).
Guide to the Unemployment Insurance Appeals Process, Department
of Workforce Services, https://jobs.utah.gov/appeals/appeals
pamphlet.html#attorney [https://perma.cc/NC2Q-9YP7].
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Bingham v. Department of Workforce Services
[The ALJ]: So you can feel free to interrupt me at any
time during the hearing and tell me, please repeat
that, or could you ask that question again, or could
you re-explain something, alright?
[Bingham]: It’s so kind of you, thank you.
¶12 Following the hearing, the ALJ partially reversed the
Department’s decision. He determined that Bingham was eligible
for benefits from September 6, 2020, until January 23, 2021,
because her unemployment then was due to a workforce
reduction by Employer and not due to Bingham voluntarily
quitting. The ALJ ruled, however, that Bingham was not entitled
to benefits under Utah Code section 35A-4-403(1)(c) for the period
of January 24, 2021, through May 15, 2021, because Bingham “was
not able or available for full-time employment.” This
corresponded to the period beginning with the “mutual” decision
that Bingham not take the first fill-in shift she was offered and that
she not return to work until she was fully vaccinated. The ALJ
then reduced the amount Bingham was required to remit from
$12,426 to $8,608—which was the amount she received for the
period of January 24 through May 15—and concluded that
Bingham was at fault for the overpayment for three reasons. First,
the Department had provided her “with instructions to report if
she had declined any offers of work,” which she did not do.
Second, Bingham had also been instructed “to report if she was
not able or available for full-time employment,” which she did not
do. And third, “the Department’s online filing application directly
asked [Bingham] if she had refused work and if she was able and
available for full-time employment,” which she did not truthfully
answer. Based on these findings, the ALJ determined that
Bingham “should have known to report she refused an offer to
return to work or that she was not able and available for full-time
employment.”
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Bingham v. Department of Workforce Services
¶13 After the ALJ issued his decision, Bingham moved to
supplement her testimony with a declaration. She contended that
she has “a hearing impediment” and “may . . . not have heard and
thus not have understood the significance of [the ALJ’s]
questions” and that she “may not have had the ability to provide
a complete and accurate response.” In an attached affidavit,
Bingham averred, “On all my applications requesting
unemployment compensation I always reported I was able and
available for full-time work.” She also stated:
But for lack of a Covid vaccination I was always able
and available to continue my work [for Employer]
when my supervisor scheduled me for work. Even
while I was waiting to be vaccinat[ed], . . . I
consistently called my supervisor . . . to determine
when I should next come to work. In each instance[]
my supervisor told me because of the reduced
customer load due to Covid and the fact I was
unvaccinated they did not have sufficient hours for
me. . . . Consequently, the company gave me a leave
of absence until I was vaccinated.
¶14 The Board determined that Bingham’s motion and
affidavit was an appeal of the ALJ’s decision and, after granting
an extension, gave Bingham time to submit written arguments.
Bingham then moved to exclude certain exhibits admitted in the
hearing before the ALJ on hearsay and authentication grounds.
¶15 The Board issued a decision on September 22, adopting the
ALJ’s factual findings and affirming his decision. Specifically, it
ruled:
When [Bingham] refused to return to work, she
made it clear she would not make herself available
to work until she had been fully vaccinated. Further,
[Bingham] went on a leave of absence in order to
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Bingham v. Department of Workforce Services
give her time to go through the vaccine regimen.
The Employer held [her] job open for her until she
was able to receive all of her shots. The record shows
[Bingham] restricted her availability and was also
filing for benefits while on a temporary leave of
absence. Under the rules, she was not able and
available for full-time work. Benefits are denied
from January 24, 2021, until she returned to work on
June 5, 2021.[4]
¶16 In assigning fault for the overpayment of benefits, the
Board found that all three elements under the applicable
administrative rules were present, namely, knowledge,
materiality, and control. It found that Bingham had the requisite
knowledge because she had received the claimant guide, which
instructed her “about the necessity of reporting refusal of work
and also about the requirement that claimants be able and
available for full-time work.” The Board found that Bingham also
“failed to report in her weekly filings that she had a condition that
prevented her from accepting full-time work; namely, that her
vaccination status was an impediment to her availability for
work.” It next determined that materiality was established
because she was paid benefits that she was not entitled to and that
control was established because Bingham “could have provided
the relevant information” to the Department.
¶17 Three weeks later, on October 12, Bingham moved for the
Board to amend or reconsider its decision. In that motion, she
claimed that her representative had mailed a memorandum in
support of her appeal of the ALJ’s decision to the Board within the
time allotted and that shortly after mailing it, he left the country
on vacation. When he returned on October 11, well after the
deadline and after the Board had issued its decision, he found the
4. Although Bingham returned to work on June 5, 2021, she
received benefits only from January 24, 2021, to May 15, 2021.
20210763-CA 9 2022 UT App 110
Bingham v. Department of Workforce Services
memorandum had been returned to him by the post office.
Bingham therefore urged the Board to reconsider its decision in
light of her missing memorandum, and she provided the Board
with a copy of her wayward memorandum.
¶18 The Board denied Bingham’s request, noting that parties
are “responsible for ensuring their Board and court filings are
timely submitted and received by the reviewing body by the
given deadlines” and that Bingham’s “filing was delivered well
after the Board’s decision had already been issued.” Bingham
moved a second time for the Board to reconsider its decision,
essentially making the same arguments she made in her previous
motion. The Board again denied Bingham’s request.
¶19 Bingham seeks judicial review of the Board’s decision.
ISSUES AND STANDARDS OF REVIEW
¶20 Bingham raises three issues that merit our consideration.
First, she argues that she should have been granted
unemployment benefits from January 24, 2021, through May 15,
2021.5 Second, Bingham argues that she should not have been
assigned fault for the overpayment and should not have been
required to remit the benefits she incorrectly received.
¶21 These two issues trigger a layered standard of review. “We
review the Board’s application or interpretation of a statute as a
question of law under the correction-of-error standard.” Martin v.
Department of Workforce Services, 2022 UT App 32, ¶ 2,
507 P.3d 847
5. Bingham endeavors to raise further issues regarding the
Board’s denial of her unemployment benefits. But these
additional issues go to the Board’s ultimate decision to deny the
benefits, and we decline to recite them here. Instead, we consider
them with our analysis of the Board’s ultimate denial of benefits.
20210763-CA 10
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Bingham v. Department of Workforce Services
(per curiam) (quotation simplified). “However, if the Board has
correctly interpreted the applicable statutes, the Board’s ultimate
decision to grant or deny benefits is entitled to deference because
it involves a mixed question of law and fact that is fact-intensive
and therefore does not lend itself to consistent resolution by a
uniform body of appellate precedent.” Id. (quotation simplified).
Additionally, “we will not disturb the agency’s interpretation or
application of one of the agency’s rules unless its determination
exceeds the bounds of reasonableness and rationality.” Ernest
Health, Inc. v. Labor Comm'n,
2016 UT App 48, ¶ 6,
369 P.3d 462
(quotation simplified). And finally, “when a petitioner challenges
an agency’s findings of fact, we are required to uphold the
findings if they are supported by substantial evidence when
viewed in light of the whole record before the court.” VanLeeuwen
v. Industrial Comm'n,
901 P.2d 281, 284 (Utah Ct. App. 1995)
(quotation simplified).
¶22 Bingham’s third issue is subject to a different standard of
review. She contends that the ALJ violated her due process rights
in several ways. “Constitutional issues, including questions
regarding due process, are questions of law that we review for
correctness.” Salt Lake City Corp. v. Jordan River Restoration
Network,
2012 UT 84, ¶ 47,
299 P.3d 990 (quotation simplified).
ANALYSIS
I. Eligibility for Unemployment Benefits
¶23 Bingham contends that she is entitled to unemployment
benefits from January 24, 2021, to May 15, 2021. To be eligible for
unemployment benefits, an individual must be “able to work and
. . . available for work during each and every week for which the
20210763-CA 11 2022 UT App 110
Bingham v. Department of Workforce Services
individual made a claim for benefits.”6 Utah Code Ann.
§ 35A-4-403(1)(c) (LexisNexis 2019).
6. Citing Utah Code section 63-46b-16(4)(h)(iii), Bingham also
contends that the Board “erred by making an inconsistent
decision prohibited by” Utah law. But this section of the code is
no longer in effect. It appears that Bingham intended to cite Utah
Code section 63G-4-403(4)(h)(iii), which provides that on judicial
review, this court “shall grant relief only if . . . it determines that
a person seeking judicial review has been substantially prejudiced
by” an agency action that is “contrary to the agency’s prior
practice, unless the agency justifies the inconsistency by giving
facts and reasons that demonstrate a fair and rational basis for the
inconsistency.” See Utah Code Ann. § 63G-4-403(4)(h)(iii)
(LexisNexis 2019). To prevail under a claim that an agency acted
contrary to prior practice, the petitioner must identify prior
agency cases with similar facts to their own case but with different
outcomes. See Taylor v. Department of Com., 952 P.2d 1090, 1094–95
(Utah Ct. App. 1998).
Here, Bingham does not direct us to any other cases with
similar facts in which the Board reached a different decision.
Rather, she attempts to show that the Board was inconsistent with
its treatment of her case, because it determined she was eligible to
receive benefits from September 6, 2020, to January 23, 2021, but
that she was not eligible to receive benefits from January 24, 2021,
to May 15, 2021. This is not how a claimant establishes that an
agency acted contrary to prior practice. See id. But even if we
agreed with Bingham that under the statute she could show
inconsistency within her own case, her argument would still be
unavailing because the facts of this case provide a “fair and
rational basis for the inconsistency.” See Utah Code Ann.
§ 63G-4-403(4)(h)(iii).
Because Employer furloughed Bingham, from September 6,
2020, to January 23, 2021, she was able to work and available to
(continued…)
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Bingham v. Department of Workforce Services
¶24 To be considered able to work, an individual must have
“no physical or mental health limitation which would preclude
immediate acceptance of full-time work.” Utah Admin. Code
R994-403-111c(1). The rules also provide:
A claimant is not eligible for benefits if the claimant
is not able to work at his or her regular job due to a
temporary disability and the employer has agreed
to allow the claimant to return to the job when he or
she is able to work. In this case, the claimant’s
unemployment is due to an inability to work rather
than lack of available work. The claimant is not
eligible for benefits even if there is other work the
claimant is capable of performing with the
disability.
Id. R994-403-111c(3)(a).
¶25 Here, Bingham’s case fits squarely within the ineligibility
for benefits laid out by statute and the administrative rules.
Specifically, Bingham was not able to work or available to work
due to her own decision, albeit a decision made in consultation
with Employer and with the agreement of Employer. Bingham
testified that she twice consulted her supervisors in the
January-February timeframes when offered shifts and that both
times they came to a “mutual agreement” that because she was
work but was not working due to the lack of available shifts.
There was no testimony that Bingham declined to work due to her
unvaccinated status during this period. But Bingham testified that
from January 24, 2021, to May 15, 2021, she was unable and
unavailable to work because she thought it was too dangerous to
return to work while unvaccinated, thus changing her eligibility
status for unemployment benefits. These are distinct facts
distinguishing the time periods Bingham cites, and thus there was
a fair and rational basis for any apparent inconsistency. See
id.
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Bingham v. Department of Workforce Services
then unvaccinated, it would not be wise for her to work. And
Bingham told the ALJ that the reason she did not take the shift
was because she “preferred not to.” At the end of the second call
with Employer, Bingham was placed on a leave of absence until
she was fully vaccinated.
¶26 While this was inarguably a prudent course of action given
her age and the ongoing pandemic, unfortunately in the context
of unemployment benefits, it is fatal to Bingham’s case. See
generally York v. Morgan, 517 P.2d 301, 302 (Or. Ct. App. 1973)
(“Unemployment compensation is designed to ease the burden of
those who are generally available in the labor market but for
whom no suitable gainful employment is available. It was not
created to ease the burden of those who for one reason or another
are not generally available.”). These facts clearly establish that she
was not “able to work and . . . available for work” because she
agreed with Employer that she would not work until she was fully
vaccinated, and consequently she was ineligible for benefits. See
Utah Code Ann. § 35A-4-403(1)(c). See also Arnold v. Department of
Workforce Services,
2021 UT 27, ¶ 18,
491 P.3d 957 (“For example,
if the claimant is unable to work due to a temporary disability and
the employer has agreed to allow the claimant to return to the job
when able, the claimant is not eligible for benefits. So although
unemployment may be due to circumstances beyond the control
of the claimant, a claimant does not qualify for unemployment
benefits unless able and available to accept immediate work.”)
(quotation simplified). Additionally, rule R994-403-111c(3)(a) of
the Utah Administrative Code directs that individuals are not
eligible for benefits when they are not able to work “due to a
temporary disability and the employer has agreed to allow the
claimant to return to the job when he or she is able to work.” And
here Bingham was not able to work due to her unvaccinated
status, and Employer agreed to allow her to return when that
status changed. Finally, given that Bingham would not return to
work until she was fully vaccinated in June, she was not available
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Bingham v. Department of Workforce Services
to work from January 25 to May 15 because her understandable
position “preclude[d] immediate acceptance of full-time work.”
See Utah Admin. Code R994-403-111c(1).
¶27 Bingham resists this conclusion, contending that the Board
lacked substantial evidence to find that she “was the one
apprehensive about Covid-19 exposure” while at work, arguing
that it was the manager’s decision—not hers—to place her on a
leave of absence. We disagree. Bingham’s testimony provided the
Board with substantial evidence that this was not solely
Employer’s decision.
¶28 With respect to the January phone call, Bingham testified,
“I conveyed at that time[,] and we mutually discussed that,
because it’s a few hours and now it’s the end of January and a
vaccine is readily available and we both discussed . . . that it might
be not a great idea for such a few hours to be back in there in . . .
danger” and “we mutually agreed so I did not go in and help.”
And this was not the only time Bingham told the ALJ that it was
a mutual decision for her not to return to work until she was fully
vaccinated. In all, Bingham used the word “mutual” or
“mutually” ten times when describing the discussions that led to
her leave of absence. Thus, contrary to Bingham’s current position
that this was all at the behest of Employer, her own testimony
before the ALJ clearly established that she, too, was concerned
about returning to work and that it was a “mutual” decision to
not return until she was fully vaccinated. Bingham cannot now
claim otherwise in the face of her testimony in the record.
¶29 Therefore, we see no error in the way the Board interpreted
Utah Code section 35A-4-403, and we discern no abuse of
discretion by the Board in concluding that, under the facts of this
case, Bingham was ineligible for unemployment benefits from
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Bingham v. Department of Workforce Services
January 24 to May 15.7 See Martin v. Department of Workforce
Services, 2022 UT App 32, ¶ 2,
507 P.3d 847 (per curiam) (“The
Board’s ultimate decision to grant or deny benefits is entitled to
deference[.]”) (quotation simplified). Likewise, the Board did not
“exceed[] the bounds of reasonableness and rationality” in
interpreting and applying the applicable administrative rules in
coming to the conclusion that Bingham was not eligible for
benefits. See Ernest Health, Inc. v. Labor Comm'n,
2016 UT App 48,
¶ 6,
369 P.3d 462 (quotation simplified).
¶30 Citing Utah Code section 35A-4-405(1)(b), Bingham
nonetheless claims that the Board’s denial of benefits was
“contrary to equity and good conscience.” That section provides:
“A claimant may not be denied eligibility for benefits if the
claimant leaves work under circumstances where it would be
contrary to equity and good conscience to impose a
disqualification.” Utah Code Ann. § 35A-4-405(1)(b) (LexisNexis
2019). The Department responds that this statute is inapplicable
to Bingham’s case because it only “applies in circumstances where
a claimant has experienced a job separation caused by the
claimant’s decision to voluntarily quit.” But here, Employer “held
her job open for her until she was able to return to work.” To
support this contention, the Department cites rule
7. Bingham also contends that the Board erred “in finding I was
ineligible for benefits from January 24, 2021 through June 5, 2021
based on a refusal to work claim where the finding[] is not
supported by substantial evidence.” She also contends that “the
Board’s conclusion that I should have accepted the one day four
hour shift offered by [Employer was] arbitrary, capricious, and
unreasonable.” Because we affirm the Board’s decision that
Bingham was not eligible for benefits for the time period in
question based on her testimony that she was not able or available
to work until she was fully vaccinated, we have no need to reach
these additional issues.
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Bingham v. Department of Workforce Services
R994-405-101(1) of the Utah Administrative Code, which
provides:
(1) A separation is considered voluntary if the
claimant was the moving party in ending the
employment relationship. A voluntary separation
includes leaving existing work, or failing to return
to work after:
(a) an employer attached layoff . . . ,
(b) a suspension, or
(c) a period of absence initiated by the
claimant.
Utah Admin. Code R994-405-101(1).
¶31 Based on the statute and the rule, we disagree with the
Department’s position. The statute specifically directs that it is
applicable when a claimant “leaves work,” Utah Code Ann.
§ 35A-4-405(1)(b), and the rule provides that a voluntary
separation occurs when the claimant “leav[es] existing work,”
which includes “a period of absence initiated by the claimant,”
Utah Admin. Code R994-405-101(1). Here, from January 24 to May
15, Bingham was placed on a leave of absence—which clearly
qualified as “a period of absence” under the rule—that she
initiated in consultation with Employer when she expressed her
fears of returning to work unvaccinated. Thus, by the plain terms
of the rule and the statute, Bingham “left work” during her leave
of absence, and the equity and good conscience standard of Utah
Code section 35A-4-405(1)(b) is applicable to Bingham’s case.
¶32 Nevertheless, Bingham’s position—that it was contrary to
equity and good conscience for the Board to deny her benefits—
is unavailing. It was not contrary to equity and good conscience
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Bingham v. Department of Workforce Services
for the Board to deny her benefits because Bingham returned to
work without any apparent concern about contracting the virus
when Employer reopened its store in August 2020. Bingham
stopped working and re-applied for unemployment benefits only
because she was furloughed when not enough customers came to
the store. At this time, the pandemic was still raging with no end
in sight, and a vaccine had not yet been approved and was not
ready for use in the population, but Bingham still chose to return
to work. Thus, Bingham cannot now complain that the Board’s
decision denying her benefits from January 24 to May 15 was
contrary to equity and good conscience when she had previously
demonstrated that she was willing to work in the face of the virus
and stopped working only due to another furlough. Very simply,
Bingham may not complain that the Board acted incorrectly in
concluding that she was ineligible for benefits during the times
she chose not to work out of her concern about the virus when the
concern had previously not prevented her from working. Thus,
the equity and good conscience rationale cannot be a basis to
disturb the Board’s decision.
II. Fault
¶33 Bingham next contends that the Board abused its discretion
in finding that the three elements of a fault overpayment were
met, requiring her to remit the benefits she received from January
to May. We disagree.
¶34 If a claimant “by reason of his own fault, has received any
sum as benefits” to which “he has been found not entitled, he shall
repay the sum.” Utah Code Ann. § 35A-4-406(4)(b) (LexisNexis
2019). A claimant is at fault for an overpayment if knowledge,
materiality, and control are established by a preponderance of the
evidence. Utah Admin. Code R994-406-301(1). Materiality is
established when “[b]enefits were paid to which the claimant was
not entitled.” Id. R994-406-301(1)(a). Control is established when
the “[b]enefits were paid based on incorrect information or an
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Bingham v. Department of Workforce Services
absence of information which the claimant reasonably could have
provided.” Id. R994-406-301(1)(b). And knowledge is established
when “[t]he claimant had sufficient notice that the information
might be reportable.”
Id. R994-406-301(1)(c).
¶35 Here, materiality is established because, as we have
already discussed, Bingham received benefits from January 24 to
May 15 that she was not entitled to given her leave of absence.
Control is established because Bingham filed weekly claims for
unemployment benefits without disclosing that she was on a
leave of absence until she was fully vaccinated and was thus
unable and unavailable for full time work. Bingham could have
readily provided this information to the Department.
¶36 Finally, knowledge is established because Bingham
received the claimant guide on two occasions—which she
acknowledged—and was informed via the Department’s online
instructions regarding what was required for benefit eligibility.
The claimant guide informed Bingham that she was required to
“be physically and mentally able to work full-time” and stated,
If you are ill, injured, on a leave of absence or unable
to work for any other reason, you may not be
eligible for benefits for that period of time. You are
required to report that you are not available for
work when any condition exists that could prevent
you from working, accepting work, or seeking
full-time work.
And the Department’s weekly online application asked Bingham,
“Were you able and available for full-time work without any
restrictions?,” and each time Bingham answered, “Yes.”
¶37 The claimant guide and the online instructions clearly put
Bingham on notice that she was required to be able and available
to work to be eligible for benefits, and she was “thus accountable
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Bingham v. Department of Workforce Services
for the information [therein].” See Smith v. Department of Workforce
Services, 2010 UT App 382, ¶ 11,
245 P.3d 758 (quotation
simplified). Accordingly, Bingham knew that she was not eligible
for benefits because she was unable to work and unavailable for
work from January 24 to May 15, due to her being unvaccinated,
and yet she still applied for and received benefits in the face of
these clear instructions. This evidence established that Bingham
had knowledge of the incorrect overpayment.8 See Gourley v.
Department of Workforce Services,
2014 UT App 278, ¶ 9,
339 P.3d
952 (holding that the knowledge element was satisfied because
the claimant was given the proper information in the online
instructions and in the claimant guide); Hasratian v. Department of
Workforce Services,
2013 UT App 79, ¶ 8,
300 P.3d 324 (holding that
the knowledge element was satisfied because the claimant had
received the claimant guide); Frislie v. Department of Workforce
Services,
2011 UT App 114, ¶ 7,
256 P.3d 229 (per curiam) (same);
Konan v. Department of Workforce Services,
2011 UT App 48, ¶ 5,
249
P.3d 567 (same).
¶38 Bingham resists this conclusion by asserting that she did
not participate in the decision not to return to work and thus it
cannot be held against her. In support, she points to the following
part of her testimony during the hearing before the ALJ:
[The ALJ]: Okay. And so then you decided it just
wasn’t worth working those hours because the
COVID vaccine was right around the corner and it
was dangerous to work in a public place?
8. Again, Bingham takes issue with the Board’s characterization
of her refusals to work in January and February as a basis for its
fault determination. But once again, even if the Board erred in this
regard, Bingham’s fault is still established by the fact that she
knew she was unavailable and unable to work and yet continued
to apply for and receive benefits.
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Bingham v. Department of Workforce Services
[Bingham]: . . . I did not decide that.
[The ALJ]: I thought that’s what you told me.
[Bingham]: No, [the manager] and I discussed . . . it
and mutually agreed that this is not a good time to
come in for a few hours.
[The ALJ]: That’s what I was asking.
[Bingham]: I’m so sorry. It just sounded a little bit
different so I wanted to clarify that.
[The ALJ]: So . . . you all decided that it just wasn’t
worth working the four hours given the vaccine was
right around the corner[?]
[Bingham]: The danger, the danger of it and for my
age and the danger of it. She mutually agreed. . . . So
we discussed it and mutually agreed.
This testimony does not support Bingham’s assertion that it was
Employer who decided she should not come in. In that testimony,
Bingham informed the ALJ that they “mutually agreed” that she
should not come in. This is a far cry from Employer deciding, over
her objection, that she should not come to work. Thus, Bingham
at the very least took part in the decision not to return to work
until vaccinated, see supra ¶¶ 28–29, and this does not indicate that
the Board’s fault determination was an abuse of discretion.
¶39 For these reasons, we decline to set aside the Board’s fault
determination premised on its conclusion that the overpayment
was the fault of Bingham.
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Bingham v. Department of Workforce Services
III. Due Process
¶40 Bingham contends that her constitutional due process
rights were violated in three ways. First, she contends her rights
were violated because “the ALJ failed to give full deference to
[her] hearing impairment.” Second, she contends her rights were
violated because the ALJ and the Board relied on inadmissible
hearsay in making their decisions. Third, she argues that the
Board violated her due process rights when it did not accept and
consider her memorandum. These arguments are unavailing.
A. Hearing Impairment
¶41 Bingham’s primary argument is that her due process rights
were violated because she should have been given an in-person
hearing and when she was not given one, her testimony should
have been supplemented with her declaration. “At a minimum,
the right to due process requires that those with an interest in a
proceeding be given notice and an opportunity to be heard in a
meaningful manner before their interests are adjudicated by a
court.” Salt Lake Legal Def. Ass'n v. Atherton, 2011 UT 58, ¶ 2,
267
P.3d 227. Here, the only issue is whether Bingham received an
opportunity to be heard in a meaningful manner. To be heard in
a meaningful manner means that a party was given “an
opportunity to present evidence and argument on that issue
before decision.” Plumb v. State,
809 P.2d 734, 743 (Utah 1990). Our
review of the hearing leads us to conclude that Bingham did
receive a meaningful opportunity to be heard, and thus her due
process rights were not violated.
¶42 At the beginning of the hearing, the ALJ asked Bingham,
“Are you having any trouble hearing me now?” Bingham
responded, “I’m okay . . . it’s understanding. I hear, it’s the
understanding. [Y]ou did go fast but that’s okay, I think I got
pretty much all of it so . . . I think I’m ok at the moment, yes.” The
ALJ then told her to “be sure to stop me and tell me if there is
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Bingham v. Department of Workforce Services
something that you don’t understand or if you need me to repeat
it,” and he reemphasized that she should “feel free to interrupt me
at any time” if she needed something re-explained. Bingham
acknowledged this and thanked the ALJ. From our review of this
interaction and the remainder of the hearing, it seems that
Bingham was able to participate appropriately in the hearing,
even given her hearing impairment, and that she was given ample
opportunity to have things repeated if she could not hear them.
And throughout the hearing, the ALJ asked many questions and
Bingham, for the most part, seemed to respond appropriately
without any apparent hearing issues. And in the few instances
where she seemed confused, she was able to get clarification.
¶43 Nonetheless, Bingham points to instances when she
expressed confusion, such as when the ALJ asked at one point if
she had any questions, and she responded, “I’m not getting all the
information but I’m getting an overall view. . . . So I’m hanging in
there.” But again, the ALJ seemed to be cognizant of Bingham’s
hearing impairment and was attempting to make sure she was
hearing and understanding, and Bingham informed the ALJ that
she was able to hear and understand. Bingham also points to other
times when she seemed confused during the hearing. In these
instances, however, she seemed more confused about the content
being discussed, rather than being confused because she could not
hear, which does not support Bingham’s claim that her rights
were violated because she could not adequately hear what was
going on. Indeed, at the beginning of the hearing, Bingham even
informed the ALJ that she was struggling with “understanding”
the information, not with hearing it. Additionally, Bingham had
an informal representative assisting her during the hearing,
presumably to help compensate for her limited hearing. This
representative also proffered exhibits provided by Bingham, and
the ALJ accepted them.
¶44 Faced with the record before us showing that the ALJ was
aware of Bingham’s hearing impairment and worked hard to
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Bingham v. Department of Workforce Services
make sure she was able to hear him, that Bingham was able to
respond capably to the majority of the ALJ’s questions, that
Bingham often told the ALJ she was able to hear what was
occurring, that Bingham had assistance at the hearing, and that
Bingham was able to present evidence, we cannot say that she did
not have a meaningful opportunity to be heard at the hearing. See
Atherton, 2011 UT 58, ¶ 2; Plumb,
809 P.2d at 743. Thus, Bingham’s
due process rights were not violated on this ground.
¶45 Having correctly concluded that Bingham’s due process
rights were not violated by the telephonic format of the hearing,
the Board did not err in declining to consider her request to
supplement her testimony with an additional declaration when
she had already been provided ample opportunity to testify at the
hearing.9
B. Inadmissible Hearsay
¶46 Bingham contends that certain information provided by
the Department at the hearing before the ALJ was inadmissible
hearsay because no representative from Employer or the
Department was there to authenticate the information provided.
Even if we agreed with Bingham that this information constituted
inadmissible hearsay and that this presents a constitutional issue,
9. It is unlikely that the Board’s acceptance of the declaration
would have had any effect on its decision, given that in the
declaration Bingham again stated that she and her manager
“mutually considered it to be too dangerous for me to return to
work until I had been fully vaccinated.” Thus, even if the Board
considered the declaration, it would not have affected the Board’s
ultimate decision because, as previously discussed, this
concession that she and Employer “mutually” agreed to the leave
of absence goes a long way in undercutting Bingham’s claim for
unemployment benefits.
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Bingham v. Department of Workforce Services
Bingham still cannot prevail on her claim because she suffered no
prejudice even under the higher constitutional error standard.
¶47 All parties agree that in order for any constitutional error
to be harmless, it must be harmless beyond a reasonable doubt.
While we are skeptical that the
harmless-beyond-a-reasonable-doubt standard applies in this
context, even if that standard applies, the Department would still
have met its burden. “For us to hold a constitutional error
harmless, it must be harmless beyond a reasonable doubt. In other
words, the side which benefited by the error . . . must show
beyond a reasonable doubt that the error did not contribute to the
[result].” State v. Young, 853 P.2d 327, 359 (Utah 1993) (footnotes
omitted). Here, the Department meets this burden, which may not
be applicable in an administrative case in any event. It argues that
“neither the ALJ nor the Board relied on the challenged
document[s]” in coming to their decision to deny Bingham
benefits. Rather, it contends that the decisions by the ALJ and the
Board were primarily based on Bingham’s testimony, which
“amply supported” those decisions, making the allegedly
inadmissible documents irrelevant. We agree.
¶48 As previously discussed, Bingham testified numerous
times that she and Employer mutually decided that she would not
return to work until she was fully vaccinated. Thus, Bingham’s
testimony alone provided ample evidence that she was unable to
work and unavailable for work. And the Department has shown
that any error in reviewing the complained-of documents was
harmless beyond a reasonable doubt because the Board’s decision
to deny benefits would have been the same even if it did not
consider those documents. See
id.
C. Memorandum
¶49 Bingham contends that the Board violated her due process
rights by refusing to consider her belated memorandum, resulting
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Bingham v. Department of Workforce Services
in her not receiving “a full and fair hearing.” We disagree.
Bingham’s due process rights were not violated given that she
was provided the opportunity to be heard but failed to ensure that
her brief was received in a timely manner; the Board did nothing
to infringe on that opportunity and is not required to ensure that
claimants’ documents arrive on time. See State v. Hegbloom, 2014
UT App 213, ¶ 13,
362 P.3d 921 (explaining that due process
requires “adequate notice and an opportunity to be heard in a
meaningful way,” which is “the opportunity to present evidence
and argument on that issue”) (emphasis added) (quotation
otherwise simplified). And Bingham cites nothing to support the
proposition that an agency that declines to consider late briefing
treads on the constitutional rights of the individual. Thus,
Bingham’s due process rights were not violated, because she had
the opportunity to provide the Board with her memorandum but
was remiss in ensuring that it arrived on time.
CONCLUSION
¶50 We decline to disturb the Board’s decision denying
unemployment benefits to Bingham from January 24, 2021, to
May 15, 2021, because Bingham was unavailable or unable to
work during that time. The Board also did not exceed its
discretion in determining that Bingham was responsible for the
overpayment, requiring her to remit the benefits she received.
Finally, the Board did not violate Bingham’s due process rights in
not holding an in-person hearing, in considering allegedly
inadmissible evidence, and in not considering Bingham’s belated
memorandum.
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