                 This opinion is subject to revision before final
                      publication in the Pacific Reporter

                                 2013 UT 41

                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH
                            CARBON COUNTY,
                               Petitioner,
                                   v.
                 WORKFORCE APPEALS BOARD,
            DEPARTMENT OF WORKFORCE SERVICES, and
                     WADE L. MARINONI,
                         Respondents.

                               No. 20120251
                             Filed July 9, 2013

            On Certiorari to the Utah Court of Appeals

                                 Attorneys:
            D. Scott Crook, Salt Lake City, for petitioner
         Suzan Pixton, Salt Lake City, for respondents
 Workforce Board of Appeals, Department of Workforce Services
        Blake A. Nakamura, Salt Lake City, for respondent
                      Wade L. Marinoni

  ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of the
   Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,
            JUSTICE PARRISH, and JUSTICE LEE joined.



  ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
                           INTRODUCTION
   ¶1 This case concerns the award of unemployment benefits to
an emergency medical technician (EMT) formerly employed by
Carbon County. Carbon County appealed the decision of the
Workforce Board of Appeals (Board) to the Utah Court of Appeals.
The court of appeals affirmed. It explained that the Board failed to
make certain critical factual findings, and that facts in the record,
even if uncontested, could not form the bases for legal arguments on
appeal absent such findings. We hold that the court of appeals erred
in declining to consider certain uncontested facts in its legal analysis,
                     CARBON COUNTY v. WFSV
                        Opinion of the Court

but affirm the court’s ultimate determination upholding the award
of unemployment benefits.
                          BACKGROUND
   ¶2 Mr. Marinoni was employed by Carbon County as an EMT.
He had worked as an EMT for eighteen years. He had one previous
disciplinary incident in which he received a verbal warning for
demanding overtime pay in a crew meeting when his supervisor
told him to cover a weekend shift.
   ¶3 In 2010, while working as a first-response EMT,
Mr. Marinoni received a call from a nurse in the Castleview
emergency room requesting a STAT transport—meaning an
immediate transport—of a patient to another hospital. Carbon
County did not have a written policy instructing employees on how
to conduct STAT transports. The employees who later testified
regarding the incident could not recall with any certainty the last
time STAT transport protocol was discussed during training.
Mr. Marinoni acknowledged that the nurse told him “the patient
was having an active MI1 with ongoing chest pain” and “they
wanted to see the patient in the cath lab as soon as possible.”
However, Mr. Marinoni said he did not “get the impression from
[the nurse] that it was that urgent of a call.” He did not identify the
request as a STAT transport because he believed that a STAT
transport request was only valid if it came from a doctor. The first
response team will often contact off-duty EMTs to fill regular
transports so that the first response team can be available for
emergencies and STAT transports. When Mr. Marinoni told the
nurse that he would “go ahead and fill the transport,” the nurse
“stated that was okay.” And when Mr. Marinoni called the hospital
back to explain that a regular transport would arrive in about twenty
minutes, another nurse told him “that would be fine.” It took
approximately fifteen to twenty minutes for the off-duty EMTs to
arrive and fill the transport.
   ¶4 When the off-duty EMTs arrived, they determined that the
situation was serious and they needed another EMT to assist them.
Mr. Marinoni ended up driving the ambulance. The other EMTs on
the trip stated that Mr. Marinoni drove too fast, and when the EMTs


   1
     MI stands for myocardial infarction, a medical term for heart
attack.

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                          Opinion of the Court

and the patient receiving the transport expressed concern,
Mr. Marinoni slowed down too much.
   ¶5 Mr. Marinoni was fired for failing to respond immediately
to the transport request. He applied for and was awarded
unemployment benefits. Carbon County appealed, arguing that it
had established the elements of just cause required to deny a
terminated employee unemployment benefits. The ALJ affirmed the
award of benefits. It found that Mr. Marinoni had acted in good
faith according to his understanding of his employer’s protocol.
Carbon County then appealed to the Board, which accepted the
ALJ’s findings of fact and affirmed. Carbon County next appealed
to the Utah Court of Appeals, which affirmed the award. Finally,
Carbon County petitioned for certiorari to this court. We granted
certiorari to determine whether the court of appeals erred when it
concluded that Carbon County’s arguments were predicated on
challenges to findings of fact and that Carbon County had failed to
preserve those challenges.2 We have jurisdiction under Utah Code
section 78A-3-102(3)(a).
                       STANDARD OF REVIEW
   ¶6 On certiorari, this court reviews the court of appeals’
decision for correctness.3 The court of appeals articulated the
standard of review applicable to the Board’s conclusions, which is
also relevant to our review.4 “[I]t is the province of the Board, not
appellate courts, to resolve conflicting evidence, and where
inconsistent inferences can be drawn from the same evidence, it is
for the Board to draw the inferences.”5 Furthermore, appellate


   2
     We also granted certiorari on a second question of whether the
court of appeals erred in failing to consider section 35A-4-508(8)(f)
of the Utah Code in connection with its preservation analysis.
Because we resolve the first question in the affirmative, we need not
address the second.
   3
       Rahofy v. Steadman, 2012 UT 70, ¶ 7, 289 P.3d 534.
   4
      See State v. Ramirez, 2012 UT 59, ¶ 7, 289 P.3d 444 (explaining
that the correctness of the court of appeals’ decision turns, in part, on
whether it applied the correct standard of review).
   5
       Carbon Cnty. v. Dep’t of Workforce Servs., 2012 UT App 4, ¶ 9, 269
                                                           (continued...)

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                       CARBON COUNTY v. WFSV
                          Opinion of the Court

courts should “give deference to the initial decision maker on
questions of fact because it stands in a superior position from which
to evaluate and weigh the evidence and assess the credibility and
accuracy of witnesses’ recollections.”6
   ¶7 As we recently explained in Murray v. Labor Commission, in
the absence of an express grant of discretion to an agency’s decision,
we do not apply an abuse of discretion standard7 and instead utilize
the standard framework employed in the review of trial court
decisions.8 Our review in this case presents a mixed question of law
and fact. “Mixed questions fall somewhere in the twilight between
deferential review of findings of fact and searching reconsideration
of conclusions of law.”9 As such, the standard we employ in
reviewing a mixed question “can be either deferential or non-
deferential.”10 We grant more deference in cases where “the mixed
finding is not ‘law-like’ because it does not lend itself to consistent
resolution by a uniform body of appellate precedent, and/or on the
premise that the mixed finding is ‘fact-like’ because the trial court [or
agency] is in a superior position to decide it.”11 This is such a case.
Due to the fact-intensive inquiry involved at the agency level, this
case “does not lend itself to consistent resolution by a uniform body
of appellate precedent.” Because of the fact-intensive conclusions
involved at the agency level, “the appellate court would be in an
inferior position to review the ‘correctness’ of the . . . decision”12 and
the Board’s award of unemployment benefits to Mr. Marinoni is
entitled to deference.

   5
    (...continued)
P.3d 969 (internal quotation marks omitted).
   6
        Drake v. Indus. Comm’n, 939 P.2d 177, 181 (Utah 1997).
   7
       2013 UT 38, ¶ 29, __ P.3d __.
   8
     Id. ¶ 23; see also id. ¶ 24 (“Mixed questions ‘involv[e] application
of a legal standard to a set of facts unique to a particular case.’”
(alteration in original) (quoting Manzanares v. Byington (In re
Adoption of Baby B.), 2012 UT 35, ¶ 40, __ P.3d __)).
   9
       In re Adoption of Baby B., 2012 UT 35, ¶ 42.
   10
        Murray, 2013 UT 38, ¶ 36.
   11
        In re Adoption of Baby B., 2012 UT 35, ¶ 42.
   12
        In re Adoption of Baby B., 2012 UT 35, ¶ 43.

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                        Opinion of the Court

                             ANALYSIS
   ¶8 This case requires us to determine whether the court of
appeals used the correct set of facts in making its legal
determinations. For the reasons explained below, we conclude that
the court of appeals correctly accepted the findings of fact in the ALJ
decision and the Board’s order because Carbon County expressly
stated that it was not challenging these facts on appeal. But the court
erred when it declined to consider certain undisputed facts apparent
in the record. When we consider the Board’s decision in light of
these undisputed facts, however, we determine that the error was
harmless. We therefore affirm the court of appeals on that ground.
         I. THE COURT OF APPEALS ERRED WHEN IT
          DECLINED TO CONSIDER AN UNDISPUTED
              FACT APPARENT IN THE RECORD
   ¶9 First, we note that the court of appeals correctly accepted the
ALJ’s and the Board’s factual findings. In its briefing to this court,
Carbon County insists that it “did not challenge the factual findings
regarding Marinoni’s purported subjective beliefs, nor did it
challenge the sufficiency of the factual findings made by the Board.”
But in its briefing to both this court and the court of appeals, Carbon
County included language challenging certain factual findings.
Carbon County’s briefing before this court states, “Marinoni delayed
the patient’s treatment by nearly one hour solely because he did not
want to go on the transport,” and its brief to the court of appeals
stated, “Marinoni’s testimony [that he did not know the STAT
protocol] is simply not credible on its face.” But the Board adopted
the ALJ’s findings of fact, which included that Mr. Marinoni “did not
identify this as a stat transport because the request had not come
from a doctor,” “did not sense any urgency from the nurse,” and
was on a response team that “often contact[ed] off duty EMTs for
non emergencies or regular transports so that the first response team
[could] be available for emergencies and stat transports.” When
parties expressly decline to challenge factual findings, we take them




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                      CARBON COUNTY v. WFSV
                         Opinion of the Court

at their word.13 The court of appeals was correct to accept the
Board’s factual findings, and this court is bound by them as well.

   ¶10 The court of appeals then explained that Carbon County’s
reliance on the fact that Mr. Marinoni “knew that the patient needing
to be transported was having an active heart attack” was
misplaced.14 According to the court of appeals, the Board “did not
definitively determine whether Marinoni knew the patient needing
to be transported was having an active heart attack,” and “Carbon
County did not object to the lack of such findings in the Board’s
decision.”15 The court of appeals cited A.O. v. State (State ex rel. K.F.)
for the proposition that Carbon County’s failure to alert the ALJ or
the Board of this gap in the evidence and supplement the order with
a specific finding means that Carbon County did not preserve the
issue for appeal.16




   13
     Furthermore, as the court of appeals noted, Carbon County did
not marshal the evidence to support the factual findings it
challenged on appeal. Carbon Cnty. v. Dep’t of Workforce Servs.,
2012 UT App 4, ¶ 6, 269 P.3d 969 (“Because Carbon County failed to
properly marshal, we normally would not review the whole record
to determine if the Board’s factual findings are supported by
substantial evidence.”).
   14
     Id. ¶ 7. The court of appeals also explained that Carbon County
could not, absent a more specific finding, rely on the fact that
Mr. Marinoni “knew that delaying medical treatment could cause
substantial harm to the patient.” Id. We think this fact fits squarely
within the analysis above, supra ¶ 8, and is foreclosed by the ALJ’s
unchallenged finding that Mr. Marinoni “did not sense any urgency
from the nurse” and the Board’s clarification in accepting the ALJ’s
findings that the ALJ “found the Claimant’s testimony regarding
how to handle a STAT request to be credible.” The Board also
explained that “[i]f the Claimant had considered the call to be urgent
and needing an ambulance STAT, he and the other employee on
duty, as first response team, would have done the transport.”
   15
        Id. ¶¶ 7–8.
   16
     Id. ¶ 7 (citing A.O. v. State (State ex rel. K.F.), 2009 UT 4,
¶¶ 61–63, 201 P.3d 985).

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                           Opinion of the Court

   ¶11 We do not think our case law governing challenges to the
specificity of a judge’s factual findings is controlling in this case. In
438 Main Street v. Easy Heat, Inc., the plaintiff challenged “the
sufficiency of [the judge’s] findings of fact, arguing that they [were]
legally insufficient because they fail[ed] to adequately disclose the
steps by which he reached his ultimate conclusion on each factual
issue.”17 State ex rel. K.F. also involved a challenge to a judge’s ruling
on the ground that the “court’s findings of fact were inadequately
detailed.”18 To preserve a challenge to the legal sufficiency of a
judge’s factual findings, we held in both cases that the party first
must give the judge an opportunity to supplement the findings.19
But Carbon County did not make the argument that the ALJ’s
findings of fact were legally insufficient. And neither 438 Main Street
nor State ex rel. K.F. requires a litigant to request that a judge add
undisputed facts to a ruling in order to preserve those facts for
appeal. Litigants are free to use the undisputed evidence in the
record to make legal arguments.20

   ¶12 The court of appeals’ opinion also suggests that the patient’s
condition was in dispute in a subtle way: “[A]lthough Marinoni did
not dispute what the nurse said in his written statement, Marinoni’s
testimony about what those statements meant to him, which
testimony the Board found credible, clearly disputed the meaning of
the nurse’s statements.”21 Although the urgency of the situation and
Mr. Marinoni’s understanding of his employer’s protocol were
disputed below—a dispute resolved by the finding that
Mr. Marinoni’s testimony on these issues was credible—it was
undisputed that the nurse told Mr. Marinoni the patient was having
a heart attack. It was also undisputed that the patient’s condition



   17
        2004 UT 72, ¶ 50, 99 P.3d 801.
   18
        2009 UT 4, ¶ 58.
   19
        438 Main St., 2004 UT 72, ¶ 56; State ex rel. K.F., 2009 UT 4, ¶ 64.
   20
      See Flying Diamond Oil Corp. v. Newton Sheep Co., 776 P.2d 618,
622 (Utah 1989) (explaining that an appellate court need not remand
for factual findings on critical issues “if the evidence in the record is
undisputed and the appellate court can fairly and properly resolve
the case on the record before it”).
   21
        Carbon Cnty., 2012 UT App 4, ¶ 10 n.5.

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                        Opinion of the Court

was in fact serious. Mr. Marinoni himself testified that the nurse
told him the patient was having an MI. And although he initially
felt the call was not urgent, he testified that after he picked up the
patient at the hospital and received the patient’s information, “I
thought we needed to get there in an urgent way.” Mr. Marinoni
never suggested that he disbelieved the nurse, only that he
misapprehended the situation’s urgency because the call had not
come from a doctor.22 The court of appeals correctly accepted the
fact that Mr. Marinoni initially believed that the call was not urgent,
but the court should also have accepted the undisputed fact that Mr.
Marinoni knew the patient was having a heart attack based on the
nurse’s call.

   ¶13 We therefore hold that the court of appeals did not err when
it concluded that some of Carbon County’s arguments were
predicated on challenges to findings of fact that Carbon County
explicitly abandoned. But the court did err when it refused to factor
into its legal conclusions the undisputed evidence in the record that
Mr. Marinoni knew the patient was having a heart attack.

           II. THE BOARD’S LEGAL CONCLUSIONS
           REGARDING CULPABILITY ARE WITHIN
                THE SCOPE OF THE DEFERENCE
            GRANTED TO THE BOARD’S DECISION
   ¶14 Factoring in the uncontested testimony that Mr. Marinoni
knew the patient was having a heart attack—a fact the Board likely
took into account without explicitly noting—we affirm the court of
appeals’ ultimate conclusion that the Board’s decision should be
upheld. Under Utah Administrative Code rule R994-405-201,
“[b]enefits will be denied if the claimant was discharged for just
cause or for an act or omission in connection with employment . . .
which was deliberate, willful, or wanton and adverse to the
employer’s rightful interest.” The rule continues by explaining that
“not every legitimate cause for discharge justifies a denial of


   22
       Mr. Marinoni did assert that “a lot of transports we get from
Castleview Hospital” suffer from “routine chest pain.” But this was
in response to a question about the urgency of chest pain
specifically: “And wouldn’t you think then if a patient is having
chest pains that that might be an urgent issue?” Mr. Marinoni then
testified that he understood the term MI to mean heart attack.

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                       Opinion of the Court

benefits. A just cause discharge must include some fault on the part
of the claimant.” As the Board further stressed, Carbon County
“may have made a good business decision in discharging
[Mr. Marinoni],” but the legitimacy of the discharge does not
necessarily justify the denial of benefits.

   ¶15 Utah Administrative Code rule R994-405-202 requires that
an employer prove three elements. To aid our analysis, we recite the
full text of the rule:

      (1) Culpability.
      The conduct causing the discharge must be so serious
      that continuing the employment relationship would
      jeopardize the employer’s rightful interest. If the
      conduct was an isolated incident of poor judgment
      and there was no expectation it would be continued or
      repeated, potential harm may not be shown. The
      claimant’s prior work record is an important factor in
      determining whether the conduct was an isolated
      incident or a good faith error in judgment. An
      employer might not be able to demonstrate that a
      single violation, even though harmful, would be
      repeated by a long-term employee with an established
      pattern of complying with the employer’s rules. In
      this instance, depending on the seriousness of the
      conduct, it may not be necessary for the employer to
      discharge the claimant to avoid future harm.
      (2) Knowledge.
      The claimant must have had knowledge of the conduct
      the employer expected. There does not need to be
      evidence of a deliberate intent to harm the employer;
      however, it must be shown the claimant should have
      been able to anticipate the negative effect of the
      conduct.     Generally, knowledge may not be
      established unless the employer gave a clear
      explanation of the expected behavior or had a written
      policy, except in the case of a violation of a universal
      standard of conduct. A specific warning is one way to
      show the claimant had knowledge of the expected
      conduct. After a warning the claimant should have
      been given an opportunity to correct the objectionable

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                       CARBON COUNTY v. WFSV
                         Opinion of the Court

        conduct.     If the employer had a progressive
        disciplinary procedure in place at the time of the
        separation, it generally must have been followed for
        knowledge to be established, except in the case of very
        severe infractions, including criminal actions.
        (3) Control.
        (a) The conduct causing the discharge must have
        been within the claimant’s control. Isolated instances
        of carelessness or good faith errors in judgment are not
        sufficient to establish just cause for discharge.
        However, continued inefficiency, repeated
        carelessness or evidence of a lack of care expected of
        a reasonable person in a similar circumstance may
        satisfy the element of control if the claimant had the
        ability to perform satisfactorily.
        (b) Department recognizes that in order to maintain
        efficiency it may be necessary to discharge workers
        who do not meet performance standards. While such
        a circumstance may provide a basis for discharge, this
        does not mean benefits will be denied. To satisfy the
        element of control in cases involving a discharge due
        to unsatisfactory work performance, it must be shown
        the claimant had the ability to perform the job duties
        in a satisfactory manner. In general, if the claimant
        made a good faith effort to meet the job requirements
        but failed to do so due to a lack of skill or ability and
        a discharge results, just cause is not established.
This court has explained that “[t]he Unemployment Security Act was
created to provide a cushion for the shocks and rigors of
unemployment and is to be liberally construed to assist those who
are attached to the work force.”23 An employer is well within its
rights to discharge an employee for unsatisfactory performance, but
“the rule is that mere inefficiency or failure of good performance as
the result of inability or incapacity, inadvertences, isolated instances
of ordinary negligence, or good-faith errors in judgment or decisions



   23
      Logan Reg’l Hosp. v. Bd. of Review of the Indus. Comm’n, 723 P.2d
427, 429 (Utah 1986).

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                       Opinion of the Court

do not constitute culpable conduct which precludes a discharged
employee from receiving unemployment compensation benefits.”24

   ¶16 The Board ruled that Carbon County failed to establish any
of the three elements, although the ALJ determined that Carbon
County failed to establish only the first two elements: culpability
and knowledge. We hold that the Board’s conclusions regarding the
first element, culpability, are entitled to deference.

   ¶17 Carbon County takes issue with language in the Board’s
opinion stating that Carbon County did not prove that the “conduct
was so harmful that discharge was its only option.” But the court of
appeals held that “when read in its entirety, the Board applied the
correct legal standard in weighing Marinoni’s past employment
history [against] the seriousness of his actions in not immediately
responding to a STAT call in accordance with Carbon County’s
unwritten policy.”25 We agree. The Board analyzed Mr. Marinoni’s
conduct in the context of our case law26 before ultimately concluding
that, given Mr. Marinoni’s eighteen-year employment history and
his understandable misapprehension of Carbon County’s policy, a
lesser form of discipline would have been sufficient to prevent
future harm.

   ¶18 Carbon County argues that the ALJ’s statement that
Mr. Marinoni “should have verified with a doctor about whether or
not this was a stat transport, even based on his understanding of the
policy at the time,” proves that Mr. Marinoni’s “conduct was not an
incident of poor judgment but was instead a volitional act.” Carbon
County then points to cases that provide examples of employees


   24
        Id.
   25
     Carbon Cnty. v. Dep’t of Workforce Servs., 2012 UT App 4, ¶ 15,
269 P.3d 969.
   26
     The Board discussed at length Logan Regional Hospital, 723 P.2d
427, where the court affirmed the Board’s award of benefits after an
employee failed to operate hospital equipment according to policy,
and Gibson v. Department of Employment Security, 840 P.2d 780 (Utah
Ct. App. 1992), where the court reversed the Board and awarded
benefits after an “unintentional and an unusual coincidence”
resulted in an employee with an “exemplary work record over
nearly twenty years” divulging security information, id. at 782, 785.

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                     CARBON COUNTY v. WFSV
                        Opinion of the Court

who were discharged for a single act of misconduct. Carbon County
misreads the ALJ’s statements. First, the record includes an
interview the Carbon County ambulance director conducted with
Mr. Marinoni two days after the incident:

        Ambulance
        Director:       If anyone besides a Doc. calls for a
                        stat [transport,] what is the standard
                        procedure or response from any
                        ambulance member?
        Mr. Marinoni: Ask to talk to the Doc. to confirm the
                      stat [transport] and get any further
                      info.

But Mr. Marinoni testified before the ALJ that, although he was
aware of the proper protocol when he answered that question, he
learned that information “in the days after” the incident.
Furthermore, the ALJ’s findings specifically state that Mr. Marinoni
“did not identify this as a stat transport because the request had not
come from a doctor” and did not ask to speak to a doctor because he
“did not sense any urgency from the nurse.” The ALJ concluded
that Mr. Marinoni “was acting in good faith . . . according to his
understanding of the protocol.”

   ¶19 In context, the statement that Mr. Marinoni “should have”
verified the STAT transport request with a doctor, even under his
understanding of the policy, does not mean that he deliberately
disobeyed the policy, especially since it is not clear that verification
was part of the policy. The record does not answer the question of
who has the authority to order a STAT transport. Even the written
policy, created in response to the incident in question, states only
that STAT transports “can be requested by any Doctor.”27 Despite
Mr. Marinoni’s conclusion that he should have verified the STAT
status of the transport request, he did not know that verification was
required under the policy. Mr. Marinoni’s comment that he should
have verified the request was made with the benefit of hindsight.


   27
     The written policy goes on to explain that STAT transport
requests should be verified by a doctor if requested by another
employee “to insure that the first call ambulance is not being
requested unnecessarily.”

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                          Opinion of the Court

The ALJ was similarly acknowledging that Mr. Marinoni’s conduct
was unsatisfactory and negligent. But “ordinary negligence[ ] or
good-faith errors in judgment or decisions do not constitute culpable
conduct which precludes a discharged employee from receiving
unemployment compensation benefits.”28 Additionally, although
the Board accepted the ALJ’s findings of fact, the sentence in
question appears in the ALJ’s analysis of the element of control, and
the Board reversed the ALJ on that issue.

   ¶20 Mr. Marinoni’s coworkers’ complaints regarding his driving
are troubling, but as the court of appeals noted, it was his failure to
act promptly after receiving the nurse’s call that was the basis for his
termination.29 There is no suggestion that Mr. Marinoni had ever
received complaints for his driving in the past, and the record is
clear that, although he did not respond to the satisfaction of his
coworkers, he did slow down. Furthermore, Carbon County has not
pointed to anything in the record specifying that Mr. Marinoni’s
driving, which his coworkers stated reached speeds of about ninety
to one hundred miles per hour, violated his employer’s STAT
transport policy.

   ¶21 Because we accept the finding that Mr. Marinoni’s failure to
act promptly when he received the call was a good faith error in
judgment, the cases Carbon County cites are distinguishable. Fieeiki
v. Department of Workforce Services involved a single act of
misconduct, but the misconduct in question was domestic violence
committed by a peace officer; it was “not an innocent mistake of
‘poor judgment’ or ordinary negligence, but rather a volitional act.”30
In Kehl v. Board of Review of Industrial Commission, the claimant
“knowingly violated a safety rule regarding forklift operations,” and




   28
        Logan Reg’l Hosp., 723 P.2d at 429.
   29
        See Carbon Cnty., 2012 UT App 4, ¶ 10 n.5.
   30
     2005 UT App 398, ¶ 5, 122 P.3d 706; see id. ¶ 4 (“While the
conduct in question may be an ‘isolated’ event, we cannot say it was
merely an ‘incident of poor judgment.’ Both parts of the phrase are
necessary, and simply because an event is ‘isolated’ is not enough to
negate a finding of culpability.” (citation omitted)).

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                        CARBON COUNTY v. WFSV
                          Opinion of the Court

the discharge was based on the claimant’s second offense.31 And in
Pecic v. Department of Workforce Services, the employee “had been
previously warned” about updating food temperature logs without
actually checking the food’s temperature when she was discharged
for repeating that conduct.32

   ¶22 There is little dispute that Mr. Marinoni made a serious
mistake, but as the court of appeals noted, “Carbon County must
bear some of the responsibility for Marinoni’s delayed reaction in
responding to the call because, as the Board found, the County had
not given its employees clear direction on how to handle a STAT
transport request from a nurse.”33 The potential risk in any case
involving an emergency response team is high, but the Board
determined that Mr. Marinoni’s eighteen-year work history and
good faith efforts at compliance outweighed the seriousness of the
misconduct and mitigated the potential for future harm to the
employer. The court of appeals explained that although the
potential for harm is high, “this court’s review is limited to whether
the Board’s determination was reasonable given its findings and not
whether we would have weighed the evidence differently or come
to a different conclusion if we were reviewing the Board’s decision
de novo.”34 We agree with the court of appeals that the Board’s
determination that Carbon County failed to establish culpability
should be upheld. We therefore affirm.

                            CONCLUSION

   ¶23 The Board determined that Carbon County did not meet its
burden to demonstrate just cause for termination and therefore
affirmed Mr. Marinoni’s award of unemployment benefits. The
court of appeals should have included in its legal calculations the
uncontested fact that Mr. Marinoni knew the patient was having a

   31
      700 P.2d 1129, 1132 (Utah 1985). Although the claimant in Kehl
had signed a card indicating she understood the procedure she was
later discharged for violating, she alleged that the exhaust fumes
from faulty equipment had affected her judgment. The ALJ
discounted this testimony. Id. at 1131–32.
   32
        2011 UT App 115, ¶ 3, 251 P.3d 869.
   33
        Carbon Cnty., 2012 UT App 4, ¶ 10 n.5.
   34
        Id. ¶ 16 n.6.

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                      Opinion of the Court

heart attack, but we reach the same result regardless. The Board’s
decision falls within the scope of afforded deference. We therefore
affirm.




                                15
