Opinion
SUPREME COURT DOCKET NO. 2012-151
08-31-2012
James Kirkpatrick v. Department of Labor (Chittenden Supervisory School District, 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
DOCKET NO. 02-12-118-06
In the above-entitled cause, the Clerk will enter:
Claimant appeals pro se from a decision of the Employment Security Board denying his claim for unemployment benefits on the ground that he left his employment voluntarily without good cause attributable to the employer. We affirm.
Claimant worked for seven years as a bus driver for the Chittenden South Supervisory School District. He testified that, on Friday January 20, 2012, he was called into a meeting and informed by his supervisor that he had been transferred from his bus route in Shelburne to a different route in Williston. Claimant indicated that he wished to remain in Shelburne, but was informed that the transfer was not optional and that he could take a couple of days to think it over. Claimant took the following Monday off and on Tuesday, January 24, 2012, sent the District a letter of resignation effective immediately.
Claimant's application for unemployment benefits was denied by a claims adjuster for the Department of Labor on the ground that he had left his employment voluntarily without good cause attributable to the employer under 21 V.S.A. § 1344(a)(2)(A). Claimant appealed in a letter to the Department alleging a "hostile environment/harassment—based upon my sex/gender," "constructive discharge," and "retaliation." At the hearing before the ALJ, however, claimant's attorney stated that the only issue they intended to raise was whether the change in job assignments was reasonable. As counsel explained:
I view the only issue to be a narrow one here, and that's whether [claimant] left his employment with good cause attributable to his employment unit due to change in his job conditions, i.e., a reassignment to a different place twelve miles away. And events leading up to that I don't see this being broad [sic].
Based on that understanding, a limited number of exhibits were admitted and one document—a letter from the District to claimant, dated January 17, 2012 that referenced a recent disciplinary action against claimant—was specifically excluded as irrelevant.
Only two witnesses testified at the hearing: claimant and the District's director of human resources. Claimant testified that he lived in Shelburne across the street from the place where he picked up the bus for his morning route; the Williston school where he had been reassigned was twelve miles away. Claimant explained that his partner did not drive and that claimant routinely drove him to work in the morning and then returned to pick up his bus by 6:45 a.m. Claimant's partner worked for a temp agency and his employers varied, but he had recently been working in Williston and Essex.
Claimant testified that he had moved to Shelburne to be near his work, and felt that he had "no other alternative but to resign, because I could not make this change that quickly." Although the reassignment to Williston was actually closer to his partner's place of employment, claimant was concerned that the reassignment would become problematic if his partner's workplace changed. Claimant acknowledged that he did not ask for more time to make other transportation arrangements for his partner, but pointed out that he was told the reassignment was to take effect immediately. The District's human resources director testified that employee transfers within the District were common, but acknowledged that the District did not normally transfer bus drivers to different schools, particularly in the middle of the school year.
The ALJ concluded that the twelve-mile commute to Williston was not a significant alteration of claimant's employment, and that his partner's transportation needs did not provide the requisite good cause for leaving employment. Claimant appealed to the Board, reasserting his earlier claims of retaliation, hostile work environment, and discrimination. The Board, however, limited the hearing to the issues raised before the ALJ, and indicated that it would later consider whether to remand the matter to the ALJ to take evidence on the additional claims.
In its subsequent decision, the Board adopted the findings of the ALJ and concluded that the District's action in reassigning claimant to a different route within the District was reasonable and did not materially change the nature of his work. The Board found unpersuasive claimant's assertion that the transfer was unduly disruptive, noting that it actually decreased claimant's commute time since his partner had been working in Williston and Essex. As for the claims of retaliation and hostile work environment, the Board found that they had been waived by claimant's counsel, who expressly limited the issue at the administrative hearing to whether the twelve-mile commute constituted good cause to leave employment. Accordingly, the Board declined to remand the matter to the ALJ for additional evidence on those issues. This pro se appeal followed.
Although claimant mentions the reasonableness of his reassignment as an issue on appeal, he devotes almost the entirety of his briefing to asserting that he resigned because the District created a hostile work environment and retaliated against him for reporting misconduct, and that the Board should have allowed him to adduce evidence on these issues. As claimant states in his reply brief, the "appeal is based upon the fact [that] the . . . Board should have allowed his evidence to be heard to show [claimant] resigned due to discrimination and retaliation."
To the extent, however, that the reasonableness of the transfer remains an issue on appeal, we find no error in the Board's conclusion that it did not provide good cause for claimant to leave employment. Our review is limited. We will affirm the Board's findings if there is any credible evidence to support them, and its conclusions are reasonably supported by the findings. Piper v. Dep't of Labor, 2011 VT 32, ¶ 7, 189 Vt. 417. 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). Claimant here adduced no credible or persuasive evidence that his reassignment to a different bus route within the District materially altered his working conditions, or that the additional twelve-mile commute was unduly burdensome to his or his partner's employment commute. Cf. Piper, 2011 VT 32, ¶ 12 (affirming ALJ's finding that offer to work at out-of-state job site nearly five hours from employee's home did not constitute suitable alternative employment for purposes of eligibility for unemployment benefits). Accordingly, we find no basis to disturb the Board's conclusion that claimant left his employment without good cause attributable to the employer.
As for claimant's principal argument, we have made it clear that it is generally not proper for the Board to take new evidence, although it may choose to remand to the ALJ for that purpose. Id. ¶ 15. We have also held that "the decision to remand is within the discretion of the Board." Miner v. Dep't of Emp't & Training, 144 Vt. 211, 213 (1984). The record here is clear that claimant was aware of the possibility of bringing discrimination and retaliation claims against the District, having raised the issues in his letter of appeal from the decision of the claims adjuster. Nevertheless, claimant—while represented by counsel—affirmatively limited the issue at the administrative hearing to the reasonableness of the transfer. In light of this record, we cannot conclude that the Board abused its discretion in declining to remand to the ALJ to afford claimant a second opportunity to address the other issues. See id. (affirming Board's refusal to remand to ALJ for additional evidence where party "had the opportunity to present its evidence and chose, for whatever reason, to forgo that opportunity.").
Affirmed.
BY THE COURT:
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice
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Beth Robinson, Associate Justice