Opinion
SUPREME COURT DOCKET NO. 2012-039 DOCKET NO. 11-11-057-01
07-16-2012
Curtis Karr v. Department of Labor (Capital Candy Co., Inc., Employer)
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Employment Security Board
In the above-entitled cause, the Clerk will enter:
Claimant appeals from an Employment Security Board decision, which concluded that claimant left his last employment voluntarily and without good cause attributable to his employer. Claimant argues that he was constructively discharged from his employment due to the behavior of his coworker. We affirm.
Claimant worked for employer stocking shelves. At the beginning of his employment, his employer spoke to him about working with a coworker who had a problem with anger management. Claimant knew the coworker and agreed to work with him. The two worked together in the cooler. The coworker yelled at and verbally abused claimant on a daily basis, emotionally exhausting claimant. Claimant gave his employer notice after four months, explaining he was quitting to look after his mother.
The claims adjudicator denied claimant's request for unemployment benefits, concluding that claimant voluntarily quit. Claimant appealed to an administrative law judge, arguing that the abuse from his coworker made his work environment unbearable and forced him to quit. Claimant testified that he left his employment due to the hostile work environment created by his coworker's behavior. Claimant stated that on one occasion, after working with the coworker for three months, he complained to his supervisor and was moved to another area of the warehouse for a few hours. After that incident, claimant did not bring any further issues to his employer regarding his coworker. Claimant explained that he did not tell his employer the real reason for leaving was his coworker's behavior because he did not want to get the coworker in trouble. The judge concluded that the abuse from claimant's coworker provided good cause to quit and that claimant had adequately attempted to resolve the issue by notifying his shift supervisor. The judge emphasized that since employer knew the coworker had anger problems, the employer bore some burden of monitoring the situation.
The employer appealed to the Board. Claimant was present at the hearing and employer was not. Claimant read some prepared remarks and then was questioned by a member of the Board regarding the specific actions he took to alert management about his problems with his coworker. In a written decision, the Board adopted the administrative judge's findings, made some additional findings, and reversed. The Board concluded that claimant did not make a sufficient effort to address his grievances with his employer before leaving and therefore that the cause was not attributable to his employer. Claimant appeals.
On appeal, the main issue is whether claimant's reason for quitting was a cause attributable to his employer. An employee is disqualified from unemployment benefits if the employee voluntarily leaves without good cause attributable to the employer. 21 V.S.A. § 1344(a)(2)(A). Where this is the sole issue on appeal, we give great weight to the decision of the Board. Cook v. Dep't of Emp't & Training, 143 Vt. 497, 501 (1983). The burden of proving good cause attributable to the employer is on the employee. Skudlarek v. Dep't of Emp't & Training, 160 Vt. 277, 280 (1993). "In determining good cause, we must examine each case according to a standard of reasonableness." Id.
Claimant argues that he quit because of the verbal abuse from his coworker and that his employer knew of the problem yet failed to adequately address it. Prior to leaving employment, an employee has a duty to attempt to resolve any workplace grievance or demonstrate that such an effort would be unavailing. Rushlow v. Dep't of Emp't & Training, 144 Vt. 328, 331 (1984). The Board concluded that claimant failed to make a sufficient effort to bring his concern to his employer's attention. As the Board explained:
other than a one-time, very temporary reassignment, the claimant does not appear to have made any real attempt to address the situation with his employer. In fact, he went out of his way to minimize his problems with [his coworker], going as far as giving the employer another reason entirely for quitting his job.The Board did not err in concluding that claimant made an insufficient effort to alert his employer about the situation with his coworker and give the employer an opportunity to resolve the issue. Claimant made one complaint to his shift supervisor concerning his coworker. The supervisor immediately responded by temporarily reassigning claimant to another area of the warehouse. Claimant worked another month with his coworker and in that time did not notify his employer of his ongoing problem with his coworker. Even at the time of his quitting, claimant fabricated an alternate reason for leaving his job. Therefore, claimant failed to give his employer an opportunity to resolve the situation.
Claimant also fails to demonstrate that notice to his employer would have been futile. The one complaint claimant made was answered with a swift response from his shift supervisor. Further, claimant's own testimony is that he did not report his coworker's abusive behavior because he did not want his coworker to lose his job. The fact that claimant expected this type of result demonstrates that he believed his employer would discipline the coworker in response to a complaint, not that his complaints would be unavailing. While claimant may have been trying to do the right thing for his coworker, he cannot now hold employer responsible for grievances that were not aired. Under this circumstance, employer did not have a reasonable opportunity to address claimant's concern and claimant lacked good cause attributable to his employer to quit.
On appeal, claimant also contends that the hearing before the Board was not fair because he was not on notice that the Board would ask questions and his traumatic brain injury (TBI) prevented him from adequately answering those questions. The Board's longstanding policy is to decide appeals on the record evidence submitted to the administrative law judge, although it may direct the judge to consider new evidence offered by a party and necessary to a proper disposition of the appeal. Piper v. Dep't of Labor, 2011 VT 32, ¶ 15, 189 Vt. 417; Frye v. Dep't of Emp't Sec., 134 Vt. 131, 133-34 (1976). The Board's policy is reflected both in its rules and the hearing letters sent to parties, such as claimant. See Rules of the Employment Security Board, Rule 14E, Code of Vt. Rules 24 005 001, available at: http://www.lexisnexis.com/hottopics/codeofvtrules. Thus, as we have held, it is error for the Board to elicit further evidence and to rely on that unsworn testimony in its decision. See Piper, 2011 VT 32, ¶ 16. In this case, however, we find no grounds for reversal. Claimant attended the hearing before the Board and his employer did not. After claimant read some prepared remarks, a Board member questioned claimant regarding the type of abuse he suffered and the steps he took to remedy the situation. The questions from the Board, and claimant's answers, did not appear to stray from what was presented to the administrative law judge and therefore any error in questioning claimant was harmless. See LeBarron v. Dep't of Emp't & Training, 150 Vt. 193, 195 (1988) (holding that admission of evidence before Board that was already part of the record was harmless error).
Moreover, we conclude there is no merit to claimant's assertion that the hearing before the Board was unfair because he wanted to provide the Board with more evidence, but his TBI prevented him from doing so. Claimant's due process rights were satisfied insofar as he had an opportunity to be heard, both before the administrative law judge and the Board. See Perry v. Dep't of Emp't Training, 147 Vt. 621, 623-24 (1987) (explaining that procedural due process applies to process for obtaining unemployment benefits). In any event, as explained above, he had no right to introduce new evidence before the Board and cannot allege error on the Board's part for his failure to request that additional evidence be admitted.
Affirmed.
BY THE COURT:
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Paul L. Reiber, Chief Justice
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice