Garlot, Florine

Utah Court of Appeals

bepress Legal Repository

Nigohosian v. Workforce Appeals Board : Brief of Petitioner

Brigham Young University Law School

Brigham Young University Law SchoolBYU Law Digital CommonsUtah Court of Appeals Briefs2008Nigohosian v. Workforce Appeals Board : Brief ofPetitionerUtah Court of AppealsFollow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca3Part of the Law CommonsOriginal Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter LawLibrary, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generatedOCR, may contain errors.Joseph E. Hatch; Attorney for Petitioner.Suzan Pixton; Workforce Appeals Board Department of Workforce Services; Attorney forRespondent.This Legal Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of AppealsBriefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available athttp://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at hunterlawlibrary@byu.edu withquestions or feedback.Recommended CitationLegal Brief, Nigohosian v. Workforce Appeals Board, No. 20080945 (Utah Court of Appeals, 2008).https://digitalcommons.law.byu.edu/byu_ca3/1287IN THE UTAH COURT OF APPEALS ___________________________________________________________________ROBERT H. NIGOHOSIAN, Petitioner,vs.WORKFORCE APPEALS BOARD,DEPARTMENT OF WORKFORCESERVICES, and SALT LAKECOMMUNITY COLLEGE                        Respondents,             Appeal No. 20080945Agency Case No. 08-R-00498                                        REPLY BRIEF OF PETITIONER____________________________________________________________________PETITION FOR REVIEWFROM FINAL DECISION OF THE WORKFORCE APPEALS BOARD______________________________________________________________________________Suzann Pixton (2608) Joseph E. Hatch (1415)Workforce Appeals Board 5295 So. Commerce DriveDepartment of Workforce Services Suite 200140 East 300 South                                        Murray, UT  84107          Salt Lake City, UT  84145-0244          Attorney for Petitioner          Attorney for Respondents                              Robert H. Nigohosian          Workforce Appeals Board and           Department Of Workforce Services    iiiTABLE OF CONTENTSTABLE OF CONTENTS iTABLE OF AUTHORITIES iARGUMENTPOINT I:  Respondents mischaracterize Petitioner’s case 1POINT II:  No one knows why the Board ruled 2POINT III:  The Faculty Recommendation is relevant, if not          conclusive  3CONCLUSION  4TABLE OF AUTHORITIESCasesAdams v. Board of Review of Industrial Commission,et. al., 821 P.2d 1 (Utah App., 1991) 2ii1ARGUMENTPOINT I:  Respondents mischaracterize Petitioner’s case.The Respondents, Workforce Appeals Board and Department of WorkforceServices (hereinafter sometimes “Board” or “Workforce Appeals Board”) haveargued that Petitioner has failed to marshal all the evidence to successfully“challenge” the finding that the Petitioner Robert Nigohosian (hereinafter sometimes“Nigohosian”) “knew” that his behavior as an employee was inappropriate.  (SeeBrief of Respondent, pp. 14-16).  This argument would have validity shouldNigohosian be requesting, with this appeal, a reversal of the rulings of WorkforceAppeals Board on one of its factual findings.  Instead, Nigohosian is requesting thatthe order of the Workforce Appeals Board, denying Nigohosian’s motion to reopenthe case so the Board could reconsider its decision in light of new evidence, bereversed and the matter be remanded for further consideration.Nigohosian is not requesting any weighing of facts as suggested byRespondents in their brief.  Nigohosian’s request is purely legal.2POINT II:  No one knows why the Board ruled.In their Brief, the Respondents claim, “Because the Board had a copy of therecommendation when it denied the Request for Reconsideration, the Boardeffectively considered that document.”  (See Brief of Respondent, p. 9).  Thisstatement assumes that we can read the minds of the Board.  Reviewing the decisionof the Board should never require the mind reading of the Board.  This Court veryclearly said as much in Adams v. Board of Review of Industrial Commission, et. al.,821 P. 2d 1 (Utah App., 1991) when it held:An administrative agency must make findings offact and conclusions of law that are adequatelydetailed so as to permit meaningful appellate review.In order for us to meaningfully review the findingsof the Commission, the findings must be “sufficientlydetailed and include enough subsidiary facts todisclose the steps by which the ultimate conclusion on each factual issue was reached.” … [T]hefailure of an agency to make adequate findings offact in material issues renders its findings “arbitraryand capricious” unless the evidence is “clear,uncontroverted and capable of only one conclusion.”[Citations omitted]821 P. 2d at 4.What Nigohosian is requesting, with this appeal, is for the Board to state itsreasons, in writing, why the Board refused to reopen the record to include theemployee’s Faculty Recommendation.  Nigohosian has argued in his opening briefithat, legally, it is an abuse of the Board’s discretion not to reopen the case to includethe Faculty Recommendation as a part of the record for consideration.  Therefore, theBoard should have stated, in writing, whether or not that Recommendation alters theBoard’s conclusion that Nigohosian was not entitled to unemployment benefits.POINT III:  The Faculty Recommendation is relevant, if not conclusive.Respondents make the point that, under Utah law, the Department ofWorkforce Services and the Workforce Appeals Board has the authority to determinewhether or not Nigohosian is eligible for unemployment benefits.  Of course,Nigohosian agrees with this assertion.  However, Nigohosian believes that, under anydefinition of relevance, the Faculty Recommendation is relevant evidence which mustbe considered by the Board in making its determination as to eligibility forunemployment benefits.Nigohosian has never argued, as alleged by Respondents, that the FacultyRecommendation is “binding” upon the Board.  The Board has the authority and theresponsibility to weigh all relevant evidence and come to its independent conclusionssupported by the evidence.  Nigohosian is merely requesting that the Board weigh allthe evidence.CONCLUSIONAt this stage of the process, Nigohosian is not requesting a reversal of a findingof the Board; instead, Nigohosian is requesting that the Board reopen the record toinclude the Faculty Recommendation and then reconsider the Board’s findings, inlight of that Recommendation.Respectfully submitted this ____ day of __________, 2009._______________________________Joseph E. HatchAttorney for Petitioner                     iiMAILING CERTIFICATEI hereby certify that on the ____ day of _______________, 2009, two trueand correct copies of the foregoing Reply Brief Of Petitioners was mailedpostage pre-paid to the following:Suzann Pixton Workforce Appeals BoardDepartment of Workforce Services140 East 300 SouthSalt Lake City, UT  84145-0244

English

HAL Clermont Université